[Congressional Record Volume 144, Number 2 (Wednesday, January 28, 1998)]
[Senate]
[Pages S73-S82]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             THE JUDICIARY

  The legislative clerk read the nomination of Ann L. Aiken, of Oregon, 
to be United States District Judge for the District of Oregon, the 
nomination of Barry G. Silverman, of Arizona, to be United States 
Circuit Judge for the Ninth Circuit, and the nomination of Richard W. 
Story, of Georgia, to be United States District Judge for the Northern 
District of Georgia.
  The Senate proceeded to consider the nominations.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise today to support the nomination of 
Ann Aiken to the federal district bench in Oregon. I know too that my 
distinguished colleagues from that State, Senators Smith and Wyden, 
wholeheartedly support this nominee.
  And it is no wonder that Judge Aiken enjoys their support. She has 
served as a state district and circuit court judge for nearly a decade. 
Before that, she worked in private practice and had extensive 
involvement in Oregon statehouse politics. Perhaps most significantly, 
she is the mother of 5 children. As the father of 6 myself, I can think 
of no better preparation for the bench than first having served as the 
referee of a large family.
  I plan to discuss in greater detail why I intend to support Judge 
Aiken's nomination, but first, I would like to address some of the 
concerns that have been expressed with respect to the Senate's role in 
the confirmation of federal judges. As Chairman of the Senate Judiciary 
Committee, one of the most important duties I fulfill is in screening 
judicial nominees. Indeed, the Constitution itself obligates the Senate 
to

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provide the President with advice concerning his nominees and to 
consent to their ultimate confirmation. Although some have complained 
about the pace at which the Senate has moved on judicial nominees, I 
would note that this body has undertaken its constitutional obligation 
in a wholly appropriate fashion. Indeed, the first matter to come 
before the Senate this session are the confirmation of three of 
President Clinton's judicial nominees. Senator Lott is to be commended 
for giving these nominees early attention. As well, the Judiciary 
Committee has already announced judicial confirmation hearings for 
February 4 and February 25.
  In 1997, the first session of the 105th Congress, the Senate 
confirmed 36 judges. This is only slightly behind the historical 
average of 41 judges confirmed during the first sessions in each of the 
last five Congresses. And, I would note, the Judiciary Committee itself 
processed 47 nominees--including the three judges we will be 
considering today.
  Keep in mind that the Clinton Administration is on record as having 
stated that 63 vacancies--a vacancy rate just over 7%--is considered 
virtual full employment of the federal judiciary. The current vacancy 
rate--88 vacancies--is a vacancy rate of approximately 10%. Some of 
those vacancies occurred after the Senate recess last year, however. 
How can a rise in the vacancy rate--from 7% to 10%--convert ``full 
employment'' into a ``crisis''? Although we can always do better, this 
is a record of which I am proud.
  I would further add that there are currently 32 vacancies for which 
the Committee has yet to receive a nomination. As hard as I work, I 
have never been able to confirm a person that has not yet been 
nominated. And I have to say that there were more vacancies just up 
until a few days ago.
  This is a point, gone largely unnoticed by the popular press, that 
Chief Justice Rehnquist recently made in his Annual Report on the 
Judiciary. In that report he urged, among other things, that certain 
judicial vacancies be filled. I would ask you to compare today's 88 
judicial vacancies with the record of a Democratic Senate during 
President Bush's presidency. In May 1992 there were 117 vacancies on 
the federal bench. And, interestingly enough, the Chief Justice made 
basically the same remarks back in 1992 that he did this past month. 
The only real difference that I can see, however, is that in the days 
immediately following the Chief Justice's remarks we have a plethora of 
media acting as though there were some big crisis developing basically 
fomented by the White House and some down at the Justice Department. I 
might say that in the days immediately following Chief Justice 
Rehnquist's criticism back in 1992 when there was a Democrat Congress, 
there were only a handful of newspapers who even bothered to report on 
the judicial vacancy issue even though there were 117 vacancies during 
that period of time, and even more. At one time in 1991 there were 148 
vacancies, and hardly a peep out of the media, or hardly a peep out of 
any of the so-called ``critics'' of today. So it seems that when a 
Republican President confronted a Democrat Senate on the issue of 
judicial vacancies the press seemed to be considerably less interested.

  That I think is the state of affairs in Washington. We are all used 
to it. But I just wanted to point that out because I think it is pretty 
fallacious to blame the Senate when in many instances we don't have any 
nominees to fill the position, especially when some of the nominees who 
came over had problems from the last Congress as well.
  And the number of vacancies is not nearly as problematic as it might 
appear, at first blush. In fact, there are more sitting federal judges 
today than there were throughout virtually all of the Reagan and Bush 
administrations. As of today, there are 756 active federal judges. In 
addition, there are 432 senior judges who must, by law, hear cases, 
albeit with a reduced load but nevertheless taking the burden off of 
the sitting full-time judges. Ordinarily, when a judge decides to leave 
the bench, she does not completely retire, but instead takes senior 
status. A judge who takes senior status, as opposed to a judge who 
completely retires, must hear a certain number of cases each year. 
Thus, when a judge leaves the bench, she does not stop working 
altogether, she merely takes a somewhat reduced caseload. Even in the 
ninth circuit, which has ten vacancies, only one judge has actually 
stopped hearing cases; the other have taken senior status and are still 
hearing cases. The total pool of federal judges available to hear cases 
is 1,188--a record number of federal judges. So this so-called 
``crisis'' has been fomented, frankly, by partisan people at the White 
House and some at the Justice Department, and, frankly, it is beneath 
their dignity to do this. I will say that there is room for 
improvement, and certainly we on the Judiciary Committee want to do 
everything we can to improve it. I hope that those who manage the floor 
will feel the same way and do the same thing.

  And some in the media have failed to read completely the Chief 
Justice's report, or, if they ignored all of the other aspects of the 
report.
  In fact, his report centered on the problem of judicial workload--not 
judicial vacancies. He went on to compliment the Senate for enacting 
habeas corpus and prison litigation reform, two of the bills that I 
have pushed hard for. The Chief observed that these two vital reforms, 
which I sponsored, will greatly reduce the federal courts' workload. He 
also asked Congress to curb federal jurisdiction and to provide better 
pay for federal judges. I think we may be able to make progress on both 
those fronts this session in addition to moving qualified judicial 
nominees.
  I was disappointed to read in the Washington Post a week or so ago 
that the Clinton White House, ``galvanized by the critique by Chief 
Justice Rehnquist,'' has tapped communications director Ann Lewis to 
head a ``fullscale political confrontation'' over judicial 
appointments. [Washington Post, Jan. 16, 1998]. According to the Post, 
part of the so-called ``campaign'' plan is to paint Republicans as 
anti-women and anti-minority.
  There is no depth to which they will stoop in trying to win political 
points down there. Frankly, I don't think the American people buy that.
  This is certainly a poor way to begin what I hope will turn out to be 
a cooperative effort to confirm federal judges. We should not play race 
or gender politics with judges, and I personally resent that. I have 
never considered, much less kept track of, the race or gender of the 
nominees that have been submitted for the Committee's approval. And I 
don't think anyone else does. I oppose, and support, nominees on the 
basis of their professional qualifications and their commitment to 
uphold the rule of law--their commitment or lack of commitment. In the 
final analysis, all that matters is whether a nominee will make a good 
judge. I hope this is the standard the White House uses as well.
  Nor will the Judiciary Committee, under my stewardship, push nominees 
through just for the sake of filling vacancies. Only recently, after 
the Judiciary Committee had expeditiously reviewed and held hearings on 
two nominees, did information surface that caused one of those nominees 
to withdraw and that places the other nominee's confirmation prospects 
in jeopardy. There is a good deal of background research that must be 
done by the Judiciary Committee before we can send a nominee to the 
floor. If the Committee fails to do the groundwork, it fails the 
Senate, and prevents this body from fulfilling its constitutional duty.
  And it is no secret that Senators rely on us doing this duty in a 
bipartisan way, and I believe for the most part we have.
  The reality, of course, is that the Republican Senate has confirmed 
the vast majority of President Clinton's judicial nominees. Even the 
Washington Post expressed dismay over the administration's efforts to 
politicize the nominations process, writing on its editorial page that 
the campaign could ``grind the nominations process to a halt.''
  So I urge the White House to reconsider their plans to politicize the 
Federal judiciary and the process because, if they do, I think they are 
going to have nothing but problems up here. I would like to help them. 
I would like to be cooperative. I would like to make sure that good 
nominees get through expeditiously and in the best way.

