[Congressional Record Volume 144, Number 140 (Thursday, October 8, 1998)]
[Senate]
[Pages S11872-S11884]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 NOMINATION OF WILLIAM A. FLETCHER, OF CALIFORNIA, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE NINTH CIRCUIT

  The PRESIDING OFFICER. The clerk will report Executive Calendar No. 
619, on which there will be 90 minutes of debate equally divided in the 
usual form.
  The assistant legislative clerk read the nomination of William A. 
Fletcher, of California, to be United States Circuit Judge for the 
Ninth Circuit.
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, the role of the Senate is to advise and 
consent in nominations by the President for judicial vacancies. That is 
understood in the Constitution. Every nominee of the President comes 
before the Judiciary Committee and then they come before this body for 
a vote. We are at this point analyzing the nomination of William 
Fletcher, Willie Fletcher from California, to the Ninth Circuit. I 
regretfully must say I have concluded that I have to oppose that 
nomination. And I would like to discuss the reasons why.
  Most of the nominations that have come forward from the President 
have received favorable review by the Judiciary Committee. In fact, we 
cleared nine today. A number of them are on the docket today and will 
probably pass out today. So we are making some substantial progress.
  Nearly half of the vacancies that exist now in Federal courts are 
because there are no nominees for those vacancies--almost half of them. 
But on occasion we need to stand up as a Senate and affirm certain 
facts about our courts and our Nation. One of the facts that we need to 
affirm is that courts must carry out the rule of law, that they are not 
there to make law. The courts are there to enforce law as written by 
the Congress and as written by the people through their Constitution 
that we adopted over 200 years ago. Also, that is, I think, where we 
are basically today.
  With regard to this nomination, it is to the Ninth Circuit Court of 
Appeals in California. Without any doubt, the Ninth Circuit is 
considered the most liberal circuit in the United States. It is also 
the largest circuit. There are 11 circuit courts of appeals. And in the 
United States we have the U.S. district judges. These are the trial 
judges. The next level--the only intermediate level--is the courts of 
appeals. And they are one step below the U.S. Supreme Court. It is the 
courts of appeals that superintend, day after day, the activities of 
the district judges who practice under them.
  There are more district judges in the circuit than there are circuit 
judges. And every appeal from a district judge's ruling, almost 
virtually every one, would go to the courts of appeals in California 
and Arizona and the States in the West that are part of the Ninth 
Circuit. Those appeals go to the Ninth Circuit, not directly to the 
U.S. Supreme Court. As they rule on those matters, they set certain 
policy within the circuit.
  We have--I think Senator Biden made a speech on it once--we have 1 
Constitution in this country, not 11. The circuit courts of appeals are 
required to show fidelity to the Supreme Court and to the Constitution. 
The Supreme Court is the ultimate definer of the Constitution. And the 
courts of appeals must take the rulings of the Supreme Court and 
interpret them and apply them directly to their judges who work under 
them or in their circuit and in fact set the standards of the law.
  We do not have 11 different circuits setting 11 different policies--
at least we should not. But it is a known fact that the Ninth Circuit 
for many years has been out of step. Last year, 28 cases from the Ninth 
Circuit made it to the U.S. Supreme Court. The Supreme Court does not 
hear every case. This is why the circuits are so important.
  Probably 95 percent of the cases decided by the circuits never are 
appealed to the Supreme Court. The Supreme Court will not hear them. 
But they agreed to hear 28 cases from the Ninth Circuit. And of those 
28 cases, they reversed 27 of them. They reversed an unprecedented 
number. They reversed the Ninth Circuit 27 out of the 28 times they 
reviewed a case from that circuit. And this is not a matter of recent 
phenomena.
  I was a Federal prosecutor for almost 15 years, and during that time 
I was involved in many criminal cases. And you study the law, and you 
seek out cases where you can find them. Well, it was quite obvious--and 
Federal prosecutors all over the country used to joke about the fact 
that the criminal defense lawyers, whenever they could not find any law 
from anywhere else, they could always find a Ninth Circuit case that 
was favorable to the defendant. And they were constantly, even in those 
days, being reversed by the U.S. Supreme Court, because the U.S. 
Supreme Court's idea and demand is that we have one Constitution, that 
the law be applied uniformly.
  So I just say this. The New York Times, not too many months ago, 
wrote an article about the Ninth Circuit and said these words: ``A 
majority of the U.S. Supreme Court considers the Ninth Circuit a rogue 
circuit, out of control. It needs to be brought back into control. They 
have been working on it for years but have not been able to do so.''
  All of that is sort of the background that we are dealing with today.
  When we get a nominee to this circuit, I believe this Senate ought to 
utilize its advise and consent authority, constitutional duty, to 
ensure that the nominees to it bring that circuit from being a rogue 
circuit back into the mainstream of American law, so we do not have 
litigants time and again having adverse rulings, that they have to go 
to the Supreme Court--however many thousands and hundreds of thousands 
of dollars--to get reversed.
  This is serious business. Some say, ``They just reversed them. Big 
deal.'' It costs somebody a lot of money, and a lot of cases that were 
wrong in that circuit were never accepted by the Supreme Court and were 
never reversed. The Supreme Court can't hear every case that comes out 
of every circuit. So we are dealing with a very serious matter.
  The Senator from Ohio who I suspect will comment today on the 
nominee, Senator DeWine, articulated it well. When we evaluate 
nominees, we have to ask ourselves what will be the impact of that 
nomination on the court and the overall situation. We want to support 
the President. We support the President time and again. I have seen 
some Presidential nominees that are good nominees. I am proud to 
support them. There are two here today who I know personally that I 
think would be good Federal judges. But I can't say that about this 
one.
  We need to send the President of the United States a message, that 
those Members of this body who participate in helping select nominees 
cannot, in good conscience, continue to accept nominations to this 
circuit who are not going to make it better and bring it back into the 
mainstream of American law.
  With regard to Mr. Fletcher, he has never practiced law. The only 
real experience he has had outside of being a professor, was as a law 
clerk. His clerkship was for Justice William Brennan of the U.S. 
Supreme Court. That is significant and it is an honor to be selected to 
be a law clerk for the Supreme Court. But the truth is, Justice Brennan 
has always been recognized as the point man, the leading spokesman in 
American juris prudence for an activist judiciary. I am not saying he 
is a bad man, but that is his position.
  Justice Brennan used to dissent on every death penalty case, saying 
he adhered to the view that the death penalty was cruel and unusual 
punishment, and within that very Constitution he said he was 
interpreting, there are at least four to six references to the death 
penalty and capital crimes.

[[Page S11873]]

 The Founding Fathers who wrote that Constitution never dreamed that 
anyone would say that a prohibition of cruel and unusual punishment 
would prohibit the death penalty, because the death penalty was in 
every State and colony in the United States at the time the 
Constitution was adopted. It never crossed their minds.
  This is an example of judicial activism when Justice Brennan would 
conclude that he could reinterpret the Constitution and what the people 
contracted with their Government when they ratified it. It says, ``We, 
the people, ordain and establish this Constitution. . ..'' So they 
adopt it; it is reinterpreted. That is a classic definition of judicial 
activism.
  We know Mr. Fletcher was his law clerk and has written a law review 
article referring to Justice Brennan as a national treasure. It is 
obvious he considers him an outstanding judge and a man he would tend 
to emulate.
  Of course, judicial activism is part of his family. One of the 
problems, and the Presiding Officer has attempted to deal with it 
through legislation, and was successful. Just today, I believe, we have 
passed legislation dealing with nepotism, two family members serving on 
the same court.
  The truth is, Mr. Fletcher's mother is a judge on the Ninth Circuit 
already. Of the judges in the United States, I am sure she would be 
viewed as one of the most activist--in the Ninth Circuit, it is common 
knowledge she is one of the most activist nominee members of that 
court. It doesn't mean he will be, but he is connected to Justice 
Brennan, and his mother is a very liberal, an activist, and will remain 
on the court as a senior judge and will have the opportunity to 
participate in a substantial number of the opinions that are rendered 
by the Ninth Circuit, because they have three-judge panels who assign 
these cases out of the judges there and they often put these judges on 
a panel. If she takes senior status, which I understand she has agreed 
to do, she would not resign from the bench but take senior status and 
still be able to handle a substantial caseload. That is a troubling 
fact to me.
  To me, a judge is a very important position at any level of the 
courts. This is not an absolute disqualifying factor to me, but it is a 
very important factor to me, and that is that Mr. Fletcher lacks any 
private practice experience. Mr. Fletcher has never practiced law. Mr. 
Fletcher has never tried a lawsuit. He has been a law clerk for William 
Brennan and a professor at the University of California Law School. He 
has never been in the courtroom as a litigant. He has never had the 
opportunity to have that knot in your stomach when a judge is about to 
rule on a motion, to understand the difficulties in dealing with human 
nature. He has not had that experience.
  Having had 15 years of full-time litigation experience in Federal 
court trying cases, you learn things intuitively. Supreme Court 
justices and appellate court justices will be better judges if they 
have had that experience. It is an odd thing, and not a healthy thing, 
normally; it takes extraordinary and exceptional circumstances, in my 
opinion, to conclude that someone who has been nothing but a law 
professor all their life is now qualified to take a lifetime 
appointment to review the decisions of perhaps 100 or more trial judges 
in their district who are working long and hard, for whom he has never 
had the opportunity to practice before and see what it is like. That is 
not a good thing in itself. That is another reason I have serious 
reservations about this nominee.
  Certainly Mr. Fletcher has a right to speak out, but in 1994, not too 
many years ago, he made a speech in which he criticized the ``three 
strikes'' law legislation, the criminal law changes that have swept the 
country, calling it ``perfectly dreadful legislation.'' He has never 
been a prosecutor. He has never been a judge. He has never been a 
lawyer. Here he is saying this about this legislation, which I believe 
is widely supported throughout the country. In my opinion, it has 
helped reduce the rise in crime, because ``three strikes and you are 
out'' focuses on repeat, habitual offenders.
  Make no mistake, somebody will say, ``You will have everybody in 
jail, Jeff.'' Not so; everybody is not a repeat, three-time felony 
offender. If you focus on the repeat offender, those are the ones 
committing a disproportionate percentage of crime. We have done a 
better job on that in the last 10 or 15 years. We have tough Federal 
laws dealing with repeat offenders. States have implemented ``three 
strike'' laws and it has helped draw down the rise in crime. As a 
matter of fact, crime has been dropping after going up for many years 
because we got tough and identified the repeat offenders and prosecuted 
them successfully and States have stepped up to the plate and done so.
  He criticized that. That gives me a real insight into his view about 
criminal law, and here he will be presiding over reviewing cases of 
trials involving murderers and other criminals in the Ninth Circuit and 
he has never had any experience.
  The only thing we know about him is that he considers good, tough law 
legislation dreadful.
  (Mr. ASHCROFT assumed the Chair.)
  Mr. SESSIONS. Mr. President, I want to share some thoughts with you 
about judicial activism. In 1982, Mr. Fletcher wrote an article 
entitled ``The Discretionary Constitution.'' He was a professor then. 
It has been interpreted by many as a blatant approval of judicial 
activism. He discusses institutional suits. I was attorney general of 
the State of Alabama and I had to deal with Federal judges who have 
major court orders dominating the prison system. Most States have 
prison systems under court order, having Federal judges ruling those, 
and mental health systems and school funding issues are decided by 
Federal judges. So he wrote about that and other issues. In that 
article, this is what he said, and it really troubles me:

       The only legitimate basis for a Federal judge to take over 
     the political function in devising or choosing a remedy in an 
     institutional suit is a demonstrated unwillingness or 
     incapacity of the political body.

