[Congressional Record Volume 145, Number 123 (Tuesday, September 21, 1999)]
[Senate]
[Pages S11100-S11102]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S11100]]
   NOMINATION OF RICHARD A. PAEZ, OF CALIFORNIA, TO BE UNITED STATES 
         CIRCUIT JUDGE FOR THE NINTH CIRCUIT--MOTION TO PROCEED

  Mr. DASCHLE. I move to proceed to executive session to consider 
Executive Calendar No. 208, Richard A Paez, to be a U.S. Circuit Court 
Judge for the Ninth circuit. I ask for the yeas and nays.
  The PRESIDING OFFICER (Mr. Bennett). Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
proceed to executive session to consider the nomination of Richard A. 
Paez, of California, to be United States Circuit Judge for the Ninth 
Circuit. The yeas and nays have been ordered. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) 
and the Senator from North Carolina (Mr. Helms) are necessarily absent.
  The result was announced--yeas 45, nays 53, as follows:

                      [Rollcall Vote No. 283 Leg.]

                                YEAS--45

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Torricelli
     Wellstone
     Wyden

                                NAYS--53

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                             NOT VOTING--2

     Helms
     McCain
       
  The motion was rejected.
  Mr. HATCH. Mr. President, I must begin by confessing my 
disappointment that the minority would refuse to avoid a filibuster of 
one of the nominees of its own administration, when the record of this 
Senate so dramatically proves the deference this Senate has shown to 
this administration's judicial nominees. But that is what has just 
happened this evening, and in the face of this blatant double standard 
by the minority, I will only say that I will continue to work in good 
faith to secure a vote on the merits on the President's nomination of 
Ted Stewart to be a Federal district court judge.
  When I speak of the traditional deference the Senate has shown to the 
executive in matters of Federal judicial nominations, I believe I speak 
with considerable experience. Since the time I was first sworn into the 
Senate in 1977, I have participated in and witnessed the confirmation 
of 1,159 judges and Justices, and have voted in favor of almost all of 
them.
  I have personally presided over the confirmation of 321 of President 
Clinton's judicial appointments. This accounts for almost a quarter of 
the entire Federal judiciary. And this session alone, I have held 4 
judicial confirmation hearings, and reported 24 nominees out of 
committee.
  This evening's cloture vote concerns me all the more because I had 
publicly stated, in response to some of my colleagues' concerns about 
moving forward with other judicial nominations, that we would hold 
another hearing in this month of September, yet another in October, 
and, if the Senate continued in session throughout November, that it 
had been my hope to hold yet another hearing during that time.
  With these plans, we would have been on track to equal or exceed the 
historical average for first-session judicial confirmations by the 
Senate. And so I find it incredible that this distinguished body 
resorted to the unfounded criticism that we are not doing as much as we 
should to fill the ranks of the Federal judiciary.
  And now, in light of today's vote on cloture, we shall have to 
reexamine the best way to move forward on judicial nominees so that we 
eliminate the double standard that has been applied tonight.
  To take a step back, and apply some perspective to the matter at 
hand, I want to emphasize that I have made every effort to promote a 
fair nominations process, recognizing the defference a President is 
traditionally accorded in nominating judges akin to his political 
philosophy. I have done as much notwithstanding the sometime heated 
criticism of interest groups opposed to President Clinton's 
nominations.
  Even nominees attacked by interest groups as liberal and 
controversial have received my support in the Judiciary Committee and 
on the Senate floor. In fact, since I have been chairman, I have never 
voted against any of the 31 Clinton judicial nominations for whom there 
has been a roll call vote. I have supported these nominees not because 
I agreed with their philosophies, but because I have always believed 
that the judicial nominations process should be as free from politics 
as possible.