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  Last year I sought to steer the confirmation process in a way that 
kept it a fair and principled one and exercised what I felt was the 
appropriate degree of deference to the President's judicial selections 
and appointees. It is in this spirit of fairness that I will vote to 
confirm Judge Aiken.
  Conducting a fair confirmation process, however, does not mean 
granting the President carte blanche in filling the Federal judiciary. 
It means assuring that those who are confirmed will uphold the 
Constitution and abide by the rule of law.
  Based upon the committee's review of her record, I believe Ann Aiken 
to be such a person. Now, Judge Aiken likely would not be my choice if 
I were sitting in the Oval Office, but the President has seen fit to 
nominate her. She has the bipartisan support of both Senators from 
Oregon, and the review conducted by my committee suggests that she 
understands the proper role of a judge in our Federal system and will 
abide by the rule of law. She has personally assured me that she will, 
which goes a long way towards obtaining my vote here today.
  I will also state that both Senators have actively advocated in her 
behalf, especially the distinguished junior Senator from Oregon, Mr. 
Smith. He has continuously fought for her--fought for her right to have 
her nomination hearing, fought for her right to be heard in that 
hearing, and fought for her right to be passed out of the committee and 
on to the floor. I notice that he is here today to fight for her 
confirmation on the floor.
  Based on the committee's review of the record, I believe that Judge 
Aiken is a good choice. In fact, when asked whether there were any so-
called constitutional rights that existed independent of the 
Constitution itself, Judge Aiken replied ``No, sir. The Constitution is 
one of the most elegantly written documents. The words of the 
Constitution are clear. It expresses the rights that are given. I find 
no need to look beyond those express words and the document itself.''
  This is precisely the type of answer I would expect of any Federal 
judicial nominee. Of course, sometimes people say things they do not 
mean. But I am willing to give this nominee as well as any nominee the 
benefit of the doubt unless the evidence is overwhelmingly to the 
contrary.
  It is also significant to me that when asked what judge or justice 
has most influenced her thinking, she replied, ``Justice Felix 
Frankfurter, because of his staunch adherence to the principle of 
judicial restraint and his reluctance to substitute the inclinations of 
the court for the express will of the legislature.''
  She has demonstrated to me that she understands the proper role of a 
Federal judge in our constitutional system. But more than that, it is 
important that a judge give more than lip service to principles of 
judicial restraint. Rather, a good judge will internalize and abide by 
those principles. I have no reason to believe that Judge Aiken will not 
do precisely that.
  Moreover, I do not think anyone seriously believes that Judge Aiken 
is not qualified to sit on the Federal bench. She is currently a judge 
on the Oregon circuit court. She attended the University of Oregon both 
for her undergraduate and juris doctorate degrees, and she received a 
master's degree from Rutgers University. Prior to her appointment to 
the bench, Judge Aiken practiced largely in the area of domestic 
relations law. She focused on child custody, foster care and family 
preservation cases. As anyone who has ever engaged in the practice of 
law knows, domestic disputes of this type truly require the wisdom of 
Solomon.

  In sum, I join Senators Smith and Wyden in supporting this nominee 
and once again ask the White House to work with, not against, the 
Senate in seeking out qualified individuals to serve on the Federal 
bench.
  With that, I notice my colleague, the ranking member on the 
committee, is here, and I will yield the floor.
  Mr. LEAHY. I suggest the absence of a quorum.
  Mr. SMITH of Oregon addressed the Chair.
  Mr. LEAHY. Mr. President, I do want to respond. If the Senator from 
Oregon could withhold and let me put this quorum call in for just a 
moment, I am then going to call it off.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, the Chief Justice of the U.S. Supreme Court 
has spoken out forcefully on the judicial vacancy crisis that is 
plaguing our Federal courts. He is correct that: ``Vacancies cannot 
remain at such high levels indefinitely without eroding the quality of 
justice that traditionally has been associated with the Federal 
judiciary.''
  Partisan and narrow ideological efforts to impose political litmus 
tests on judicial nominees and shut down the judiciary have to stop. 
They hold no place, whether you have a Democrat as President or a 
Republican as President. The judiciary should not be part of a partisan 
or ideological power struggle. And I think that all of us as Senators 
in the most powerful democracy history has ever known have a stake in 
keeping an independent judiciary.
  Now, we begin 1998 still facing vacancies of about one out of every 
10 judgeships. More than a third of these are what are called judicial 
emergencies. They have been empty for more than a year and a half. 
Unfortunately, during the last 3 years in the Senate, under the control 
of my friends across the aisle, the Senate has barely matched the 1-
year total of judges confirmed in 1994 when we were on course to end 
the vacancy gap.
  In the 1996 session, the Senate confirmed only 17 judges, none for 
the Federal courts of appeals. We began last year with the Chief 
Justice of the United States Supreme Court expressing in the year-end 
1996 report on the Federal judiciary his ``hope'' that the Senate would 
``recognize that filling judicial vacancies is crucial to the fair and 
effective administration of justice.''
  Through the course of last year, at virtually each meeting of the 
Judiciary Committee, certainly at each confirmation hearing, and in a 
number of statements on the Senate floor, I urged the Senate and the 
Republican leadership and those responsible for holding up much-needed 
judges to abandon what I saw as ill-advised efforts.
  In July, seven national lawyer organizations spoke out. In August, 
the Attorney General spoke about the ``vacancy crisis that has left so 
many Americans waiting for justice,'' and ``the unprecedented slowdown 
of the confirmation process'' and its ``very real and very detrimental 
impacts on all parts of our justice system.''
  Last September, the President of the United States pointed out the 
dangers of partisan politics infecting the confirmation process. He 
called upon the Senate to fulfill its constitutional duty and end ``the 
intimidation, the delay, the shrill voices.''
  In his 1997 year-end report, Chief Justice Rehnquist focused again on 
the problems of ``too few judges and too much work.'' He noted the 
vacancy crisis and the persistence of 26 judiciary emergency vacancies, 
and he observed: ``Some current nominees have been waiting a 
considerable time for a Senate Judiciary Committee vote or a final 
floor vote. The Senate confirmed only 17 judges in 1996 and 36 in 1997, 
well under the 101 judges it confirmed in 1994.''