  I want you to think about that. That is a revealing quote, that, 
well, the only way you can do it is if the institution demonstrates an 
unwillingness or incapacity to act. That is the rationale of the 
liberal activist. What they say is, well, the State of Alabama didn't 
provide enough gruel for the criminals, so we are going to issue an 
order and tell them what they have to feed them three times a day. Or 
we are going to have a law library for every prison, and they have to 
have so many square feet. Or you have to spend so much money on 
education; you have to change your whole way of funding education in 
your State. Why? Because the State would not act.
  Now, we live in a democracy. In a democracy, the people rule; they 
decide what they want to do. I know the distinguished Senator in the 
Chair, Mr. Ashcroft, shares this view. I have heard him express it. I 
think these are his exact words: ``When the legislature does not act, 
that is a decision.'' When they go into session, they decide to act on 
matters or not act on them, and not acting is an action, a decision not 
to act. The people have influence with that because they elect their 
representatives and, if they are not happy, they can remove them from 
office.
  But you can't remove a Federal judge because he has a lifetime 
appointment. He cannot be removed, except for the most serious personal 
abuses of office. Normally, making bad decisions is not one of those. I 
will just say this. We have a circuit that is in trouble. It is 
considered by a majority of the Supreme Court to be a rogue circuit. We 
need to put nominees on this circuit and move it back into the 
mainstream and not continue it out on the left wing. We have a 
responsibility to assure that the judges we confirm are going to 
improve the courts, and I think we need to vote ``no'' on this 
nomination because I don't believe it will take us back in the 
direction we need to go. I think it will take us in the wrong 
direction.
  Mr. President, I yield the floor.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I yield myself such time as I need.
  Mr. President, I rise to speak on the nomination of Professor William 
Fletcher, nominee to the Ninth Circuit Court of Appeals. I am pleased 
that the U.S. Senate is finally fully considering this nominee.
  Mr. Fletcher was first nominated during the 104th Congress on 
December

[[Page S11874]]

21, 1995. I do regret the fact that his nomination has languished for 
as long as it has, but I would like to comment on some of the obstacles 
that have hindered this nomination.
  First, all nominees to the Ninth Circuit Court of Appeals got bound 
up within the difficulties we were having with deciding whether or not 
to divide the Ninth Circuit. Once we established a commission to look 
into this matter, we have been able to process nominees to that court.
  Second, some had concerns--legitimate concerns--that Professor 
Fletcher's mother, Betty Fletcher, currently serves as a judge on the 
Ninth Circuit. There is a statute that appears to prevent two people, 
closely related by blood or marriage, from serving on the same court. 
Now, the Justice Department said that only applies to people less than 
the judiciary, but that was pure bunk as far as I was concerned. The 
statute is pretty clear. Yes, it is an old statute, but it is clear and 
it is a matter of great concern to me. To ensure compliance with that 
law--or to the best of my ability to make sure that this law is 
complied with, Judge Betty Fletcher has agreed to take senior status 
upon her son's confirmation, and Senator Kyl has introduced 
legislation, which passed the Senate last night, which I support, that 
will clarify the applicability of the so-called antinepotism statute.
  Just to say a little bit on that statute, it seems to me that it is 
very logical that we should not place persons of such close 
consanguinity on the same court that overviews 50 million people. 
Surely we can find people other than sons of mothers on the court. So 
Senator Kyl has made a splendid effort to try to resolve this matter. 
He indicated in our Judiciary Committee this morning that, as a matter 
of principle, he would have to vote against Professor Fletcher because 
he feels that the statute does apply. I tried to resolve it by chatting 
with Judge Betty Fletcher who has agreed to take senior status upon her 
son's confirmation.
  Now that these obstacles have been removed, I am pleased that we are 
voting on Mr. Fletcher and would like to express my considered view 
that he should be confirmed.
  I am the first to say that I may not agree with all of Professor 
Fletcher's views on Federal courts and procedure, the separation of 
powers, or constitutional interpretation. But the question is not 
whether I agree with all of his views, or whether a Republican 
President would or would not nominate such a candidate. The President 
is entitled to have his nominees confirmed, provided that the nominee 
is well qualified and will abide by the appropriate limitations on 
Federal judges.
  I recognize that this is especially important for nominees to the 
Ninth Circuit and concur wholeheartedly with those of my colleagues who 
believe that the Ninth Circuit has literally gone out of control. I 
agree with the distinguished Senator from Alabama that that circuit is 
out of line and out of control. It is often reversed. It has a 75 
percent reversal rate over the last number of decades because of these 
activist judges on that bench. But Professor Fletcher has personally 
assured me that he would follow precedent, that he would interpret and 
enforce the law, not make laws from the bench.
  I believe Professor Fletcher is a man of honor and integrity and that 
he will live up to his word and, in fact, I hope Professor Fletcher, 
who is an expert on civil procedure, can actually help rein in some of 
the more radical forces on the Ninth Circuit Court of Appeals.
  Professor Fletcher clearly is highly qualified. He is a graduate of 
the Yale Law School, he clerked for a Supreme Court Justice, and is 
considered an eminent legal scholar. That consideration is justified. 
Although some of his writings may push the envelope of established 
legal thinking, as often happens in the case of professors of law, we 
should recognize that this is the role of academics. I made that point 
during the Bork nomination when my colleagues on the other side were 
finding fault with many of the positions that Judge Bork had taken in 
some of his writings, many of which he repudiated later, but all of 
which were provocative and intended to create debate on the respective 
subjects.
  In short, I believe Professor Fletcher is within the mainstream of 
American legal thought just as several Republican nominees such as 
Antonin Scalia, Frank Easterbrook, Richard Posner, and Ralph Winter 
were when they were nominated, and this body should confirm him today.
  I hope my colleagues will confirm Professor Fletcher.
  Today the Judiciary Committee voted out 15 judicial nominees and 4 
U.S. attorneys. This year we have held hearings for 111 out of 127 
nominees.
  If all of the judges who are now pending on the Senate floor are 
confirmed, as I expect they will be, we will end this Congress having 
confirmed 106 judges, resulting in a vacancy rate of 5.4 percent. This 
will be the lowest vacancy rate since the judiciary was expanded in 
1990.
  Also, over 50 percent of the judges confirmed this year, to date, by 
this Republican Senate have been women and/or minorities.
  Given the fact that over the last five Congresses the average number 
of article III judges confirmed is 96, I think this Republican majority 
has done very well to this point, and will continue to do so. Can we do 
better? Always. I am sure we can. And we will certainly try to do 
better during this coming year, and I intend to do better during the 
coming year.
  At this particular point, we are concerned about Professor William 
Fletcher, who I believe is highly qualified for this job. Even though I 
don't agree with him on everything that he believes, or everything that 
he has taught, the fact of the matter is he is qualified, he is a 
decent man, and he should be confirmed here today.
  Although Professor Fletcher's nomination has taken quite a while to 
be brought up for a vote, I do not think anyone can fairly criticize 
the work the Judiciary Committee has done this year, especially during 
the last few weeks of this session. On Tuesday of this week, Senator 
Specter chaired a hearing for 11 nominees. Nine of those 11 nominees 
were received by the Committee only within the last month. I am told 
that, according to the Department of Justice, the hearing Senator 
Specter chaired broke a record for the most nominees on a single 
hearing.
  To date, the Republican Senate has already confirmed 80 judges. And 
today, that number will rise to 84, if Professor Fletcher and the other 
judges that will be brought up for a vote are confirmed--as I wholly 
expect they will. As I stated earlier, if all of the nominees now 
pending on the Senate floor are confirmed, the Senate will adjourn 
having confirmed 106 Article III judges.
  Again, this will leave a judicial vacancy rate of only 5.6 percent. 
Keep in mind that the Clinton administration is on record as having 
stated that a vacancy rate of just over 7 percent is considered virtual 
full employment of the Federal judiciary.
  I do not think anyone can legitimately argue that the Judiciary 
Committee has not done its job well. Yes, there have been some 
controversial Clinton nominees that have moved slowly or not at all, 
but sometimes nominees come to the Committee with problems that prevent 
their nominations from going forth. I am pleased to say that although 
some thought the problems relating to Professor Fletcher's nomination 
could not be worked out, they ultimately have been. I fully expect that 
Professor Fletcher will be confirmed today and I will vote for him.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. How much time does the distinguished Senator from 
Washington desire? I yield 5 minutes or such time as he needs to the 
distinguished Senator from Washington.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, I share the background of the Senator from 
Alabama as attorney general of my State. I agree with much of the 
philosophic underpinning of his remarks directed at the judicial 
philosophy of Mr. Fletcher. I disagree, however, as to the conclusion, 
and intend to vote for his confirmation.
  The Constitution of the United States says that the President shall 
nominate and by and with the advice of the Senate shall appoint judges 
to positions like the one we are debating here today.
  In my view--I have some differences even with my good friend from 
Utah on

[[Page S11875]]

this subject--I believe that does permit a Senator to vote against a 
judicial nominee on the grounds that the Senator disagrees with the 
fundamental legal philosophy of that nominee. I also believe, however, 
that when the President has sought the advice as well as the consent of 
the Senate, and when that advice has been heated, at least to the 
extent of being given significant weight, it is then appropriate to 
vote for the confirmation of a judicial nominee, even though one, as an 
individual Senator, might well not have nominated that individual had 
he, the Senator, been President of the United States.
  That is the situation in which I find myself here. I have met with 
and talked about Mr. Fletcher's ambitions on two or three occasions at 
some length. I have found him to be a thoughtful, intelligent, hard-
working individual dedicated to the law as he sees it, and, perhaps 
even more importantly than that, as the Constitution and the statutes 
of the United States lay it out.
  He would certainly not have been my first choice had I been the 
nominating authority in this case. But, I am not. I am an individual 
Senator. At the same time, the President of the United States and his 
officers have, in fact, sought my advice as well as my consent on 
judicial nominees, both to the district courts in the State of 
Washington, and to the Ninth Circuit Court of Appeals when those 
nominees come from the State of Washington.
  While again I have not necessarily gotten my first choices for those 
positions, I believe that in a constitutional sense my advice has been 
sought and my advice has been given considerable weight by the 
President of the United States.
  As a consequence, the combination of the punctual adherence to 
constitutional requirements with my own belief that Mr. Fletcher will 
fill the position of a judge on the Ninth Circuit honorably, and in 
accordance with the Constitution and laws of the United States, causes 
me to feel that he is a qualified nominee and that he should be 
confirmed by the Members of the Senate to the office to which the 
President has nominated him.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEAHY. Mr. President, I yield to the distinguished Senator from 
California. She requires how much time?
  Mrs. FEINSTEIN. I thank the distinguished manager. May I have 10 
minutes?
  Mr. LEAHY. I yield 10 minutes to the distinguished Senator from 
California.
  Mrs. FEINSTEIN. I thank the Senator from Vermont.
  Mr. President, I rise to voice my strong support for the nomination 
of Professor William Alan Fletcher to the Ninth Circuit Court. I very 
much appreciate the views of the chairman of the committee, the 
distinguished Senator from Utah, on this, and his considered judgment 
that Mr. Fletcher deserves approval by this body. And I hope, indeed, 
that will be the case.
  Mr. Fletcher has been before this body for over 3 years now. He has 
had two Judiciary Committee hearings. I had the pleasure of attending 
both and listening to him. His responses at these hearings were crisp, 
to the point, direct, and showed a depth and breadth of knowledge of 
the law that I think is among the top one percent of those nominees who 
came before the committee.
  His credentials are impeccable. As the chairman pointed out, they 
include: magna cum laude graduate of Harvard; Rhodes scholar; law 
degree from Yale; service in the Navy; law clerk for U.S. Supreme Court 
Justice William Brennan; and a clerkship for District Court Judge 
Stanley Weigel.
  Since 1977, he has been a distinguished professor at the Boalt Hall 
School of Law at the University of California, where he won the 1993 
Distinguished Teacher Award and has come to be regarded as one of the 
most foremost experts on the Federal court and the Constitution.
  Mr. President, since the distinguished Senator from Alabama raised 
some concerns about this nominee, I would like to respond to some of 
those concerns. We asked Mr. Fletcher to respond, and, in fact, he 
provided us with a response on a number of items that have been raised 
by Mr. Thomas Jipping, of the Judicial Selection Monitoring Project, 
and subsequently repeated.
  The first allegation is what was called the ``discretionary 
Constitution.'' Mr. Jipping attributes to Professor Fletcher the 
conclusion:

       When judges think that the political branches are not doing 
     what they should, judges have the discretionary power to do 
     it for them.

  And he states:

       Mr. Fletcher writes that this virtually unlimited judicial 
     discretion is a ``legitimate substitute for political 
     discretion'' when the political branches are ``in default.''

  I would like to give you directly the statement from Mr. Fletcher.
  The article says quite the opposite of what Mr. Jipping wrote. I do 
not believe in a ``discretionary Constitution.'' As the article makes 
plain, I view judicial discretion as a problem rather than a solution. 
Further, I did not write that judicial discretion is legitimate when 
political branches are ``in default.'' Rather, I wrote that the 
exercise of judicial discretion in curing constitutional violations in 
institutional suits is ``presumptively illegitimate'' unless the 
political bodies that should cure those violations are in ``serious and 
chronic default.''
  I would like to put all of this in the Record.
  On the second point that has been raised critically, on standing, Mr. 
Fletcher writes:

       Contrary to what Mr. Jipping wrote, I do not believe 
     Congress can write statutes that allow anyone or anything to 
     sue. Indeed, in some cases I take a narrower view of standing 
     than the Supreme Court. For example, I argued that the Court 
     should not have granted standing in Buckley v. Valeo. My 
     position on standing would not drastically expand caseloads. 
     Further, rather than inviting judges to legislate from the 
     bench, I am particularly anxious that the Federal courts not 
     perform as a ``super-legislature.''

  The third point that he has been criticized for is the 
unconstitutionality of statutes. The critic writes:

       Mr. Fletcher believes that judges can declare 
     unconstitutional legislation they believe was inadequately 
     considered by Congress. He argues that a statute effectively 
     terminating lawsuits against defense contractors by 
     substituting the United States as the defendant was passed 
     without hearings and based on what he believes are 
     misrepresentations about its operation. That alone would be 
     sufficient to strike down the statute.

