[Congressional Record Volume 145, Number 131 (Friday, October 1, 1999)]
[Senate]
[Pages S11793-S11799]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, I said Tuesday of last week that the series
of votes the Senate took that day, in which we were unable to consider
and vote on the nominations of Judge Richard Paez and Marsha Berzon,
was unprecedented. I expressed my concern that the Senate not go so far
off the tracks of our precedents that we end up creating a problem, not
just for this administration, but for any future administration.
[[Page S11794]]
Today, we at least break out of the impasse of last week, and move
forward toward voting on all the judicial nominations before the
Senate. Just so we understand where we are, I said last week that
Democrats were prepared to vote on all of the judicial nominations
pending on the Senate Executive Calendar. Today we provided additional
evidence of our resolve to do so. We did that by agreeing to a debate
and a confirmation vote on the nomination of Brian Theadore Stewart to
the United States District Court for the District of Utah, as well as
other nominees pending before the Senate.
Of course, the Senate has confirmed Victor Marrero and James Lorenz.
I congratulate, incidentally, Senator Schumer and Senator Feinstein and
Senator Boxer, for the efforts they have made on behalf of those
nominees.
I thank the Democratic leader for all his efforts in resolving this
impasse, in securing a vote on the nomination of Ray Fisher, and, in
particular, a vote on the nomination of Justice Ronnie White. Justice
Ronnie White is eventually, finally--I emphasize finally--going to get
an up-or-down vote next Tuesday. Also, Ray Fisher and Mr. Stewart will
be voted on next Tuesday.
But our work is not complete. I look forward to working with the
majority leader to fulfill the Senate's duty to vote on the nominations
of Judge Richard Paez and of Marsha Berzon. These are nominations that
have been pending for a very long time.
This debate is about fairness and the issue that remains is the issue
of fairness. For too long, nominees--judicial nominees such as Judge
Paez, Ms. Berzon and Justice Ronnie White of Missouri, and executive
branch nominees like Bill Lann Lee, have been opposed in anonymity,
through secret holds and delaying tactics--not by straight up-or-down
votes where Senators can vote for them or vote against them.
They have been forced to run some kind of strange in-the-dark
gauntlet of Senate confirmations. Those strong enough to work through
that secret gauntlet and get reported to the floor are then being dealt
the final death blow through a refusal of the Republican leadership to
call them up for a vote. They should be called up for a fair vote. They
may be defeated--the Republicans are in the majority; there are 55
Republican Senators; they could vote them down. But let them have a
fair vote, up or down. Let all Senators have to stand up and vote aye
or nay, and be responsible to their constituency to explain why they
voted that way. Unfortunately, nominations are being killed through
neglect and silence, not defeated by a majority vote.
So I ask, again, for the Senate to fulfill its responsibility to vote
on all the judicial nominations on the calendar; vote for them or vote
against them. We can vote them up or we can vote them down, but after
44 months or 27 months or 20 months, let us vote.
Judge Richard Paez has an extraordinary record. He was praised by
Republicans and Democrats before our committee. He was nominated
January 25--not January 25 of this year, 1999; not January 25 of 1998;
not January 25 of 1997; but January 25 of 1996. He has been pending 44
months. Vote for him or vote against him, but do not put him in this
kind of nomination limbo, which becomes a nomination hell.
Justice Ronnie White, an extraordinary jurist from Missouri, an
outstanding African American jurist, he was nominated on June 26--not
June 26 of 1999, not June 26 of 1998, but June 26 of 1997. After more
than two years, this nomination remains pending. Vote up, vote down,
but do not take such an insulting and arrogant and demeaning attitude
on behalf of the Senate of not allowing this good jurist to come to a
vote.
Marsha Berzon, again, nominated January 27, but not of this year, of
last year. Her nomination has been pending for almost two years. Allow
her to come to a vote.
I contrast this, even though we have a Democratic President and
nominations are usually the prerogative of whoever the President is, of
that party, with a nomination made on behalf of a Republican Senator
who happens to be a dear friend of mine. That man was nominated on July
27 this year, barely two months ago. That nomination, the nomination of
Brian Theadore Stewart, will be voted on next week. Good for him, I
say.
