[Congressional Record Volume 145, Number 121 (Thursday, September 16, 1999)]
[Senate]
[Pages S11014-S11018]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              NOMINATIONS

  Mr. LEAHY. Mr. President, while the distinguished majority leader is 
still on the floor, I note I, too, do not want to see the Senate go 
down a path where a minority of the Senate is determining a judge's 
fate on votes of 41. In fact, the distinguished majority leader is 
perhaps aware of the fact that during the Republican administrations I 
rarely ever voted against a nomination by either President Reagan or 
President Bush. There were a couple I did.
  I also took the floor on occasion to oppose filibusters to hold them 
up and believe that we should have a vote up or down. Actually, I was 
one of those who made sure, on a couple controversial Republican 
judges, that we did. That meant 100 Senators voted on them, 100.
  In this case, unfortunately, we have at least one judge who has been 
held for 3 years by one or two or three or four Senators, not 41 but 
less than a handful. All I am asking is that we give them the fairness 
of having the whole Senate vote on them.
  Unfortunately, in the last couple years, women and minorities have 
been held up longer than anybody else on these Federal judgeships. They 
ought to be allowed a vote up or down. If Senators want to vote against 
them, then vote against them. If they want to vote for them, vote for 
them. But to have two or three people, quietly, in the back room, never 
be identified as being the ones holding them up, I think that is unfair 
to the judiciary, it is unfair to the nominees, and, frankly, it 
demeans the Senate.
  Mrs. FEINSTEIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. I thank the Chair.
  Mr. President, as a Senator representing California, who sits on the 
Judiciary Committee, I have to say a word or two on this subject.
  First, I believe the chairman of our committee, Senator Hatch, has 
been very fair with respect to these judges. I believe he has tried his 
level best to move the calendar along.
  I think what we on this side are encountering is the holding up of 
judges, particularly on the Ninth Circuit Court of Appeals, for years 
on end. That must stop. A nominee is entitled to a vote. Vote them up; 
vote them down. To keep them hanging on--the court has 750 cases 
waiting for a judge. These judges are necessary. If someone has 
opposition to a judge, which I believe to be the case in at least one, 
they should come to the floor and say that.
  It is also my understanding and my desire to ask that there be some 
commitment from the other side as to when specifically the nominations 
of Judge Paez, Marsha Berzon, and Ray Fisher, pending on this 
calendar--

[[Page S11015]]

Judge Paez pending for 4 years; Marsha Berzon through two sessions 
now--can at least be brought to the floor for a vote.
  I am prepared to vote on the judges that the majority leader 
mentioned. I am prepared to vote affirmatively, but I can't do that 
unless I have some knowledge that judges who have stood on this 
calendar for years can be brought up before this body for a vote. I 
don't think that is too much to ask the other side to do.
  What this does to a judge's life is, it leaves them in limbo--I 
should say, a nominee's life--whether they have a place to live, 
whether they are going to make a move. It is our job to confirm these 
judges. If we don't like them, we can vote against them. That is the 
honest thing to do. If there are things in their background, in their 
abilities that don't pass muster, vote no.
  I think every one of us on this side is prepared for that. The 
problem is, we have a few people who prevent them from having a vote, 
and this goes on month after month, year after year.
  The ranking member of the committee said something that I believe is 
concurred in on this side; that is, women and minorities have an 
inordinately difficult time having their nominations processed in an 
orderly and expeditious way. I don't think that befits this body.
  What I am asking for, as a Senator from California, on these three 
judges, is to just tell us when we might see their nominations before 
the Senate for a vote up or down. I think there is also an 
understanding by the White House that will be the case as well.
  I ask the majority party to please take this into consideration, 
allow us a vote up or down, and give us a time when this might happen.
  Once again, I thank the ranking member and the chairman of the 
committee. I know the Senator from Utah has done everything he possibly 
can to move these nominations. I, for one, very much appreciate it. I 
am hopeful the leadership of his side will be able to give us some 
accommodation on this.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I appreciate my colleague's kind remarks. I 
support Mr. Stewart's nomination, and I urge my colleagues to do the 
same, and not to filibuster any nominee, let alone this nominee.
  I am pleased, with regard to the judicial nominations that have been 
voted on so far this session--and there have been well over 300 since 
this President became President--that no one on our side, to my 
knowledge, has threatened to filibuster any of these judges. I think 
that is the way to proceed.
  I think it is a travesty if we ever start getting into a game of 
filibustering judges. I have to admit that my colleagues on the other 
side attempted to do that on a number of occasions during the Reagan 
and Bush years. They always backed off, but maybe they did because they 
realized there were enough votes to stop a filibuster against Federal 
judges. I think it is a travesty if we treat this third branch of 
government with such disregard that we filibuster judges.
  I also have appreciated the comments of the ranking member of the 
Judiciary Committee, Senator Leahy, who stated on this floor in the 
past:

