[Congressional Record Volume 144, Number 106 (Friday, July 31, 1998)]
[Senate]
[Pages S9527-S9528]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         NOMINATION OF KIM McLEAN WARDLAW AND THE NINTH CIRCUIT

  Mr. DeWINE. Mr. President, later today, the U.S. Senate will vote on 
the nomination of Kim McLean Wardlaw to be a judge for the ninth 
circuit. The Judiciary Committee approved this nomination by a voice 
vote. At that time, I noted my opposition to this nomination for the 
record. Today, I expect the Senate will approve this nomination by a 
voice vote again. Again, Mr. President, I note my opposition for the 
record.
  When we vote on the nomination of a Federal district or circuit court 
judge, I am sure all of us do so only after deliberation and 
consideration. I believe that the President of the United States has 
very broad discretion to nominate whomever he chooses, and I believe 
the U.S. Senate should give him due deference when he sends us his 
choice for a Federal judgeship.
  Having said that, however, I believe the Senate has a constitutional 
duty, and it is prescribed in the Constitution, to offer its advice and 
consent on judicial nominations. Each Senator has his or her own 
criteria for offering this advice and consent. However, since these 
nominations are lifetime appointments, all of us must take our advice 
and consent responsibility very seriously, and rightfully so.
  Earlier this year, when the Senate Judiciary Committee considered the 
nomination of another nominee to be a judge for the ninth circuit, in 
this case William Fletcher, I expressed my concerns about how far the 
ninth circuit has moved away from the mainstream of judicial thought 
and how far it consistently--consistently--strays from Supreme Court 
precedent.
  At that time, considering that nomination to the ninth circuit, I 
also stated that when the Judiciary Committee considers nominees for 
the ninth circuit, I feel compelled to apply a higher standard of 
scrutiny than I do with regard to other circuits.
  I have come to this conclusion after an examination of the recent 
trend of decisions that have been coming out of this ninth circuit. 
Simply put, I am concerned that the ninth circuit does not follow 
Supreme Court precedent, and its rulings are simply not in the 
mainstream. The statistics tell the sad story.
  In 1997, the Supreme Court of the United States reversed 27 out of 28 
ninth circuit decisions that were appealed and granted cert. That is a 
96-percent reversal rate.
  In 1996, 10 of 12 decisions for that same circuit were reversed, or 
83 percent. If you go back to 1995, 14 of 17 decisions were reversed, 
or an 82-percent reversal rate.
  In other words, what we are seeing from 1995 to the present is an 
escalating trend of judicial confrontation between the ninth circuit 
and the U.S. Supreme Court. Let's keep in mind that the Supreme Court 
only has time to review a small number of ninth circuit decisions. This 
leaves the ninth circuit, in reality, as the court of last resort for 
the 45 million Americans who reside within that circuit. In the vast, 
vast majority of cases, what the ninth circuit says is the final word.
  To preserve the integrity of the judicial system for so many people, 
I believe we need to take a more careful look; I believe this Senate 
needs to take a more careful work at who we are sending to a circuit 
that increasingly chooses to disregard precedent and ultimately just 
plain gets it wrong so much of the time.
  Consistent with our constitutional duties, the U.S. Senate has to 
take responsibility for correcting this disturbing reversal rate of the 
ninth circuit. That is why I will only support those nominees to the 
ninth circuit who possess the qualifications and have shown in their 
background that they have the ability and the inclination to move the 
circuit back towards that mainstream.
  Mr. President, as the statistics reveal, the ninth circuit's reversal 
rate is an escalating problem. It is not getting better, it is getting 
worse. So today, this Senator is drawing the line. I am providing 
notice to my colleagues that this is the last ninth circuit nominee 
that I will allow to move by voice vote on this floor.
  Further, until the ninth circuit starts to follow precedent and 
produce mainstream decisions, I will continue to hold every ninth 
circuit nominee to a higher standard to help ensure that the 45 million 
people who live in the ninth circuit receive justice that is consistent 
with the rest of the Nation, justice that is predictable, justice that 
is not arbitrary, nor dependent on the few times the Supreme Court 
actually reviews and ultimately reverses an erroneous ninth circuit 
decision.
  Mr. President, all this leads me back to this nominee for the ninth 
circuit, the nominee that we will later today be considering, Judge Kim 
Wardlaw. There is simply, in my opinion, no evidence that this nominee 
will help to move the ninth circuit closer to the mainstream. And it is 
largely for that reason that I rise today to oppose this nomination.
  On November 9, 1995, the Judiciary Committee approved Kim Wardlaw's 
nomination to be U.S. district judge by unanimous consent. Further, the 
full Senate did the same thing on December 22, 1995. Today, we are now 
considering her nomination for elevation to the ninth circuit.
  Mr. President, during Judge Wardlaw's nomination hearing last June, I 
asked her to explain or describe the significant cases in which the 
Women's Lawyers Association of Los Angeles, the WLALA, filed amicus 
briefs during the time Judge Wardlaw served as president of this 
organization from 1993 to 1994 and the role she played during that time 
in the selection of these cases. That was my question.
  Judge Wardlaw responded that when she was president there was a 
``separate Amicus Briefs Committee that would take requests for writing 
briefs.'' She described one case she remembered from that year in which 
the WLALA filed an amicus brief. Our dialogue in the committee then 
continued as follows. I asked her to ``tell me again--you had this 
committee. Did you sit on the committee?'' She responded, ``No, I did 
not.'' Then I asked her, ``Did the president sit on the committee?'' 
She responded, ``No.''
  In written followup questions that I sent to her, I stated--and I 
quote--``In further reviewing the questionnaire to the Judiciary 
Committee, I noticed