  Now, this is Mr. Fletcher's response:

       I believe no such thing. I argued that the presumption of 
     constitutionality normally accorded to a statute should not 
     be accorded to the Warner Amendment, based on the following 
     factors: (1) The only body in Congress that considered the 
     amendment was a subcommittee of the House Judiciary 
     Committee, which held hearings and concluded that it was 
     unconstitutional; (2) When the amendment was later attached 
     as a rider to an unrelated defense appropriations bill, it 
     was consistently described as doing the opposite of what it 
     actually did.

  And so, if I might, to clear these things up, Mr. Fletcher has 
submitted to us a draft response, and I ask unanimous consent to have 
printed in the Record both the allegations and the responses.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Dear Senator Feinstein: I write to correct some 
     mischaracterizations of my writing that have been put forward 
     by Mr. Thomas Jipping.
       The most extensive misrepresentations are contained in Mr. 
     Jipping's May 10, 1996, op-ed piece in The Washington Times. 
     I will take them in order.


                        (1) judicial discretion

       Mr. Jipping wrote: ``First, Mr. Fletcher believes in what 
     he has called a ``discretionary Constitution.'' In fact, that 
     was the title of his first law review article. When judges 
     think the political branches are not doing what they should, 
     judges have the discretionary power to do it for them. Mr. 
     Fletcher writes that this virtually unlimited judicial 
     discretion is a ``legitimate substitute for political 
     discretion'' when the political branches are ``in default.'' 
     Not surprisingly, judges get to determine when the political 
     process has defaulted. Today courts are running prison 
     systems, school districts and even mental institutions in the 
     name of such discretion.'' The article Mr. Jipping refers to 
     is ``The Discretionary Constitution: Institutional Remedies 
     and Judicial Legitimacy,'' 91 Yale L.J. 635 (1982).
       Brief statement: The article says quite the opposite of 
     what Mr. Jipping wrote. I do not believe in a ``discretionary 
     Constitution.'' As the article makes plain, I view judicial 
     discretion as a problem rather than a solution. Further, I 
     did not write that judicial discretion is legitimate when 
     political branches are ``in default.'' Rather, I wrote that 
     the exercise of judicial discretion in curing constitutional

[[Page S11876]]

     violations in institutional suits is ``presumptively 
     illegitimate'' unless the political bodies that should cure 
     those violations are in ``serious and chronic default.'' at 
     pp. 637, 695 (emph. added).
       Extended analysis: The article analyzed institutional 
     injunctions where there has already been a finding of 
     unconstitutionality in the operation of a prison or mental 
     hospital, in the apportionment of a legislature, or in the 
     racial segregation of public schools. After there has been a 
     finding of a constitutional violation, the question arises: 
     Who should decide how that violation should be cured? Even 
     where there has been a constitutional violation, I argue that 
     the role of the federal courts should be severely 
     circumscribed, and that judicially formulated injunctions 
     should be regarded as presumptively illegitimate.
       Constitutional violations in institutional cases can be 
     cured in many ways. For example, in a prison case where 
     conditions of confinement violate the Eighth Amendment, a 
     prison administrator can do a number of different things to 
     bring the prison into compliance with the Constitution. Or 
     in a reapportionment case a state legislature can draw 
     district lines in a number of different ways to bring the 
     districts into compliance with the Fourteenth Amendment. 
     Choices among the possible remedies inescapably involved 
     the exercise of discretion, and should be regarded as 
     presumptively illegitimate if made by a judge rather than 
     a political entity. I wrote: ``Trial court remedial 
     discretion [in institutional suits] can to some degree be 
     controlled in the manner of its exercise; in some cases it 
     may even be eliminated without sacrificing unduly the 
     constitutional or other values at stake. But there comes a 
     point where certain governmental tasks, whether undertaken 
     by the political branches or the judiciary, simply cannot 
     be performed effectively without a substantial mount of 
     discretion. * * * The practical inevitability of remedial 
     discretion in performing those tasks defines the 
     legitimate role of the federal courts. * * * [S]ince trial 
     court remedial discretion in institutional suits is 
     inevitably political in nature, it must be regarded as 
     presumptively illegitimate.'' at pp. 636-37 (emph. added).
       In Swann v.  Mecklenberg Board of Education, 402 U.S. 1, 16 
     (1971), Chief Justice Burger wrote for the Court that the 
     district court has the power to fashion an institutional 
     injunction only ``[i]n default by the school authorities of 
     their obligation to proffer acceptable remedies'' (emph. 
     added). I argued that ``default'' by the political 
     authorities--which in the view of the Supreme Court justified 
     a judicially fashioned injunction--should be found only as a 
     last resort. I wrote. ``Political bodies and courts respond 
     to different institutional imperatives. * * * As a matter of 
     fundamental structure, even where a constitutional violation 
     has been found, a court cannot legitimately resolve such a 
     problem unless the political bodies that ordinarily should do 
     so are in such serious and chronic default that here is 
     realistically no other choice.'' at p. 695 (emph. added).
       My argument is neither liberal not activist. Indeed, my 
     formulation is more conservative and restrained than Chief 
     Justice Burger's in Charlotte-Mecklenberg, where he required 
     that school authorities simply be ``in default.'' I 
     recommended increasing the threshold for judicial action by 
     requiring that the political body be in ``such serious and 
     chronic default that there is realistically no other 
     choice.''
       Throughout the article, I emphasized the danger in judicial 
     overreaching: ``[A] federal court is not, and should not 
     permit itself the illusion that it can be, anything more than 
     a temporarily legitimate substitute for a political body that 
     has failed to serve its function. '' at 969.


                              (2) Standing

       Mr. Jipping wrote: ``Second, the Constitution limits court 
     jurisdiction to `cases' and `controversies.' One way to 
     assure this jurisdiction is to demand that plaintiffs 
     concretely trace their injury to the defendant's action, 
     preventing judges from reaching out to decide issues and make 
     law in the abstract. In a 1988 article, Mr. Fletcher argues 
     that standing is merely a way of looking at the merits of a 
     case rather than assuring a court's jurisdiction. As such, he 
     believes that Congress can write statues that allow anyone or 
     anything to sue, regardless of whether plaintiffs have 
     suffered any harm at all. This view would drastically expand 
     federal court caseloads and give judges innumerable 
     opportunities to legislate from the bench.'' The article Mr. 
     Jipping refers to is ``The Structure of Standing,'' 98 Yale 
     L.J. 221 (1988).
       Brief statement: Contrary to what Mr. Jipping wrote, I do 
     not believe Congress can write statutes that allow anyone or 
     anything to sue. Indeed, in some cases I take a narrower view 
     of standing than the Supreme Court. For example, I argued 
     that the Court should not have granted standing in Buckley v. 
     Valeo, 424 U.S. 1 (1976). My position on standing would not 
     drastically expand caseloads. Further, rather than inviting 
     judges to legislate from the bench, I am particularly anxious 
     that the federal courts not perform as a ``super-
     legislature.''
       Extended analysis: The article sought to bring some 
     intellectual order to an area of doctrine long criticized as 
     incoherent. I agreed with Justice Harlan that standing as 
     presently articulated is ``a word game played by secret 
     rules.'' Flast v. Cohen, 392 U.S. 83, 129 (1968) (Harlan, J., 
     dissenting) at 221. My concern was not to argue for different 
     results in standing cases, but rather to provide a coherent 
     intellectual structure that would support those results. As I 
     wrote, ``[W]e mistake the nature of the problem if we condemn 
     the results in standing cases.'' at 223 (emph added).
       In my view, Justice Douglas' opinion in Association of Data 
     Processing Service Org. v. Camp, 397 U.S. 150 (1970), is the 
     source of much of the analytical difficulty. I stated, ``More 
     damage to the intellectual structure of the law of standing 
     can be traced to Data Processing than to any other single 
     decision.'' at 229. In essence, I argued that standing 
     doctrine should return to what it had been at the beginning 
     of this century, when a plaintiff in federal court has to 
     state a cause of action, and the focus was on the particular 
     statutory or constitutional provision invoked by plaintiff. 
     Under this earlier approach, a plaintiff has to show that he 
     was entitled to relief ``on the merits,'' in the sense not 
     only that defendant violated a legal duty but also that 
     plaintiff had a legal right to judicial enforcement of that 
     duty.
       In a few cases, I disagreed with results reached by the 
     Supreme Court. In those few cases, I generally viewed 
     standing more narrowly than the Court and would have denied 
     standing. The most important such case is Buckley v. Valeo, 
     424 U.S. 1 (1976). I did not criticize the substance of the 
     Court's decision, but I did criticize its grant of standing.
       In Buckley, the Court sustained a statutory grant of 
     standing to any person eligible to vote for President to 
     challenge on any constitutional ground the Federal Election 
     Campaign Act of 1971. Plaintiffs included Senator Buckley who 
     had introduced the standing provision in the Senate. They 
     challenged the Act under the statutory grant of standing; the 
     District Court certified twenty-two constitutional questions 
     to the Supreme Court; and the Court answered all of them. I 
     wrote: ``[I]f the twenty-two certified questions answered in 
     Buckley had been sent to the Court in a letter from the 
     Senate floor, as the twenty-nine questions in Correspondence 
     of the Justices were sent to the Court in a letter from 
     Secretary of State Jefferson[, i]t is unthinkable that the 
     Court would have answered them. Yet when Congress cast the 
     questions in the form of a lawsuit granting standing to one 
     of its members, the Court in Buckley willingly provided the 
     answers, performing, in Judge Leventhal's words, in a ``role 
     resembling that of a super-legislature.'' The lessons of 
     Buckley are sobering. Not only will the Court answer 
     questions that have proven particularly difficult for 
     Congress. It will also answer them in the highly abstract 
     form traditionally thought particularly ill-suited for 
     judicial resolution.'' at 286 (emph. added). My approach to 
     standing could hardly be clearer: I argued that the Court 
     should not have granted standing and should not have acted as 
     a ``super-legislature.''


                  (3) Unconstitutionality of statutes

       Mr. Jipping wrote: ``Third, Mr. Fletcher believes that 
     judges can declare unconstitutional legislation they believe 
     was inadequately considered by Congress. He argues that a 
     statute effectively terminating lawsuits against defense 
     contractors by substituting the United States as the 
     defendant was passed without hearings and based on what he 
     believes are misrepresentations about its operation. That 
     alone would be sufficient to strike down the statute.'' The 
     article Mr. Jipping refers to is ``Atomic Bomb Testing and 
     the Warner Amendment: A Violation of the Separation of 
     Powers,'' 65 Wash. L. Rev. 285 (1990).
       Brief statement: I believe no such thing. I argued that the 
     presumption of constitutionality normally accorded to a 
     statute should not be accorded to the Warner Amendment, based 
     on the following factors: (1) The only body in Congress that 
     considered the Amendment was a subcommittee of the House 
     Judiciary Committee, which held hearings and concluded that 
     it was unconstitutional; (2) when the Amendment was later 
     attached as a rider to an unrelated defense appropriations 
     bill, it was consistently described as doing the opposite of 
     what it actually did.
       Elimination of the presumption does not mean that a statute 
     is unconstitutional. A statute is unconstitutional only if it 
     independently violates some provision of the Constitution. 
     I did not argue--and do not believe--that inadequate 
     consideration by Congress ``alone would be sufficient to 
     strike down a statute.''
       Extended analysis: At the outset, I note that I wrote the 
     article as an advocate for the American military veterans and 
     civilian downwinders. My involvement as advocate is indicated 
     at the beginning of the article at 285, *fn.
       Between 1946 and 1963, the United States conducted a little 
     over 300 atmospheric tests of atomic bomb, about 200 of them 
     in Nevada. Over 200,000 soldiers and an undetermined number 
     of civilians were exposed to significant amounts of radiation 
     during the tests. Atmospheric tests were discontinued in 1963 
     after the United States signed a test ban treaty. In the 
     1980s, a number of suits were filed against the private 
     contractors who had assisted the government in the tests. 
     Seeking to short-circuit the suits, the contractors sought a 
     statute that would protect them. Joined by the executive 
     branch, they sought a statute that would substitute the 
     United States as a defendant in their place, and would then 
     permit the United States to obtain a dismissal on grounds of 
     sovereign immunity.

[[Page S11877]]

       In 1983, a subcommittee of the House Judiciary Committee 
     held hearings on the proposed statute and issued a written 
     report concluding that it would be unconstitutional. The 
     following year, Senator Warner attached the proposed statute 
     as a rider to a defense appropriation bill. The conference 
     committee report said that the amendment ``would provide 
     remedy against the United States,'' even though it was clear 
     that the intent, and ultimate effect, would be to deprive the 
     plaintiffs of any remedy at all. After the passage of the 
     Amendment, the District Court substituted the United States 
     as a defendant and dismissed the suits. In re Consolidated 
     United States Atmospheric Testing Litigation, 616 F.Supp. 759 
     (N.D. Calif. 1985), aff'd sub nom. Konizeski v. Livermore 
     Labs, 820 F.2d 982 (9th Cir. 1987), cert. den., 485 U.S. 905 
     (1988).
       I argued that the Warner Amendment violated separation of 
     powers by interfering with the judicial function in violation 
     of United States v. Klein, 80 U.S. 128 (1872). I contended 
     the Warner Amendment should not enjoy the normal presumption 
     of constitutionality: ``[C]ourts ordinarily accord a strong 
     presumption of constitutionality to any legislation that is 
     enacted in accordance with the formally required process. We 
     should be very reluctant to abandon the presumption when a 
     statute has fulfilled the formal prerequisites, but in 
     certain circumstances such an abandonment may be justified. . 
     . . [In the case of the Warner Amendment] we have . . . 
     affirmative evidence that the one body in Congress that 
     seriously considered the amendment found it unconstitutional. 
     Moreover, we know that the bill was passed thereafter only by 
     avoiding hearings and misrepresenting the bill's character. 
     Under such circumstances, the Warner Amendment can hardly lay 
     claim to the traditional presumption in favor of a statute's 
     constitutionality.'' at 320 (emph. added).