  Last night in his State of the Union Address the President of the 
United States again returned to the matter of the vacancy crisis and 
the need to provide the courts with the judges and other resources they 
need effectively to administer Federal criminal and civil justice 
across the country. The President did more than talk yesterday. He also 
sent us another dozen judicial nominees to help fill the vacancies. 
That brings to 54 the number of judicial nominees that are pending 
currently before the Senate.
  The Senate still has pending before it 11 nominees who were first 
nominated 2 years ago, including five who have been pending since 1995. 
We are finally going to vote on one of them this afternoon, Judge Ann 
L. Aiken.
  I see my good friend, the Senator from Oregon, Mr. Wyden, in the 
Chamber. I must say, Mr. President, as much as I like Senator Wyden, it 
got to the point that I almost hated to see him

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coming down the hall because he pounded so often on me: ``Let's get 
this fine woman confirmed.'' He has been doing this year after year. He 
has expressed to me and to other Senators and to the leadership of the 
Judiciary Committee: ``Let's get this woman confirmed.'' And he has 
expressed to me how well qualified she is, how superbly qualified she 
is. He has made his case with passion and with integrity, which is his 
nature. I say to him, while I am always hesitant to predict any vote, I 
suspect that she is going to be confirmed overwhelmingly today, and I 
applaud the Senator for not giving up, I applaud the Senator from 
Oregon for not giving up all those years that he fought so hard to get 
her here. I know that both he and the other Senator from Oregon, who is 
also in the Chamber, Mr. Smith, will be voting for her with great 
enthusiasm.
  But there remains no excuse for the Senate's delay in considering the 
nominations of such outstanding individuals as Prof. William A. 
Fletcher, Judge James A. Beaty, Jr., Judge Richard A. Paez, M. Margaret 
McKeown, Susan Oki Mollway, Margaret M. Morrow, Clarence J. Sundram, 
Anabelle Rodriguez, Michael D. Schattman, and Hilda G. Tagle.
  I mention these people because all of these nominees have been 
waiting at least 18 months, some more than 2 years, for Senate action.
  Last year the Senate confirmed 36 judges, but that has to be seen in 
relation to the 120 vacancies through the course of the year and the 55 
judgeships in addition to the current vacancies that the Judicial 
Conference urged Congress to authorize in order to meet the workload 
demand of all of the new laws that we have passed and, of course, a 
growing country.
  Last year's confirmations did not approach the 58 judges confirmed in 
the 1995 session or even keep up with the vacancies that came from 
normal attrition.
  Last year the President sent us 79 judicial nominations. The Senate 
completed action on fewer than half of them. The percentage of judicial 
nominees confirmed over the course of last year was lower than for any 
Congress over the last three decades, possibly any time in our history. 
Left pending were 42 judicial nominees, including 21 to fill judicial 
emergencies.
  Last year the Senate never reduced its backlog of pending judicial 
nominees below 20 and at the end of the year had a backlog of over 40 
nominees. With the dozen additional nominees received yesterday, the 
Senate's backlog of nominees as we begin the year has topped 50. The 
Administration is demonstrating its resolve to nominate good people to 
fill these vacancies. They are doing their job.

  It is up to the Senate now to do its job. Have the hearings. Vote 
them up or vote them down. Just don't leave them in limbo. If we don't 
like the nominee that the President has sent up, then vote him or her 
down. We are used to voting around here. We can do that very easily. 
But don't leave them sitting there never knowing what is going to 
happen.
  In connection with the President's national radio address last 
September 27, we finally quickened the pace of judicial confirmations, 
and during the last 9 weeks of the Senate's last session the Senate 
held five confirmation hearings and confirmed 27 judges. I compliment 
the chairman of the Senate Judiciary Committee for making that 
possible.
  In response to the criticism of the Chief Justice, though, the 
chairman has argued that the Senate is on a steady course and making 
steady progress. But it was only in the last 9 weeks of the last 
session that we were able to achieve a pace that can make a difference. 
I urge my good friend, the chairman--and he is my good friend--to help 
the Senate maintain that pace this year.
  If we can maintain the same pace we had in the last 9 weeks of the 
last session, we can end the judicial vacancy crisis that now threatens 
the administration of justice by our Federal courts. I will commit 
myself to work with him in any way he wants to do that--have hearings 
on weekends, hearings in the evening, whatever he chooses--so that we 
can go forward and maintain the same pace. I compliment the chairman 
for the pace of those last few weeks. I urge him to do the same for 
this year. That is the challenge that lies before us as Congress begins 
anew.
  The Chief Justice compared the past 2 years of Senate inaction to the 
record of the 1994 session. That was a Democrat-controlled Senate. We 
worked hard to consider and confirm 101 judges, including a Supreme 
Court Justice. To make a difference, however, the Senate this year, 
1998, need only maintain the pace it reached last fall, 27 judges every 
9 weeks. That really should be the measure of the Senate's effort this 
year. Do what we did at the end of the session last year, do it 
throughout this year, and we in the Senate can make a difference for 
the judicial system.
  It will be easy to monitor our progress. Any week in which the Senate 
does not confirm three judges is a week in which the Senate is failing 
to address the vacancy crisis. Any fortnight in which we have gone 
without a judicial confirmation hearing marks 2 weeks in which we are 
falling farther behind.
  I am delighted that the majority leader and the chairman of the 
Judiciary Committee have scheduled three nominees for consideration by 
the Senate today. I thank the majority leader and thank the Senator 
from Utah for their cooperation and attention to these matters. I look 
forward to prompt Senate consideration of the other five nominees if 
they are still pending on the Senate calendar. I would also be willing 
to bet that most of these nominees would not get even a tiny handful of 
votes against them and that they are going to pass overwhelmingly.
  I note that the chairman of the Judiciary Committee has noticed a 
judiciary hearing for next week. This notice, and what is happening 
today, are positive developments. They are signs that the Senate is 
taking to heart its constitutional duty to consider judicial nominees 
without further delay. While I hope it does not hurt him on his side of 
the aisle, I want to commend the Senator from Utah for his actions. I 
suspect if the two of us were allowed, without any of the political 
pressures on either side, to work this out, we could probably move 
ahead more quickly.
  But the warning from the Chief Justice in his year-end report is more 
than a question of numbers. This is the responsibility every Senator 
has, Republican or Democrat. Our responsibility first and foremost is 
to the country, not to individual parties. Our solemn oath is to uphold 
the Constitution of the United States. That is what should motivate 
every one of us here. We have to look at this country, the greatest 
exercise of democracy history has ever seen, the most powerful 
democracy history has ever known, and recognize that it stays that way 
because of the checks and balances between the legislative, judiciary 
and executive branches. A hallmark of that has been the independence, 
throughout our 200-plus year history, of the Federal judiciary. If we 
allow this to become a partisan football, this confirmation of judges, 
then the independence and the integrity of the Federal judiciary is 
being threatened.

  The nominations backlog that perpetuates a judicial vacancies crisis 
is a function of the targeting of the judicial branch. It was the 
executive branch that was targeted and shut down 2 years ago. Pressure 
groups--and it is a fact--within the right wing of the Republican Party 
have been formed and money has been raised to the cry of ``killing'' 
Clinton judicial nominations. That would be just as wrong if the same 
thing was being done by ideological groups seeking to kill a Republican 
President's nominations. Constitutional amendments to undercut the 
independence of the judiciary have been introduced. Ideological 
impeachments have been threatened. The Republican leadership in the 
House speaks openly about seeking to ``intimidate'' Federal judges.
  The confirmation process is not immune from politics, but a 
particularly virulent strain has now infected this body and has 
politicized the process to the point of paralysis, and this threatens 
the integrity and the independence of the judiciary. It encumbers the 
judicial confirmation process. In too many courts, judges delayed means 
justice denied. Without judges, courts cannot try cases, they cannot 
sentence the guilty or cannot resolve civil disputes.

