[Congressional Record Volume 144, Number 82 (Monday, June 22, 1998)]
[Senate]
[Pages S6751-S6757]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    NOMINATION OF SUSAN OKI MOLLWAY, OF HAWAII, TO BE UNITED STATES 
               DISTRICT JUDGE FOR THE DISTRICT OF HAWAII

  The bill clerk read the nomination of Susan Oki Mollway to be United 
States District Judge for the District of Hawaii.
  The PRESIDING OFFICER. Under the previous order, there are 2 hours 
for debate on the nomination, equally divided.
  The Senate proceeded to consider the nomination.
  Mr. INOUYE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. INOUYE. Madam President, before I proceed, I thank my dear friend 
from Utah, the distinguished chairman of the Judiciary Committee, Mr. 
Hatch, for reporting out the nomination of Susan Oki Mollway. I also 
thank my friend from Vermont, the ranking Democrat on the committee, 
Mr. Leahy, for his encouragement throughout this process. And, if I 
may, I acknowledge and thank the majority leader of the Senate, the 
distinguished Senator from Mississippi, Mr. Lott, for scheduling this 
matter this afternoon. I am certain the people of Hawaii are most 
grateful for this.
  Madam President, I am pleased to recommend to my colleagues for their 
approval the President's nominee to the U.S. district court for the 
district of Hawaii, Ms. Susan Oki Mollway. Ms. Mollway was nominated to 
fill a vacancy created more than 3 years ago by the untimely and 
unexpected death of the Honorable Harold F. Fong.
  An empty judgeship is considered a judicial emergency after 18 
months. This seat has been vacant for more than twice that time. In 
1990, under Public Law 101-65, the Congress determined that Hawaii's 
Federal caseload called for increasing its Federal bench from three to 
four positions. However, the Honorable Helen Gillmor was not confirmed 
for that fourth seat until October 31, 1994.
  Then Judge Fong passed away on April 20, 1995, returning Hawaii to 
three sitting district judges. Thus, Hawaii has had the benefit of the 
fourth judgeship for less than 6 months since its authorization in 
1990.
  For the year 1997, the weighted case filings for the three sitting 
district judges in Hawaii was 706 cases per judge. To give you a sense 
of what this means, the Federal Judicial Conference's standard 
indication of the need for additional judgeship is 430 weighted case 
filings per judge. Ours is 706. Needless to say, Hawaii has justifiably 
requested that a fifth judgeship be approved.
  When Judge Fong passed away, Senator Akaka and I undertook the job of 
interviewing and considering nearly 40 candidates for this judgeship. 
After personally meeting with these candidates and reviewing their 
individual backgrounds, Senator Akaka and I were pleased to recommend 
Ms. Susan Oki Mollway to the President.
  Ms. Mollway is ready for the position of U.S. district judge, and I 
believe she is absolutely worthy of your favorable consideration. The 
majority of the American Bar Association Standing Committee on the 
Federal Judiciary has given her the highest rating of ``well 
qualified'' for this judicial position.
  By way of professional background, Ms. Mollway graduated at the top 
of her class from the University of Hawaii with a degree in English 
literature. She received later her master's degree in the same field. 
Then Ms. Mollway went on to Harvard Law School where she graduated cum 
laude in 1981.
  For the past 17 years, Ms. Mollway has had a very successful 
litigation practice with one of the largest and most respected law 
firms in the State of Hawaii. She has been a partner in that firm's 
litigation department since 1986. Her impressive litigation experience 
includes a wide array of areas from Federal labor law to contract 
disputes to lender liability and appearances before every level of the 
State and Federal courts, as well as a successful appearance before the 
U.S. Supreme Court in 1994.
  Ms. Mollway has also taught appellate advocacy at the University of 
Hawaii's William S. Richardson School of Law and has participated as an 
arbitrator with Hawaii's court-annexed arbitration program. I have no 
hesitation in giving my highest recommendation to Ms. Susan Oki 
Mollway.
  Questions have been raised about Ms. Mollway's former membership on 
the board of directorship of the American Civil Liberties Union of 
Hawaii. More particularly, she has been asked to give her personal 
views on such matters as same-sex marriage, mandatory minimum 
sentencing, the death penalty, and employee drug testing. Ms. Mollway 
has responded to these questions and I believe has given a complete 
account of her own activities with the ACLU. With respect to her 
personal views, in most instances, Ms. Mollway has stated that she has 
not formed any personal opinions.
  More important, as one who may become a Federal trial judge, she 
clearly understands that her personal opinions are not relevant to the 
decisions she will make as a judge. Rather, Ms. Mollway has 
unambiguously and repeatedly recognized in her responses the authority 
of the Constitution, Federal statutes as passed by the Congress, and 
case precedent from higher courts.
  Furthermore, Ms. Mollway has unwaveringly stated that there is 
nothing whatsoever that prevents her from abiding by and applying 
applicable law and precedent in cases that may come before her as a 
Federal district judge. I am certain she will do just that and serve 
the Federal judiciary and the State of Hawaii with reason, balance, and 
integrity.
  Madam President, on a more personal note, I would like to make a few 
comments about Ms. Mollway's family background, because I have known 
Susan Oki Mollway virtually all her life.
  The question that comes before us is why did she join the ACLU? 
People do things because of background or some experience in life.
  As a young law student, she began to research the life of Japanese-
Americans in the United States. And she came across rather strange 
decisions made by the Court and also by the Congress of the United 
States. These are chapters in the history of the United States that 
many of us would like to forget. But I think it might be well if we 
reviewed them at this moment.
  Ms. Mollway found out, for example, that in 1922 the Supreme Court of 
the United States declared that Japanese were not qualified for 
citizenship; in other words, they were singled out among all the 
peoples of the United States and said, ``You cannot be a naturalized 
citizen.'' Everyone else could be.
  Then in 1924, the Congress of the United States, in enacting the 
immigration laws, declared that if people are not qualified for 
citizenship, they may not immigrate to the United States. So once again 
the Japanese were singled out and told that they may not come here as 
immigrants.
  Then we all know that on December 7, that day of infamy, the Japanese 
attacked Pearl Harbor. Soon thereafter,