                        (4) separation of powers

       Mr. Jipping wrote: ``Finally, Mr. Fletcher rejects perhaps 
     the most important limitation on government power established 
     by the Constitution's framers, the separation of powers. The 
     Supreme Court has said what the Framers said, namely, that 
     each branch has relatively defined and exclusive areas of 
     authority and power. In a 1987 article, Mr. Fletcher 
     condemned these decisions as `fundamentally misguided'. Why? 
     The Court `read the Constitution in a literalistic way to 
     upset what the other two branches had decided, under the 
     political circumstances, was the most workable arrangement.' 
     In other words, political circumstances can trump 
     constitutional principles.'' The article Mr. Jipping refers 
     to is a review of Chief Justice Rehnquists's book, The 
     Supreme Court: How It Was, How It Is, 75 Calif.L.Rev. 1891 
     (1987).
       Brief statement: I do not reject separation of powers. 
     Indeed, I relied on separation of powers to argue the 
     unconstitutionality of the Warner Amendment, calling it a 
     ``vital check against tyranny.'' 65 Wash.L.Rev. at 310. In 
     the review I criticized two separation of powers decisions by 
     the Supreme Court, Immigration and Naturalization Service v. 
     Chadha, 462 U.S. 919 (1983), and Bowsher v. Synar, 478 U.S. 
     385 (1986), in which the Court found unconstitutional two 
     Acts of Congress. Believing in judicial restraint, Justice 
     White dissented because he found no clear constitutional text 
     invalidating what Congress had done. I agreed with Justice 
     White.
       Extended analysis: In Immigration and Naturalization 
     Service v. Chadha, the Supreme Court struck down the use of 
     the one-house veto by Congress. In Bowsher v. Synar, the 
     Court struck down the Gramm-Rudman-Hollings Act providing for 
     federal deficit reduction. I wrote: ``I think both decisions 
     fundamentally misguided, for essentially the reasons given by 
     Justice White in his dissenting opinions. . . . Justice White 
     pointed out that [Chadha] invalidated, at one stroke, almost 
     200 statutes on the basis of a highly debatable reading of 
     the Constitution. Invoking Justice Jackson's emphasis on a 
     `workable government' in his concurrence in the Steel Seizure 
     Case, Justice White reminded the Court that the `wisdom of 
     the Framers was to anticipate that . . . new problems of 
     governance would require different solutions.' . . . Justice 
     White, [dissenting in Bowsher], again invoked Justice 
     Jackson's view of the Constitution as a charter for a 
     `workable government,' and objected to what he saw as the 
     Court's `distressingly formalistic view' in attaching 
     dispositive significance to what should be regarded as a 
     triviality.' '' at 1894.
       Justices White and Jackson firmly believed in a non-
     activist judiciary. As a matter of interpretive principle, 
     they deferred to the judgment of the political branches 
     unless the clear text of the Constitution commanded 
     otherwise. I agree with them.
       I thank you for the opportunity to correct these 
     mischaracterizations.
           Very truly yours,
                                              William A. Fletcher.

  Mrs. FEINSTEIN. Mr. President, University of California law professor 
Charles Alan Wright, one of the Nation's leading conservative 
constitutional scholars, had this to say about Dr. Fletcher:

       Too many scholars approach a new issue with preconceptions 
     of how it should come out and they force the data that their 
     research uncovers to support the conclusion that they had 
     formed before they did the research. I think that is 
     reprehensible for a scholar and it is dangerous for a judge.
       I am completely confident that when Fletcher finishes his 
     service on the ninth circuit we will say not that he has been 
     a liberal judge or a conservative judge but that he has been 
     an excellent judge, one who has brought a brilliant mind, 
     greater powers of analysis, and total objectivity to the 
     cases that came before him.
       I believe that the nomination of William Fletcher will add 
     strength to the ninth circuit and I hope very much that he is 
     confirmed.

  I would like to also quote Stephen Burbank of the University of 
Pennsylvania Law School:

       His work is both analytically acute and painstaking in its 
     regard for history. Indeed, love of and respect for history 
     shine through all his work, as the history itself illuminates 
     the various corners of the law he enters.

  Interestingly enough, the New Republic wrote in an editorial in 1995:

       Fletcher is the most impressive scholar of Federal 
     jurisdiction in the country. His path-breaking articles on 
     sovereign immunity and Federal common law have transformed 
     the debates in these fields; and his work is marked by the 
     kind of careful historical and textual analysis that should 
     serve as a model for liberals and conservatives alike. If 
     confirmed, Fletcher will join his mother--

  And as we know now his mother is going to take senior status --

     but his judicial philosophy is more constrained than hers. We 
     hope he is confirmed as swiftly as possible.

  That was back in 1995 when he was nominated. It is now almost the end 
of 1998, and as this man has gone through the scrutiny of 3 years of 
delay, I must say I very much hope that this body will confirm him this 
afternoon. I believe, as another has said, that he will, in fact, be an 
excellent, thoughtful and commonsense judge.
  I thank the Chair. I yield the floor.
  Mrs. BOXER. Mr. President, I am very happy to finally have the 
opportunity to come to the floor today and vote on the nomination of 
Professor William Fletcher to the U.S. Court of Appeals in the Ninth 
Circuit. I urge my colleagues in the Senate to vote for Professor 
Fletcher, who is eminently qualified to serve on the federal appeals 
court. Professor Fletcher was first nominated on April 26, 1995. He had 
a hearing and was reported out in May of 1996, and has been patiently 
waiting for a debate and vote on his nomination ever since.
  Some members of the Senate oppose this nomination because his mother 
sits on this court. However, his mother, the Honorable Betty Fletcher, 
has already agreed to take senior status and not sit on panels with her 
son if he is confirmed. So, again, I am very happy to once again 
exercise my duties as a U.S. Senator and cast a vote on the nomination 
of a federal judge.
  To give a little history, the 104th Congress never acted on Professor 
Fletcher's nomination the first time, so he had to be renominated on 
January 7, 1997. He waited more than a year for a second hearing, and 
has continued to wait for a confirmation vote, until today. One look at 
his record, and I am sure my colleagues will see that Professor 
Fletcher is eminently qualified to sit on the federal bench, and 
deserves swift Senate confirmation.
  In 1968, Professor William Fletcher received his undergraduate 
degree, magna cum laude, from Harvard College. He spent the next two 
years at Oxford University on a Rhodes Scholarship, receiving another 
B.A. in 1970. After Oxford, he spent the following two years on active 
duty military service in the United States Navy. He was honorably 
discharged as a Lieutenant in 1972. Professor Fletcher then attended 
Yale Law School, graduating in 1975. While at Yale, he was a member of 
the Yale Law Journal.
  After graduating from law school, Professor Fletcher clerked for a 
year for U.S. District Judge Stanely A. Weigel in the Northern District 
of California, and another year for U.S. Supreme Court Justice William 
J. Brennan, Jr. He began teaching at the University of California, 
Berkeley, School of Law, also known as Boalt Hall, in the fall of 1977, 
immediately after his second clerkship. While at Boalt Hall, Professor 
Fletcher has been teaching a broad range of courses, including 
Property, Administrative Law, Conflicts, Remedies, and Constitutional 
Law.
  Professor Fletcher is widely praised by his students and his fellow 
academics for his fair-minded and balanced approach to legal problems. 
He promises to bring the same careful fair-mindedness to the federal 
bench.

[[Page S11878]]

  I believe professor Fletcher will make an exceptional addition to the 
federal bench. I believe his intelligence, broad experience, and 
professional service qualify him to sit on the federal bench with great 
distinction. I am sure my Senate colleagues will be equally impressed, 
and I urge my colleagues to vote for his confirmation.
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. I yield up to 10 minutes to the distinguished Senator 
from Ohio.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Mr. President, I rise this afternoon to oppose the 
nomination of William Fletcher to be a U.S. Circuit Court judge for the 
Ninth Circuit. On May 21, 1998, the Senate Judiciary Committee 
favorably reported out this nominee by a vote of 12 to 6.
  I voted against the nominee. I would like to take a moment this 
afternoon to explain to my colleagues in the Senate why I voted no on 
that date and why I intend to vote no today. I intend to vote no today, 
Mr. President, and I base my opposition on the fact that Mr. Fletcher's 
writings and statements simply do not convince me that he will help to 
move the Ninth Circuit closer to the mainstream of judicial thought. 
And that is the criteria that I applied and will continue to apply in 
regard to the Ninth Circuit.
  Although some Senators oppose this nominee because of their reading 
of the antinepotism statute and their concerns in that area, the fact 
that Mr. Fletcher's mother also serves on the Ninth Circuit, who, as my 
colleague pointed out, will take senior status, does not trouble me. As 
I said in the Judiciary Committee, I am not in favor of legislation 
that, based on family relationships, restricts the power of the 
President or the power of the Senate to either nominate or confirm 
judges.
  Having said that, Mr. President, let me restate what does concern me 
about this nomination. All of us--all of us--should be concerned about 
what has been going on in the Ninth Circuit over the last few years. 
Based on the alarming reversal rate of the Ninth Circuit, I have said 
before and I will say it again for the Record today, I feel compelled 
to apply a higher standard of scrutiny for Ninth Circuit nominees than 
I do for nominations to any other circuit.
  Mr. President, I will only support nominees to the Ninth Circuit who 
possess the qualifications and whose background shows that they have 
the ability and the inclination to move the circuit back towards the 
mainstream of judicial thought in this country. 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 today that each year continues to move away from the 
mainstream.
  I believe the President of the United States has very broad 
discretion to nominate to the Federal bench whomever he chooses, and 
the Senate should give him due deference when he nominates someone for 
a Federal judgeship. However, having said that, the Senate does have a 
constitutional duty to offer its advice and consent on judicial 
nominations. Each Senator, of course, has his or her own criteria for 
offering this advice and consent. However, given that these nominations 
are lifetime appointments, all of us take our advice and consent 
responsibility very seriously.
  We should keep in mind that the Supreme Court of our country has time 
to review only a small number of decisions from any circuit. That 
certainly is true with the Ninth Circuit as well. This means that each 
circuit, the Ninth Circuit in this case, in reality is the court of 
last resort. In the case of the Ninth Circuit, they are the court of 
last resort for the 45 million Americans who reside within that 
circuit. To preserve the integrity of the judicial system for so many 
people, I believe we need to take a more careful look at who we are 
sending to a circuit that increasingly--increasingly--chooses to 
disregard precedent and ultimately just plain gets it wrong so much of 
the time.
  Consistent with our constitutional duties, the Senate has to take 
responsibility for correcting this disturbing reversal rate of the 
Ninth Circuit. I think we have an affirmative obligation to do that. 
And that is why I will only support those nominees to the Ninth Circuit 
who possess the qualifications and who have clearly demonstrated the 
inclination to move the circuit back towards the mainstream.
  Mr. President, I will want to apply a higher standard of scrutiny to 
future Ninth Circuit nominees to help ensure that the 45 million people 
in that circuit receive justice, and justice that is consistent with 
the rest of the Nation, justice that is predictable and not arbitrary 
nor dependent on the few times the Supreme Court reviews and ultimately 
reverses an erroneous Ninth Circuit decision.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sessions). The Senator from Vermont.
  Mr. LEAHY. Mr. President, I reserve our time on this side. I know on 
the other side the Senator from Missouri, I assume, will speak on their 
time. I will withhold my statement. I am kind of stuck here anyway. I 
yield to the Senator from Missouri, on their time.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, with the permission of the Senator from 
Alabama, I yield myself as much time as I might consume in opposition 
to the nomination.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. ASHCROFT. Mr. President, the Ninth Circuit Court of Appeals is in 
serious need of improvement. The court is the epicenter of judicial 
activism in this country. The Ninth Circuit's unique blend of 
distortion of text, novel innovation, and disregard for precedent 
caused it to be reversed by the U.S. Supreme Court 27 out of 28 cases 
in the term before last. That is something very, very serious. When 
this court's cases were considered by the U.S. Supreme Court in the 
term before last, 27 out of 28 decisions were considered to be wrong.
  If the people of this country found out that 27 out of 28 decisions 
of the Senate were considered to be wrong, Senators would not last very 
long. No tolerance would be provided for virtually any institution that 
was wrong that much of the time. The Ninth Circuit Court's record 
improved last year, but barely. According to the National Law Journal, 
the court was reversed in whole or in part in 14 out of 17 cases last 
year. Over the last 2 years, that amounts to a reversal rate of 90 
percent. In the last 2 terms, 9 out of 10 times the Ninth Circuit has 
been wrong.
  The Ninth Circuit's disastrous record before the Supreme Court has 
not been lost on the Justices of the Supreme Court. In a letter sent 
last month supporting a breakup of the Ninth Circuit, Justice Scalia 
cited the circuit's ``notoriously poor record on appeal.'' Justice 
Scalia explained, ``A disproportionate number of cases from the Ninth 
Circuit are regularly taken by this court for review, and a 
disproportionate number reversed.''
  The Ninth Circuit's abysmal record cannot be dismissed or minimized 
because the Supreme Court is there to correct the Ninth Circuit's 
mistakes. In a typical year, the Ninth Circuit disposes of over 8,500 
cases. In about 10 percent of those cases, over 850 cases, the losing 
party seeks to have a review in the Supreme Court. Although appeals 
from the Ninth Circuit occupy a disproportionate share of the docket, 
the Supreme Court grants only between 20 and 30 petitions from the 
Ninth Circuit in a given year. If they are reversed 90 percent of the 
time because they are wrong in those cases that have been accepted, I 
do not know what the error rate would be in the other 8,500 cases that 
they litigate or consider on appeal, or what would be the error rate in 
the 850 cases that are sent, begging the Supreme Court to review the 
cases. But it is very likely, in my judgment, if their error rate is 90 
percent in those cases that are accepted by the Supreme Court, that 
there are a lot of other individuals simply denied justice because of 
the extremely poor quality of the Ninth Circuit Court of Appeals.
  This really places upon those of us in the U.S. Senate a very serious 
responsibility, a responsibility of seeking to improve the quality of 
justice that people who live in the Ninth Circuit receive. Accordingly, 
of the 8,500 cases decided by the Ninth Circuit in a year, only 20 or 
30, or about three-tenths of 1 percent, are reviewed by the Supreme