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  For more than 200 years a strong and independent Federal judiciary 
has served as a bulwark against overreaching by the political branches 
of the Government. It has been the protector of our constitutional 
rights and liberties. True conservatives should want nothing more than 
a truly independent judiciary, because it is the bulwark of our 
individual freedoms.
  I hope this new year will bring the realization by those who have 
started down this destructive path of attacking the judiciary and 
stalling the confirmation of qualified nominees to the Federal bench 
that those efforts do not serve the national interest. I hope we can 
remove these important matters from partisan, ideological politics. I 
hope today will move us forward in the interests of the fair 
administration of justice.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sessions). The Senator from Oregon.
  Mr. HATCH. Will the Senator yield to me for just a couple of 
additional remarks, and then I will yield to the distinguished Senator?
  Mr. SMITH of Oregon. I will.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I feel I should make a few more remarks here, because I 
would not want this day to pass without mentioning Barry Silverman, who 
is one of the judges nominated for the Ninth Circuit Court of Appeals, 
and, of course, Richard Wayne Story, who was nominated for the Northern 
District of Georgia. Each of these nominees has the support of his home 
State Senators and each is well qualified for the Federal bench. So I 
want our colleagues to know that.
  Barry Glen Silverman was nominated for United States Court of Appeals 
for the Ninth Circuit. He graduated summa cum laude in 1973 and got his 
J.D. in 1976 from Arizona State University. He is currently a U.S. 
Magistrate Judge in the U.S. District Court for the District of 
Arizona. He has served as a Superior Court Judge both in Phoenix and 
Maricopa Counties, and he has also served as a prosecutor in Phoenix.
  He is the recipient of numerous awards including the 1991 Henry 
Stevens Award, which recognizes trial judges who represent the finer 
qualities of the judiciary.
  His nomination is not the least bit controversial, and he is 
supported by Senators Kyl and McCain.
  Richard Wayne Story has been nominated for United States District 
Court for the Northern District of Georgia. He received his B.A. in 
English from LaGrange College in 1975, and his J.D. from the University 
of Georgia in 1978. He is presently a sitting judge on the Superior 
Court bench in the Northeastern Circuit of Dawson and Hall Counties of 
Georgia. Prior to that he served as Juvenile Court Judge and as a part-
time Special Assistant Attorney General for the State of Georgia. He 
was also a member of the firm of Kenyon, Hulsey, and Oliver for eight 
years.
  His nomination is not controversial, and he is supported by Senator 
Coverdell and Senator Cleland.
  So I hope that our colleagues will vote for all three of these 
judges. I think all three of them deserve support. We will move on from 
there.
  I yield to my colleague from Oregon.
  The PRESIDING OFFICER. How much time does the Senator yield to the 
Senator from Oregon?
  Mr. HATCH. I yield 10 minutes. How much time is remaining to both 
Senators?
  The PRESIDING OFFICER. Each side has approximately 40 minutes.
  Mr. HATCH. I yield such time as the Senator needs, but at least 10 
minutes.
  Mr. SMITH of Oregon. Mr. President, colleagues, I rise today in 
support of the nomination of Judge Ann Aiken to the Federal district 
bench in Oregon.
  Before I comment on her nomination, though, I would like to thank and 
compliment my friend, the distinguished chairman of the Judiciary 
Committee, Senator Hatch. I have gone to him repeatedly about the three 
vacancies in the State of Oregon and the challenges they create in our 
judicial process. Since my time here, against some opposition, Senator 
Hatch has in every instance acted responsibly, and helped me to move 
the Oregon nominees along so we can fill these vacancies and get rid of 
a considerable backlog that we have in our State.
  I would also like to thank the majority leader for scheduling a vote 
today so we can vote up or down on this and other nominations. And I 
would like to thank my colleague, Ron Wyden, who, before my admission 
to this body, was laboring here on behalf of Judge Aiken.
  To my colleagues on the Republican side, those who may have a 
question about the qualifications or the decisions or the political 
leanings of Judge Aiken, I would like to point out to you the 
impressive list of letters and phone calls I have received from both 
Democrats and Republicans on her behalf. They include Senator Mark O. 
Hatfield; Senator Wyden; Deanna Smith, chair of the Oregon Republican 
Party; Mark Abrams, the chairman of the Oregon Democratic Party; John 
Kitzhaber, the Governor of Oregon; Hardy Meyers, Oregon Attorney 
General; Jack Roberts, Oregon Republican State Labor Commissioner; five 
former Governors of both parties; 20 former presidents of the Oregon 
Bar Association; the Oregon Association of District Attorneys; the 
Oregon State Police Officers Association; the Lane County Peace 
Officers Association; the Eugene Police Employees' Association; and all 
the presiding judges under whom Judge Aiken has served. It is an 
impressive list of people, all attesting to her worthiness and 
qualification to be a Federal judge.
  I believe that they based their decision to support Judge Aiken for 
the very reason I based mine--on her very impressive record of public 
service. She has served the people of Oregon both on and off the bench 
through her dedication to the health and safety of children in Oregon 
and throughout our country. She has served on numerous councils and 
boards of directors. To note a few, she was recently elected to the 
board of the National Network of Child Advocacy Centers. She is a 
current member of the National Council of Juvenile and Family Court 
Judges. She is a current member of the Relief Nursery board of 
directors. This charitable institution is particularly near and dear to 
my heart and is a private organization that provides preschool classes, 
parent education and respite care for families at risk for child 
abuse. This organization reaches out to all at risk children and 
families in our communities, and Judge Ann Aiken is a champion of this 
private-public partnership.

  In addition, since 1993 she has been a member of the Task Force on 
Child Fatalities and Critical Injuries, and a member of the Lane County 
Domestic Violence Council.
  While I have not served on these councils with Judge Aiken, I would 
like to take a moment to explain why I believe that she is an excellent 
nominee for the U.S. District Court for Oregon.
  I first came to know Judge Aiken in 1994. We were both appointed by a 
Democratic Governor to serve on the Governor's Commission on Juvenile 
Justice when I was the Senate Minority Leader in our State legislature. 
I worked with her on this commission to address the issue of juvenile 
crime. Among a handful of appointees, she stood out as a superstar. I 
was impressed with her fairness, her experience, and her insight as to 
how we can work to help the people of our state, particularly our young 
children.
  Over the course of the next election cycle, I became the Oregon State 
Senate President. And with her involvement, and the work of this 
commission, we produced a bill called Senate bill 1. It produced some 
of the toughest juvenile crime laws in this country.
  Since that time, Oregon has revisited the whole issue of crime in a 
dramatic way through a number of ballot initiatives and legislative 
actions--and crime is falling in my State. Although these initiatives 
occurred after 1995, Judge Aiken has been tough on crime throughout her 
career, and I would encourage my colleagues to review her record of 
strict sentencing practices.
  In 1993, Judge Aiken sentenced a 28-year-old woman who was involved 
with a brutal beating and murder of a 70-year-old man to 20 years in 
prison--twice the amount of time as was called for by the Oregon state 
sentencing guidelines.
  In 1995, Judge Aiken sentenced a repeat child molester to the maximum 
sentence of 58 years in prison.
  In 1995, Judge Aiken sentenced a 43-year-old man to 31 years for 
felony sex