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on February 19, 1942, an Executive order was issued authorizing the 
Army of the United States to establish, throughout the United States, 
10 concentration camps and to place in these camps, for the duration of 
the war, all Japanese, whether they be citizens or not; and the vast 
majority were citizens. They were never tried. They were never charged 
with any crime. Due process was totally ignored. But there they were.
  Then on March 17 of that year, 1942, a strange decision was rendered 
and made known. The Selective Service System declared that Japanese-
Americans would be designated 4-C. Most Americans may not be aware of 
what 4-C stands for. Madam President, 1-A is that that person is 
physically and mentally fit to put on the uniform; 4-F is just the 
opposite. 4-C is the designation for ``enemy alien.'' And so on March 
17, 1942, I was declared an enemy alien. Ms. Mollway's father was also 
declared an enemy alien. But we proceeded to petition the Government, 
and I am glad to report that, about 9 months later, the President of 
the United States issued an order saying that Americanism is not a 
matter of race or color, Americanism is a matter of mind and heart, and 
authorized the formation of a special combat team of volunteers.
  The response was astounding to everyone. In Hawaii, over 85 percent 
of those eligible to put on the uniform volunteered. What is more 
astounding than that, hundreds of men who were behind barbed wires in 
these camps also stepped forward to volunteer to be given the 
opportunity of demonstrating their Americanism and their loyalty.
  Many Americans may not be aware of this, but this combat team, at the 
end of the war, was declared to be the most decorated in the history of 
the United States Army. There is no evidence or history of any 
subversive activity on the part of any member. Furthermore, in all of 
the investigations that were held since the end of that war, they could 
find not one instance of Japanese involvement in sabotage of fifth 
column activities.
  Ms. Mollway read these things, and she did research. And it is 
obvious for any young person who comes across information of that 
nature to be quite concerned. And she found that the ACLU was an 
organization that was concerned about the Constitution, to preserve and 
defend that most sacred of documents of Americans. And she was 
especially concerned about the Bill of Rights. So it was natural for 
her, just as I joined the ACLU because of my concern about the 
Constitution. But that does not make me any less an American.
  But this chapter in our lives ends with a burst of glory. I am 
certain Americans will remember that for the first time a mighty 
nation, a superpower, admitted their wrong and apologized, and 
apologized to the 120,000 Americans of Japanese ancestry who were 
incarcerated without due process of law.
  I am pleased to tell you that Susan Oki Mollway's father and I 
volunteered and we served in this regiment. And Susan could have no 
better role model to guide her life, professionally or personally, than 
her own father, who happens to be a lawyer also. I am certain that she 
mirrors her father in her love of country, in her commitment to the 
Constitution, and in her patriotism.
  Once again, Madam President, I wish to thank my distinguished friend 
from Utah, the chairman of the committee, for reporting this measure. I 
also wish to thank Mr. Trent Lott, the majority leader of the U.S. 
Senate, for scheduling this matter. We will be forever grateful.
  Thank you very much.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Madam President, I thank my dear colleague for his kind 
remarks on the floor. I just want to again express my regard for him 
and for the service he has given to his country, not only being an 
effective and very important and powerful U.S. Senator, but also as a 
hero, in my eyes, having served our country in the war and having 
sacrificed greatly for our country.
  From my point of view, if he wants a judgeship nominee, he is going 
to be given the benefit of the doubt in every way. And I have to say, 
in the case of Susan Oki Mollway of Hawaii, I do support her for this 
position as a United States district court judge. I plan to vote for 
her nomination, as I did in committee. If confirmed--and I believe she 
will be confirmed--Ms. Mollway will be the 270th Clinton judicial 
nominee to be reported by the Judiciary Committee and confirmed by the 
Senate.
  In light of this record of accomplishment and in light of some recent 
remarks made on the floor of the Senate, I thought it would be 
appropriate for me to spend a few minutes reviewing our record in 
processing President Clinton's nominees.
  I have been working with White House Counsel Chuck Ruff to ensure 
that the nomination and confirmation process is a collaborative one 
between the White House and the Members of the Senate. I think it is 
fair to say that after a few bumpy months in which the process suffered 
due to inadequate consultation between the White House and some 
Senators, the process is now working rather smoothly. I think the 
progress is due to the White House's renewed commitment to good-faith 
consultation with Senators of both parties.
  I strongly believe that we must do our best to reduce the 73 current 
vacancies in the Federal courts. But, frankly, there are limits to what 
we can do given the administration's performance so far. The fact of 
the matter is that, of the 45 nominees currently pending, 15 of those 
were received during the last month alone. And it takes 3 to 6 months 
just to process Federal district and circuit court judges. These are 
very tough positions. These are positions that are lifetime 
appointments, and they deserve the scrutiny that we have always applied 
on the committee, whether the committee has been controlled by 
Democrats or Republicans.
  Of the 45 total judicial nominees that are pending, 10 are 
individuals simply renominated from last Congress. Last year, the 
administration renominated a total of 23 nominees from the 104th 
Congress. Thirteen of them have been confirmed, but some of the others 
have some problems. That is why they were held over.