He has been considered promptly and will be brought up for an up or
down vote. There are some on this side of the aisle who oppose him and
will vote against him. But every single Democrat, whether they are
going to vote against him or for him, should allow him to be voted on
and they will. That nomination has been pending 2 months.
Let us have the same fairness on the other side of the aisle for
Marsha Berzon, after 20 months, Justice Ronnie White after 27 months,
and Judge Richard Paez after 44 months, especially--and some people may
wish I would not say this on the floor, but especially after the
nonpartisan report which came out last week that confirmed what I have
said on this floor many a time--especially for nominees who are women
and minorities. I have observed before that if you are a minority or if
you are a woman, this Senate, as presently constituted, will take far,
far longer to vote on your confirmation than if you are a white male.
That is a fact. That is fact, something that started becoming evident a
few years ago and has now been confirmed in a nonpartisan report.
Let me repeat that. If you are a minority, if you are a woman, you
will take longer to be confirmed than if you are a white male, by this
Senate as presently constituted. And that is wrong. I advise Senators,
I have checked on Judge Richard Paez, Justice Ronnie White, and Ms.
Marsha Berzon, and nobody objects on the Democratic side of the aisle
to them coming to a vote. We are prepared to vote at any time, any
moment, any day. There are no holds on this side of the aisle.
I said last week I do not begrudge Ted Stewart a Senate vote. I do
not. He is entitled to a vote. He went through the confirmation
process. The Senate Judiciary Committee voted him out. It was not a
unanimous vote, but he was voted out of the committee, and he is
entitled to a vote. If Senators do not want to vote for him, vote
against him. If Senators want to vote for him, vote for him. I intend
to vote for him. I intend to give the benefit of the doubt both to the
President and to the chairman of the Senate Judiciary Committee who
recommended him.
But I also ask the same sense of fairness be shown to everybody else
on the calendar. The Senate was able to consider and vote on the
nomination of Robert Bork to the U.S. Supreme Court, as controversial
as that was, in 12 weeks. The Senate was able to consider and vote on
the nomination of Justice Clarence Thomas in 14 weeks. We ought to be
voting on the nomination of Judge Richard Paez, which has been pending
almost 4 years, and that of Marsha Berzon, which has been pending
almost 2 years. Let us have a sense of fairness. Let us bring them up
and let us remove this notoriety the Senate has received, the notoriety
established and emphatically proven, that if you are a woman or a
minority, you take longer to get confirmed, if you ever get confirmed
at all. That is wrong. We should be colorblind; we should be gender
blind. Most importantly, we should be fair.
I should note, in fairness to the distinguished chairman of the
Judiciary Committee, in committee he did vote for Judge Paez, Justice
White, and Ms. Berzon and, of course, Ted Stewart, as did I. Now I work
with both he and the majority leader to bring them to a final vote by
the Senate.
I also want to work with those Senators who are opposed to bringing
Judge Paez or Marsha Berzon to a vote. I read in the papers where we
have done away with secret holds in the Senate, but apparently not for
everybody. Apparently, there are still secret holds.
In February, the majority leader and Democratic leader sent a letter
to all Senators talking about secret holds. They said then: ``members
wishing to place a hold on any . . . executive calendar business shall
notify the committee of jurisdiction of their concerns.'' I serve as
the ranking member on the committee of jurisdiction for these
nominations. I have not been told the name of any Senator at all who is
holding them up. Yet they do not go forward.
The letter from the two leaders goes on to state: ``Further, written
notification should be provided to the respective Leader stating their
intention regarding the * * * nomination.'' Senator
[[Page S11795]]
Daschle has received no such notification. In spite of what was
supposed to be a Senate policy to do away with anonymous holds, we
remain in the situation where I do not even know who is objecting to
proceeding to a vote on the Paez and Berzon nominations, let alone why
they are objecting. I have no ability to reason with them or address
whatever their concerns are because I do not know their concerns. It is
wrong and unfair to the nominees.
I do not deny each Senator his or her prerogative as a Member of this
Senate. After 25 years here, I think I have demonstrated--and I
certainly know in my heart--I have great respect for this institution
and for its traditions, for all the men and women with whom I have
served, the hundreds of men and women with whom I have served over the
years in both parties. But this use of secret holds for extended
periods to doom a nomination from ever being considered by the Senate
is wrong, unfair, and beneath us.