  But let me offer some specifics. I have supported getting out of 
committee controversial nominees such as Judge William Fletcher, Judge 
Richard Paez, Judge Lynn Adelman, and Marsha Berzon, even though I 
would not have nominated them had I been President. Rather, so long as 
a nominee is qualified and capable of serving with integrity in a 
position, and I have his/her assurance that they will follow precedent, 
I believe they deserve to be confirmed.
  Judge Fletcher, Judge Paez, and Ms. Berzon were opposed by a number 
of conservative organizations; yet, I supported their report by the 
committee to the floor. Now, Mr. Stewart is being unduly attacked by 
liberal groups. In this same spirit of bipartisanship with which I have 
supported this administration's nominees, it had been and continues to 
be my hope that the Democrats would support the nomination of Ted 
Stewart.
  I ultimately want this body to recognize that, in the same manner 
that I have been fair to this administration's nominees in the face of 
severe opposition, trust must be placed in the judgment of home State 
senators for a nominee whose jurisdiction would be confined wholly to 
that senator's State. So now, as I expect we will soon be considering 
Ted Stewart, I will ask you to extend your deference to President 
Clinton's choice and the Judiciary Committee's ranking member's 
support, but also to extend your trust to the judgment of both senators 
from Utah.
  Ted is a good, honorable person, who has been deemed qualified for a 
position as District judge of the District of Utah and who will make a 
wonderful District Court Judge. I urge the Democrats to stop playing 
politics with this nomination and allow a vote expeditiously.
  I ask unanimous consent to have printed in the Record pertinent 
charts.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


               Status of article III judicial nominations

Total number of Clinton judges appointed, 1993-present..............321
                                                               ========

Clinton nominees confirmed during the 106th Congress:
  U.S. Circuit Court Judge............................................3
  U.S. District Court Judge..........................................14
                                                               ________
                                                               
    Total confirmed..................................................17
                                                               ========

Vacancies in the Federal judiciary:
  U.S. Circuit Court.................................................23
  U.S. District Court................................................40
  USIT................................................................1
                                                               ________
                                                               
    Total number of vacancies:.......................................64
Percent vacant......................................................7.6
                                                               ========

Vacancies with no nominee slated to fill position:
  U.S. Circuit Court..................................................7
  U.S. District Court................................................14
                                                               ________
                                                               
    Total number of vacancies without nominee........................21
                                                               ========

Nominations Pending:
  U.S. Circuit Court Judge...........................................16
  U.S. District Court Judge..........................................28
  USIT Judge..........................................................1
                                                               ________
                                                               
    Total number of nominees.........................................45
                                                               ========

Nominees pending on the Senate floor..................................7

[[Page S11101]]

Nominees pending in committee 
  w/hearing...........................................................6
32nees pending in committee w/o hearing..............................
                                  ____


     Historical Vacancy and Confirmation Rates of Judicial Nominees

                                                                     101ST CONGRESS
                                                 [Republican President (Bush)--Democrat Senate (Biden)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Convened--Jan. 3, 1989                      Adjourned--Oct. 28, 1990
                                                               -----------------------------------------------------------------------------------------
                                                                   Judgeships         Vacancies         Confirmed        Judgeships         Vacancies
--------------------------------------------------------------------------------------------------------------------------------------------------------
Supreme Court.................................................                9                 0                 1                 9                 0
Court of Appeals..............................................              168                10                22               168                 7
District Court................................................              575                26                48               575                25
Court of International Trade..................................                9                 1                 0                 9                 1
                                                               -----------------------------------------------------------------------------------------
      Total...................................................              761         37 (4.9%)                71               761         33 (4.3%)
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                     102ND CONGRESS
                                                 [Republican President (Bush)--Democrat Senate (Biden)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Convened--Jan. 3, 1991                       Adjourned--Oct. 8, 1992
                                                               -----------------------------------------------------------------------------------------
                                                                   Judgeships         Vacancies         Confirmed        Judgeships         Vacancies
--------------------------------------------------------------------------------------------------------------------------------------------------------
Supreme Court.................................................                9                 0                 1                 9                 0
Court of Appeals..............................................              179                18                20               179                16
District Court................................................       636 (+13T)               107               101        636 (+13T)                79
Court of International Trade..................................                9                 1                 1                 9                 2
                                                               -----------------------------------------------------------------------------------------
      Total...................................................              846         126 (15%)               123               846        97 (11.5%)
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                     103RD CONGRESS
                                                 [Democrat President (Clinton)--Democrat Senate (Biden)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Convened--Jan. 5, 1993                       Adjourned--Dec. 1, 1994
                                                               -----------------------------------------------------------------------------------------
                                                                   Judgeships         Vacancies         Confirmed        Judgeships         Vacancies
--------------------------------------------------------------------------------------------------------------------------------------------------------
Supreme Court.................................................                9                 0                 2                 9                 0
Court of Appeals..............................................              179                17                19               179                15
District Court................................................       636 (+13T)                90               107        636 (+13T)                46
Court of International Trade..................................                9                 2                 0                 9                 2
                                                               -----------------------------------------------------------------------------------------
      Total...................................................              846         109 (13%)               128               846         63 (7.4%)
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                     104TH CONGRESS
                                                [Democrat President (Clinton)--Republican Senate (Hatch)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Convened--Jan. 3, 1995                       Adjourned--Oct. 3, 1996
                                                               -----------------------------------------------------------------------------------------
                                                                   Judgeships         Vacancies         Confirmed        Judgeships         Vacancies
--------------------------------------------------------------------------------------------------------------------------------------------------------
Supreme Court.................................................                9                 0                 0                 9                 0
Court of Appeals..............................................              179                16                11               179                18
District Court................................................       636 (+13T)                52                62        636 (+11T)                46
Court of International Trade..................................                9                 2                 2                 9                 1
                                                               -----------------------------------------------------------------------------------------
      Total...................................................              846         70 (8.3%)                75               844         65 (7.7%)
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                     105TH CONGRESS
                                                [Democrat President (Clinton)--Republican Senate (Hatch)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Convened--Jan. 7, 1997                      Adjourned--Oct. 21, 1998
                                                               -----------------------------------------------------------------------------------------
                                                                   Judgeships         Vacancies         Confirmed        Judgeships         Vacancies
--------------------------------------------------------------------------------------------------------------------------------------------------------
Supreme Court.................................................                9                 0                 0                 9                 0
Court of Appeals..............................................              179                22                20               179                14
District Court................................................       636 (+10T)                62                79        636 (+10T)                35
Court of International Trade..................................                9                 1                 2                 9                 1
                                                               -----------------------------------------------------------------------------------------
      Total...................................................              843        85 (10.1%)               101               843         50 (5.9%)
--------------------------------------------------------------------------------------------------------------------------------------------------------