  Of those 73 vacancies, 28 have not yet received a nominee, and it was 
only a few months ago when better than half of the total vacancies of 
around 81 or 82 did not have a nominee. Like I said, we have received 
15 nominees within the last month. So, many of the vacancies come as a 
result not of the committee's slow pace but of the administration's 
inaction.
  Moreover, of the 115 judicial nominees sent forward to the committee 
this Congress, 82 of them have had hearings. Of the 82 nominees who 
have had hearings, 74 have been reported out of the committee. Of those 
74 nominees reported out of the committee, 66 have been confirmed and 7 
are pending on the Senate floor. One of those seven will be confirmed 
shortly, I hope, in the form of Susan Oki Mollway.
  Assuming most of these nominees the committee has processed are 
confirmed, I think you will see that our efforts compare quite 
favorably to prior Congresses in terms of the number of judges 
confirmed at this point in the second session of the Congress, 
especially if you look at the recent Democrat-controlled Congresses. 
For example, during the second session of the 102nd Congress, when 
President Bush was in office and the Democrats controlled the Senate 
and therefore the Judiciary Committee, guess how many nominees had been 
confirmed by July of 1992? Thirty. That is all. How many Clinton 
nominees this year will we have confirmed were we to stop confirming 
judges after today? Thirty-one. And we are not through with this 
session yet. As of July 1, 1990, the Democratic Senate had only 
confirmed 25 of the Bush nominees nominated that year. As of July 1, 
1988, only 21 of Reagan nominees confirmed that year had been confirmed 
by the Democrat-controlled Senate. So the plain fact is that we are 
right on track, if not ahead of previous Congresses.
  Now, while I am concerned that some vacancies need to be filled, I 
think there has been considerable distortion of the overall situation. 
There is by no means an unprecedented level of vacancies. In fact, 
there are more sitting judges today than there were throughout 
virtually all of the Reagan and

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Bush administrations. As of today, we have 767 active Federal judges. 
In addition, there are also well over 400 senior judges who can, and 
often do, hear cases.
  Keep in mind that the Clinton administration is on record as having 
stated that 63 vacancies--a vacancy rate just over 7 percent--is 
considered virtual full employment of the Federal Judiciary. They were 
right; when we have around 60 vacancies, we have virtually full 
employment. It is natural that there will always be some vacancies in 
light of the turnaround time involved in receiving and reviewing 
nominees. That is as it should be. Seventy-three vacancies, however, is 
a vacancy rate of 9 percent. Now, how can a vacancy rate from 7 percent 
to 9 percent convert ``full employment'' into a ``crisis''?
  Moreover, compare today's 73 vacancies to the vacancies under a 
Democratic Senate during President Bush's Administration. In May 1991 
there were 148 vacancies, and in May 1992 there were 117 vacancies. I 
find it interesting that at that time I don't recall a single news 
article or floor speech on judicial vacancies. So, in short, I think it 
is quite unfair and, frankly, inaccurate to report that the Republican 
Congress has created a vacancy crisis in our courts.
  While the debate about vacancy rates on our Federal courts is not 
unimportant, it remains more important that the Senate perform its 
advise and consent function thoroughly and responsibly. Federal judges 
serve for life and perform an important constitutional function, 
without direct political accountability to the people. Accordingly, the 
Senate should never move too quickly on nominations before it. I do not 
believe that we are moving too quickly on this nominee. This nominee is 
getting considered today, and I hope that she passes.

  Just this past year, we saw two examples of what can happen when we 
try to move nominations along perhaps too quickly. In one instance, a 
sitting Federal district judge nominated for a very important Federal 
appeals court was forced to withdraw the nomination after he had a 
hearing in the Judiciary Committee when it was discovered that he had 
lied about certain details of his background.
  In another instance, a nominee for a Federal district court was 
reported out of the Judiciary Committee before all the details of her 
record as a judge on a State trial court were known. As it happens, the 
district attorney in the nominee's city and the district attorneys' 
association in her home State have all recently come to publicly oppose 
the nomination, setting forth facts demonstrating a very serious 
antiprosecution bias in her judicial record.
  It is cases like these that underscore the importance of proceeding 
very deliberately with nominations for these most important life-
tenured positions. Even so, you can be too deliberate; you can delay 
these too much. I think under my tenure as chairman of the committee we 
have not done that. I hope that our colleagues on the other side 
realize that.
  In closing, I feel I should respond to some unfortunate remarks made 
recently on the floor of the Senate. I am referring to a speech where 
one of my colleagues accused the Senate majority of ``stalling Hispanic 
women and minority nominees'' because of ``ethnic and gender biases.''
  Day in and day out, the Judiciary Committee routinely has evaluated 
and reported on literally hundreds of Clinton judicial nominees without 
any regard whatever to the nominee's race, gender, religion, or ethnic 
origin. And the Senate has gone on to confirm those Clinton nominees--
269 of them, up until today. Should Susan Oki Mollway be confirmed, the 
number will be 270 judges. Indeed, according to statistics compiled by 
the liberal judicial watchdog group, the Alliance for Justice, no fewer 
than 70 of these nominees were women, 42 were African Americans, 13 
were Hispanics, and 4 were Asian Americans. These figures do not 
include the more than 235 Department of Justice and White House 
nominees--non-judicial nominees, if you will--approved by the Senate 
Judiciary Committee whom Republicans have confirmed for President 
Clinton.
  Anyone can cite individual isolated examples of unexpedited 
consideration but I flatly reject that these amount to what my 
colleague called a ``disturbing pattern'' of ``ethnic and gender 
bias.'' I do not think it would be appropriate for me at this point to 
discuss why each of his examples fails to support his point. Suffice it 
for me to say here that members of the Judiciary Committee are well 
aware that many nominees lack the support of home-State Senators, have 
a record that raises serious questions of character and judicial 
temperament, or have some other background difficulty that necessitated 
further investigation.
  I do not believe it does the Senate well, nor do I believe it does 
the Committee well, to engage in this sort of ``wedge'' politics. I 
hope my colleagues will refrain from such unproductive attacks. They 
are not only unproductive, they are unfair and, in my opinion, somewhat 
vicious.
  To suggest that the Committee or this majority is motivated by 
improper bias of any kind is simply wrong, and the record shows it. In 
addition, I will not allow such accusations to force us to abdicate the 
Senate's responsibility to ensure that the Senate adequately and fully 
discharges its constitutional advise and consent function for nominees 
for life-tenured judicial office.
  Having said all of this, I would like to lend my support for Susan 
Oki Mollway and to the distinguished Senators from Hawaii, both of whom 
I admire very much. I have to say that the distinguished Senator from 
Hawaii, Senator Inouye, has known Susan Oki Mollway virtually all her 
life. He has known her father, who also, likewise, is a hero.
  I examined her record, and, yes, there are things that naturally 
raised the hackles of some on the committee, but I have to say that she 
is an extremely intelligent women with an extremely well balanced 
background. I have to say that I believe she ought to be supported here 
on the floor today, and I intend to do everything I can to support her.
  Susan Oki Mollway was nominated for district judge from the District 
of Hawaii on January 7 of last year. I personally apologize to my two 
colleagues for this having taken so long to get to the floor. She has a 
B.A. and an M.A. in English from the University of Hawaii. That alone 
is pretty impressive, but she received her J.D. cum laude from Harvard 
University in 1981. That is also pretty impressive.
  Currently, she is a partner with the Honolulu firm of Cades, Schutte, 
Fleming and Wright. She also currently serves as director to the Hawaii 
Justice Foundation and the Hawaii Women's Legal Foundation, both unpaid 
positions, organizations that focus on local issues and/or raise money 
for charitable organizations. In addition, she was the recipient of the 
Outstanding Woman Lawyer of the Year award in 1987. She is an 
exceptional person--in my opinion, one who should be able to fill this 
position in a way that will bring honor to the Federal courts. I hope 
that is true. I have no way of being absolutely sure, but I am relying 
on the recommendations of our two colleagues from Hawaii and the 
extensive background investigation the Committee performed on Susan Oki 
Mollway. I hope our colleagues in the Senate will support her. I 
believe she is worthy of support.