[[Page S11879]]

Court. So, if there are errors in the other cases, they are just going 
to remain there.
  Only three-tenths of 1 percent of the cases decided by the court are 
reviewed by the Supreme Court. So if we say it is OK for that circuit 
to be full of error, it is OK for that circuit to be absent the quality 
and the kind of correctness that is appropriate in the law, if we 
predicate our approval on the basis that there can be an appeal, the 
truth of the matter is, the Supreme Court takes only about three-tenths 
of 1 percent of the cases for appeal.
  The Supreme Court, moreover, selects cases for review predominantly 
to resolve splits among the circuits, not to correct the most egregious 
errors. So some of the cases the Supreme Court does not even take may 
be more blatant injustices than the ones that the Supreme Court does 
take, because the Supreme Court is trying to resolve differences 
between the Ninth Circuit and the Second Circuit, or the Eighth Circuit 
and the Ninth Circuit, or something like that. So we have a real 
shortfall of justice that exists as a potential whenever we have a 
court that is so error ridden, and its error-ridden nature is 
demonstrated because of the correction responsibility that has to be 
exercised by the U.S. Supreme Court.
  The truth of the matter is, for virtually all litigants within the 
Ninth Circuit, the decisions of the Ninth Circuit are the final word. 
How would you like knowing that you were going to court and that the 
appellate court which would oversee your day in court was reversed 90 
percent of the time when it was considered by the Supreme Court, but 
you only had a three-tenths of 1 percent chance of getting an injustice 
in your case reversed because the Supreme Court only takes three-tenths 
of 1 percent of the cases? I think America deserves to have more 
confidence in its judicial system than that.
  The Ninth Circuit is an activist court in desperate need of therapy 
and help. After a thorough review of its record, it is my judgment that 
Professor Fletcher would do more harm than good in the Ninth Circuit, 
would move that court further outside the judicial mainstream.
  There has been a great deal of discussion about the applicability of 
Federal antinepotism statutes to this nominee. I commend individuals 
for raising this issue. It is critical to the respect for law.
  I have heard some people say they do not really care whether this is 
against the law or not. Frankly, I think we ought to care. I think a 
disregard for the law, especially as it relates to the appointment of 
judges, is a very, very serious matter. It is critical to the respect 
for law in a society as a whole that we in the Senate respect the laws 
that apply to us.
  However, one of the principles of judicial restraint identified by 
Justice Brandeis many years ago is that a court should not decide a 
difficult constitutional or statutory question if there is another 
straightforward basis for resolving the case. Applying that principle 
to this nomination, I have concluded that whether or not the statute 
precludes confirmation of Professor Fletcher, there is ample basis in 
the record to suggest that Professor Fletcher would exacerbate the 
Ninth Circuit's activism and I plan to oppose his nomination on that 
basis.
  A number of Professor Fletcher's writings suggest a troubling 
tendency toward judicial activism. For example, Professor Fletcher has 
written in praise of Justice Brennan's mode of constitutional 
interpretation. He also has criticized the Supreme Court for reading 
the Constitution in a literalistic way. This is troubling, to say the 
least. Justice Brennan, as even his admirers would admit, is the 
godfather of the evolving Constitution and the primary critic of the 
literal reading of the constitutional text.
  You know, there are those who believe the Constitution can be 
stretched, and grows, and amends itself to mean what someone wants it 
to mean at the time a crisis arises. I reject that. I reject Brennan's 
approach. Professor Fletcher embraces it. Those who believe that the 
Constitution can be an evolutionary document really are those who would 
be able to put their stamp of meaning anywhere they want anytime they 
choose.
  The debate over whether evolving standards of decency or the text 
should guide judicial decisions is at the heart--the very heart--of my 
concern over judicial activism. Nowhere in the country is the 
Constitution ``evolving'' more rapidly than in the Ninth Circuit. We 
cannot afford to send another activist to this court.
  Although a number of Professor Fletcher's writings focus on 
relatively esoteric subjects, they display a disturbing tendency toward 
activism on the issues addressed.
  He has criticized the current limitations on standing and has 
advocated an approach that would focus more on the legislative intent--
an inherently dubious guide--and would afford standing to plaintiffs 
excluded by the current doctrine.
  Likewise, he has written that the procedural history of an 
amendment's enactment can lessen the presumption of constitutionality 
that would otherwise attach to the enactment. Frankly, we ought to be 
evaluating the constitutionality on the basis of the Constitution, not 
the procedural history. This is particularly disturbing in light of the 
Ninth Circuit's apparent tendency to apply a presumption of 
unconstitutionality to popular initiatives and other legislation the 
judges dislike on policy grounds.
  In an opinion piece written in the midst of Justice Thomas' 
confirmation process, Professor Fletcher wrote that ``the Senate must 
insist nominees articulate their constitutional views as a condition of 
their confirmation.''
  Professor Fletcher's articles and answers to written questions 
``articulate'' his view of the Constitution. Let's look at them. It is 
a view with which I disagree and which, in my judgment, will only 
exacerbate the problems of the Ninth Circuit.
  Finally, I want to acknowledge that I realize we do not appear to 
have the votes to defeat this nomination. Nonetheless, I believe it is 
important to come to the floor and debate this nomination, rather than 
approve it in a midnight session.
  Those of us on the Judiciary Committee have had the opportunity to 
reflect on the problems of the Ninth Circuit--the shortfall and the 
injustice for people who live in the Ninth Circuit, the likelihood that 
they get bad decisions and only three-tenths of 1 percent of them will 
ever be considered by the U.S. Supreme Court. This nominee would only 
make that problem worse. I urge my colleagues to oppose the nomination 
on that basis.
  I yield the floor and reserve the remainder of the time for those 
opposing the nomination.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. SPECTER. Mr. President, I ask unanimous consent that I may speak 
for up to 5 minutes on the serious question of steel imports and 
introduce a piece of legislation.
  Mr. LEAHY. Mr. President, does the Senator ask for that time outside 
the time of the Fletcher matter?
  Mr. SPECTER. Mr. President, I do.
  The PRESIDING OFFICER (Mr. Ashcroft). Without objection, it is so 
ordered. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. I thank the Chair.
  (The remarks of Mr. Specter pertaining to the introduction of S. 2580 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senate will now resume debate of the 
nomination of Judge Fletcher.
  Mr. LEAHY. Mr. President, I ask the Chair, how much time is available 
to this side, the proponents of the Fletcher nomination?
  The PRESIDING OFFICER (Mr. Smith of Oregon). Twenty-three minutes 16 
seconds.
  Mr. LEAHY. I yield myself such time as I may need.
  We heard discussion about the Ninth Circuit. There was a suggestion 
that it is reversed all the time.
  In the year ending March 31, 1997, they decided 8,701 matters; the 
year ending March 31, 1996, 7,813 matters; in 1995, 7,955 matters. 
Well, 99.7 percent of those matters were not overturned.
  I ask unanimous consent that an article by Judge Jerome Farris of the 
U.S. Court of Appeals for the Ninth Circuit be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S11880]]

   The Ninth Circuit--Most Maligned Circuit in the Country--Fact or 
                                Fiction?

                        (By Hon. Jerome Farris*)

     *Footnotes at end of article.
       The Honorable Jerome Farris argues that the reason the 
     Supreme Court overturns such a high percentage of Ninth 
     Circuit cases accepted for review is not because the Circuit 
     is ``too liberal.'' Rather, Judge Farris emphasizes the high 
     volume of cases heard by the Ninth Circuit and its 
     willingness to take on controversial issues. He suggests that 
     any objective observer would conclude that the Ninth Circuit 
     is functioning well and that the system is working precisely 
     as the Framers of the United States Constitution intended.