       I would object and fight against any filibuster on a judge, 
     whether it is somebody I opposed or supported. . . .

  The Republican leadership, the Democratic President, the Republican 
chairman, and the Democratic ranking member of the Judiciary Committee 
all support Mr. Stewart's nomination. The nomination should not be 
filibustered. As I understand it, the only reason there would be a 
filibuster is because some Senators want their judges up. They have no 
real reason to filibuster Mr. Stewart.
  The only way I could ever see a filibuster would be justified is if a 
nominee is so absolutely unqualified to sit on the Federal bench that 
the only way to stop that person is a filibuster. I can understand it 
under those circumstances. Even then, I would question whether that 
should be done. If a person is so unqualified, we ought to be able to 
beat that person on the floor.
  Even when I opposed a nominee of the current President, I voted for 
cloture to stop the filibuster of that nominee. That was for Lee 
Sarokin.
  We are dealing with a coequal branch of government. We are dealing 
with some of the most important nominations the President, whoever that 
President may be, will make. We are also dealing, hopefully, with good 
faith on both sides of the floor. For years, I thought our colleagues 
on the other side did some reprehensible things with regard to Reagan 
and Bush judges--very few, but it was serious. By and large, the vast 
majority of them were put through without any real fuss or bother even 
though my colleagues on the other side, had they been President, would 
not have appointed very many of those judges. We have to show the same 
good faith on our side, it seems to me.

  And unless you have an overwhelming case, then certainly I don't see 
any reason for anybody filibustering judges. I hope that we never get 
into that. Let's make our case if we have disagreement, and then vote. 
And I reach this conclusion after having been part of this process for 
over 20 years now and always trying to be fair, whoever is the 
President of the United States and whoever the nominees are.
  It is important to not filibuster judicial nominees on the floor of 
the Senate. The fight over a nomination has to occur between honest 
people in the White House and honest people up here. And that is where 
the battles are. When they get this far, generally most of them should 
be approved. There are some we still have problems with in the 
Judiciary Committee, but that is our job to look at them. It is our job 
to look into their background. It is our job to screen these 
candidates.
  We have had judicial nominees withdraw after we have approved them in 
the Judiciary Committee because something has come up to disturb their 
nomination. This was generally handled between the White House, the 
Senate, and the nominee. That is the way it should work.
  We must remember that these are among the most important nominations 
that any President can make and that the Senate can ever work on. We 
should not play politics with them.
  I have really worked hard on the Judiciary Committee to try to not 
allow politics. It is no secret that there are some on the right who 
decry the fact that I have put through Clinton judges. Some of them 
don't want any Clinton judges put through --some just because they are 
liberal. If we get to the point where we deny people a chance to serve 
because they are liberal or conservative, I think we will be in real 
trouble. Politics should not be played with judicial nominees. 
President Clinton did win this Presidency. He has a right to nominate 
these people, and we have an obligation to confirm them if they are 
qualified. In every case where we have confirmed them, they are 
qualified, even though there may be some questions in the minds of 
some.
  In the case of Ted Steward, we have examined the whole record. The 
President has examined the whole record. The President and I and 
Senator Bennett agree that Mr. Stewart is qualified to serve as an 
Article III, judgeship in Utah. The Judiciary Committee reported Mr. 
Steward's nomination favorably to the floor.
  Now we have the unusual situation of a Democratic President and 
Republican Chairman and Democratic Ranking Member agreeing on a 
nomination, but certain Democratic Senators who really don't oppose Ted 
Steward's nomination want to hold the nomination hostage in order to 
get other judges up. The majority leader said he will try to do so in 
good faith, but he must consult with 54 other Senators on our side.
  There is some angst on at least the background of two of the 9th 
Circuit Court judges on the part of some on our side. I could not 
disagree more with the threat of filibuster here. Unless there is an 
overwhelming case to be made against a judge that he or she is 
unqualified or will not respect the limited role which Article III 
prescribes for a judge, there should be no filibuster.
  Mr. Steward is definitely qualified and will certainly respect the 
limited role that Article III provides for a federal judge. He will be 
a credit to the federal bench in Utah and throughout the country.
  In sum, Mr. President, I oppose filibusters of judicial nominees as a 
general matter and I support Mr. Stewart's nomination in this specific 
case. I