[[Page S9528]]

that you responded you were Amicus Briefs Committee chair (1997-98).'' 
I then rephrased the question I asked her at the hearing. In her 
written response, Judge Wardlaw apologized, ``if my response to your 
question at the hearing was narrower in any way than the scope of your 
intended question''--she then explained she thought my question and 
``ensuing colloquy'' only referred to the years 1993 and 1994 that she 
was president of the Women's Lawyers Association of Los Angeles, and 
not to the year she served as the Amicus Briefs cochair from September 
1977 to 1988.
  Mr. President, I believe her written response was sincere. I do, 
however, think that she could have been more forthcoming in this 
response. I believe she could have been more forthcoming in her 
response during the hearing in order to clarify that she had, in fact, 
served as one of the chairs of the Amicus Briefs Committee during 
another point of her entire membership of the WLALA, which by the way, 
began in 1983.
  Mr. President, further, in Judge Wardlaw's 1995 responses to the 
Judiciary Committee's questionnaire for her nomination to be U.S. 
district court judge, she noted she was a member of the California 
Leadership Council for the NOW Legal Defense and Education Fund, 
California Leadership Council. However, she omitted this information 
from her 1998 questionnaire.
  When recently asked orally to explain this omission, she noted that 
the NOW Legal Defense and Education Fund's California Leadership 
Council ``was not an organization''--it ``was not an organization.'' So 
she said that she should not have even noted her affiliation with the 
organization in her original district court nomination questionnaire.
  Mr. President, I think, again, this, in my view at least, reflects a 
reluctance to be totally forthcoming with the committee. It is required 
of a nominee to include all information that is requested in the 
committee's questionnaire. And it is up to each committee member to 
weigh the importance, then, of the nominee's responses. Let me make it 
clear, Mr. President, people can make mistakes on questionnaires. I 
believe, however, the evidence shows--the totality of the evidence 
shows she has not been as forthcoming to this committee as, frankly, we 
should expect.
  This nominee has a 12-year affiliation--12-year affiliation--with the 
Women's Lawyers Association of Los Angeles. She has not only been a 
member, but has served as an officer. She has served as Amicus Briefs 
Committee chair and as vice president. She was elected as president of 
the organization, and served as chair of the Nominations Committee, 
which selects the officers of the organization.
  During the time she served in a leadership capacity, this 
organization filed amicus briefs in the Supreme Court in cases such as 
William Webster v. Reproductive Health Services, the case of Rust v. 
Sullivan, and Planned Parenthood of Southeastern Pennsylvania v. Casey.
  I only cite these cases as further examples of her position as a 
leader of an organization that, in fact, took public stands on issues 
that were contrary to what the Supreme Court ultimately decided. For 
me, this serves as evidence that Judge Wardlaw would not help move the 
circuit more to the mainstream. This is not simply a matter of this 
nominee being a mere member of an organization that took these 
positions. Rather, this is a matter of her being a recognized leader of 
this organization who states, however, that she was not aware of the 
legal positions taken by this organization.
  In response to Senator Thurmond's written questions, Judge Wardlaw 
stated that ``Once a position was voted upon . . . it was the position 
of the organization as a whole, not necessarily the view of any 
individual member.'' That may be, Mr. President, but she did not offer 
to the Judiciary Committee any details on the role she may or may not 
have played in the development of these positions.
  Judge Wardlaw also stated that she ``would not have publicly opposed 
a position taken by the organization.'' I believe anyone who 
voluntarily holds numerous leadership positions in an organization--
leadership positions ranging from president to secretary to chair of 
various committees--I believe that person adopts, helps shape, or at 
the very least condones the positions taken by that organization.
  After all, our committee asked all nominees if they belong to any 
organization that discriminates on the basis of race, sex or religion; 
and if so, we ask what the nominee has done to try to change these 
policies. These are not exactly comparable, but the point simply is, 
when we ask the questions about membership, we asked it for a reason. 
It does not mean we hold someone accountable for everything, every 
position that a committee or organization took that they belong to. No. 
We weigh the totality of the circumstances, and we try to be fair. But 
the evidence is overwhelming of her leadership positions.
  Frankly, quite candidly, this is not the first nominee who has come 
before our committee who has been involved with amicus briefs, who has 
been in an organization that files these briefs, who has held a 
leadership position, and who then says, ``Oh, no, really, I didn't have 
anything to do with the formulation of those briefs or the decision 
about filing them.'' That is a troubling position. And it is a position 
that we keep hearing from nominee after nominee.
  Let me put future nominees on notice that, at least for this U.S. 
Senator, that type of response is not acceptable.
  Mr. President, considering all of these factors, I oppose this 
nomination. I recognize the reality that this nominee would have been 
approved if a vote had been taken on the floor. One of the things we 
learn to do in this business, Mr. President, is to count. And I can 
count. Therefore, I do not want to put my colleagues, as we begin to 
leave for the August recess, through the necessity of a rollcall which 
would slow this process down or inconvenience them. But I felt I had to 
come to the floor this morning and state my position.
  Mr. President, before we consider future ninth circuit nominees, I 
urge my colleagues to take a close look at the evidence--evidence that 
shows that we have a judicial circuit that each year moves farther and 
farther from the mainstream and more and more in a confrontational role 
with the U.S. Supreme Court and with Supreme Court precedents.
  For that reason, Mr. President, I intend in the future to seek 
rollcall votes on all nominees for the ninth circuit. Until we reverse 
this disturbing trend, I believe the Senate needs to be on the record 
as either part of the problem or part of the solution.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Wyoming.

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