       The shell game has survived over the centuries because 
     there are always those who are not merely willing, but 
     delighted, to be deceived. If the game is played often enough 
     and mindlessly enough, one can come very close to fooling 
     ``all of the people all of the time.''
       The Ninth Circuit--most maligned circuit in the country--
     fact or fiction? It is absolutely true that the United States 
     Supreme Court accepted twenty-nine cases from the Ninth 
     Circuit for review in 1997 and reversed twenty-eight of those 
     decisions, affirming only one. The prior year, the Supreme 
     Court reviewed twelve Ninth Circuit cases and reversed ten. 
     In 1995, the Supreme Court reviewed fourteen Ninth Circuit 
     decisions and reversed ten. During that period, no other 
     circuit had so many decisions reversed or so high a 
     percentage of reversals of cases accepted for review.\1\
       According to these statistics, the Supreme Court reversed 
     ninety-six percent of the Ninth Circuit cases it reviewed in 
     1997, an all time high.\2\
       In the year ending March 31, 1997, the Ninth Circuit 
     decided 8701 matters. In the same period ending in 1996, the 
     Ninth Circuit decided 7813 matters. In 1995, the Ninth 
     Circuit decided 7955 matters. If one considers the number of 
     Ninth Circuit decisions reversed by the Supreme Court against 
     the total number of cases decided by the Ninth Circuit, an 
     entirely different picture emerges. Under this analysis, the 
     Supreme Court let stand as final 99.7 percent of the Ninth 
     Circuit's 1996 cases. No circuit in history has decided so 
     many cases, and no circuit in history has had so low a 
     percentage of cases reversed.
       The point is not that one statistic is right and that the 
     other statistic is wrong, but that statistics can be 
     deceiving and can be used to paint almost any picture one 
     wants. Courts issue ``opinions''; they do not decide right 
     and wrong in an absolute sense. Courts cannot determine right 
     and wrong in an absolute sense because the law is not 
     absolute. Deciding a legal rule is not like figuring out an 
     immutable law of physics--a court always strives for ``the 
     right answer,'' but because the law has a life of its own, 
     time determines what is correct. Courts on occasion reverse 
     themselves for just that reason.
       Any Ninth Circuit judge worthy of the title would want to 
     revisit the decisions that were taken for review to determine 
     whether in any single instance Supreme Court precedent was 
     ignored. One cannot expect newspaper reporters to make that 
     kind of review. News articles report the facts and others 
     analyze the facts. It is my view that no responsible 
     ``expert'' would comment before making such a review. What 
     the review would reveal is no mystery because all decisions 
     are in the domain of the public.
       In 1997, the Supreme Court unanimously reversed twenty-one 
     cases (eight of those decisions were per curiam). In the one 
     Ninth Circuit case that the Supreme Court affirmed (the vote 
     was eight to one), the majority held that the opinion 
     properly followed Supreme Court precedent.\3\ In one case 
     that the Supreme Court unanimously reversed, the Ninth 
     Circuit followed a Tenth Circuit decision. The Eighth 
     Circuit, however, decided the issue a different way and the 
     Supreme Court resolved the split.\4\
       In Saratoga Fishing Co. v. J.M. Martinac & Co., \5\ a six 
     to three reversal, Justice Scalia, joined by Justice Thomas, 
     noted in dissent that ``an impressive line of lower court 
     decisions applying both federal and state law'' \6\ has, like 
     the Ninth Circuit, precluded liability in analogous 
     situations. \7\
       In eight of the reversed Ninth Circuit cases, the Supreme 
     Court resolved conflicts between the circuits: Old Chief v. 
     United States; \8\ California Division of Labor Standards 
     Enforcement v. Dillingham Construction; \9\ United States v. 
     Brockamp; \10\ Regents of the University of California v. 
     Doe; \11\ Inter-Modal Rail Employees Ass'n v. Atchison, 
     Topeka, & Santa Fe Railway; \12\ United States v. Hyde; \13\ 
     Glickman v. Wileman Bros. & Elliott; \14\ Quality King 
     Distributors, Inc. v. L'anza Research International, Inc. 
     \15\ Thus, in many of the cases that were reversed, the Ninth 
     Circuit was not alone in concluding a different result than 
     the result the Supreme Court reached. Make no mistake, 
     however, the Supreme Court did critcize the Ninth Circuit in 
     some of its reversals. In one reversal, the Supreme Court 
     stated that the Ninth Circuit failed to follow Supreme Court 
     precedent. \16\
       Courts are bound to follow Supreme Court precedent. 
     However, what we write are opinions. The sin is not being 
     wrong, but being wrong when the guidance was clear and when 
     there was a deliberate failure to follow the guidance.
       Two cases illustrate the dilemma of circuit courts: 
     Washington v. Glucksberg, \17\ regarding physician-assisted 
     suicide, and Printz v. United States, \18\ regarding the 
     Brady Handgun Violence Prevention Act. \19\ The Supreme Court 
     reversed both of these Ninth Circuit decisions.
       The Brady Act was widely discussed publicly and received 
     much political interest. At issue in Printz v. United States 
     was whether the Brady Handgun Act violated Article I, Sec. 8 
     and the Tenth Amendment of the United States Constitution by 
     commanding chief law enforcement officers to conduct 
     background checks of handgun purchasers. In a two to one 
     decision, the Ninth Circuit found no constitutional 
     violation. The Supreme Court, by a vote of five to four, 
     reversed. Justice Scalia delivered the opinion of the Court 
     in which Rehnquist, O'Connor, Kennedy, and Thomas joined; 
     O'Connor filed a concurring opinion; Thomas filed a 
     concurring opinion; Stevens filed a dissenting opinion, in 
     which Souter, Ginsburg, and Breyer joined; Souter filed a 
     separate dissenting opinion; and Breyer filed a dissenting 
     opinion, in which Stevens joined. One might reasonably 
     conclude that the solution was less than obvious.
       Physician-assisted suicide has also been soundly debated in 
     both public and political arenas. The question for decision 
     in Glucksberg was whether a Washington statue that imposes a 
     criminal penalty on anyone who ``aids another person to 
     attempt suicide'' denies the Fourteenth Amendment's Due 
     Process Clause liberty interest of mentally competent, 
     terminally ill adults to choose their time and manner of 
     death. The Ninth Circuit, in an eight to three en banc panel 
     decision, found a liberty interest in the right to die and 
     then weighed the individual's compelling liberty interest 
     against the state's interest. The Ninth Circuit found the 
     statute unconstitutional. The Supreme Court unanimously 
     reversed the Ninth Circuit decision with five separate 
     concurring opinions.
       Was the Ninth Circuit ``wrong'' in either of these cases? 
     The Circuit would have been, in my opinion, if it had not 
     resolved each of the complex issues and given them full, 
     careful, and decisive consideration. The Supreme Court 
     reversed these decisions, but who would say that the system 
     is not functioning as it was intended to function? Everyone 
     is entitled to their own views, but the conclusion, in my 
     view, is that the system envisioned by the Framers of the 
     Constitution continues to function properly.
       The decisions of the Supreme Court become the law of the 
     land because our system of government requires settled law. 
     It is therefore necessary that one court make a final 
     decision, and, right or wrong, that decision governs our 
     society.
       That the Supreme Court can be ``wrong'' is evident to any 
     student of American law, history, politics, or society. This 
     county's jurisprudential history is filled with famous cases, 
     affecting our entire society, in which the Supreme Court 
     decided that it had previously reached an erroneous result: 
     Brown v. Board of Education of Topeka; \20\ Bunting v. 
     Oregon; \21\ Garcia v. San Antonio Metropolitan Transit 
     Authority; \22\ and twice reversing itself on death penalty 
     cases in the 1970s, to name a few.
       The Supreme Court also reverses itself in many less well-
     known cases. This term it reversed a decision regarding 
     public school teachers in parochial schools. \23\ The term 
     before that it reversed itself in Seminole Tribe of Florida 
     v. Florida, \24\ and the year before that in Hubbard v. 
     United States. \25\ Justice Brandeis's dissent in the 1932 
     case, Burnet v. Coronado Oil & Gas Co., \26\ argued that the 
     Supreme Court should overrule an earlier decision \27\ and 
     cites thirty-five cases in which the Supreme Court overruled 
     or qualified its earlier decisions.
       This list of Supreme Court reversals--in no way meant to be 
     comprehensive--actually constitutes a high reversal rate 
     considering that the Supreme Court currently averages about 
     eighty to ninety decisions a year, or one percent of the 
     number of cases that the Ninth Circuit hears. This comparison 
     suggests that the Supreme Court would have to reverse one 
     hundred Ninth Circuit cases a year in order to reverse the 
     Ninth Circuit at as high a rate as the Supreme Court reverses 
     itself (which it does about once a year).
       In other instances, Congress has decided that the Supreme 
     Court had the wrong answer and enacted legislation to 
     effectively overrule the decision, such as the Religious 
     Freedom Restoration Act of 1993 (RFRA) \28\ and the 1982 
     Voting Rights Act Amendments.\29\ The Supreme Court upheld 
     the constitutionality of the 1982 Voting Rights Act 
     Amendments \30\ and it found RFRA unconstitutional.\31\
       Do these results prove that Congress was right and that the 
     Supreme Court was wrong? Or do these results prove that the 
     Supreme Court was right and that Congress was wrong? Of 
     course not. Rather, the results provide examples of the 
     checks and balances designed in the Constitution to make our 
     government run properly. Similarly, when the Supreme Court 
     reverses an appellate court decision, it does not mean that 
     the decision was wrong in an absolute sense, and more 
     importantly, it does not mean that the appellate court was 
     not functioning properly in its role in the judiciary and in 
     the United States government.
       Part of the cause of the misperception about right and 
     wrong is created in the training of lawyers at law school. 
     Most law schools begin teaching law in a formalistic manner: 
     the student learns the law, and there is only one correct 
     law. This formalism gets carried on as law students enter the 
     legal profession. Lawyers often argue before

[[Page S11881]]

     me that there is only one possible result (``The law dictates 
     this result!''). This is rarely true, and is never true in 
     complicated cases. There are always some arguments for each 
     side, otherwise the case would be frivolous. The bottom line 
     is that reasonable minds can differ and can each still be 
     reasonable.
       The Ninth Circuit deals with more cases than any other 
     circuit. It is not surprising, then, that the Ninth Circuit 
     would deal with more complicated and important issues than 
     any other circuit. Both of these factors contribute to the 
     Supreme Court's review and reversal of more Ninth Circuit 
     cases than cases from other circuits.
       Some observers contend that the Ninth Circuit is reversed 
     so often because it is the most liberal circuit in the 
     country and because the Supreme Court is currently 
     conservative. This hypothesis also provides ammunition to 
     those now arguing that the Ninth Circuit should be split (a 
     topic for another article).\32\ However, these observers have 
     failed to review the facts. Of the opinions signed by Ninth 
     Circuit judges that were reversed this year by the Supreme 
     Court, eleven were authored by Democratic presidential 
     appointees, and nine were authored by Republican presidential 
     appointees. Apparently the Supreme Court is an equal 
     opportunity reverser.
       To function properly, each court must do its duty to the 
     best of its ability. Parties must be able to rely on the full 
     resolution of cutting edge issues in each court to which the 
     issues are submitted. There is always the risk of reversal, 
     but that risk should not--cannot--drive the system. The 
     Supreme Court was better able to treat the question of 
     physician-assisted suicide and the issue of the Brady Act 
     because it had decisive opinions to review. One could assume 
     that these issues are closed, and they certainly may be for 
     the immediate future. History reminds us, though, that 
     serious controversial issues are revisited from time to time. 
     This comment is written by a circuit judge whose life would 
     certainly have been different had the Dred Scott \33\ 
     decision not been revisited.
       I make no prediction for the future of any of the Ninth 
     Circuit reversals, but one commentator was not so cautious. 
     Writing while Glucksberg \34\ was pending before the Supreme 
     Court, Roger S. Magnusson \35\ in the Pacific Rim Law and 
     Policy Journal, predicted:
       Although an adverse Supreme Court opinion could potentially 
     retard the process of pro-euthanasia law reform, this would 
     be a temporary delay only which could not survive 
     generational change. In the United States and beyond, the 
     development of a legal right to die with medical assistance, 
     appears inevitable.\36\
       What is important to remember is that opinions, unlike 
     arithmetic solutions, may vary. Our system under the 
     Constitution is designed to put an end to variations because 
     the Supreme Court makes the final decision. The danger is not 
     that an appellate court gets reversed, but that a court might 
     let possible reversal deter decisive, full, and reasoned 
     consideration of important issues. An even greater danger is 
     that the high regard in which all courts must be held if our 
     system is to be a rule of law, not of judges, is threatened 
     if those who are personally ambitious can dismiss a reasoned 
     decision of any court with the throwaway phrase--``Oh well, 
     that decision is just the irresponsible act of a coterie of 
     liberal judges.'' All tyrants first seek to malign the rule 
     of law.