[[Page S11016]]

would like to see these three judges go through today because we put 
them through the Judiciary Committee. I would like to see all of those 
on the list have an opportunity to be voted up or down. I will work to 
try to do that.
  On the other hand, I understand the problems of the majority leader 
and I hope my colleagues on the other side do. I hope colleagues on 
both sides of the aisle will not hold up the business of the Senate to 
play politics with Ted Stewart's nomination. I have to say that I think 
we do a great injustice if we do not support this nomination.
  Having said all of that, let me conclude by saying I have been 
willing to and have enjoyed working with my distinguished friend from 
Vermont. He has done a good job as the Democrat leader on the 
committee. I just have to say that I hope he can clear his side on 
these matters and that we can get them through because I intend to put 
more judges out from the committee and to move forward with as much 
dispatch as I can.
  Earlier, when I said there was some angst concerning the background 
of some Ninth Circuit nominees, I was referring to their legal 
background and some of the matters that came before the committee. Be 
that as it may, I was really referring to the Ninth Circuit Court of 
Appeals, which seems to be out of whack with the rest of the country. 
It is reversed virtually all the time by the Supreme Court. There is a 
great deal of concern that Ninth Circuit court has become so activist 
that it is a detriment to the Federal judicial system. Some on our side 
believe that to put any additional activists on that court would be a 
travesty and would be wrong. I am concerned about that, too.
  All I can say is that it is important we work together to try to get 
these nominees through, both in the Judiciary Committee and in the 
Senate. Should we be fortunate enough to have a Republican President 
next time, I hope our colleagues on the other side will treat our 
nominees as fairly as I certainly did and the Senate Republicans as a 
whole treated the Democrat nominees who have been brought before the 
committee. We are going to keep working on them, and we will do the 
best we can to get as many of them through as we can. Thus far, I am 
proud of the record we have.
  I yield the floor.
  Mr. LEAHY. Mr. President, we have a number of highly-qualified 
nominees for judicial vacancies before the Senate and on the Executive 
Calendar. I want to be sure that the Senate treats them all fairly and 
accords each of them an opportunity for an up or down vote. I want to 
share with you a few of the cases that cry out for a Senate vote:
  The first is Judge Richard Paez. He is a judicial nominee who has 
been awaiting consideration and confirmation by the Senate since 
January 1996--for over 3 and one-half years. The vacancy for which 
Judge Paez was nominated became a judicial emergency during the time 
his nomination has been pending without action by the Senate. His 
nomination was first received by the Senate almost 44 months ago and is 
still without a Senate vote. That is unconscionable.
  Judge Paez has twice been reported favorably by the Senate Judiciary 
Committee to the Senate for final action. He is again on the Senate 
calendar. He was delayed 25 months before finally being accorded a 
confirmation hearing in February 1998. After being reported by the 
Judiciary Committee initially in March 1998, his nomination was held on 
the Senate Executive Calendar without action or explanation for over 7 
months, for the remainder of the last Congress.
  Judge Paez was renominated by the President again this year and his 
nomination was stalled without action before the Judiciary Committee 
until late July, when the Committee reported his nomination to the 
Senate for the second time. The Senate refused to consider the 
nomination before the August recess. I have repeatedly urged the 
Republican leadership to call this nomination up for consideration and 
a vote. The Republican leadership in the Senate has refused to schedule 
this nomination for an up or down vote.
  Judge Paez has the strong support of both California Senators and a 
``well-qualified'' rating from the American Bar Association. He has 
served as a municipal judge for 13 years and as a federal judge for 
four years.
  In my view Judge Paez should be commended for the years he worked to 
provide legal services and access to our justice system for those 
without the financial resources otherwise to retain counsel. His work 
with the Legal Aid Foundation of Los Angeles, the Western Center on Law 
and Poverty and California Rural Legal Assistance for nine years should 
be a source of praise and pride.
  Judge Paez has had the strong support of California judges familiar 
with his work, such as Justice H. Walter Crosky, and support from an 
impressive array of law enforcement officials, including Gil Garcetti, 
the Los Angeles District Attorney; the late Sherman Block, then Los 
Angeles County Sheriff; the Los Angeles County Police Chiefs' 
Association; and the Association for Los Angeles Deputy Sheriffs.
  The Hispanic National Bar Association, the Mexican American Legal 
Defense and Educational Fund, the League of United Latin American 
Citizens, the National Association of Latino Elected and Appointed 
Officials, and many, many others have been seeking a vote on this 
nomination for what now amounts to years.
  I want to commend the Chairman of the Judiciary Committee for his 
steadfast support of this nominee and Senator Boxer and Senator 
Feinstein of California for their efforts on his behalf.
  Last year the words of the Chief Justice of the United States were 
ringing in our ears with respect to the delays in Senate consideration 
of judicial nomination. He had written:

