[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.
____________________