[Congressional Record Volume 144, Number 80 (Thursday, June 18, 1998)]
[Senate]
[Pages S6521-S6523]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            DELAYS IN SENATE ACTION ON JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, just a couple of weeks ago, I commented in 
the Congressional Record on the Senate majority's poor record in acting 
on judicial nominees, especially noting those judicial nominees who are 
either minorities or women. I included a recent letter from the 
Congressional Hispanic Caucus, which calls upon the Senate Republican 
leadership to allow votes on the Latino judicial nominees who have 
languished in the Senate for far too long.
  I have also spoken often about the crisis in the second circuit and 
the need for the Senate to move forward to confirm the nominees to that 
court who are pending on the calendar. Judge Sonia Sotomayor is just 
such a qualified nominee, and she is one being held up by the 
Republican majority, apparently because some on the other side of the 
aisle believe she might one day be considered by President Clinton for 
nomination to the U.S. Supreme Court, should a vacancy arise.

  Last week, a lead editorial in the Wall Street Journal discussed this 
secret basis for the Republican hold against this fine judge. The 
Journal reveals that these delays are intended to ensure that Sonia 
Sotomayor not be nominated to the Supreme Court, although it is hard to 
figure out just how that is logical or sensible.
  In fact, how disturbing, how petty, and how shameful: Trying to 
disqualify an outstanding Hispanic woman judge by an anonymous hold.
  I have far more respect for Senators who, for whatever reason, wish 
to vote against her. Stand up; vote against her. But to have an 
anonymous hold--an anonymous hold--in the U.S. Senate with 100 Members 
representing 260 million Americans, which should be the conscience of 
the Nation, should not be lurking in our cloakrooms anonymously trying 
to hold up a nominee. If we want to vote against somebody, vote against 
them. I respect that. State your reasons. I respect that. But don't 
hold up a qualified judicial nominee.
  I was asked last week by Neil Lewis of the New York Times about this 
circumstance. He correctly reported my response in a front page story 
this last Saturday. I am offended by this anonymous effort to oppose 
her prompt confirmation by stealth tactics. Here is a highly qualified 
Hispanic woman judge who should have been confirmed to help end the 
crisis in the Second Circuit more than three months ago.
  The times Argus recently included an editorial entitled ``Partisan 
Nonsense'' on this hold. The editorial notes that Judge Sotomayor rose 
from a housing project in the Bronx to Princeton, Yale and a federal 
court appointment by President Bush, a Republican. The editorial notes 
that the stalling tactics are aggravating the judicial emergency faced 
by the Second Circuit caused by judicial vacancies for which the 
Republican leadership in the Senate refuses to consider her, and 
another worthy nominee. The editorial concludes by urging me to make 
``a lot of noise over this partisan nonsense.''
  I don't always follow the editorials in my home State. But this one I 
am happy to follow.
  I will continue to speak out on behalf of Judge Sotomayor and all the 
qualified nominees being stalled here in the U.S. Senate.
  Judge Sotomayor in not the only woman or minority judicial nominee

[[Page S6522]]