                               footnotes

     *Judge, United States Court of Appeals for the Ninth Circuit.
     \1\ The Supreme Court decided a total of ninety-one cases in 
     the 1996 term, reversing sixty-five, affirming twenty-three, 
     and otherwise disposing of three. See Thomas C. Goldstein, 
     Statistics for the Supreme Court's October Term 1996, 66 
     U.S.L.W. 3068 (U.S. July 15, 1997).
     \2\ All other circuits outside of the Ninth Circuit suffered 
     a combined reversal rate of sixty-one percent. See Bill 
     Kusliak, Reversal Rate Keeps Getting Uglier, San Francisco 
     Recorder, July 2, 1997, at 1.
     \3\ See Babbitt v. Youpee, 117 S. Ct. 727, 732 (1997). In 
     Babbitt, the Supreme Court affirmed the Ninth Circuit's 
     holding that a provision of the Indian Land Consolidation Act 
     worked an unconstitutional taking by requiring escheat to the 
     tribe of certain fractional interests in allotment upon the 
     owner's death. See id.
     \4\ See California Div. of Labor Standards Enforcement v. 
     Dillingham Constr., 117 S. Ct. 832 (1997). The Ninth Circuit 
     held that a California prevailing wage law governing wages of 
     apprentices was preempted by ERISA. See Dillingham Constr. v. 
     County of Sonoma, 57 F.3d 712, 722 (9th Cir. 1995). In 
     reversing, the Supreme Court found that the law at issue 
     neither referred to nor was connected with ERISA. See 
     Dillingham Constr., 117 S. Ct. at 834. Thus, the Court held 
     that the law did not ``relate to'' an ERISA plan for purposes 
     of preemption. See id.
     \5\ 117 S. Ct. 1783 (1997).
     \6\ Saratoga Fishing, 117 S. Ct. at 1791.
     \7\ The Ninth Circuit decision employed the East River 
     doctrine, see East River S.S. Corp. v. Transamerica Delaval, 
     Inc., 476 U.S. 858, 870 (1986), to preclude liability for 
     property damage sustained on a vessel. See Saratoga Fishing 
     Co. v. Marco Seattle, Inc., 69 F.3d 1432, 1446 (9th Cir. 
     1995). The Ninth Circuit found that equipment added to a 
     vessel after purchase was part of the ``product itself.'' See 
     id. In reversing, the Supreme Court concluded that the after-
     acquired equipment constituted ``other property,'' and was 
     not a part of the ``product itself.'' See Saratoga Fishing, 
     117 S. Ct. at 1784.
     \8\ 117 S. Ct. 644 (1997). In United States v. Old Chief, the 
     Ninth Circuit found that, despite a defendant's offer to 
     stipulate, the government was entitled to present evidence of 
     a prior felony to prove the current charge of felon in 
     possession of a firearm. See No. 94-30277, 1995 WL 325745 
     (9th Cir. Apr. 14, 1995) (basing the decision on 18 U.S.C. 
     Sec. 922(g)(1)). The Supreme Court disagreed, finding that 
     the rejection of a defendant's offer to stipulate to a felony 
     conviction constituted an abuse of discretion where the name 
     or nature of the underlying conviction raised the risk of 
     tainting the jury's verdict. See Old Chief, 117 S. Ct. at 
     645.
     \9\ 117 S. Ct. 832 (1997). See supra note 4 and accompanying 
     text.
     \10\ 117 S. Ct. 849 (1997). In Brockamp, the Supreme Court 
     reversed the Ninth Circuit holding which allowed equitable 
     tolling of the statutory limitations period for tax refund 
     claims. The Supreme Court concluded that the strong language 
     of the statute precluded the Ninth Circuit's application of 
     the presumption favoring equitable tolling. See id. at 851.
     \11\ 117 S. Ct. 900 (1997). In Doe v. Lawrence Livermore 
     National Laboratory, 65 F.3d 771, 776 (9th Cir. 1995), the 
     Ninth Circuit held that the University of California's right 
     to indemnification from the federal government divested the 
     university of Eleventh Amendment immunity. The Supreme Court 
     reversed, holding that a state entity's potential legal 
     liability, rather than financial responsibility for 
     judgments, triggered the application of the Eleventh 
     Amendment. See Regents of the Univ. of Cal., 117 S. Ct. at 
     904.
     \12\ 117 S. Ct. 1513 (1997). In this action, the Supreme 
     Court held that an ERISA provision prohibiting interference 
     with protected rights applied to welfare plans. See id. at 
     1515. The Ninth Circuit found that the provision applied only 
     to interference with the attainment of rights capable of 
     vesting. See Inter-Modal Rail Employees Ass'n v. Atchison, 
     Topeka, & Santa Fe Ry. Co., 80 F 3d 348, 351 (9th Cir. 1996).
     \13\ 117 S. Ct. 1630 (1997). In Hyde, a criminal defendant 
     attempted to withdraw his guilty plea after the plea was 
     accepted, but prior to acceptance of the plea agreement. The 
     Ninth Circuit reversed the district court's refusal to allow 
     withdrawal without a showing by defendant of a ``fair and 
     just reason.'' See Hyde v. United States, 92 F.3d 779, 781 
     (9th Cir. 1996). The Supreme Court held that a showing of 
     ``fair and just reason'' by defendant was necessary. See 
     Hyde, 117 S. Ct. at 1631.
     \14\ 117 S. Ct. 2130 (1997). In Clickman, the Court reversed 
     the Ninth Circuit determination that mandatory assessments on 
     growers, handlers, and processors of California tree fruits 
     to pay for generic advertising violated the First Amendment. 
     See id. at 2142. The Supreme Court rejected the use of a 
     heightened First Amendment scrutiny and the Ninth Circuit's 
     finding that the law compelled financial support of others' 
     speech, See id. at 2138-39.
     \15\ 117 S. Ct. 2406 (1997) (mem.).
     \16\ See Suitum v. Tahoe Reg'l Planning Agency, 117 S. Ct. 
     1659, 1665 (1997).
     \17\ 117 S. Ct. 2258 (1997).
     \18\ 117 S. Ct. 2365 (1997).
     \19\ 18 U.S.C. Sec. 922 (1994).
     \20\ 347 U.S. 483 (19954) (overruling Plessy v. Ferguson, 163 
     U.S. 537 (1896)).
     \21\ 243 U.S. 426 (1917) (overruling Lochner v. New York, 198 
     U.S. 45 (1995)).
     \22\ 469 U.S. (1985) (overruling National League of Cities v. 
     Usery, 426 U.S. 833 (1976)).
     \23\ See Agostini v. Felton, 117 S. Ct. 1997 (1997) 
     (overruling Aguilar v. Felton, 473 U.S. 402 (1985), and 
     School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985) 
     (overruled as to the portion addressing the ``Shared Time'' 
     Program).
     \24\ 4116 S. Ct. 114 (1996) (overruling Pennsylvania v. Union 
     Gas Co., 491 U.S. 1 (1989)).
     \25\ 514 U.S. 695 (1995) (overruling United States v. 
     Branblett, 348 U.S. 503 (1995)).
     \26\ 285 U.S.C. 393 (1932), overruled by Helving v. Mountain 
     Producers Corp., 303 U.S. 376 (1938).
     \27\ See Gillespie v. Okla, 257 U.S. 501 (1922) overruled by 
     Helvering, 303 U.S. at 376.
     \28\ 42 U.S.C. Sec. 2000bb (1994).
     \29\ 42 U.S.C. Sec. 1973b (1994).
     \30\ See Reno v. Bossier Parish School Bd. 117 S. Ct. 1491 
     (1997).
     \31\ See Boerne v. Flores, 117 S. Ct. (1997).
     \32\ This argument, like most of the arguments for splitting 
     the circuit, has never made sense to me. Accepting arguendo, 
     the hypothesis that the Ninth Circuit is reversed often 
     because it is to ``too'' liberal or ``too'' often wrong, a 
     split will still leave at least one, and perhaps two, 
     circuits that are too liberal or too often wrong.
     \33\ Dred Scott v. Sandford, 60 U.S. 393 (1856) (superseded 
     by the adoption of the 13th and 14th Amendments of the U.S. 
     Constitution after the Civil War).
     \34\ 117 S. Ct. 2258 (1997).
     \35\ Lecturer, University of Sydney School of Law; B.A. LL. 
     B. (Hons) (A.N.U.) (1988), Ph.D. (Melb), (1994).
     \36\ Roger S. Magnusson, The Sanctity of Life and the Right 
     to Die: Social and Jurisprudential Aspects of the Euthanasia 
     Debate in Australia and the United States, 6 Pac. Rim & Pol'y 
     J. 1, 5 (1997).

  Mr. LEAHY. Mr. President, it has been suggested that if a court is 
overturned by the Supreme Court, that people ought to start asking 
whether those judges should be thrown out. And one Senator said, 
``Suppose we were overturned like that, how long would we last here in 
the Senate?'' Well, it seems to me that the U.S. Senate voted very 
strongly--84 Senators voted for the so-called Communications Decency 
Act even though it was obviously unconstitutional. That went to the 
Supreme Court and was overturned.
  A majority of the U.S. Senators voted for the line-item veto--again, 
blatantly unconstitutional but popular back home. That was overturned 
by the U.S. Supreme Court.
  Eighty-five percent of the people, according to a poll, said they 
wanted some form of the Brady bill. This Senate voted for that 
overwhelmingly, knowing that it was probably unconstitutional. That was 
overturned by the Supreme Court.
  I can think, since I have been here, of a number of times when this 
body went pell-mell forward on a number of bills because it was so 
popular to vote for them. Many times I found myself as a lone dissenter 
on matters that went to the U.S. Supreme Court and were then overturned 
as unconstitutional.
  The same Senators who criticize judges who from time to time have an 
opinion reversed by a higher court ought to be careful with respect to 
what they advocate. If that standard were applied to Senators should 
all Senators who voted for a bill that gets

[[Page S11882]]

overturned as unconstitutional have to resign? Maybe not the first time 
they vote for something declared unconstitutional; maybe they shouldn't 
have to leave the first time, because everybody is allowed a mistake. 
If they did it a second time, do they have to go then? I come from a 
tolerant State. I belong to a religion that believes in redemption and 
forgiveness. So we will let them get away with two.
  We are in the baseball season. Suppose they voted for three 
unconstitutional bills because they were popular but they get 
overturned as unconstitutional. Well, we are now considering 
perspectives beyond religion and politics, we are going to baseball. 
Three times, three strikes--are you out? Let's be a little careful when 
we use some of these analogies about who should or should not serve on 
a court depending on how many times they get reversed.
  Senators may not want to go back and ask how many times they voted 
for something, how many times they gave wonderful speeches in favor of 
something, how many times they sent out press releases, sent feeds back 
to their TV station, maybe used them in their reelection ads, and then, 
guess what? The U.S. Supreme Court overturned that legislation as 
unconstitutional.
  Especially, I say to some of my friends on the other side, when the 
majority of those voting to declare those laws unconstitutional were 
Republican members of the U.S. Supreme Court, reported by Republican 
Presidents, and extolled as great conservatives. In each one of the 
cases I have referenced, I agreed with them. They were the true 
conservatives. What they wanted to conserve was the Constitution of the 
United States.
  Sometimes when we want to stand up here and tell how conservative we 
are, we ought to say: Are we conservative with regard to the 
Constitution of the United States? Are we prepared to conserve the U.S. 
Constitution?
  I recall one day on a court-stripping bill on this floor years ago an 
effort was made to pass a court-stripping bill, a bill to withdraw 
jurisdiction from the courts over certain matters of constitutional 
remedies, because the polls showed how popular it would be. One Friday 
afternoon, three Senators stood on this floor and talked that bill into 
the ground.
  I was proud to be one of those three Senators. As I walked out with 
the other two--one, the Senator from Connecticut, then an independent, 
Senator Lowell Weicker; the third Senator who had joined with us to 
talk down that court-stripping bill, my good friend, now deceased, 
Senator Barry Goldwater of Arizona. Senator Goldwater put his arms 
around the shoulders of both of us, and we were both a little bit 
taller than he, and said, ``I think we are the only three conservatives 
in the place.''
  I can't speak for Senator Weicker, how he might have felt about that; 
I took it as a heck of a compliment--not because I go back and claim to 
be a conservative in my politics back home. I only claim to be a 
Vermonter, doing the best I can for my State. When I stand up for the 
U.S. Constitution, as I have so many times for the first amendment, I 
do it because I try to conserve what is best in our country.
  Professor William Fletcher is a fine nominee. He is a decent man. He 
was first nominated to the U.S. Court of Appeals for the Ninth Circuit, 
May 7, 1995, over 3 years ago. I don't know of any judicial nominee who 
has had to endure the delay and show the patience of this nominee. He 
was nominated May 7, 1995. We are only a few months away from 1999.
  I have spoken on many occasions about how the Republican Senate is 
rewriting the record books in terms of delaying action on judicial 
nominees, but Professor Fletcher's 41 months exceeds the 33-month delay 
in the consideration of the nomination of Judge Richard Paez and 
Anabelle Rodriguez; or the 26 months it took to confirm Ann Aiken; or 
the 24 months it took to confirm Margaret McKeown; or the 21-month 
delay before confirmation of Margaret Morrow and Hilda Tagle who found, 
unfortunately, in this Senate, that if you are either a woman or a 
minority, you seem to take a lot longer to get through the Senate 
confirmation process.
  In the annual report on the judiciary, the Chief Justice of the 
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.

  Mr. President, 3\1/2\ years is a long time to examine a nomination 
and to leave a judgeship vacant. Even at the pace of the U.S. Senate, 
3\1/2\ years is long enough for us to make up our mind.
  Around Mother's Day in 1996, the Judiciary Committee did report the 
nomination of Professor Fletcher to the Senate, but that year the 
majority, Republican majority, decided not to vote on any nominees to 
courts of appeals, so the nomination was not considered by the Senate. 
The committee vote, though, in 1996 was more than 2-1 in favor, 
including Senator Hatch, Senator Specter, Senator DeWine, and Senator 
Simpson. This year, the vote was delayed until past Mother's Day. The 
vote was taken May 21, 1998. The committee's second consideration of 
the nominee resulted in a vote of 2-1.
  I know some do not like Judge Betty Binn Fletcher. They do not agree 
with her decisions. In our Federal judicial system, there are 
mechanisms for holding judges accountable. There are panels of judges 
at the courts of appeals. There are en banc considerations. There is 
ultimately the controlling authority of the U.S. Supreme Court. Judge 
Fletcher's decisions are subject to review and reversal, just like 
every other judge.
  No one should turn their anger with Judge Betty Fletcher into a 
reason to delay or oppose the appointment of Professor William A. 
Fletcher. No one should try to get back at Judge Betty B. Fletcher 
through delay of the confirmation of her son.
  Senate Republicans have continued their attacks against an 
independent Federal judiciary and delayed in filling longstanding 
vacancies with qualified persons being nominated by the President. 
Professor Fletcher's nomination has been a casualty of their efforts. 
Forty-one months--41 months--and two confirmation hearings have been 
enough time for examination to bring the Fletcher nomination to a vote. 
Professor Fletcher is a fine person and an outstanding nominee who has 
had to endure years of delay and demagoguery as some chose to play 
politics with our independent judiciary.
  Professor Fletcher has the support of both Senators from California. 
The ABA gave him the highest rating. He is supported by many judges and 
lawyers and scholars from around the State, the Ninth Circuit, and the 
country. I commend the distinguished chairman of the Senate Judiciary 
Committee, the senior Senator from Utah, Senator Hatch, and many other 
Republican Senators who have continued to support this fair-minded 
nominee.
  I look forward to Senate action this afternoon and I look forward to 
the fact that he will be confirmed.
  Mr. President, I withhold the remainder of my time.
  I yield the floor.
  Mr. THURMOND. Mr. President, I rise today in opposition to the 
nomination of William Fletcher for the Ninth Circuit Court of Appeals.
  When this nomination was first considered in the Judiciary Committee 
in 1996, I opposed it because I believed that the anti-nepotism 
statute, 28 U.S.C. 458, prohibited him from serving on the Ninth 
Circuit based on the fact that his mother, Betty Fletcher, is a judge 
on the same court. There has been some dispute about whether this 
statute applies to judges rather than only inferior court employees, 
and the Senate yesterday passed legislation by Senator Kyl to clarify 
that the statute does apply to judges. However, the revision is 
prospective in nature and does not apply to Professor Fletcher. In my 
view, Professor Fletcher's nomination violates the statute as it 
existed before the Senate's clarification. Thus, I must oppose this 
nomination because I believe it violates the anti-nepotism laws.