                             106TH CONGRESS
        [Democrat President (Clinton)--Republican Senate (Hatch)]
------------------------------------------------------------------------
                                            Convened--Jan. 4, 1999
                                     -----------------------------------
                                         Judgeships         Vacancies
------------------------------------------------------------------------
Supreme Court.......................                9                 0
Court of Appeals....................              179                17
District Court......................       636 (+10T)                41
Court of International Trade........                9                 1
                                     -----------------------------------
      Total.........................              843         59 (7.0%)
------------------------------------------------------------------------

  Mr. LEAHY. Mr. President, the distinguished Senator from South 
Dakota, Mr. Daschle, stated the case very well this evening about the 
unprecedented sequence of three votes on judicial nominations. As I 
look at the Senate floor now, I have served in this body longer than 
anybody presently on the floor. In 25 years, I have not seen an 
instance where we have had such a series of votes.
  We certainly have had times when Republicans have been in control of 
the Senate and times when Democrats have been in control of the Senate 
where nominees were sometimes voted down and sometimes were voted up, 
which is the way it should be. When the President is of a different 
party from the party controlling the Senate, that does not mean that 
the President's nominee, the man or woman he nominates for whatever 
position, automatically has to be voted against because one party 
controls the Senate and a different party is in the White House.
  I look at two of my very distinguished, dear friends on the floor--
the Senator from Virginia and the Senator from Michigan--both of whom 
have voted many times for nominees of the President of the other party 
in a whole lot of areas, certainly within their expertise on armed 
services but also for ambassadors and judicial nominations.
  I am sure that if the distinguished Senators sitting here were to go 
back and search their memories, they could think of a number of people 
for whom they voted who were confirmed and who were not the persons 
they would have nominated had they been President. They might have 
picked somebody else. They might have picked somebody with a different 
political

[[Page S11102]]