Who is it who is afraid to vote on these nominations? Who is it who
is hiding their opposition and obstructing these nominees? Can it be
they are such a minority, they know that if it comes to a fair vote,
these good men and women will be confirmed?
So rather than to allow a fair vote, they will keep it from coming to
a vote. I would bet you that the same people who are holding these
nominations back from a vote will go home on the Fourth of July and
other holidays and give great speeches about the democracy of this
country and how important democracy is and why we have to allow people
to vote and express the will of the people--except in the Senate and,
apparently, except if you are a minority or a woman.
If we can vote on the Stewart nomination within 4 weeks in session,
we can vote on the Paez nomination within 4 years and the Berzon
nomination within 2 years. Let us vote up or down.
Once more I say, look where we are: There is Stewart, pending 2
months; Marsha Berzon, pending 20 months; Justice Ronnie White of
Missouri, pending 27 months; Judge Richard Paez, pending 44 months. I
look at those green lines of this chart showing the time that each of
these nominations has been pending and I wish they could each be the
short sliver that represents the Stewart nomination. With a name like
Patrick Leahy, I want to see green on St. Patrick's Day; I do not want
to see the long green lines on this chart that represent delay and
obstruction of votes on women and minority nominees.
Judge Richard Paez is an outstanding jurist, a source of great pride
and inspiration to Hispanics in California and around the country. He
served as a local judge before being confirmed to the Federal bench
several years ago. He is currently a federal district court judge. He
has twice been reported to the Senate by the Judiciary Committee, twice
reported out for confirmation. He spent a total of 9 months over the
last 2 years on the Senate Executive Calendar awaiting the opportunity
for a final confirmation vote to the court of appeals. His nomination
was first received 44 months ago, in January of 1996.
Justice Ronnie White, an outstanding member of the Missouri Supreme
Court, has extensive experience in law and government. In fact, he is
the first African American to serve on the Missouri Supreme Court. He
has been twice reported favorably to the Senate by the Judiciary
Committee. He spent a total of 7 months on the floor calendar waiting
the opportunity for a final confirmation vote. His nomination was first
received by the Senate in June 1997--27 months ago. I am glad that
finally, after all this time, the Democratic leader was able to
announce a date for a vote on this longstanding nomination of this
outstanding jurist.
As the St. Louis Post-Dispatch noted in an editorial last week:
Seven of the 10 judicial nominees who have been waiting the
longest for confirmation are minorities or women. This is
hardly a shock to those of us who have watched [Justice]
White, an African-American, be ushered to the back of the
bus.
The words of the St. Louis Post-Dispatch.
Marsha Berzon has been one of the most qualified nominees I have seen
in my 25 years. Her legal skills are outstanding. Her practice and
productivity have been extraordinary. Lawyers against whom she has
litigated regard her as highly qualified for the bench. Her opponents
in litigation are praising her and asking for her to be confirmed.
She was long ago nominated for a judgeship within a circuit that saw
this Senate hold up the nominations of other qualified women for months
and years--people like Margaret Morrow, who was held up for so long;
Ann Aiken, who was held up for so long; Margaret McKeown, who was held
up for so long; Susan Oki Mollway, who was held up for so long. Marsha
Berzon, too, has now been held up for 20 months.
The Atlanta Constitution, from Atlanta, GA, noted last Thursday:
Two U.S. appellate court nominees, Richard Paez and Marsha
Berzon, both of California, have been on hold for four years
and 20 months respectively. When Democrats tried Tuesday to
get their colleagues to vote on the pair at long last, the
Republicans scuttled the maneuver. The Paez case seems
especially egregious. . . . This partisan stalling, this
refusal to vote up or down on nominees, is unconscionable. It
is not fair. It is not right. It is no way to run the federal
judiciary. Chief Justice William Rehnquist is hardly a fan of
[President] Clinton. Yet even he has been moved to decry
Senate delaying tactics and the burdens that unfilled
vacancies impose on the federal courts. Tuesday's deadlock
bodes ill for judicial confirmations through the rest of
[President] Clinton's term. This ideological obstructionism
is so fierce that it strains our justice system and sets a
terrible partisan example for years to come.