  I think my colleagues know that I take these nominations very 
seriously. We look at them very seriously. We do extensive background 
checks and investigations, as did our friends on the other side when 
they were in control of the committee. I try to be down the line, down 
the middle, and I try to make sure people are treated fairly. 
Naturally, I resent it when somebody indicates in any conversation that 
there may be some impropriety or improper bias involved with regard to 
some of the nominees who have been or are currently pending before the 
Senate and/or the Judiciary Committee.
  I am very concerned, as Judiciary Committee chairman, that we do our 
jobs well. I am very concerned that we do them in a way that is fair. I 
am very concerned that we get the best people we can on the Federal 
bench. After all, these are lifetime appointments. It is often said 
that Federal judges are the ``closest thing to God'' in this life 
because they have so much power, and once they are there, you really 
can't

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get rid of them. They are not really politically accountable or 
directly accountable to the American people because they don't have to 
stand for reelection, which I think is a very good thing because that 
keeps the Federal judicial system above politics, hopefully, or at 
least less involved in politics than any other branch of our 
Government. I think the judiciary has served our country well. I have 
seen great liberal judges and great conservative judges, and I have 
seen lousy liberal judges and lousy conservative judges on the Federal 
bench. Ideology isn't necessarily the determining factor as to whether 
a judge will serve in the best possible manner as a member of the 
Federal bench.
  So it is important that we find people of high caliber, high quality, 
high ethics, with good work habits, that are honest and decent, to fill 
these positions. I believe Susan Oki Mollway fits all of those 
categories.
  I yield the floor.
  Mr. INOUYE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Hawaii, Mr. Inouye.
  Mr. INOUYE. Madam President, I thank my distinguished friend from 
Utah for his warm and generous remarks. I am most grateful.
  I yield to my colleague from Hawaii.
  The PRESIDING OFFICER. The Senator from Hawaii, Mr. Akaka, is 
recognized.
  Mr. AKAKA. Madam President, it is with great pleasure that I take the 
floor today to speak on behalf of Ms. Susan Oki Mollway, the 
President's nominee to the U.S. District Court for the District of 
Hawaii.
  I wholeheartedly support Ms. Mollway, who, if confirmed, will fill 
the fourth seat on the Hawaii court. I also want to join with the 
remarks of my senior Senator, who eloquently and passionately spoke 
about Susan Oki Mollway and her family. He also spoke about our 
interviewing her for this position and how impressed we were with her 
caliber, the kind of person that she is. I also want to thank chairman 
Orrin Hatch of Utah for his support and for reporting this out of 
committee, and also Senator Pat Leahy, the ranking member from Vermont 
on the committee, and members of the committee for reporting this 
nominee out to the floor. I also want to thank our majority leader, 
Trent Lott of Mississippi, for permitting it to be on the floor today.
  This has been a long journey for us. This position has been vacant 
since the untimely passing of Judge Harold Fong in April of 1995. As 
the senior Senator from Hawaii noted, the caseload in the District of 
Hawaii continues to increase. This has been very, very difficult for 
Hawaii. The recently adjusted 1997 Federal Court Management Statistics 
Report found that the U.S. District Court, District of Hawaii, is the 
eighth busiest court out of 91 in the country, and the third busiest in 
the ninth circuit.