[[Page S78]]

abuse crimes involving two girls aged 7 and 9, invoking a law that 
permits judges to double the prison term normally afforded by State 
sentencing guidelines in cases with aggravating circumstances.
  Before our recess, my friend and colleague from Wyoming, Senator 
Enzi, raised some concern about one particular case that troubled him. 
I will admit to you that it troubles me. But I want Senator Enzi and 
all of my colleagues to know that their criticism of Judge Aiken in 
this case should not be of her but of the Oregon law that applied at 
that time, because she followed the law. And some of my colleagues, 
frankly, appropriately, criticize judges who become frustrated 
legislators and use their judicial robes to write new law. Judge Aiken 
simply did not do that. She followed the Oregon law.
  It involved a very horrible case. It involved a circumstance where a 
man, 26 years old, Ronny Lee Dye, was convicted of first-degree rape of 
a 5-year-old child and was sentenced to 90 days in jail and 5 years of 
probation plus the payment of a $2,000 fine.
  With the judicial guidelines that she had to operate within, she had 
a choice to make. She could send him directly to prison to serve out a 
5-year sentence or she could put him in a county facility where he 
would receive sex-offender treatment. She made a judgment. Her judgment 
was that the society of Oregon would be better served if this man had 
treatment. You can call that into question now, but she followed the 
law.
  Later, this man was arrested for drunk driving and ultimately served 
a 5-year term in prison.
  I ask myself in this case, however, would I have made that call? 
Maybe not. But she did. And she did it according to the direction of 
the Oregon guidelines that were given to her. But my complaint was with 
the law that allowed that, not with her discretion in trying to 
establish what was in the best interests of society and justice.

  Finally, Mr. President, I note that one of the reasons that Judge 
Aiken appeals to me as a person and as a judge is a reason very 
personal. As I have come to know this woman, I have come to know this 
mother of five sons, and she is a good mother.
  I am one of 10 children. My mother has five sons. And while my mother 
did not always act perfectly on the issues of justice and mercy, she 
acted nearly so. And it seems to me that what I see in her are some of 
the qualities that I would want on the Federal bench. Because a mother 
of five sons knows how to arbitrate family difficulties and what it 
means to raise honorable citizens to serve in our society.
  So I ask my colleagues to see this woman's record in its totality---
not by the outcome of one case. I would never come to this floor and 
advocate for anyone who was soft on crime. And if this woman's record 
indicated that, I would not support her in this effort today. But it 
does not. It represents a person who is tough on crime, who has served 
to make her State's laws tougher and who has a record of putting away 
violent people for a long time.
  I wish that one case were different, but it is not. But the man has 
served prison time and has received sex-offender treatment. And now the 
issue is, should we confirm Ann L. Aiken to the United States district 
court? I say affirmatively and with conviction, yes.
  I ask for your support of her and thank the President for this time.
  I yield the floor.
  Mr. WYDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, from the time controlled by Senator Leahy, 
I yield myself up to 15 minutes.
  The PRESIDING OFFICER. The Senator is recognized for 15 minutes.
  Mr. WYDEN. Thank you very much, Mr. President.
  Mr. President, I come to the floor today to speak in support of a 
superb State judge, a pillar in her community, a devoted mother of five 
wonderful sons and a personal friend, an individual who I believe will 
make an outstanding Federal district judge, Judge Ann L. Aiken.
  Let me begin by expressing my thanks and gratitude to the Senate 
Judiciary Committee and particularly to Chairman Hatch and the ranking 
Democrat, Senator Leahy. Both Chairman Hatch and Senator Leahy carry an 
enormous workload, and I want to express my appreciation to both of 
them for all the time and good counsel that they have given Senator 
Smith and myself with respect to Oregon's needs on the Federal bench.
  I especially want to thank at this time my colleague from Oregon, 
Senator Smith, for his truly extraordinary efforts on behalf of Judge 
Aiken. I think this Senate can see from Senator Smith's eloquence and 
his commitment to Judge Aiken how strongly he feels about this 
appointment. He has made extensive efforts with our colleagues to 
ensure that Judge Aiken would be before the U.S. Senate.
  I want to express my appreciation to Senator Smith for all of those 
efforts on Judge Aiken's behalf and to join Chairman Hatch in saying 
that I do not believe we could be here today without the extraordinary 
work of Senator Smith. I want him to know how much I appreciate those 
efforts. He knows Judge Aiken extremely well. Those joint efforts date 
back for years, as Senator Smith has stated, and it has been a pleasure 
to work with him on this, dating back to the days when he was president 
of the Oregon State Senate.
  Also at this time, I want to thank Congressman Peter DeFazio, a 
personal friend of Judge Aiken's who has worked with her on many 
important community activities. Congressman DeFazio has been a 
vociferous advocate of Judge Aiken's candidacy, and he has done a good 
job of keeping the debate focused on getting Judge Aiken to this point. 
And I want to express my appreciation to him.
  Mr. President, Judge Aiken's journey to be considered on the floor of 
the Senate has been a long one, and not just in terms of the 3,000 
miles she traveled from Oregon for those confirmation hearings.

  Her journey formally began in 1994, when I put together a bipartisan 
group of Oregonians to review her qualifications.
  In January of 1995, I recommended to President Clinton, with the 
strong bipartisan support of the Oregon congressional delegation, that 
Ann Aiken be named to the Federal bench.
  As Senator Smith has noted, Judge Aiken's support for this nomination 
spans the political spectrum. Liberals are for Judge Aiken, 
conservatives are for Judge Aiken, moderates are for Judge Aiken, 
Democrats, Republicans; across all political boundaries, Oregonians 
have lined up behind this outstanding judge.
  It is my view that these many endorsements are pouring in because of 
the hard work and thoroughness that has marked Ann Aiken's career to 
date. And I would especially like to reference her work on crime.
  Mr. President, and colleagues, this is an especially important issue 
to me. Before I came to the U.S. Congress, first as a Member of the 
House, I was co-director of the Oregon Gray Panthers, a senior citizens 
group. And I found that many of these older folks were afraid to have 
meetings after 4 or 5 at night because of their fear of crime. And so I 
vowed, as a Member of Congress, that I would put a specific focus on 
law-enforcement issues in my service in the Congress.
  As a Member of the House, I joined Senator Specter in authoring the 
career criminal law, a law which prescribes tough punishments and no 
parole sentences for career criminals.
  Last Congress, I joined Senator Hatch in his efforts, his yeoman's 
work, to deal with the scourge of methamphetamines. And I have 
repeatedly--repeatedly--voted to impose the death penalty on heinous 
crimes in our society.
  So I take a back seat to no individual with respect to support for 
tough law enforcement. And I want to tell my colleagues in the U.S. 
Senate that Judge Aiken did not win all that support from law-
enforcement groups in Oregon by accident. She won the support of the 
Association of District Attorneys and the Police Officers' Association 
because of her toughness on crime.
  As my colleague, Senator Smith, has noted this morning, repeatedly 
she has sought to impose the toughest possible sentences. And because 
Judge Aiken has a true mastery of the Oregon sentencing guidelines, she 
frequently is able to impose sentences that are significantly longer 
than any other judge on the bench.