That is from the Atlanta Constitution. I share that concern. I have
been on the floor of this Senate when we have had Republican Presidents
with Republican nominations, saying that they deserve to be brought
forward for a vote one way or the other, including a couple instances
of nominees I intended to vote against. I still said they deserved a
vote. And they got their vote.
In fact, I probably voted for 98 to 99 percent of President Ford's,
President Reagan's, and President Bush's nominees--three Presidents
with whom I have served.
What we are currently experiencing is unconscionable and
unprecedented, these kinds of delays. I think we hurt the Senate when
we do this. We will have Republican Presidents; we will have Democratic
Presidents. We will have Republican-controlled Senates; and we will
have Democratic-controlled Senates. I have served here twice with the
Democrats in control; twice with the Republicans in control. The
precedents we establish are important if we are to go into the next
century as the kind of body the Senate should be.
We should be the conscience of the Nation. On some occasions we have
been. But we tarnish the conscience of this great Nation if we
establish the precedence of partisanship and rancor that go against all
precedents and set the Senate on a course of meanness and smallness.
That is what we are doing with these nominations. We should establish,
for future Senates, that we are above this kind of partisanship.
Nobody in this body owns a seat in the Senate. Every single person
serving today will be gone someday. Every one of them will be replaced
by others. As I said, in the relatively short time I have been here,
hundreds of Senators have gone through this body. But every one of us
are guided by what previous Senates have done.
Do not let us end this century and this millennium leaving, as
guidance for the next century and the next millennium and the next
Senate, partisanship that tears at the very fabric, not only of the
Senate but of the independence of the Federal judiciary itself. So many
judges, judges who are considered conservative, judges who are
considered liberal, judges who have had a Republican background or a
Democratic background, judges who have been appointed by Republican
Presidents, judges who have been appointed by Democratic Presidents,
have been united in saying: Stop this. Do not go on with this. Because
you are tearing at the very core of our independent judiciary, the most
independent judiciary on Earth, a judiciary whose very independence
allows us to maintain a balanced country, a country that is the most
powerful on Earth, but a country that is also the most free and the
most respected democracy. And a main factor guaranteeing that freedom
and that democracy is our independent judiciary.
[[Page S11796]]
So, against this backdrop, I, again, ask the Senate to be fair to
these judicial nominees and all nominees. For the last few years the
Senate has allowed one or two or three secret holds to stop judicial
nominations, and that is not fair.
Let me tell you what the Chief Justice of the U.S. Supreme Court
wrote, a man who is widely considered a conservative Republican, also a
man who, as we saw when he presided over the Senate earlier this year,
is a man of fairness, of integrity and of great learning. He wrote in
January of last year:
Some current nominees have been waiting a 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.
I could not agree more with Chief Justice Rehnquist. We should follow
his advice. Let the Republican leadership schedule up-or-down votes on
the nominations of Judge Paez and Marsha Berzon so that the Senate can
finally act on them. Let us be fair to all.
The response to the Senate action last week was condemnation of the
Republican leadership's refusal to proceed to vote on the nominations
of Judge Paez, Justice White, and Ms. Berzon. A Washington Post
editorial characterized the conduct of the Republican majority as
``simply baffling'' and noted:
[T]he Constitution does not make the Senate's role in the
confirmation process optional, and the Senate ends up
abdicating responsibility when the majority leader denies
nominees a timely vote. All the nominees awaiting floor
votes, Mr. Stewart included, should receive them immediately.
The editorial speaks to the responsibility of the Senate, and it is
right. On our side of the aisle, we have lived up to the
responsibility. Again, I tell all Senators, no matter how an individual
Democratic Senator may vote on any one of the pending nominees, no
Democratic Senator has a hold on any judicial nominee. We are all
prepared to vote.