  Therefore, it is critical that the vacancy on the Hawaii court is 
filled. Senator Inouye and I believe that Susan Oki Mollway is the most 
qualified candidate for this position.
  Ms. Mollway enjoys the highest rating of ``well qualified'' from the 
majority of the American Bar Association's Standing Committee on the 
Federal Judiciary. To quote some of her colleagues in Hawaii, ``We have 
come to know her as a highly ethical, careful, dedicated, intelligent, 
articulate, caring, and energetic lawyer.'' Ms. Mollway is known for 
her professional skills, her sense of ethics, and a moral compassion--
qualities needed for service on the Federal bench.
  Senator Inouye has already recounted Ms. Mollway's education, 
professional, and family background. However, I do wish to point out 
that, as a Harvard Law School graduate, she could have stayed on the 
mainland like so many of Hawaii's young people. Instead, she returned 
to Hawaii, the home of her parents, where she joined one of Honolulu's 
best-known law firms --Cades Schutte Fleming & Wright.
  As a specialist in civil litigation, Ms. Mollway handles a wide range 
of cases and has appeared before every level of the State and Federal 
courts, including a successful appearance before the U.S. Supreme Court 
in 1994.
  Ms. Mollway has responded fully to those who have questioned her on 
her former position on the board of directors of the Hawaii chapter of 
the American Civil Liberties Union. Senator Inouye has mentioned this 
about her. Prior to her board membership, the ACLU-Hawaii filed a 
friend of the court brief in support of plaintiffs in the Hawaii same-
sex marriage case. Although she was aware of ACLU-Hawaii's position and 
activities in the same-sex marriage case, as a board member Susan 
Mollway was never called on to play an active role.
  Furthermore, Ms. Mollway understands that her personal opinions are 
not relevant to the decisions she would make as a Federal judge. She 
has stated that she recognizes the authority of the Constitution, 
Federal statutes as passed by the Congress, and case precedent from 
higher courts as the judicial guidelines to follow in court 
deliberation.
  I believe my colleagues will agree with me that Susan Mollway's 
credentials are impressive. She is an individual of the highest 
integrity, whose dedication to her profession is admired by all. I am 
pleased to lend my support to Ms. Mollway and urge my colleagues to 
vote in favor of this nominee whose confirmation will bring the U.S. 
District Court in Hawaii to its full complement.
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Madam President, I am honored to have the opportunity 
to make some remarks on the occasion of this nomination. First, I want 
to say how much I respect both of the Senators from Hawaii. I believe 
that they take very seriously the nomination of a U.S. district judge, 
and I believe they have sought to fulfill their responsibilities well 
in that regard.
  Having been a practitioner in Federal court myself--full-time as a 
U.S. attorney for 15 years, and another 5 years or so in private 
practice--I have a deep feeling about the judiciary, what it needs to 
be, and the standards it ought to uphold. I believe it ought to be a 
disinterested applicator of the law, regardless of politics, ideology, 
and those sorts of things. I believe we ought to look for nominees that 
do that. Both for my respect for the distinguished Senators from Hawaii 
and my respect for this nominee make it difficult for me to stand here 
and suggest, as I will, that we ought not to confirm this nominee for 
the Federal bench. I have no doubt that she is a person of integrity 
and character. But I want to share some concerns that I have about this 
nomination, and why I think it ought not be confirmed.

  Also, let me express my respect for the distinguished chairman of the 
Senate Judiciary Committee. There is no finer constitutional lawyer in 
this body than Senator Hatch. He is a man of integrity and ability. He 
works hard every day in our committee to make sure nominees are given a 
fair shake, and that the nominations are moved along at a steady pace, 
as they continue to do. I know that he considered carefully the 
problems that this nominee had before he agreed to vote in favor of 
this nominee. I know he respects the opinion of both Senators from 
Hawaii.
  I note that the committee voted 12 to 6, with six Senators voting 
against the nomination. I think that suggests that there was a genuine 
unease by a considerable number of the committee with regard to this 
nominee.
  It is impossible to know for sure what anyone will do on the bench. 
This nominee may turn out to be a very restrained and rigorous judicial 
nominee and judge, consistent with some of the great judges in history. 
But we have to look at the nominees' backgrounds and the positions they 
have taken over the years to try to analyze how they might perform on 
the bench.
  The Senate is given under the Constitution the power to advise and 
consent with the President. These nominees are lifetime appointees. 
They will serve throughout their entire life making decisions day after 
day, week after week, month after month, year after year. And, as 
Senator Hatch said, they are not accountable to the people. It is 
really the most anti-democratic aspect of our entire American 
government, but I support it. I am not in favor of electing Federal 
judges. I therefore believe it is our responsibility to give careful 
thought to those to whom we give that position.
  First, let me note one thing. It does appear that the district of 
Hawaii is in

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need of a judge. Their caseload is 700 weighted cases per judge. It is 
a heavy caseload. We have a judicial circuit in Alabama that has a 
higher caseload, and it is, indeed, a high caseload. I am sure another 
judge is needed to do that work. I know all of us are active in various 
activities. And I think it is appropriate that we be asked about those 
activities when we are nominated for a position like this.
  What do we know about this nominee? We know that she was a voluntary 
member of the American Civil Liberties Union for a number of years--may 
still be--and was an active member of the board of directors and a 
fundraiser for the Hawaii ACLU during 1995 and 1996.
  During that time, the Hawaii ACLU took a number of positions. I am 
certain that as a board member she did not sign those pleadings, and 
maybe did not personally conduct in-depth research. In fact, I think 
she suggested she has not researched each one of these issues. But I 
think it is appropriate for us to ask about those positions, as we did 
on the committee. She did not disavow any of them.
  In 1996, in Hawaii, an ACLU executive or administrator stated, ``The 
laws that discriminate based on sexual orientation are as reprehensible 
as laws that at one time protected segregation.''
  The point of that discussion was testimony on the recognition of 
homosexual marriages. And, in fact, the ACLU official was taking the 
position that Hawaii should take on the question of affirming, 
ratifying, respecting, and acknowledging homosexual unions. He was 
suggesting that those who would oppose it would be the same as those 
who opposed integration.
  I would have to say that is outside the mainstream of law. As 
attorney general of Alabama, I had the occasion to have my staff do 
some research on this. We found no place in the history of America that 
any State or government agency ever recognized a homosexual union. It 
is not recognized, to my knowledge, any place in any culture in the 
world and reflects an odd and historically inaccurate view of the law. 
But that was the organization's position, of which she was a board 
member and a fundraiser.