       Some current nominees have been waiting considerable time 
     for a Senate Judiciary Committee vote or a final floor vote. 
     . . . 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.

  Richard Paez's nomination to the Ninth Circuit had already been 
pending for 24 months when the Chief Justice issued that statement--and 
that was almost two years ago. The Chief Justice's words resound in 
connection with the nomination of Judge Paez. He has twice been 
reported favorably by the Judiciary Committee. It was been pending for 
almost 44 months. The court to which he was nominated has multiple 
vacancies. In fairness to Judge Paez and all the people served by the 
Ninth Circuit, the Senate should vote on this nomination.
  Justice Ronnie White is another nominee who has been pending before 
the Senate without a vote for an exceedingly long time. In June I gave 
a Senate speech marking the 2-year anniversary of the nomination of 
this outstanding jurist to what is now a judicial emergency vacancy on 
the U.S. District Court for the Eastern District of Missouri. He is 
currently a member of the Missouri Supreme Court.
  He was nominated by President Clinton in June of 1997. It took 11 
months before the Senate would even allow him to have a confirmation 
hearing. His nomination was then reported favorably on a 13 to 3 vote 
by the Senate Judiciary Committee on May 21, 1998. Senators Hatch, 
Thurmond, Grassley, Specter, Kyl, and DeWine were the Republican 
members of the Committee who voted for him along with the Democratic 
members. Senators Ashcroft, Abraham and Sessions voted against him.
  Even though he had been voted out overwhelmingly, he sat on the 
calendar last year, and the nomination was returned to the President 
after 16 months with no action.
  The President renominated him and on July 22 the Senate Judiciary 
Committee again reported the nomination favorably to the Senate, this 
time by a vote of two to one.
  Justice White deserves better than benign neglect. The people of 
Missouri deserve a fully qualified and fully staffed Federal bench.
  Justice White has one of the finest records--and the experience and 
standing--of any lawyer that has come before the Judiciary Committee. 
He has served in the Missouri legislature, the office of the city 
counselor for the City of St. Louis, and he was a judge in the Missouri 
Court of Appeals for the Eastern District of Missouri before his 
current service as the first African-American ever to serve on the 
Missouri Supreme Court.
  Having been voted out of Committee twice, he has now been forced to 
wait