It is October 1, and the Senate has acted on only 19 of the 68
judicial nominations the President has sent us this year. We have only
4 weeks in which the Senate is scheduled to be in session for the rest
of the year. By this time last year, the committee had held 10
confirmation hearings for judicial nominees and 43 judges had been
confirmed. By comparison, this year there have been only 4 hearings and
only 19 judges have been confirmed. We are at less than half the
productivity of last year and miles behind the pace of 1994, when by
this time we had held 21 hearings and the Senate had confirmed 73
judges.
The Florida Sun-Sentinel said last Monday:
The ``Big Stall'' in the U.S. Senate continues, as Senators
work slower and slower each year in confirming badly needed
federal judges. . . . This worsening process is inexcusable,
bordering on malfeasance in office, especially given the
urgent need to fill vacancies in a badly undermanned federal
bench. . . . The stalling, in many cases, is nothing more
than a partisan political dirty trick.
For the last several years, I have been urging the Judiciary
Committee and the Senate to proceed to consider and confirm judicial
nominees more promptly, without the months of delay that now accompany
so many nominations. Moreover, in the last couple weeks, as I said
earlier, independent studies have verified the basis for many of my
concerns.
According to the report recently released by the Task Force on
Judicial Selection of Citizens for Independent Courts, the time it has
taken for the Senate to consider nominees has grown significantly, from
an average of 83 days in 1993 and 1994 during the 103rd Congress, to
over 200 days for the years 1997 and 1998 during the last Congress, the
105th. In fact, if we look at the average number of days from
confirmation to nomination on an annual basis, we would see that the
Senate has broken records for delay in each of the last 3 succeeding
years, 1996, 1997, and 1998. In fact, in 1998, the average time for
confirmation was over 230 days.
That independent report also verifies that the time to confirm women
as nominees is now significantly longer than to confirm men as
nominees. That is a difference that defies any logical explanation
except one, and that one explanation does not shed credit on this great
institution. They recommend that ``the responsible officials address
this matter to assure that candidates for judgeships are not treated
differently based on their gender''--because they know that today they
are.
I recall too well the obstacle course that such outstanding women
nominees as Margaret Morrow, Ann Aiken, Margaret McKeown, and Susan Oki
Mollway were forced to run. Now it is Marsha Berzon who is being
delayed and obstructed, another outstanding woman judicial nominee held
up, and held up anonymously because everybody knows that if she had a
fair up-or-down vote, she would be confirmed.
I am angered by this, quite frankly, Mr. President. I think how I
would react if this was my daughter being held up like this, or the
daughter of someone I knew.
The report of Citizens for Independent Courts recommends the Senate
should eliminate the practice of allowing individual Members to place
holds on a nominee. We ought to consider that.
This summer, Prof. Sheldon Goldman and Elliot Slotnick published
their most recent analysis of the confirmation process in President
Clinton's second term in Judicature magazine. They note the
``unprecedented delay at both the committee and floor stages of Senate
consideration of Clinton judicial nominees'' and conclude:
It is impossible to escape the conclusion that the
Republican leadership in the Senate is engaged in a
protracted effort to delay decisionmaking on judicial
appointments whether or not the appointee was, ultimately,
confirmable.
In fact, I can think of a number of these people, having been held up
month after month after month, who finally got a vote and ended up
being confirmed overwhelmingly. Margaret Morrow is an example of that.
She was held up for so long that it became a national disgrace that a
woman so qualified, backed by both Republicans and Democrats in
California, was held up apparently because she was a woman. And when
finally the shame of it would not allow her to be held up any longer,
she came to a vote on the floor and was confirmed overwhelmingly.
In spite of efforts last year in the aftermath of strong criticism
from the Chief Justice of the United States, the vacancies facing the
Federal judiciary remain at 63, with 17 on the horizon. The vacancies
gap is not being closed. We have more Federal judicial vacancies extend
longer and affecting more people. There will be more in the coming
months. Judicial vacancies now stand at approximately 8 percent of the
Federal judiciary. If you went to the number of judges recommended by
the judicial conference, the vacancy rate would be over 15 percent and
total over 135.
Nominees deserve to be treated with dignity and dispatch, not delayed
for 2 and 3 years. We are talking about people going to the Federal
judiciary, a third independent branch of Government. They are entitled
to dignity and respect. They are not entitled automatically for us to
vote aye, but they are entitled to a vote, aye or nay.