  In 1995, the ACLU opposed legislation that would have required HIV 
testing for persons indicted for sexual crimes. I would suggest that 
there is an extreme anxiousness and justifiable concern about these 
kinds of activities.
  When a person is arrested for a sexual crime and there is a victim 
that may have been infected with HIV, I think it is perfectly 
appropriate for a judicial authority require as a condition of the 
suspect's release that person to be tested to see if they have passed 
on such a horrible disease to the victim.
  Also, I suggest that we have a large number of people in the ACLU 
active in opposing all drug testing. That is a very, very important 
matter of public interest. It is unfounded in constitutional law and at 
least in most properly applied cases of drug testing. We will have more 
drug testing in the future, because we are concerned about young people 
and others who are using drugs.
  In 1995, the ACLU in Hawaii, of which this individual was a board 
member and fundraiser, opposed an ordinance that banned overnight 
sleeping in parks.
  We have learned in recent months pretty clearly that it is important 
and necessary for a city and police departments to take control of 
their streets. We learned in New York that the panhandlers and those 
who are in the parks can, in fact, undermine public safety. Mayor 
Guiliani in New York has taken great leadership in that regard, and has 
substantially driven down the crime rate in New York.
  It is small matters like this which sometimes turn into much larger 
matters. This is the kind of frustration that cities and counties and 
police departments around the country feel when they are challenged 
about the steps they have to take to preserve public safety.
  In 1965, the Hawaii ACLU, of which this nominee was a board member 
and fundraiser, opposed drug testing in the workplace, saying, ``The 
ACLU opposes random and indiscriminate drug testing in the workplace, 
not only on privacy grounds but also because such drug testing does not 
detect current impairment.''
  Madam President, one of the most beneficial acts that has been done 
to fight drugs in America, in my opinion, is drug testing in the 
workplace. A businessman who cares about his employees, who sets a high 
standard, who wants to eliminate theft, who wants to reduce accidents, 
who wants to protect the health of his or her employees sends out a 
clear message that drug use is not acceptable in their company, and 
they drug test fairly and objectively. The tests are very reliable 
today and make the workplace safer by protecting the lives and safety 
of employees, eliminating and reducing crime and theft by the 
employees, and avoiding injury to those who come into contact with 
those employees. Furthermore, they also encourage employees to stay 
drug free. You are encouraging them by insisting on a high standard. 
And perhaps that employee when they go home will tell their wife or 
husband who suggests that they might use drugs, ``No, we shouldn't do 
it. I am going to be tested at work.''
  Drug testing has been a great success. But it has been a long, hard 
legal fight. In case after case, the ACLU position has been rejected.
  I must admit, as a person who has been involved in the fight against 
drugs, that it concerns me that our nominee is a person who was a board 
member of an organization that voluntarily went out and tried to 
obstruct workplace drug testing.
  In 1995, the Hawaii ACLU opposed another common occurrence in 
America, the very popular minimum sentence in criminal cases. State 
after State after State has followed the Federal law that says that 
under certain circumstances, crimes with certain prior convictions will 
be punished with at least a minimum sentence if convicted. And that 
process has worked; I believe it has helped us identify repeat 
offenders, to lock them up for longer periods of time, and I am 
confident that that is one of the primary reasons we have seen a 
reduction in crime among adults. We are doing a better job of 
identifying serious, repeat, violent offenders through these ``three 
strikes you're out'' laws and mandatory sentencing laws, and it is no 
small concern to me as a prosecutor, a Federal and State prosecutor, 
that our nominee for this position has supported the position of the 
ACLU that mandatory minimum sentences ought not to be approved.
  In addition, the Hawaii ACLU has opposed a Federal Stop Turning Out 
Prisoners Act and the Community Notification of Sex Offenders Act. 
Those are some of the positions that they have taken during the 1995 
period in which this nominee was a member of the board and a 
fundraiser. Now, when asked at our confirmation hearing if there were 
any policy positions of the Hawaii ACLU that she disagreed with while 
on the board of directors, Ms. Mollway answered, ``I cannot think of 
any.''
  Now, I believe that is a sufficient basis for a Senate Member to have 
a serious concern about this nominee, and that is why at least six 
members of the Judiciary Committee cast a ``no'' vote. We respect those 
who have nominated her; we respect her; but we have serious concerns 
about her nomination to the Federal bench.
  In addition, in recent years the ACLU has taken other positions that 
are outside the mainstream of legal and current American thought. They 
oppose the death penalty. They oppose three-strikes sentencing laws 
around the country. They oppose school vouchers for sectarian schools. 
They have opposition to V chips in televisions to screen out violence. 
They oppose voluntary labeling of music albums as to their content. 
They support the legality of partial-birth abortion. They support the 
constitutionality and use of racial preferences and oppose some of the 
laws that eliminate that. And they support the decriminalization of 
drugs; that is, the legalization of drugs.
  Such positions are not mainstream thought in this country. That is 
not mainstream law that is being advocated. They have done some good 
things over the years. They have taken some positions that were 
courageous and were proved to be right and furthered our country, but 
this nominee in the last few years was an active member of an 
organization that took some of the positions I just mentioned, in 
court.

[[Page S6756]]