[[Page S79]]

  She has worked for a new approach to juvenile justice that ensures 
that young people who commit crimes have to face consequences. It would 
change the juvenile justice system as we know it. Youngsters would 
understand that the justice system is based on personal responsibility 
and individual accountability when they perpetrate those offenses. And 
the changes that have been made came about because Judge Aiken worked 
on a bipartisan basis with leaders of our State like Senator Smith to 
get that done.
  So she did not win all that support from law enforcement by accident. 
And she would not have the bipartisan support of her two U.S. Senators 
today were it not for the fact that she took a tough and fair approach 
with respect to law enforcement.
  Judge Aiken is also a person who knows how to squeeze an hour out of 
a minute. Not only does she maintain a rigorous judicial schedule, but 
the list of task forces that she has chaired and the boards on which 
she has served number in the dozens. She has been on the board of 
directors of Court-Appointed Special Advocates (CASA), a program in 
which we take special pride in our State because it allows us to 
advocate for young people in our society and focus on trying to help 
them get their lives on track.
  On top of all this, somehow she finds time to be a caring and 
involved mother for her five boys. How she manages to juggle all these 
activities is beyond my comprehension, but the fact that she can serve 
as a judge, a community leader, and a devoted mom all simultaneously is 
yet more evidence of her fitness and her ability to serve as an 
outstanding Federal district judge.
  Ann Aiken is also an expert on family law. She has been a leader in 
the founding of a model program for youngsters known as the Relief 
Nursery. In that effort, she has brought together leaders from across 
her community to help families that were about to crack apart. Recently 
in fact, the successes of the Relief Nursery in keeping families 
together were profiled by Peter Jennings on World News Tonight.
  I am certain that Judge Aiken will bring to the Federal bench the 
same fairness, toughness and integrity that she has brought to her work 
as a State judge and a specialist in family law. And I am certain that 
Judge Aiken will bring to the Federal court the intellect, intensity 
and drive that has made her one of our State's most respected jurists.
  Let me wrap up by saying, as Senator Smith has touched on as well, 
this nomination is particularly important since Oregon already has two 
vacancies on the district bench and will be facing a third in April of 
this year. Failure to fill these openings in a timely manner is going 
to put an enormous strain on the Federal courts in Oregon. It is time 
to act and time to act swiftly.
  My colleagues, you have before you a tough judge and a fair one, one 
committed to seeing that justice is carried out in an impartial way no 
matter what the accusation is. She is going to make an exceptional 
Federal judge. She will bring honor to her community and her country. 
Therefore I urge you, as Senator Smith has, that the Senate move today 
on the candidacy of Judge Ann Aiken. She is a judge of extraordinary 
ability. She has earned this post.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Santorum). The Senator from Wyoming.
  Mr. ENZI. Mr. President, I yield myself up to 10 minutes.
  The PRESIDING OFFICER. The Senator is recognized for 10 minutes.
  Mr. ENZI. Mr. President, I rise to oppose the nomination of Judge Ann 
Aiken as the district court judge for the district of Oregon. I asked 
for a rollcall vote because I want to be on record as opposing this 
nominee. I put a hold on this nominee before we left on recess, with 
adequate time, I assure, for a rollcall vote. I made that a public, not 
a secret, hold. I wanted anyone interested in the case to know that I 
wanted a rollcall vote. I know that message got out. I was told that a 
rollcall vote would be OK, and I am sorry that there was not time or 
sufficient people around to have a rollcall vote prior to the time that 
we left.
  I did make a statement on the judge, and I want to reiterate some of 
my concerns. While I do not question Judge Aiken's experience or 
academic qualification to sit on the Federal bench, I do have serious 
concerns about her judicial philosophy as she applied it as a State 
trial judge in Oregon.
  One particular case has been mentioned this morning, and I appreciate 
the extra information that has been passed out at this time. That 
particularly tragic case perhaps best illustrates my concern, and I 
have looked at five other cases as well that I don't have more 
information on. In the case of the State v. Ronny Lee Dye, a 26-year-
old man was convicted, convicted, of first-degree rape--first-degree 
rape--of a young 5-year-old girl. Instead of sentencing this convicted 
rapist to State prison, Judge Aiken sentenced him to 90 days in jail 
and 5 years probation, plus a $2,000 fine. The other option was 5 years 
in prison.

  There was concern about whether there would be enough rehabilitation 
in prison. The option was there for 5 years in prison and the effort to 
get a rehabilitation program in that prison. If I were the parents of a 
5-year-old child that was raped and knew the convicted rapist could 
receive between 90 days and 5 years, I would have serious concerns 
about anybody who voted for that judge. Out of a concern for those 
parents, I am opposed to this nomination. According to the local 
papers, Judge Aiken did not want to sentence Dye to State prison 
because the prison did not have a sex-offender rehabilitation program. 
There are folks out in my part of the country that would insist on some 
other kind of rehabilitation. Moreover, she believed that probation 
following the jail term provided a stricter supervision than the parole 
that would have followed a prison sentence. Less than 1 year after his 
conviction for rape, Dye violated his parole by driving under the 
influence of alcohol and having contact with minor children without 
permission of his probation officer. I believe Judge Aiken's handling 
of this case and others illustrates an inclination towards an 
unjustified leniency for convicted criminals.
  Mr. President, I do not pretend to be able to predict with any degree 
of accuracy how this nominee or any other will rule while on the 
Federal bench. In exercising our solemn constitutional duty to advise 
and consent on the President's nominations for the Federal courts, we 
have only the past action, statements and writings to guide our 
deliberations. Moreover--and this is one of my big concerns--since 
Federal judges have life tenure and salary protection for the rest of 
their lives while they are in office, we have but one opportunity to 
voice our concerns and disapproval of a judge's record.
  Now, I understand that she has been repentant of what she did at an 
early time in her judgeship. But I have got to tell you that I think 
that we give out Federal judgeships for service, not for repentance. We 
talk about law and order. We have to back up that law and order through 
the court system as well, not just with words in this Chamber.
  I, for one, cannot vote to confirm a nominee to the Federal court who 
I believe is inclined to substitute his or her personal policy 
preferences to those of the U.S. Congress or any other State 
legislature. I have strong concerns that Judge Aiken, if confirmed, 
would be inclined to this type of judicial activism. For this reason, I 
asked for a rollcall vote.
  I appreciate the opportunity for me to go on record as being against 
the confirmation of Judge Aiken.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. SMITH of Oregon. I thank my colleague from Wyoming for this 
exchange this morning, and appreciate the genuineness of his concern.
  I simply rise to say that Judge Aiken has admitted that early in her 
career that was a judgment she made, under the statute and within the 
guidelines, and that in hindsight she would have made a different 
decision. I simply say that to judge her entire career on the basis of 
this one case would not be fair. It would not be fair to her, would not 
be fair to my State, and I think would not be fair to the judicial 
system of the United States.
  I think Caren Tracy, who has served as a local prosecutor in many 
cases in Judge Aiken's courtroom best describes her strict sentencing 
practices by stating, ``With regard to crimes of

[[Page S80]]

violence, violations of trust relationships, and crimes against 
children, Judge Aiken delivers sentences that include periods of 
incarceration that are significantly longer than any other judge on the 
Lane County Circuit Court Bench. She has a mastery of the Oregon 
sentencing guidelines which enables her to ensure maximum incarceration 
for individuals deserving of such sentence. Sentences of thirty to 
forty years for child sex offenders and criminals who commit acts of 
violence are the norm for her courtroom. I never have any concerns, as 
a prosecutor, coming before her for sentencings on significant crimes. 
The bottom line is she is not a light hitter.''