bent or ideology. But I think they have given the President of the 
United States the benefit of the doubt, and if the person is otherwise 
qualified, he or she gets the vote.
  We have come to a difficult situation with judges. There continue to 
be a large number of vacancies, and there are a lot of nominees who are 
not being voted on. There are some that have waited for several years 
to be voted on. We talked about Judge Paez and Marsha Berzon who have 
been waiting for years to be voted on. We should either vote for or 
against them.
  The distinguished chairman of the Senate Judiciary Committee deserves 
great credit for having gotten these nominees through our committee, 
notwithstanding opposition from some members of his own party, and for 
having gotten them onto the floor and on the calendar. I compliment the 
distinguished senior Senator from Utah, Mr. Hatch, for what he has 
done.
  I have worked closely with him to help him get matters out of that 
committee. There were some matters with which I disagreed and that I 
voted against. But he was chairman, and I thought he should have as 
much leeway as possible in setting the agenda. I made it possible 
through various procedural actions for him to get his legislation out 
of committee.
  Tonight we had a situation born out of the frustration, possibly 
mistakes, and, unfortunately, some unnecessary partisanship--although 
not partisanship between the distinguished chairman of the committee 
and myself. I intend to vote for his recommended nominee for district 
judge from Utah, Mr. Stewart. I intend to vote for him as I did in the 
committee.
  I also intend to vote for Marsha Berzon. I intend to vote for Judge 
Richard Paez, Justice Ronnie White, and, for that matter, for all of 
the other judicial nominees who are on the Executive Calendar. I intend 
to vote for every one of them.
  I hope we will have a chance to vote on them, not just in committee 
where I have voted for each one of them, but on the floor of the 
Senate. That is what the Constitution speaks of in our advise and 
consent capacity. That is what these good and decent people have a 
right to expect. That is what our oath of office should compel Members 
to do--to vote for or against. I do not question the judgment or 
conscience of any man or woman in this Senate if they vote differently 
than I do, but vote.
  We have just a very few people, a small handful of people stopping 
these nominees from coming to a vote. Basically, the Senate is saying 
we vote ``maybe"--not yes or no--we vote maybe. That is beneath Members 
as Senators.
  We are privileged to serve in this body. There are a quarter of a 
billion people in this great country. There are only 100 men and women 
who get a chance to serve at any time to represent that quarter of a 
billion people in this Senate. It is the United States Senate. No one 
owns the seat. No one will be here forever. All will leave at some 
time. When we leave, we can only look back and say: What kind of 
service did we give? Did we put the country's interests first? Or did 
we put partisan interest first? Did we put integrity first, or did we 
play behind the scenes and do things that were wrong?
  I hope my children will be able to look at their father's 
representation in this body as one of honor and integrity, as many of 
my friends on both sides of this aisle have done.
  I hope what happened tonight was something we will not see repeated. 
I understand the distinguished majority leader in going forward with 
his motion. I understand and support the motion of the distinguished 
Democratic leader.
  Now that this has happened, can it be like the little escape valve on 
a pressure cooker? The distinguished Presiding Officer and I are from a 
generation that remembers the old pressure cookers prior to the age of 
microwaves. Certainly, my wife and I as youngsters saw a pressure 
cooker now and then in the kitchen. Let us hope that maybe tonight's 
votes will act as a little valve and let the pressure off.
  I do not want to infringe on the kindness of the distinguished 
chairman and ranking member of the Armed Services Committee, two of the 
very best friends I have ever had in the Senate and two Senators whom I 
respect and like the most here.
  Let me close with this: Maybe the pressure cooker has allowed its 
pressure to be released now. I suggest that the distinguished majority 
leader, the distinguished Democratic leader, the distinguished Senator 
from Utah, Mr. Hatch, and I now sit down and perhaps quietly, without 
the glare of publicity and the cameras, try to work out where we go 
from here. It may be necessary for the four of us to meet with the 
President. But let us find a way to tell these nominees they will get a 
vote one way or the other.
  I am not asking anybody how they should or should not vote but allow 
nominees to have a vote. All the people being nominated are extremely 
highly qualified lawyers and judges. They have to put their lives on 
hold and the lives of their family on hold while they wait. They are 
neither fish nor fowl as a nominee. In private practice, all your 
partners come in and throw a big party and say it is wonderful, we are 
so proud of you, could you move out of the corner office because we 
want to take it now. And you cannot do anything while you wait and wait 
and wait.
  Vote them up, vote them down.
  Now that we have done this, let the cooler heads of the Senate 
prevail so the Senate can reassure the United States we are meeting our 
responsibility. Again, each Member is privileged to be here. There are 
only 100 Members, with all our failings and all our faults, to 
represent a quarter of a billion people. Let us represent that quarter 
of a billion people better on this issue.
  The distinguished Senator from Utah, Mr. Hatch, and I have a close 
personal relationship. We will continue to have that. We will continue 
to work together, but the Senate has to work with us.

                          ____________________