How do we go to other countries and say: You need an independent
judiciary; you have to have a judiciary that people can trust; you have
to treat it with respect; when we are not doing that in the Senate?
They deserve at least that. No nominee gets an automatic ``aye''
vote, but every nominee ought to be heard and at least voted on one way
or the other.
One of our greatest protections as Americans is an independent
judiciary, one the American people can respect and whose decisions they
can respect. We have built in all kinds of counterweights: the district
court, the courts of appeal, the Supreme Court. We have this to make
sure that there is this independence and balance. Yet we seem to be
putting a break on it. The Senate's actions undermine our independent
judiciary by the way we mistreat judicial nominations and perpetuate
unnecessary vacancies.
We are seeing outstanding nominees nitpicked and delayed to the point
that good men and women are being deterred from seeking to serve as
Federal judges. Some excellent lawyers are being asked to serve as
Federal judges and they say: No, I do not want to go through that. Why
should I?
In private practice, it is announced they are going to be nominated
to be a
[[Page S11797]]
Federal judge. All their partners will come in and say: This is
wonderful, congratulations. We are going to have a great party for you
Friday. And when are you going to move out of that corner office,
because we want to move in? We realize you cannot take on any new
clients. We would be a little bit better off if you were out of the
office now so that we do not have any conflicts of interest.
Then, for 2 or 3 years, they sit there, no income, no practice,
neither fish nor foul. In a Senate that is constantly voting to say we
are in favor of family values--as though anybody is against them--maybe
we ought to also consider the families of nominees, who might want to
plan, and who need to know where that nomination is headed without
unnecessary delay.
I have been here with five Presidents--I respected and know them
all--President Ford, President Reagan, President Carter, President
Bush, and President Clinton. I have been on the Judiciary Committee
during that time. I know for a fact that no President, Republican or
Democrat, has ever consulted more closely with Senators of the party
opposite from his on judicial nominees. No other President has
consulted as much with members of the other party as President Clinton
has, and that has greatly expanded the time it takes to make these
nominations. But he has done that.
Having done that, the Senate at least should go about the business of
voting on confirmation for the scores of judicial nominations that have
been delayed for too long without justification.
This summer, in his remarks to the American Bar Association, the
President again urged us to action. He said:
We simply cannot afford to allow political considerations
to keep our courts vacant and to keep justice waiting.
We must redouble our efforts to work with the President to end the
longstanding vacancies that plague the Federal courts and disadvantage
all Americans. That is our constitutional responsibility.
I continue to urge the Republican leadership to attend to these
nominations without obstruction and proceed to vote on them with
dispatch. I urge that they schedule a vote on Judge Paez and Marsha
Berzon without further delay. Again, I note for the record that no
Democratic Senator objects to them going forward for a vote--none. We
are prepared to go forward with a vote on the shortest of notice at any
time. So the continuing delays on both Judge Paez and Marsha Berzon,
are on the Republican side.
I do appreciate what the distinguished Republican leader and the
distinguished Democratic leader worked out today. And I appreciate the
efforts of the distinguished senior Senator from Utah. It is my hope
that the example the four of us have set today will move the Senate
into a new productive chapter of our efforts to consider judicial
nominations.
We took the action of initiating the calling up of a judicial nominee
last week to demonstrate where we were. We have urged the taking up of
a judicial nominee today whom some Democratic Senators oppose in order
to demonstrate our commitment to fairness for all.
There is never a justification to deny any of these judicial nominees
a fair up-or-down vote. There is no excuse for the failure to have a
vote on Judge Paez and Marsha Berzon.
I ask unanimous consent that copies of the recent editorials from the
Florida Sun-Sentinel, the Atlanta Constitution, the St. Louis Post-
Dispatch, the Denver Post, and the Washington Post be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Sun-Sentinel, South Florida, Sept. 20, 1999]
Pace of Judicial Confirmations Lags
The ``Big Stall'' in the U.S. Senate continues, as senators
work slower and slower each year in confirming badly needed
federal judges.
More than eight months into 1999, the Senate has only
confirmed 14 of President Clinton's judicial nominees. By
this time in 1998, 39 judges had been confirmed. In 1997, it
was 58 judges.