who has been needlessly stalled. Indeed, if one considers those 
nominees who have taken the longest to confirm this year, we find a 
disturbing pattern:
  Hilda Tagle, the only Hispanic woman the Senate has confirmed this 
year, took 32 months to be confirmed as a district court judge for the 
Southern District of Texas. That is more than two-and-one-half years.
  Judge Richard Paez, currently a district court judge and a nominee to 
the Ninth Circuit, was first nominated in January 1996. Twenty-nine 
months latter, Judge Paez's nomination remains in limbo on the Senate 
calendar.
  Nor have we seen any progress on the nomination of Jorge Rangel to 
the Fifth Circuit or Anabelle Rodriquez to the District Court for 
Puerto Rico, although her nomination was received in January 1996, 
almost 29 months ago.
  For that matter, we have seen the President's nomination of Judge 
James A. Beaty Jr., the first African American nominated to the Fourth 
Circuit, stalled for 30 months, since December 1995. The situation in 
the Fourth Circuit was the topic of a Washington Post editorial past 
Saturday. We have seen the attack on Judge Frederica Massiah-Jackson, 
who would have been the first African-American woman to serve on the 
Eastern District of Pennsylvania, but who was forced to withdraw. We 
have seen the nomination of Clarence Sundram held up since September 
1995, almost 33 months.
  In his annual report on the judiciary this year on New Year's Day, 
the Chief Justice of the United States Supreme Court 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.'' He went on to note: ``The Senate is surely under 
no obligation to confirm any particular nominee, but after the 
necessary time for inquiry it should vote him up or vote him down.'' 
Which of course is absolutely correct.
  For some unexplained reason, judicial nominees who are women or 
racial or ethnic minorities seem to take the longest in the Senate. Of 
the 10 judicial nominees whose nominations have been pending the 
longest before the Senate, eight are women and racial or ethnic 
minority candidates. A ninth has been delayed in large measure because 
of opposition to his mother, who already serves as a judge. The tenth 
is one who blew the lid off the $1.4 million right-wing campaign to 
``kill'' Clinton judicial nominees.
  Pending on the Senate calendar, having been passed over again and 
again, are Judge Sonia Sotomayor, Judge Richard Paez, Oki Mollway and 
Ronnie White. Held up in committee after two hearings is Clarence 
Sundram. Still without a hearing are Anabelle Rodriquez, Judge James A. 
Beaty Jr., and Jorge C. Rangel. What all these nominees have in common 
is that they are either women or members of racial or ethnic 
minorities.
  Acting to fill judicial vacancies is a constitutional duty that the 
Senate--and all of its member--are obligated to fulfill. In its 
unprecedented slowdown in the handling of nominees in the 104th and 
105th Congresses, the Senate is shirking its duty. The Senate 
majority's choices as they stall Hispanic, women and minority nominees 
is wrong and should end.
  Mr. President, I have served here for nearly 24 years. I know Members 
of the Senate. I have enormous respect for so many of them, Republicans 
and Democrats alike. The vast majority of Senators I have served with 
do not have any bias or ethnic bias against people. They do not have a 
religious bias. They do not have a gender bias. But somehow ethnic and 
gender biases have crept into the stalling of these nominations.
  If Senators are opposed to any judge, bring them up and vote against 
them. But don't do an anonymous hold, which diminishes the credibility 
and respect of the whole U.S. Senate.
  I have had judicial nominations by both Democrat and Republican 
Presidents that I intended to oppose. But I fought like mad to make 
sure they at least got a chance to be on the floor for a vote.
  I have stated over and over again on this floor that I would refuse 
to put an anonymous hold on any judge; that I would object and fight 
against any filibuster on a judge, whether it is somebody I opposed or 
supported; that I felt the Senate should do its duty.
  If we don't like somebody the President nominates, vote him or her 
down. But don't hold them in this anonymous unconscionable limbo, 
because in doing that, the minority of Senators really shame all 
Senators.
  With that, Mr. President, I see Senators have come back to the floor 
for their debate. So I ask unanimous consent that copies of the 
editorials of the Times Argus and the Washington Post, and the report 
from the New York Times, which I referred to, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From The Times Argus, June 15, 1998]