  Now, I have voted for an ACLU member, maybe more than once, to be 
confirmed, but I want to share some other things that concern me and 
affect my decision, and I hope other Senators will consider this as 
they decide what standard they will use when they consider whether to 
consent to this nomination.
  This nominee will be a district judge within the Ninth Circuit Court 
of Appeals that includes Hawaii, California, Oregon, Washington, Idaho, 
Arizona, Nevada and Alaska. Over the years that circuit has been 
recognized as the most liberal circuit in America. It has also been 
recognized as a court that has been out of touch with mainstream 
American law. In the last term of the U.S. Supreme Court, the Supreme 
Court reviewed 28 cases that arose from the ninth circuit, and of those 
28 cases, they reversed 27 of them. This has been a pattern over quite 
a number of years.
  Just last month, the ninth circuit became the first circuit in 
America to rule that the Prison Litigation Reform Act is 
unconstitutional. That was passed by this Congress. It was a 
magnificent act to eliminate this repetition of appeals by prisoners 
that have clogged courts for years, and I have seen it personally, and 
so many of them are extraordinarily frivolous. But it was carefully 
considered by this body. Every other circuit that has addressed this 
issue has upheld the constitutionality of the Prison Litigation Reform 
Act, including the 1st circuit, the 4th circuit, the 6th circuit, the 
8th circuit, and the 11th circuit. They have upheld it as 
constitutional, but once again the ninth circuit is out of step with 
that group.
  Recently, in the last month or so, the Supreme Court harshly 
criticized the ninth circuit for granting a habeas corpus petition--
that is, a petition by a prisoner--that had overturned the death 
sentence of a convicted rapist and murderer. In reversing this 
conviction, the ninth circuit opinion reversed a conviction that had 
gone to the California Supreme Court four times, that had gone to the 
U.S. Supreme Court two times. The defendant had been on death row for 
well over 10 years and there was little dispute about his guilt or 
innocence. And so the Supreme Court really was frustrated by this. This 
was a midnight stay of execution, within 24 or 48 hours of the carrying 
out of this death penalty case that had been on death row for years and 
was reversed by them.
  Some would say, as Ms. Mollway did, I will follow the laws. Sometimes 
we have to wonder what the law is in the ninth circuit. We know that 
they have been extraordinarily sensitive to death penalty cases beyond, 
in my opinion, rationality. We know that in many cases the court-
appointed attorneys' fees in death cases in California or in the ninth 
circuit have exceeded $1 million for the court-appointed attorneys to 
defend those who have been charged, since the appeals go on for years 
and years. And, as I recall, the amount of money spent on that in the 
ninth circuit matches all the other circuits in America in expense.
  So we have a problem with that, and we need judges who know what the 
law is, who make every effort to guarantee that the innocent are found 
innocent, their convictions reversed if need be, and are given a fair 
trial. That is absolutely guaranteed by our Constitution and should 
never be denied. But, Madam President, when you have these kinds of 
appeals, it makes a mockery of the law, it undermines the public 
respect for the law, it places the courts in disrespect, and I think 
this circuit is rightly criticized for that.
  Recently, the New York Times referred to the ninth circuit as ``the 
country's most liberal circuit'' and noted that it was viewed by a 
majority on the Supreme Court as ``a rogue circuit.''
  I would say that is a serious matter. I believe, based on this 
nominee's background, her positions on issue after issue, her 
activities with the ACLU in Hawaii, that we have indications that 
instead of being a part of a renaissance in the ninth circuit, to 
improve the ninth circuit and bring it back into the mainstream of 
American law, that she would, in fact, be more of the same: the same 
liberal, activist, anti-law-enforcement mentality that has gotten this 
circuit out of whack with the rest of the Nation.
  District judges are not circuit judges; I don't mean to suggest that 
they are; but they are part of the circuit. It was a district judge 
recently who ruled the California Proposition 209, the civil rights 
initiative that would eliminate racial preferences, violated the 
Constitution of the United States. Fortunately, a panel of even the 
ninth circuit unanimously agreed that was not correct and the court 
found there is no doubt that Proposition 209 was constitutional. And 
the Supreme Court refused to reverse that--in effect, affirmed that 
decision.
  So I would just say to my distinguished friends from Hawaii, we do 
need to be careful about what is happening on our benches. We do have, 
in certain parts of this country, courts that are going beyond the 
traditional role of judges, going beyond the traditional role of 
courts. It is breeding a disrespect, it is undermining law enforcement, 
it is delaying the carrying out of justly imposed sentences, and we 
need to make sure that we do something about that. I, for one, have 
stated publicly for some time now that I feel a special obligation and 
a special concern to look at the nominees for the ninth circuit, to 
make sure that those nominees are going to be part of a solution to 
this problem rather than part of the problem.
  Based on my analysis and my sincere belief about it, I have concluded 
that I should vote ``no,'' and I will urge my fellow Senators also to 
vote no.
  This nominee is a person of quality and intellect, but I believe she 
is not the right nominee at this time for this position.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. INOUYE. I am most grateful to the distinguished Senator from 
Alabama for his reasoned argument on the matter before us.
  In order to further clarify the record, if I may, Madam President, I 
ask unanimous consent that a letter dated March 9, 1998, addressed to 
the chairman of the Committee on the Judiciary, with responses to 
additional questions from Senator Thurmond and Senator Sessions, be 
printed in the Record.
  There being no objection, the Letter was ordered to be printed in the 
Record, as follows:

                               Cades Schutte Fleming & Wright,

                                      Honolulu, HI, March 9, 1998.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC
       Dear Senator Hatch: Thank you very much for giving me the 
     opportunity to respond to additional questions from Senators 
     Thurmond and Sessions. I am enclosing my responses to the 
     questions delivered to me on March 9, 1998.
           Very truly yours,
                                                Susan Oki Mollway.
       Attachments.

   Answers of Susan Oki Mollway to Additional Questions from Senator 
                                Sessions

       1. In your legal opinion, is the Prison Legal Reform Act 
     constitutional?
       Yes. This law is presumed to be constitutional. It has been 
     upheld by several appellate courts (e.g., Hadix v. Johnson, 
     133 F.3d 940 (6th Cir. 1998); Benjamin v. Jacobson, 124 F.3d 
     162 (2d Cir. 1997); Plyler v. Moore, 100 F.3d 365 (4th Cir. 
     1996), Cert. den., 117 S. Ct. 2460 (1997)). I have no 
     personal views that would prevent me from following 
     applicable law in this or any other area.
       2. In your legal opinion, is the 1995 Habeas Corpus Reform 
     constitutional?
       Yes. This law is presumed to be constitutional. It has been 
     upheld as constitutional in Felker v. Turpin, 116 S. Ct. 2333 
     (1996). Again, I have no personal views that would prevent me 
     from following applicable law in this or any other area.
       If confirmed, you will preside over many employment 
     discrimination cases as a federal judge.
       3. In a suit challenging a government racial preference, 
     quota, or set-aside, will you follow the 1995 Adarand v. Pena 
     decision and subject that racial preference to the strictest 
     judicial scrutiny?
       Yes, if confirmed, I will follow Adarand v. Pena and 
     subject any government racial preference, quota, or set-aside 
     to the strictest judicial scrutiny.
       4. In your legal opinion, how difficult is it for any 
     government program or statue to survive strict scrutiny?
       It is extremely difficult for a government racial 
     preference, quota, or set-aside to survive strict scrutiny. 
     The program or statute must be narrowly tailored to meet a 
     compelling state interest. Adarand v. Pena makes it clear 
     that this is a very heavy burden to overcome.
       5. Is the California Civil Rights Initiative 
     constitutional?
       Yes. In Coalition for Economic Equity v. Wilson, 122 F. 3d 
     692 (9th Cir.), Cert. den., 118 S. Ct. 397 (1997), the Ninth 
     Circuit upheld the initiative.