  I believe that statement reflects Judge Aiken's career in its 
totality and reflects her commitment to serving justice. I encourage my 
colleagues to support her nomination and am confident that she will 
reflect credit upon this country and reflect credit on the criminal 
justice system.
  I yield the floor.
  Mr. WYDEN. Mr. President, I ask unanimous consent to speak up to 10 
additional minutes on Senator Leahy's time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. Let me also join in the remarks expressed by my colleague, 
Senator Smith, with respect to our colleague from Wyoming. I know he is 
sincere in his views.
  I will talk about what Judge Aiken faced with respect to that Dye 
case. Judge Aiken had two choices in front of her. Neither were ideal. 
She chose the one that in hindsight would be different than the one 
that Senator Smith and I would have chosen. Both of us have been 
concerned about the case. To her credit--in my view, to her great 
credit--Judge Aiken has indicated to Senator Smith and me that she 
would have handled that case differently. Her commitment to tough law 
enforcement has been proven because since that case she has been a 
tough judge. She has often exceeded the sentencing guidelines, and she 
has shown that she is going to be capable of great growth as a judge.
  I say to our friend from Wyoming, who among us as new Members of the 
U.S. Senate would not possibly take back a vote early in our career? We 
are constantly faced with tough decisions in the U.S. Senate, decisions 
where you have before you a couple of choices, neither of them being 
ideal. Judge Ann Aiken, in the Dye case, tried to make the call to the 
best of her ability. In my view, even more importantly, she showed 
great growth, she showed a willingness to evaluate the facts in light 
of additional time and additional opportunities to consider her 
decision.
  So we are then faced with the question: Do you throw out the prospect 
of an outstanding career on the Federal bench because of one case, one 
case where an individual has said, ``If I could do it again, I would 
have done it differently''? We wouldn't say a Member of this body 
should be excluded from the possibility of further service in the 
Senate because they would have cast one vote differently had they had 
the choice. We evaluate Members of the U.S. Senate on the totality of 
their records. On the totality of her record, Judge Aiken is an 
outstanding individual, an individual who will be tough on crime when 
she serves on the Federal bench.
  Mr. President, I see Chairman Hatch is on the floor. I know he had to 
leave the floor during our earlier remarks. I express to him my 
personal gratitude for all of the help and effort he has given Senator 
Smith and me on this matter again and again. Chairman Hatch has about 
as hefty a workload as you can imagine for a human being, but he has 
made time to assist Senator Smith and me. We are very appreciative of 
all the good counsel and help you have given us as new Members of the 
U.S. Senate.
  In closing, I especially want to express my appreciation to him for 
that help and counsel.
  Mr. President, I yield the floor.
  Mr. HATCH. Mr. President, I thank my colleague for his kind remarks. 
They mean a lot to me because this job of being Judiciary chairman 
isn't all a piece of cake, as anybody can see. I personally appreciate 
those kind remarks.
  I want to compliment both of the Senators from Oregon for their 
active work on behalf of Judge Aiken. Without their work, I don't think 
Judge Aiken would be here today. I personally express that so that she 
will fully appreciate how hard the Senators from Oregon have worked. 
They have certainly, along with Judge Aiken, convinced me that she will 
make an excellent judge. I intend to fully support her. I hope my 
colleagues will also.
  Mr. ASHCROFT addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. ASHCROFT. I rise today to state my opposition to the nomination 
of Ann Aiken to be United States District Judge for the District of 
Oregon, and to note my support for the other two judges the Senate will 
consider today.
  My principal basis for opposition to Judge Aiken's nomination is her 
sentencing decision in State v. Ronny Lee Dye. After finding defendant, 
26, guilty of raping a 5-year-old girl, Aiken sentenced defendant to 90 
days in jail, rather than substantial prison time, which was also an 
option under Oregon law.
  As troubling as this sentencing decision is, her explanation of the 
decision is worse. She has explained that with a jail sentence she 
could ensure that Dye would receive psychological counseling, but she 
could not guarantee counseling if he went to prison. I find this type 
of social engineering from the bench troubling. The focus on what best 
serves the convicted rapist's needs should not be the basis of a 
sentencing decision. I doubt that this is the kind of decision the 
people of Oregon want to leave to judges.
  This decision is not ancient history or a rookie mistake. Judge Aiken 
made this unjustifiable sentencing decision in 1993, in the middle of 
her fifth year on the bench.
  Let me be clear about one thing: This is not the worst nominee the 
President has sent to the Senate. There have been other nominees that 
pose even greater problems. The Senate will likely consider one in just 
a few weeks, Judge Frederica Massiah-Jackson of Philadelphia.
  Judge Massiah-Jackson has used the language's worst profanity in open 
court, she has demonstrated leniency in sentencing and hostility to law 
enforcement, and in recent weeks, she has drawn the opposition of 
important local law enforcement officers of the Democratic Party, like 
Lynne Abraham, the Philadelphia District Attorney.
  Ann Aiken is not as troubling a nominee as Frederica Massiah-Jackson. 
But that should not be the standard. We need to raise the bar on the 
President's judicial nominees. America deserves better. The 
Constitution vests the Senate with the critical responsibility to 
advise the President with respect to his judicial nominees and in 
appropriate cases to give its consent. I take that responsibility 
seriously.
  The President is capable of making quality judicial appointments and, 
when he does so, he deserves the Senate's consent. The two other 
nominees we will vote on today--Richard Story (for the Northern 
District of Georgia) and Barry Silverman (for the 9th Circuit Court of 
Appeals)--both appear to be well-qualified nominees, and I plan to vote 
in favor of both.
  However, I will vote against the Aiken nomination. For me, the bottom 
line is this: As we embark on a congressional session in which we plan 
to put the emphasis on protecting families and cracking down on violent 
crime, we should not begin the year by confirming a judge who sentenced 
a child rapist to 90 days in jail. We can demand more of the 
President's judicial nominees. The people of this country deserve 
better.
  Mr. HATCH. Mr. President, I would like to respond briefly to the 
comments of Senator Ashcroft on Judge Aiken's record. Senator Smith, I 
believe, has already amply defended Judge Aiken's record. I want to add 
a few comments of my own here, if I can. My colleagues, Senators Enzi 
and Ashcroft, have rightly criticized Judge Aiken for her ruling in the 
Dye case, in which during her first month on the circuit court bench, 
she gave the defendant what appears to be a fairly light sentence for 
the molestation of a 5-year-old girl. I agree with the criticisms of 
Judge Aiken's decision. She did indicate that she imposed the sentence 
in order for the defendant to receive treatment. In her opinion,

[[Page S81]]

treatment was the only way she could prevent this individual from 
repeating his heinous crimes.
  I seriously question the wisdom of her decision. But to her credit, 
Judge Aiken stated that if she had to do it all over again, she would 
have imposed a lengthy prison term. She recognized her mistake and she 
learned from it, and it was made in the early tenure of her judgeship.
  A review of her record since the Dye case suggests that she has more 
than learned from this original error. I know, too, that some are 
troubled by Judge Aiken's comment to a young, violent criminal that he 
was ``a victim of the community's lack of intervention.'' Well, what 
often gets lost in this criticism is that Judge Aiken also sentenced 
this defendant who had robbed people and threatened to kill them to the 
maximum range of penalties allowed under the Oregon guidelines. Given 
Judge Aiken's background in family law, her comment was not as 
unreasonable as some might think it seems.
  So the question for the Senate is whether, in the face of a 
relatively clear record as a State judge and the overwhelming 
bipartisan support of the Oregon delegation, the Oregon bar, her 
colleagues on the bench, and the people of Oregon, the Senate should 
defeat this nominee because of one or two errant cases. I have to say, 
I think not. I hope none of us are going to be judged on one or two 
mistakes we might have made in our lifetimes. To the extent that these 
cases raise questions--and they do raise serious questions--I do not 
believe a strong case can be made that Judge Aiken has a record of 
exceeding the proper bounds of judicial authority or that she will 
attempt to legislate from the bench or act otherwise as an activist 
judge. Accordingly, I will vote to confirm Judge Aiken, and I urge all 
of my colleagues to do the same.
  Now, in addition, I have had personal conversations with Judge Aiken, 
and I have to say she has impressed me greatly as someone who I think 
will act very properly on the Federal district bench. I agree with both 
Senators that she is going to be a very strong anticrime judge. I think 
her record shows that, in spite of these what some call 
``discrepancies,'' to which I think legitimate criticism can be lodged, 
I don't know of many judges who have been on the bench very long that 
somebody can't find some criticism to lodge against them, because 
judges sit in judgment. They have to ``split the baby,'' so to speak, 
and make some decisions. In almost every case, somebody is going to be 
unhappy with their decision. If a judge ever shows leniency in this day 
and age, they are going to be subject to criticism by some. If the 
judge is too tough, that judge is going to get criticism from others. 
One side or the other is always going to find some fault.
  But in this particular case, she more than adequately explains the 
situation. In the first case, the Dye case, she admitted that if she 
had to do it all over again, she would have decided the case 
differently. Keep in mind that all people in the early tenures of their 
work life generally stumble and make a few mistakes. That is what 
happened here. But you have to judge these judges, and all nominees who 
may not be judges, on the totality of their lives' work and the 
totality of what they have done and not just defeat judges on the basis 
of one or two things with which we might legitimately disagree, 
especially when the judge has indicated a willingness to change and do 
things differently in the future.
  There is no doubt that the judge erred in the Dye case. It was wrong 
to sentence the criminal to only 3 months in prison. But you have to 
Judge Aiken on her whole record. She has more than adequately explained 
that, as far as I am concerned.
  We are definitely going to have some votes on judges this year where 
there will be real, legitimate reasons to oppose them, and the 
administration knows that. They understand that when they send some of 
these folks up, there might be opposition. But I don't think the 
opposition is justified against this judge. On the other hand, I 
respect my colleagues who feel otherwise, but I hope that our fellow 
Senators will vote for Judge Aiken.