                           Partisan Nonsense

       You may never have heard of a federal district judge named 
     Sonia Sotomayor, and it appears that several key Republicans 
     are hoping you never will. They'd like her to simply vanish 
     from the nation's political radar screen, but Vermont's Sen. 
     Patrick Leahy is among those who stand in their way.
       It appears these political foes of President Clinton are 
     afraid that if they confirm Judge Sotomayor's nomination to 
     the 2nd District U.S. Circuit Court of Appeals, as Clinton 
     has proposed, her next stop will be a seat on the United 
     States Supreme Court.
       Although Sotomayor grew up in the sprawling housing 
     projects of the Bronx, where success stories are less than 
     commonplace, she managed to graduate with high honors from 
     Princeton, become editor of the Yale Review and earn a 
     reputation as an effective federal prosecutor.
       In 1992, she was appointed to the federal bench by then-
     President George Bush. That would seem to suggest she had 
     bipartisan support, but that was before some nervous 
     Republicans began to fear there may soon be an opening on the 
     Supreme Court. That opening, they worried, would allow 
     Clinton to nominate Sotomayor, a woman and an Hispanic.
       Of course there is no vacancy on the high court, nor has 
     there been any clear signal that there will be one any time 
     soon. Justice John Paul Stevens, who many believe will be the 
     first of the present batch of justices to retire, has already 
     hired his clerks for the next court session. In addition, 
     Sotomayor's name was not on a list of recommended nominees 
     the Hispanic National Bar Association submitted to Clinton.
       But even if there was a pending vacancy, what is it about 
     Judge Sotomayor that would make Republicans so worried? Is it 
     that she's Hispanic? Is it that she's too liberal, or too 
     much a judicial activist?
       For the record nobody is saying, but off the record, some 
     Senate aides concede their bosses are worried she would, 
     indeed, be an activist. Interestingly, conservative 
     supporters of Judge Sotomayor's nomination vehemently 
     disagree with that assessment.
       Enter Sen. Leahy, the senior Democrat on the Judiciary 
     Committee. In blunt terms, Leahy has criticized the 
     Republicans who, behind the scenes and not for attribution, 
     are seeking to scuttle Sotomayor's nomination.
       ``Their reasons are stupid at best and cowardly at worst,'' 
     Leahy told a New York Times reporter. ``What they are saying 
     is that they have a brilliant judge who happens to be a woman 
     and Hispanic and they haven't the guts to stand up and argue 
     publicly against her on the floor. They just want to hide in 
     their cloakrooms and do her in quietly.''
       Those are strong words, particularly for the United States 
     Senate, but Leahy's anger is genuine and justified.
       The campaign against Judge Sotomayor began on the editorial 
     pages of the ultra-conservative Wall Street Journal and was 
     given much wider exposure when it was taken up by Rush 
     Limbaugh, the right wing radio talk show host.
       The Journal was upset with Sotomayor's ruling that a 
     coalition of New York businesses promoting a program for the 
     homeless had violated federal law by not paying the minimum 
     wage. This, in the Journal's opinion, constituted ``judicial 
     activism.''
       But a well-known conservative, Gerald Walpin, has rushed to 
     Sotomayor's defense and his message is worth heeding.
       ``If they had read the case they would see that she said 
     she personally approved of the homeless program but that as a 
     judge she was required to apply the law as it exists,'' 
     Walpin commented. ``She wrote that the law does not permit an 
     exception in this case. That's exactly what conservatives 
     want a non-activist judge who does not apply her own views 
     but is bound by the law.''
       What's particularly aggravating by the stalling tactics of 
     Clinton's foes is that they come at a time of major judicial 
     delays caused by the existing vacancies on the bench Judge 
     Sotomayor would fill. The chief judge of the circuit, a 
     conservative Republican, has written about having to declare 
     ``judicial emergencies'' because of these vacancies.
       We hope Sen. Leahy makes a lot of noise over this partisan 
     nonsense.

[[Page S6523]]

     
                                  ____
                [From the New York Times, June 13, 1998]

             G.O.P., Its Eyes On High Court, Blocks a Judge

                           (By Neil A. Lewis)