[[Page S6757]]

       6. Is there a constitutional right to homosexual marriage 
     under the U.S. Constitution?
       Bowers v. Hardwick, 478 U.S. 185 (1986), and the Defense of 
     Marriage Act, which is presumptively constitutional, indicate 
     that there is no constitutional right to homosexual marriage 
     under the United States Constitution. I have no personal 
     belief that would prevent me from following applicable law in 
     this or any other area.

  Mr. KENNEDY. Madam President, I strongly support Susan Oki Mollway's 
nomination to the federal district court in Hawaii. Her nomination has 
now been pending before the Senate for two-and-a-half years. It is long 
past time to confirm this able nominee.
  Ms. Mollway's credentials are impressive. She is a Harvard Law School 
Graduate and a partner at a prestigious Hawaii law firm, where her 
practice has included complex civil litigation. In 1987, she was voted 
Outstanding Woman Lawyer by the Hawaii Women Lawyers. She successfully 
argued a case before the Supreme Court of the United States in 1994.
  Ms. Mollway has the support of every member of Hawaii's congressional 
delegation, and the federal judges in Hawaii hold her in the highest 
regard. She would be the first Asian-American woman to sit on the 
federal bench.
  Some of our colleagues opppose this nomination because Ms. Mollway 
served on the Board of Directors of the ACLU in Hawaii, at a time when 
the ACLU was active in the same-sex marriage debate in that state. In 
fact, much of the ACLU's involvement in that debate took place long 
before Ms. Mollway became a member of the Board of Directors. In 
addition, Ms. Mollway has emphatically stated that she never voted on 
the position the ACLU should take on this issue or on any other 
litigation or legislation. The opposition to her nomination is 
unjustified, and it is no basis for denying confirmation.
  Unfortunately, Ms. Mollway is just one of the many well-qualified 
women and minority nominees who have been arbitrarily delayed by the 
Senate and subjected to unfair ideological hazing.
  In fact, in this Republican Senate, women are four times more likely 
than men to be held up for more than a year. Forty-three percent of the 
nominees currently on the Senate calendar are women. In the last three 
months, the Senate Republican leadership has allowed only one woman to 
be confirmed to the federal bench, while confirming 15 men. And, 16 out 
of 21 --that's 76 percent--of the nominees carried over from last 
year's session are women or minorities.
  I urge my colleagues to support Ms. Mollway's nomination. It is time 
to end the logjam of qualified women and minority nominees. It is time 
to provide relief to the federal district court in Hawaii, whose 
caseload has doubled in the last five years. It is long past time to 
confirm Susan Oki Mollway. Her qualifications are outstanding and I am 
confident that she will serve with great distinction on that court. 
Frankly, the Senate should confirm her--and apologize to her as well.
  Mr. INOUYE. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DASCHLE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Madam President, I want to say a couple of words about 
this nomination. I am very pleased that Susan Mollway's nomination has 
finally reached the Senate floor. As others have noted, it is a long, 
long time in coming. I am told that it has taken 2\1/2\ years. But 
today she is finally going to get a vote, and I am confident that she 
will be confirmed.
  I think it is quite an impressive story. Susan Mollway, first 
nominated for the U.S. District Court for the District of Hawaii in 
December of 1995, was reported favorably by the Senate Judiciary 
Committee on April 25 of 1996. Nothing happened, of course, with that 
nomination, and she was renominated again on January 7 of 1997 and 
again reported out favorably by the Judiciary Committee.
  She must be the most patient woman in the world. For all this time, 
with all this uncertainty, with all of the implications professionally, 
it has been a long wait, not only for her, but for Hawaii.
  The seat which Ms. Mollway has been nominated to has been vacant now 
for 3 years, since April of 1995. Were it not for the extraordinary 
persistence of our colleagues from Hawaii, the senior Senator, Daniel 
Inouye, and the junior Senator, Daniel Akaka, we would not be here this 
afternoon. It is only their persistence and the extraordinary 
credibility and, frankly, persistence that they have demonstrated for 
all this time that we are now celebrating this moment.
  Their persistence is well invested. Susan Mollway is fully qualified 
and will be an extraordinary credit to the bench. She is a partner in 
the Honolulu law firm of Cades, Schutte, Fleming and Wright where she 
went upon graduation from Harvard Law School.
  She has practiced in a broad range of areas, including a successful 
argument before the U.S. Supreme Court. She has won numerous awards, 
including the Hawaii Women Lawyers' Outstanding Woman Lawyer Award in 
1987.
  The granddaughter of a ``picture bride'' and a plantation worker in 
Hawaii, Ms. Mollway and her family have learned strength and commitment 
from their story. Her father left high school during World War II to 
join a Japanese-American unit of the U.S. Army. Together with Senator 
Inouye, he fought in Europe as part of the 442nd Regiment Combat Team, 
the most decorated military unit of its size in World War II. At the 
same time, people he knew were among the thousands of Japanese-
Americans interned by our own Federal Government. Later, Ms. Mollway's 
father used his veteran's benefits to attend Harvard. Clearly, his 
daughter now understands the great joy and honor of being an American, 
but also the burdens and barriers faced by some in our society.
  We are all proud of the distance we have come as a society in ending 
the kind of discrimination faced by Japanese-Americans of Ms. Mollway's 
father's generation, but the confirmation of this judge to be now U.S. 
district judge will mark yet another step in this progress. Susan 
Mollway is an outstanding nominee and deserves to be confirmed.
  I, again, congratulate my two colleagues from Hawaii, and I call upon 
all of my colleagues to vote in her favor in 40 minutes.
  I yield the floor.
  Mr. INOUYE. Madam President, I ask unanimous consent that Senator 
Sessions and I be permitted to yield back the remainder of our time and 
that at the hour of 5 p.m., a rollcall vote be taken on this matter.
  The PRESIDING OFFICER. Is there objection to the unanimous consent 
request?
  Mr. INOUYE. Madam President, may I change that to 5:10?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Does the Senator wish to request the yeas and nays at this time?
  Mr. INOUYE. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.

                          ____________________