[[Page S11017]]

for more than two years for Senate action. This distinguished African-
American at least deserves the respect of this Senate, and he should be 
allowed a vote, up or down. Senators can stand up and say they will 
vote for or against him, but let this man have his vote. Twenty-seven 
months after being nominated, the nomination remains pending before the 
Senate. I would certainly like to see Justice White be accorded an up 
or down vote.
  I have been concerned for the last several years that it seems women 
and minority nominees are being delayed and not considered. I spoke to 
the Senate about this situation on May 22, June 22 and, again, on 
October 8 last year. Over the last couple of years the Senate has 
failed to act on the nominations of Judge James A. Beaty, Jr. to be the 
first African-American judge on the Fourth Circuit; Jorge C. Rangel to 
the Fifth Circuit; Clarence J. Sundram to the District Court for the 
Northern District of New York; Anabelle Rodriguez to the District Court 
in Puerto Rico; and many others.
  In explaining why he chose to withdraw from consideration for 
renomination after waiting 15 months for Senate action, Jorge Rangel 
wrote to the President and explained:

       Our judicial system depends on men and women of good will 
     who agree to serve when asked to do so. But public service 
     asks too much when those of us who answer the call to service 
     are subjected to a confirmation process dominated by 
     interminable delays and inaction. Patience has its virtues, 
     but it also has its limits.

  Last year the average for all nominees confirmed was over 230 days 
and 11 nominees confirmed last year took longer than 9 months: Judge 
William Fletcher's confirmation took 41 months--it became the longest-
pending judicial nomination in the history of the United States; Judge 
Hilda Tagle's confirmation took 32 months, Judge Susan Oki Mollway's 
confirmation took 30 months, Judge Ann Aiken's confirmation took 26 
months, Judge Margaret McKeown's confirmation took 24 months, Judge 
Margaret Morrow's confirmation took 21 months, Judge Sonia Sotomayor's 
confirmation took 15 months, Judge Rebecca Pallmeyer's confirmation 
took 14 months, Judge Ivan Lemelle's confirmation took 14 months, Judge 
Dan Polster's confirmation took 12 months, and Judge Victoria Roberts' 
confirmation took 11 months. Of these 11, eight are women or minority 
nominees. Another was Professor Fletcher was held up, in large measure 
because of opposition to his mother, Judge Betty Fletcher.