This worsening process is inexcusable, bordering on
malfeasance in office, especially given the urgent need to
fill vacancies on a badly undermanned federal bench. Even
after three new judges were confirmed Sept. 8, 11 nominations
are still pending before the Judiciary Committee and 35
before the full Senate. The president has not yet nominated
candidates to fill 24 other vacancies.
The vacant seats, 70 of 846, represent 8.3 percent of all
federal judges.
The stalling, in many cases, is nothing more than a
partisan political dirty trick. Judiciary Committee Chairman
Orrin Hatch, R-Utah, has inexcusably delayed several
confirmation hearings and refused to hold others.
Conservatives like Hatch hate the idea of Clinton continuing
to put his stamp on the federal judiciary with more lifetime
appointments.
One of the newest people winning confirmation is Adalberto
Jose Jordan of Miami, who will join the bench on the U.S.
District Court for the Southern District of Florida.
This is the first time in many years that the court will be
operating at full strength. At one time, it had four empty
spots, with some vacancies going unfilled four years.
Jordan's nomination process moved much faster than most.
The Senate got his nomination on March 15, held a
confirmation hearing July 13 and confirmed him Sept. 8.
That's still on the slow side; three months should be more
than enough. Miami Judge Stanley Marcus won confirmation to
the 11th U.S. Circuit Court of Appeals in only 33 days.
Senate stalling on confirmations came under deserved attack
from Sen. Patrick Leahy of Vermont, the senior Democrat on
the Judiciary Committee.
``Nominees deserve to be treated with dignity and dispatch,
not delayed for two or three years,'' Leahy said. ``We are
seeing outstanding nominees nitpicked and delayed to the
point that good women and men are being deterred from seeking
to serve as federal judges.''
Leahy called it a scandal and a shame that one nomination
has been stalled 3 years and 8 months, despite two Judiciary
votes to confirm. Many vacancies have been unfilled 18 months
or more.
Senators should heed the request of U.S. Supreme Court
Justice William Rehnquist, who urged them to expedite
confirmation hearings and votes. A good bill by Florida Sens.
Bob Graham and Connie Mack requires a Judiciary Committee
vote within three months, then allows any senator to bring
the matter to the Senate floor. The full Senate would have to
vote one month after Judiciary action.
``We are not doing our job,'' Leahy told his colleagues.
``We are not being responsible. We are really being dishonest
and condescending and arrogant toward the judiciary. It
deserves better and the American people deserve better.''
Empty judicial benches and the Senate's Big Stall cause
severe problems.
They worsen an already high judicial caseload, burning out
overworked current judges.
They put off many civil lawsuits for years, delaying and
thus denying justice to litigants.
They force a hurry-up in criminal cases that can lead to
reversible error on appeal.
They force some talented nominees to drop out, or not even
apply.
They cripple urgent efforts to get tough on crime.
And they weaken an important branch of government.
____
[From the Atlanta Constitution, Sept. 23, 1999]
GOP Won't Warm Jurists' Benches
President Clinton struck a bad bargain two months ago. He
caved in to an insistent Sen. Orrin Hatch (R-Utah) and
nominated a Hatch buddy with no judicial experience to be a
U.S. judge in Salt Lake City.
Clearly, Clinton hoped Hatch, chair of the Senate Judiciary
Committee, and other Republicans would appreciate the gesture
and reciprocate in kind--let's say, by finally freeing some
of the multitude of Clinton judicial nominees stranded in the
upper chamber.
Surprise, surprise. Clinton's peace offering has sparked no
such magnanimity. His partisan foes want to have their cake
and eat the president's lunch, too.
The issue came to a head Tuesday when Republicans attempted
to confirm Hatch's chum and right-wing soulmate, Ted Stewart.
Democrats blocked the procedure, contending justifiably that
Stewart had been pushed to the front of the line for Senate
consideration when other Clinton appointees have waited in
vain for a confirmation vote--some for years.
That's right, years. Two U.S. appellate court nominees,
Richard Paez and Marsha Berzon, both of California, have been
on hold for four years and 20 months respectively. When
Democrats tried Tuesday to get their colleagues to vote on
the pair at long last, the Republicans scuttled the maneuver.
