[Congressional Record Volume 144, Number 69 (Tuesday, June 2, 1998)]
[Senate]
[Pages S5567-S5568]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 CONFIRMATION OF ROSEMARY S. POOLER TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE SECOND CIRCUIT

  Mr. LEAHY. Mr. President, I congratulate Judge Rosemary Pooler on her 
confirmation as a member of the Second Circuit. She has been providing 
a great service as a United States District Court Judge in the Northern 
District of New York. President Clinton nominated her last November to 
fill a vacancy on the Second Circuit. I worked very hard to have her 
included in a prompt confirmation hearing, was finally able to get her 
included in a hearing on May 14 and, with the cooperation of Chairman 
Hatch, have her reported by the Judiciary Committee on May 21. With her 
confirmation, Judge Pooler becomes the second woman to serve as a 
member of the United States Court of Appeals for the Second Circuit.
  Ironically, her confirmation also brings into sharp relief the harm 
that is being perpetuated in the Northern District of New York by the 
Senate's refusal to consider Clarence Sundrum, another nominee for a 
longstanding vacancy on an overburdened court. Mr. Sundrum was first 
nominated in September 1995, over two and one-half years ago. The 
vacancy has long been considered a judicial emergency. This judicial 
nomination is the oldest pending judicial nomination before the Senate. 
After two hearings and almost three years, Mr. Sundrum has still not 
been considered by the Judiciary Committee or the Senate.
  I was very disappointed that Judge Pooler was not confirmed before 
the Senate left for its Memorial Day recess. Along with the 
confirmations of Judge Sonia Sotomayor, Robert Sack and Chester Straub, 
her confirmation will help end the continuing emergency caused by the 
vacancy crisis on the Second Circuit. I want to thank the Majority 
Leader for calling up the nomination of Judge Rosemary Pooler today and 
Chester Straub yesterday.
  As I noted most recently on May 21 and May 22, the Second Circuit is 
suffering from an unprecedented emergency caused by the vacancies 
crisis on that court. We have had four nominees before the Senate for 
many months who together could help end this crisis.
  On March 25, the five continuing vacancies on the 13-member court 
caused Chief Judge Ralph Winter to certify a circuit emergency, to 
begin canceling hearings and to take the unprecedented step of having 
3-judge panels convened that include only one Second Circuit judge. On 
April 23, Chief Judge Winter was forced to issue additional emergency 
orders.
  The people of the Second Circuit need additional federal judges 
confirmed by the Senate. Indeed, the Judicial Conference of the United 
States recommends that in addition to the current vacancies, the Second 
Circuit be allocated an additional two judgeships to handle its 
workload. The Second Circuit is suffering harm from the vacancy crisis 
and Senate inaction.
  This past weekend the Second Circuit held its annual circuit 
conference. I was pleased that this year's meetings could be held in 
Manchester, Vermont, and congratulate Chief Judge Murtha of the 
District Court of Vermont on the success of those meetings.
  In connection with the annual conference, the Chief Judge of the 
Second Circuit issued his annual report. Chief Judge Winter 
concentrates on ``the problem, now chronic as well as aggravated, of 
obtaining resources equal to the jurisdictional responsibilities 
entrusted to the Court.'' In particular, he notes that the filings with 
the Court of Appeals rose 20 percent over the last two years while its 
active judges went down by 33 percent, from 12 to eight.
  After thanking the senior judges, district judges and visiting judges 
from other circuits, without whom the Second Circuit ``would have been 
engulfed by a backlog that would not be amenable to future reduction,'' 
he went on to note:

       The semblance of normalcy, however, is still just a 
     semblance. Ten panel days in April and June had to be 
     canceled outright. Seven panels were able to hear cases only 
     after I certified that a judicial emergency existed so that 
     the panel could proceed with only one member of the court and 
     two visiting judges. The number of pending cases is 
     increasing at an alarming rate, and the Court has the largest 
     backlog in its history.
  The Chief Judge had some blunt talk for congressional critics.
  He concludes:

       The political branches have steadily increased our federal 
     question jurisdiction, have maintained an unnecessarily broad 
     definition of diversity jurisdiction, and then have denied us 
     resources minimally proportionate to that jurisdiction. That 
     is the problem. The result is that a court with proud 
     traditions of craft in decision-making and currency in its 
     docket is now in danger of losing both.