       Washington, June 12--Judge Sonia Sotomayor seemed like a 
     trouble-free choice when President Clinton nominated her to 
     an appeals court post a year ago. Hers was an appealing 
     story: a child from the Bronx housing projects who went on to 
     graduate summa cum laude from Princeton and become editor of 
     the Yale Law Journal and then a Federal prosecutor.
       Moreover, she had been a trial judge since 1992, when she 
     was named to the bench by the last Republican president 
     George Bush.
       But Republican senators have been blocking Judge 
     Sotomayor's elevation to the appeals court for a highly 
     unusual reason: to make her less likely to be picked by Mr. 
     Clinton for the Supreme Court, senior Republican 
     Congressional aides said in interviews.
       The delay of a confirmation vote on Judge Sotomayor to the 
     United States Court of Appeals for the Second Circuit, based 
     in New York, is an example of the intense and often byzantine 
     political maneuverings that take place behind the scenes in 
     many judicial nominations. Several elements of the Sotomayor 
     case are odd, White House officials and Democrats in Congress 
     say, but the chief one is the fact that there is no vacancy 
     on the Supreme Court, and no firm indication that there will 
     be one soon. Nor is there any evidence of a campaign to put 
     Judge Sotomayor under consideration for a seat if there were 
     a vacancy.
       Judge Sotomayor's nomination was approved overwhelmingly by 
     the Senate Judiciary Committee in March. Of the judicial 
     nominees who have cleared the committee in this Congress, she 
     is among those who have waited the longest for a final vote 
     on the floor.
       Senate Republican staff aides said Trent Lott of 
     Mississippi, the majority leader, has agreed to hold up a 
     vote on the nomination as part of an elaborate political 
     calculus; if she were easily confirmed to the appeals court, 
     they said, that would put her in a position to be named to 
     the Supreme Court. And Senate Republicans think that they 
     would then have a difficult time opposing a Hispanic woman 
     who had just been confirmed by the full Senate.
       ``Basically, we think that putting her on the appeals court 
     puts her in the batter's box to be nominated to the Supreme 
     Court,'' said one senior Republican staff aide who spoke on 
     the condition of anonymity. ``If Clinton nominated her it 
     would put several of our senators in a real difficult 
     position.''
       Mr. Lott declined through a spokeswoman to comment.
       Judge Sotomayor sits on Federal District Court in 
     Manhattan, and the aides said some senators believe that her 
     record on the bench fits the profile of an ``activist 
     judge,'' a description that has been used by conservatives to 
     question a jurist's ability to construe the law narrowly. It 
     is a description that Judge Sotomayor's supporters, including 
     some conservative New York lawyers, dispute.
       Senator Patrick Leahy of Vermont, the senior Democrat on 
     the Judiciary Committee, was blunt in his criticism of the 
     Republicans who are blocking a confirmation vote. ``Their 
     reasons are stupid at best and cowardly at worst,' he said.
       ``What they are saying is that they have a brilliant judge 
     who also happens to be a woman and Hispanic. and they haven't 
     the guts to stand up and argue publicly against her on the 
     floor,'' Senator Leahy said. ``They just want to hide in 
     their cloakrooms and do her in quietly.''
       The models for the strategy of putting candidates on 
     appeals courts to enhance their stature as Supreme Court 
     nominees are Judge Robert H. Bork and Judge Clarence Thomas. 
     Both were placed on the Court of Appeals for the District of 
     Columbia Circuit in part to be poised for nomination to the 
     Supreme Court. Judge Bork was denied confirmation to the 
     Supreme Court in 1987 and Judge Thomas was confirmed in 1991, 
     in both cases after bruising political battles.
       The foundation for the Republicans's strategy is based on 
     two highly speculative theories: that Mr. Clinton is eager to 
     name the first Hispanic person to the Supreme Court and that 
     he will have such an opportunity when one of the current 
     justices, perhaps John Paul Stevens, retires at the end of 
     the current Supreme Court term next month.
       Warnings about the possibility of Judge Sotomayor's filling 
     Justice Stevens's seat was raised by the Wall Street 
     Journal's editorial pages this month, both in an editorial 
     and in an op-ed column by Paul A. Gigot, who often reflects 
     conservative thinking in the Senate.
       Although justices often announce their retirements at the 
     end of a term, Justice Stevens has not given a clue that he 
     will do so. He has, in fact, hired law clerks for next year's 
     term. The Journal's commentary also criticized Judge 
     Sotomayor's record, particularly her March ruling in a case 
     involving a Manhattan business coalition, the Grand Central 
     Partnership. She rules that in trying to give work experience 
     to the homeless, the coalition had violated Federal law by 
     failing to pay the minimum wage.
       Gerald Walpin, a former Federal prosecutor who is widely 
     known in New York legal circles as a staunch conservative, 
     took issue with the Journal's criticism.
       ``If they had read the case they would see that she said 
     she personally approved of the homeless program but that as a 
     judge she was required to apply the law as it exists,'' he 
     said. ``She wrote that the law does not permit an exception 
     in this case. That's exactly what conservatives want: a 
     nonactivist judge who does not apply her own views but is 
     bound by the law.'' Mr. Bush nominated Judge Sotomayor in 
     1992 after a recommendation from Daniel Patrick Moynihan, New 
     York's Democratic Senator.
       It also remains unclear how some Senate Republicans came to 
     believe that Judge Sotomayor was being considered as a 
     candidate for the Supreme Court. Hispanic bar groups have for 
     years pressed the Clinton Administration to name the first 
     Hispanic justice, but White House officials said they are not 
     committed to doing so. The Hispanic National Bar Association 
     has submitted a list of six candidates for the Supreme Court 
     to the White House. But Martin R. Castro, a Chicago lawyer 
     and official of the group, said Judge Sotomayor's name is not 
     on the list.
       The only Republicans to vote against her in March were 
     Senator John Kyl of Arizona and Senator John Ashcroft of 
     Missouri. The committee's other conservative members, 
     including Orrin G. Hatch of Utah and Strom Thurmond of South 
     Carolina, voted in her favor. Mr. Kyl and Mr. Ashcroft both 
     declined to comment today.
                                  ____