                      Unanimous Consent Agreement

  Mr. HATCH. Mr. President, I ask unanimous consent that at 2:15 p.m. 
today, the Senate proceed to executive session and a vote on the 
confirmation of the nomination of Calendar No. 454, Ann Aiken. I 
further ask consent that immediately following that vote, Executive 
Calendar Nos. 486 and 488 be confirmed and the motions to reconsider be 
laid upon the table and the President be notified of the Senate's 
action and the Senate then return to legislative session.
  The PRESIDING OFFICER (Mr. Gregg). Without objection, it is so 
ordered.
  Mr. HATCH. All Senators should now be aware that there will be one 
rollcall vote beginning at 2:15 this afternoon. In order to accommodate 
a number of Senators' schedules, the remaining nominations will be 
confirmed without a rollcall vote. I thank all Members for their 
cooperation in this matter.
  With that, Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I ask for the yeas and nays on the Aikens 
nomination.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, there has not been much conversation about 
one of the judicial nominees pending before us. I did want to make a 
few comments on his behalf. The reason for the lack of comments is that 
I believe he has the unanimous, bipartisan support of everyone here in 
the body. And I appreciate that because I, too, enthusiastically 
endorse the nomination of U.S. Magistrate Judge Barry Silverman of the 
State of Arizona to the Ninth Circuit Court of Appeals, and I would 
like to make a few comments on his behalf at this point.
  Judge Silverman brings a proven judicial track record to this 
position. For the past 2\1/2\ years he has served as a magistrate judge 
on the United States District Court for the District of Arizona, my 
home State. For over 10 years prior to that, he was a superior court 
judge in Maricopa County. While on the superior court bench, he 
rendered superior service in all aspects of his civil, criminal, 
juvenile and domestic relations assignments.
  In addition to his time on the bench, Judge Silverman spent 5 years 
as court commissioner for the Superior Court of Arizona, Maricopa 
County.
  Throughout his distinguished judicial career, Judge Silverman has 
earned the respect and admiration of fellow judges and the advocates 
who have appeared in his courtroom. For example, in 1991, Judge 
Silverman received the Henry Stevens Award, which is given annually by 
the Maricopa County Bar Association to the current or former Arizona 
trial judge ``who reflects the finest qualities of the judiciary.''
  Similarly, in 1994, the Maricopa County Committee on Judicial 
Performance indicated that Judge Silverman received the highest 
percentage of superior ratings from lawyers, litigants, witnesses, and 
court staff in all categories of performance reviewed.
  Also, in 1994, Judge Silverman's court division was honored as the 
judicial division of the year by the Maricopa County Superior Court 
Recognition Committee.
  Incidentally, I should say that Maricopa County is the county in 
which Phoenix is located, the capital of our State.
  In addition to his regular judicial duties, Judge Silverman has 
advanced the legal profession through service on the Supreme Court of 
Arizona Judicial Ethics and Advisory Committee, the Committee on 
Judicial Education and Training, and the Committee on Professionalism. 
He also chaired a Committee to Study the Criminal Justice

[[Page S82]]

System in the Arizona Superior Court in 1993, and the Governor's 
Committee on Child Support Guidelines.
  Judge Silverman has shown his commitment to the United States 
Constitution and the rule of law by cofounding the Sandra Day O'Connor 
Prize for Excellence in Constitutional Law at the Arizona State 
University College of Law.
  Judge Silverman's academic credentials are equally impressive. He 
graduated summa cum laude from the Arizona State University College of 
Law in 1976 and was subsequently honored by his alma mater twice, once 
in 1994, when the college of law presented him with its ``Outstanding 
Alumnus Award,'' and again in 1997 when he received the prestigious 
``Dean's Award.''
  In short, Mr. President, I believe Judge Silverman meets the highest 
of standards required for our Federal judges, and I have been very 
privileged to support his nomination as it has proceeded through the 
process and come to the floor of the Senate. I urge all of my 
colleagues to support the nomination of Judge Barry Silverman for the 
Ninth Circuit Court of Appeals.
  Allow me to conclude, Mr. President, with this observation. It has 
been a pleasure to work with the White House on this nomination. From 
the time that his name came forward, they worked diligently to conclude 
the FBI process, which does take some time. We received from the White 
House the Sunday before Congress adjourned in November the file for 
Judge Silverman and the committee was able to get that file in 1 day, 
the following Monday.
  Orrin Hatch, the chairman of the Judiciary Committee, who has been 
criticized for holding up some nominees, I must say, deserves a great 
deal of credit here for personally conducting the hearing for Judge 
Silverman. And then the following day--this is now 3 days after we 
received the file--scheduling an executive session of the committee so 
that we could send his nomination to the full Senate floor.
  Chairman Hatch and I then requested the majority leader on the last 
day of the session in November to clear this nomination so that the 
ninth circuit could receive him and have his services. Unfortunately, 
the democratic leader was not able to clear Judge Silverman on the 
democratic side and therefore about 2\1/2\ months, unnecessarily, the 
ninth circuit was without a judge in this particular position. But I am 
particularly pleased that he is before us today and that we will very 
soon have an opportunity to vote and to confirm Judge Silverman for the 
Ninth Circuit Court of Appeals.
  Mrs. BOXER. Mr. President, I am very glad that we are moving forward 
with judges today. We all hear, as we are growing up, that, ``Justice 
delayed is justice denied,'' and we have, in many of our courts, 
vacancies that have gone on for a year, 2 years, and in many cases it 
is getting to the crisis level. So I am pleased that we will be voting. 
I think, whether the delays are on the Republican side or the 
Democratic side, let these names come up, let us have debate, let us 
vote.
  In that regard, I am looking forward to having our debate on the 
nominee I had recommended to President Clinton, Margaret Morrow, who 
has the strong support of Senator Hatch, many Republicans on the 
Judiciary Committee, and I am very hopeful we can get that nomination 
resolved.
  I know that our leaders had agreed that vote would take place before 
the February recess and I will be speaking with both leaders to find 
out a date certain.

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