[[Page S11883]]

  Moreover, I have serious reservations about Professor Fletcher's 
judicial philosophy. I believe we have a duty to oppose nominees who do 
not have a proper respect for the limited role of a judge in our system 
of government.
  One of the strongest and most influential advocates for an activist 
Federal judiciary in this century was Supreme Court Justice William 
Brennan. He believed that the Constitution was a living document and 
that judges should interpret the Constitution as though its words 
change and adapt over time. I have always believed that this view of 
the Constitution is not only wrong but dangerous to our system of 
government. The words of the Constitution do not change. They have an 
established meaning that should not change based on the views of a 
judge. They should change only through an amendment to the 
Constitution. It is through the amendment process that the people can 
determine for themselves what the Constitution says, rather than 
unaccountable, unelected judges making the decisions for them.
  Professor Fletcher has written in strong support of Justice Brennan 
and his activist judicial philosophy. In a 1991 law review article, he 
praised Justice Brennan for his, quote, ``sense that the Constitution 
has meaning beyond the bare words of the text.'' He stated that some 
parts of the Constitution are, quote, ``almost constitutional truths in 
search of a text.'' He even approvingly quoted Justice Brennan's famous 
statement regarding Constitutional interpretation that, quote, ``the 
ultimate question must be what do the words of the text mean in our 
time.''
  I firmly believe that the role of the judge is to interpret the law 
as the legislature intended, not to interpret the law consistent with 
the judge's public policy objectives. A judge does not make the law and 
is not a public policy maker. Professor Fletcher has been critical of 
the modern Supreme Court for its lack of political and governmental 
experience. In a 1987 law review article, he criticized recent landmark 
Supreme Court decisions on the separation of powers, saying the Court, 
quote, ``read the Constitution in a literalistic way to upset what the 
other two branches had decided, under the political circumstances, was 
the most workable arrangement.'' What is convenient in a political 
sense is irrelevant to a proper interpretation of the Constitution.
  Moreover, Professor Fletcher has been nominated to the Ninth Circuit, 
and the Supreme Court routinely finds it necessary to reverse the Ninth 
Circuit. Indeed, in recent years, the Ninth Circuit has been reversed 
far more often than any other circuit. This trend will be corrected 
only if we confirm sound, mainstream judges to this critical circuit. I 
do not see that problem abating with nominees such as the one here, who 
even characterizes himself as being in his words, quote, ``fairly close 
to the mainstream.''
  If Professor Fletcher is confirmed, I sincerely hope that he turns 
out to be a sound, mainstream judge and not a judicial activist from 
the left. I hope he helps to improve the dismal reversal rate of the 
Ninth Circuit.
  However, we must evaluate judges based on the record we have before 
us. As I read Professor Fletcher's record, it does not convince me that 
he is an appropriate addition to the Court of Appeals. Therefore, 
because of my interpretation of the anti-nepotism statute and my 
concerns about judicial activism, I cannot support this nominee.
  Mr. BAUCUS. Mr. President, I rise today to express my strong support 
for the nomination of William A. Fletcher to the U.S. Court of Appeals 
for the Ninth Circuit. Mr. Fletcher has proven himself superbly 
qualified for this position. A man of deep personal integrity, of sound 
judgement and a well respected legal scholar, Mr. Fletcher's nomination 
is certainly deserved and given that five judgeships remain vacant on 
the Ninth Circuit, his confirmation is well past due.
  Mr. Fletcher's qualifications for this position are truly remarkable, 
Mr. President. He is a graduate of Harvard University and a Rhodes 
Scholar. William Fletcher earned his law degree from Yale, clerked at 
the United States Supreme Court, and has dedicated himself to a career 
of exploring legal theories as a professor and as an esteemed author.
  Fletcher has been a professor at Boalt Hall since 1977 where he was 
awarded the Distinguished Teaching Award in 1993, an honor bestowed 
annually upon the five finest faculty members on the Berkley campus. 
Fletcher has also served as a visiting professor at the University of 
Michigan, Stanford Law School, Hastings College of Law, and the 
University of Cologne, and he has served as an instructor at the 
Salzburg Seminars.
  Professor Fletcher's scholarly works include influential law review 
articles that have been immensely useful to both academics and 
practitioners. His works include published articles relating to the 
topics of civil procedure and federal courts, such as standing and the 
Eleventh Amendment, sovereign immunity and federal common law. In 
exploring the law and authoring these esteemed articles, Fletcher 
demonstrates his uncanny powers of analysis and steadfast objectivity.
  In addition to my support Mr. President, William Fletcher's 
nomination enjoys broad support across political and ideological 
spectrums. He has been endorsed not only by an extensive array of his 
peers throughout the country, but also by a number of non-partisan 
observers and the American Bar Association, all of whom comment on the 
centrist, pragmatic approach he brings to the law. I am completely 
confident that Mr. Fletcher is the best possible candidate to the U.S. 
Court of Appeals for the Ninth Circuit.
  So again Mr. President I would like to express my unequivocal support 
for William A. Fletcher as a highly qualified nominee to the U.S. Court 
of Appeals for the Ninth Circuit. I will conclude by quoting one of Mr. 
Fletcher's colleagues in saying ``If Willy Fletcher presents a problem 
[for the Judiciary Committee], there is no academic in America who 
should get a court appointment.''
  Mr. SESSIONS. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator from Alabama has 6 minutes 40 
seconds.
  Mr. SESSIONS. Mr. President, there have been several speakers, 
including the Senator from Ohio and the Senator from Missouri, who have 
talked about the unique circumstances that are at foot here in dealing 
with the Ninth Circuit, and that we have a responsibility and a duty to 
make sure that we use our advise and consent authority wisely to 
improve the courts in America, and the Ninth Circuit is in need of, 
severe need of reform. It has been reversed in nearly 90 percent of its 
cases in the last 2 years--an unprecedented record that no circuit, to 
my knowledge, has even been suggested to have approached. The New York 
Times has referred to the Ninth Circuit Court of Appeals--which 
includes California and most of the west coast--and they said that a 
majority of the Supreme Court considers the Ninth Circuit a rogue 
circuit.
  Now, some Senators suggest this is politics. Mr. President, I was 
elected by the people of my State to come here, and one of my duties is 
to evaluate Federal judges. I have affirmed and voted for the 
overwhelming majority of the Clinton nominees. I am willing to vote on 
this one. I have agreed to this nomination to come up and be voted on. 
But I want to have my say. I am concerned about this. I don't think 
that is politics.
  As a matter of fact, let me quote to you from an article that Mr. 
Fletcher, the nominee, wrote a few years ago referring to the 
confirmation process involving Justice Clarence Thomas. What he said 
about the role of the Senate was this:

       Does the Senate have the political will--

  That is us, me--

       to come down here and do the unpleasant duty of standing up 
     and--

  And talk about a gentleman who is charming, I am sure, and a nice 
fellow--

       talking about the unpleasant fact that he may not be the 
     right nominee for the court?

  He said:

       Does the Senate have the political will to insist that its 
     constitutional advise and consent role become a working 
     reality?

  Mr. President, I have been here 2 years. One nominee withdrew before 
a vote, and we hadn't voted on any nominees. So we are not abusing our 
advise and consent power. As a matter of fact, I don't think we have 
been aggressive enough in utilizing it to ensure that the nominees to 
the Federal bench are mainstream nominees.

[[Page S11884]]

  That is what we are talking about. He said, ``The Senate must be 
prepared to persuade. . . .'' This is Mr. Fletcher, who wrote this 
article. He is an academic, a professor, so he can sit around and find 
time to write these articles. We are not dealing with a proven 
practitioner, a person who served as a State or Federal judge, as we 
normally have. We are dealing with a nominee who has never practiced 
law in his life, has never tried a lawsuit, has never been in court and 
had to answer to a judge. Yet, he is going to be superintending the 
largest Federal circuit in the country. This is what he wrote:

       The Senate must be prepared to persuade the public that an 
     insistence on full participation in choosing judges is not a 
     usurpation of power.

  That is all we are doing. We are telling the President of the United 
States--and it is going to get more serious with additional nominees to 
this circuit--that we have to have some mainstream nominees. We have to 
do something about the Ninth Circuit, where 27 out of 28 cases were 
reversed in the term before last, and 13 out of 17 were reversed in the 
last term. That has been going on for 15 or 20 years. It is not even a 
secret problem anymore. It is an open, acknowledged problem in American 
jurisprudence. The U.S. Supreme Court is trying to maintain uniformity 
of the law.
  For example, this summer, the Ninth Circuit was the only circuit to 
rule that the Prison Litigation Reform Act--passed here to improve some 
of the horrendous problems we were having with litigation by 
prisoners--was unconstitutional. Every other circuit that addressed the 
issue upheld the constitutionality of this act, including the First, 
Fourth, Sixth, Eighth, and Eleventh Circuit have affirmed the 
constitutionality of the Prison Litigation Reform Act. But not the 
Ninth Circuit. It is out there again.
  As a matter of fact, I have learned that they utilize an 
extraordinary amount of funds of the taxpayers on defense of criminal 
cases. In fact, they have approved one-half of the fees for court-
appointed counsel in the entire United States. There are 11 circuits in 
America. This one is the biggest, but certainly not more than 20, 25 
percent of the country--probably less than that. They did half of the 
court-appointed attorney's fees because they are turning criminal cases 
into prolonged processes where there is no finality in the judgment--a 
problem that America is coming to grips with, the Supreme Court is 
coming to grips with, and the people of this country are coming to 
grips with. That is just an example of what it means to have a problem 
there.
  Mr. President, I will just say this: This nominee was a law clerk, in 
addition to never having practiced, and he clerked for Justice Brennan, 
who was widely recognized as the epitome of judicial activism. His 
mother is on this court today, the Ninth Circuit, and she is recognized 
as the most liberal member of the court. Perhaps one other is more 
liberal. It is a problem we have to deal with.
  I would like to mention this. In talking about the confirmation 
process, he made some unkind and unwise comments about Justice Thomas 
in a 1991 article. He questioned, I think fundamentally, the integrity 
of Justice Thomas. What kind of standard do we need to apply here? He 
believed a very high standard. This is what he said:

       Judge Clarence Thomas did have a record, although not 
     distinguished enough to merit President Bush's accolades. But 
     Thomas backed away from that record, pretending he meant none 
     of what he had written, and said that he never talked about 
     Roe v. Wade with anyone and, of course, he didn't talk dirty 
     to Anita Hill either.

  The PRESIDING OFFICER. All of the Senator's time has expired.
  Mr. SESSIONS. Mr. President, I think that was an unkind comment. I 
don't believe he is the right person for this circuit, and I object to 
his nomination.
  I yield the floor.
  Mr. LEAHY. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 11 minutes 4 seconds.
  Mr. LEAHY. Mr. President, Mr. Fletcher has waited a long, long time--
nearly 3\1/2\ years--for this moment. He has been voted out of the 
Senate Judiciary Committee by an overwhelming margin twice. He is 
strongly supported by both Republicans and Democrats in this body. He 
has waited long enough.
  I yield back the remainder of my time so we can go to a vote on 
Professor Fletcher.
  The PRESIDING OFFICER. The question is on agreeing to the nomination. 
Are the yeas and nays requested?
  Mr. LEAHY. Mr. President, I think the other side has forgotten to ask 
for the yeas and nays.
  To protect them, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of William A. Fletcher, of California, to be 
a United States Circuit Judge for the Ninth Circuit? On this question 
the yeas and nays have been ordered, and the clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from Ohio (Mr. Glenn) and the 
Senator from South Carolina (Mr. Hollings) are necessarily absent.
  The result was announced--yeas 57, nays 41, as follows:

                      [Rollcall Vote No. 309 Ex.]

                                YEAS--57

     Akaka
     Baucus
     Bennett
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Bumpers
     Byrd
     Chafee
     Cleland
     Collins
     Conrad
     D'Amato
     Daschle
     Dodd
     Domenici
     Dorgan
     Durbin
     Feingold
     Feinstein
     Ford
     Gorton
     Graham
     Harkin
     Hatch
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Mack
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Roth
     Sarbanes
     Smith (OR)
     Specter
     Stevens
     Torricelli
     Wellstone
     Wyden

                                NAYS--41

     Abraham
     Allard
     Ashcroft
     Bond
     Brownback
     Burns
     Campbell
     Coats
     Cochran
     Coverdell
     Craig
     DeWine
     Enzi
     Faircloth
     Frist
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kempthorne
     Kyl
     Lott
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Snowe
     Thomas
     Thompson
     Thurmond
     Warner

                             NOT VOTING--2

     Glenn
     Hollings
       
  The nomination was confirmed.
  Mr. WARNER addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Virginia.
  If the Senator will withhold for one moment.

                          ____________________