               [From the Washington Post, June 13, 1998]

                          Unpacking the Court

       The saga of the North Carolina seats on the U.S. Court of 
     Appeals for the 4th Circuit is a caricature of the power 
     individual senators have to hold up judicial nominations. In 
     1990 Congress added some seats to the 4th Circuit, including 
     one for North Carolina. to this day--7\1/2\ years later--that 
     seat remains vacant. The reason is a byzantine power play by 
     Sen. Jesse Helms.
       The first nomination to the ghost seat was made by 
     President Bush in 1991. He picked a conservative district 
     court judge and Helms favorite named Terrence Boyle. That 
     nomination was dropped--much to Mr. Helm's fury--when Mr. 
     Bush subsequently lost the 1992 election. Since then Mr. 
     Helms has stymied President Clinton's efforts to fill the 
     seat. When President Clinton named Rich Leonard to it late in 
     1995, Mr. Helms blocked the nomination, and the Senate never 
     acted on it. With no prospect of success, the nomination was 
     not resubmitted in the next Congress. What's more, since 
     Judge Dixon Phillips Jr. took senior status in 1994 and 
     thereby opened another North Carolina slot on the court, Mr. 
     Helms has also blocked the administration's attempts to fill 
     that seat. As a result, the president's choice--U.S. District 
     Judge James Beaty Jr.--has been in limbo for 2\1/2\ years 
     without getting even a hearing. Mr. Helms has not even 
     indicated to the administration what sort of nominees might 
     be acceptable.
       Mr. Helms has argued in talks with the administration that 
     the court needs no more judges--a point on which he is, 
     ironically, supported by the 4th Circuit's own conservative 
     chief judge, Harvie Wilkinson III. Mr. Helms, however, was 
     making no such argument when Judge Boyle was up for the slot. 
     And it's a bit difficult to imagine him making the same point 
     now were the president's nominees not likely to add a little 
     ideological--and, for that matter, ethnic--diversity to one 
     of the most conservative courts in the country. Mr. Clinton's 
     nominees would, indeed, change the 4th Circuit--which covers 
     Maryland, Virginia, South Carolina, West Virginia and North 
     Carolina--and the arch-conservative senator cannot be 
     required to relish this prospect.
       But ultimately the Constitution gives the president, not 
     individual senators, the power to name judges. And Mr. 
     Helms's effort to keep the court conservative by keeping it 
     small is an improper aggrandizement of his own rule.

  Mr. LEAHY. Mr. President, if I have time left, I yield it back. I 
yield the floor.

                          ____________________