  In 1997, of the 36 nominations eventually confirmed, 9, fully one-
quarter of all those confirmed, took more than 9 months before a final 
favorable Senate vote.
  In 1996, the Republican Senate shattered the record for the average 
number of days from nomination to confirmation for judicial 
confirmation. The average rose to a record 183 days. In 1997, the 
average number of days from nomination to confirmation rose 
dramatically yet again, and that was during the first year of a 
presidential term. From initial nomination to confirmation, the average 
time it took for Senate action on the 36 judges confirmed in 1997 broke 
the 200-day barrier for the first time in our history. It was 212 days.
  Unfortunately, that time is still growing and the average is still 
rising to the detriment of the administration of justice. Last year the 
Senate broke its dismal record. The average time from nomination to 
confirmation for the 65 judges confirmed in 1998 was over 230 days.
  Acting to fill judicial vacancies is a constitutional duty that the 
Senate--and all of its members--are obligated to fulfill. In its 
unprecedented slowdown in the handling of nominees since the 104th 
Congress, the Senate is shirking its duty. That is wrong and should 
end. The Senate recesses with a sorry record of inaction on judicial 
nominations.
  Another example of a longstanding nominee who is being denied a 
Senate vote is Marsha Berzon. Fully one-quarter of the active 
judgeships authorized for that Court remain vacant, as they have been 
for several years. The Judicial Conference recently requested that 
Ninth Circuit judgeships be increased in light of its workload by an 
additional five judges. That means that while Ms. Berzon's nomination 
has been pending, that Court has been forced to struggle through its 
extraordinary workload with 12 fewer judges than it needs.
  Marsha Berzon is an outstanding nominee. By all accounts, she is an 
exceptional lawyer with extensive appellate experience, including a 
number of cases heard by the Supreme Court. She has the strong support 
of both California Senators and a well-qualified rating from the 
American Bar Association.
  She was initially nominated in January 1998, almost 20 months ago. 
She participated in an extensive two-part confirmation hearing before 
the Committee back on July 30, 1998. Thereafter she received a number 
of sets of written questions from a number of Senators and responded in 
August of last year. A second round of written questions was sent and 
she responded by the middle of September of last year. Despite the 
efforts of Senator Feinstein, Senator Kennedy, Senator Specter and 
myself to have her considered by the Committee, she was not included on 
an agenda and not voted on during all of 1998. Her nomination was 
returned to the President without action by this Committee or the 
Senate last October.
  This year the President renominated Ms. Berzon in January. She 
participated in her second confirmation hearing in June, was sent 
additional sets of written questions, responded and got and answered 
another round. I do not know why those questions were not asked last 
year.
  Finally, on July 1 more than two months ago and before Mr. Stewart 
was even nominated, the Committee considered the nomination and agreed 
to report it to the Senate favorably. After more than a year and one-
half the Senate should, at long last, vote on the nomination. Senators 
who find some reason to oppose this exceptionally qualified woman 
lawyer can vote against her if they choose, but she should be accorded 
an up or down vote. That is what I have been asking for and that is 
what fairness demands.
  Unfortunately, the list goes on and on. In addition, there is the 
nomination of Timothy Dyk to the Federal Circuit. Tim Dyk was initially 
nominated in April 1998, and participated in a confirmation hearing 
last July. He was favorably reported to the Senate by a vote of 14 to 4 
last September. His was one of the several judicial nominations not 
acted upon by the Senate last year before it adjourned. Instead, the 
Senate returned this nomination to the President without action.
  The President proceeded to renominate Mr. Dyk in January 1999. Since 
then, his nomination, which had been favorably reported last year, has 
been in limbo. I raised his nomination at our first Committee meeting 
of the year in February and a number of times thereafter. Still, he is 
being held hostage in the Committee without action.
  There are the nominations of Barry Goode to the Ninth Circuit, who 
was first nominated in June 1998 and is still patiently awaiting a 
confirmation hearing; of Julio Fuentes to the Third Circuit, has been 
pending three times longer than the Stewart nomination and is still 
awaiting his confirmation hearing; of Ray Fisher to the Ninth Circuit, 
who is an outstanding lawyer and public servant now Associate Attorney 
General of the United States Department of Justice and was reported by 
the Committee on a vote of 16 to 2 but remains held on the Senate 
Calendar. There are the nominations of Alston Johnson to the Fifth 
Circuit, James Duffy to the Ninth Circuit, and Elena Kagan to the D.C. 
Circuit, among others who were nominated before Mr. Stewart. There are 
the district court nominations of Legrome Davis and Lynette Norton in 
Pennsylvania, Virginia Phillips, James Lorenz, Dolly Gee and Frederic 
Woocher in California, Rich Leonard in North Carolina, Frank McCarthy 
in Oklahoma, Patricia Coan in Colorado, and William Joseph Haynes, Jr. 
in Tennessee, to name a few.
  All together, there are more than 30 pending judicial nominations 
that were received by the Senate before it received the Stewart 
nomination and they need our attention, too. That is the point I am 
trying to make. I understand that nominations are not considered in 
lockstep order based on the date of receipt. I understand and respect 
the prerogatives of the majority

[[Page S11018]]

party and the Majority Leader. I appreciate the interest of the 
Chairman of the Committee in filling vacancies in his State and want to 
work with him. I ask only that the Senate be fair to these other 
nominees, as well. In my view, Ted Stewart is entitled to a vote on his 
nomination and should get it, but these other nominees should be 
accorded fair treatment, as well. Nominees like Judge Richard Paez, 
Justice Ronnie White, and Marsha Berzon should be voted on up or down 
by the Senate. We are asking and have been asking the Republican 
leadership to schedule votes on those nominations so that action on all 
the nominations can move forward.
  Mr. EDWARDS addressed the Chair.
  The PRESIDING OFFICER (Mr. Bunning). The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, I ask unanimous consent to speak up to 10 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________