  I conclude by noting my regret that the Senate is not proceeding to 
consider the longstanding nomination of Judge Sonia Sotomayor. I will 
continue to press for her confirmation and that of Robert Sack to the 
Second Circuit. I have been urging favorable Senate action on the 
nomination of Judge Sonia Sotomayor to the Second Circuit for many 
months.
  Judge Sonia Sotomayor is a qualified nominee who was confirmed to the 
United States District Court for the Southern District of New York in 
1992 after being nominated by President Bush. She attended Princeton 
University and Yale Law School. She worked for over four years in the 
New York District Attorney's Office as an Assistant District Attorney 
and was in private practice with Pavia & Harcourt in New York. She is 
strongly support by Senator Moynihan and Senator D'Amato. She is a 
source of pride to Puerto Rican and other Hispanic supporters and to 
women. When confirmed she will be only the second judge of Puerto Rican 
descent to serve on the Second Circuit.
  By a vote of 16 to 2, the Judiciary Committee reported the nomination 
of Judge Sonia Sotomayor to the Senate. That was on March 5, 1998, 
almost three months ago. No action has been taken or scheduled on that 
nomination and no explanation for the delay has been forthcoming. This 
is the oldest judicial nomination pending on the Senate Executive 
Calendar. In spite of a bipartisan April 9 letter to the Senate 
Republican Leader signed by all six Senators from the three States 
forming the Second Circuit urging prompt action, this nomination 
continues to be stalled by anonymous objections. Our bipartisan letter 
to the Majority Leader asked that he call up for prompt consideration 
by the Senate the nomination of Judge Sonia Sotomayor. That was almost 
three months ago.
  I do not know why this distinguished jurist, who was nominated by 
President Bush to the District Court and by President Clinton to the 
Court of Appeals, is being denied consideration by

[[Page S5568]]

the Senate. I have heard from the Hispanic Caucus and a number of bar 
associations in support of her confirmation and have to tell them that 
I cannot dispel the impression that they have that she is being delayed 
because she is Hispanic.
  Last Friday, Paul Gigot speculated in a column in the May 29 Wall 
Street Journal that Judge Sotomayor might be a top candidate for the 
United States Supreme Court should a vacancy arise there. Although his 
column mischaracterizes her and her judicial record, it confirms the 
impression of so many that she is being penalized for being an 
accomplished Hispanic woman.
  I ask unanimous consent that a copy of the April 9, 1998 letter to 
the Majority Leader from Senators Moynihan, D'Amato, Dodd, Lieberman, 
Jeffords and myself be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, April 9, 1998.
     Hon. Trent Lott,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Senator Lott: On March 23, faced with five vacancies 
     on a 13-member Court, Chief Judge Winter of the United States 
     Court of Appeals for the Second Circuit certified the 
     judicial emergency caused by these vacancies, began canceling 
     hearings and took the unprecedented step in the Second 
     Circuit of authorizing 3-judge panels to be composed of two 
     visiting judges and only one Second Circuit Judge. The 
     Judiciary Committee has reported to the Senate the nomination 
     of Judge Sotomayor by a vote of 16 to 2. Three additional 
     outstanding Second Circuit nominees are pending before the 
     Judiciary Committee and await their confirmation hearings: 
     Judge Rosemary Pooler; Robert Sack, a partner in the law firm 
     of Gibson Dunn & Crutcher; and Chester J. Straub, a partner 
     in the law firm of Wilkie Farr & Gallagher.
       We urge prompt and favorable action on the nomination of 
     Judge Sonia Sotomayor to the Second Circuit when the Senate 
     returns on April 20 and thank you for your consideration of 
     this important matter.
           Sincerely,
     Patrick Leahy,
     Alphonse D'Amato,
     James Jeffords,
     Daniel Patrick Moynihan,
     Christopher J. Dodd,
     Joseph Lieberman.

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