The Paez case seems especially egregious. He has been kept
in limbo this long, Democrats contend, because his GOP foes
would rather not cast a recorded vote against a Hispanic
jurist.
This partisan stalling, this refusal to vote up or down on
nominees, is unconscionable. It is not fair. It is not right.
It is no way to run the federal judiciary.
Chief Justice William Rehnquist is hardly a fan of Clinton.
Yet even he has been moved to decry Senate delaying tactics
and the burdens that unfilled vacancies impose on the federal
courts.
Tuesday's deadlock bodes ill for judicial confirmations
through the rest of Clinton's term. This ideological
obstructionism is so
[[Page S11798]]
fierce that it strains our justice system and sets a terrible
partisan example for years to come.
____
[From the St. Louis Post-Dispatch, Inc., Sept. 24, 1999]
Confirm Ronnie White
Missouri Supreme Court Judge Ronnie White, in limbo more
than 800 days awaiting his confirmation hearing, saw his long
road to the federal bench take its most bizarre turn yet this
week. Senate Republicans resorted to a highly unusual cloture
vote to try to force Democrats to vote on the nomination of
Ted Stewart, a friend of Republican Sen. Orrin Hatch who was
nominated, at Mr. Hatch's personal request, just two months
ago. The motion failed by five votes.
The irony of Democrats stalling their President's nominee
was plain, as they have been pleading for years for votes on
candidates. In a political deal gone wrong, President Bill
Clinton nominated Mr. Stewart--an environmentalist's
nightmare--in the apparent belief this would jump-start the
long-stalled confirmation process. The world record holder in
this wait-a-thon is Richard A. Paez (more than four years),
followed by Marsha L. Berzon (three years) and Mr. White
(more than two years). Instead of bringing these nominations
to the floor, the maneuver resulted in Mr. Stewart being
moved to the head of the line. Democrats refused to consider
him, and are digging in their heels until they are assured
their top three limbo inmates will be freed.
Cloture is a dramatic, desperate maneuver that has been
used only a handful of times. Even the hotly contested
nominations of Robert H. Bork and Clarence Thomas did not
require such hostile arm-twisting. It is unthinkable that
Republicans would resort to this over people like Mr. Paez.
But Democrats now fear Republicans would stall the process
until after the 2000 elections rather than vote on Mr. Paez.
Democrats say Republicans don't like Mr. Paez, but don't want
to be cast as voting against a Hispanic. Gosh, who would ever
get that impression? Seven of the 10 judicial nominees who
have been waiting the longest for confirmation are minorities
or women. This is hardly a shock to those of us who have
watched Mr. White, an African-American, be ushered to the
back of the bus.
The Limbo Three are political prisoners. They are
unquestionably qualified. If anything, Mr. Stewart--chief of
staff to Utah Gov. Mike Leavitt--is the one who looks thin on
courtroom credentials. Even if it delays the process further,
Democrats should not give in to this ridiculous double-
dealing and wave Mr. Stewart through until they are assured
Republicans will allow the process to go forward.
Believe it or not, we're getting tired of saying this:
Confirm Ronnie White.
____
[From the Denver Post Corp., September 26, 1999]
Erase Judicial Backlog
Confirmation of federal judges has become slower than
molasses and more contentious than a thicket of barbed wire,
turning judicial nominees into pawns in a political process
that has become a national disgrace.
Colorado's vacancy of U.S. District Court is frozen since
President Clinton named Patricia Coan at the recommendation
of Rep. Diana DeGette and other state Democrats, but Sen.
Wayne Allard of Colorado refused to back Coan and sent
Clinton a list of his five nominees instead.
Even uglier was last week's battle in the Senate Judiciary
Committee, where Chairman Orrin Hatch, R-Utah, tried to push
his nominee, Ted Stewart, through a Senate vote after leaving
Democrats' nominees twisting in the wind for years.
Would-be California appeals judges Richard Paez and Marsha
Berzon have waited four and nearly two years, respectively,
for a Senate vote. Ronnie White, the first African-American
state Supreme Court Justice in Missouri, has been on hold for
more than a year.
But Hatch, who won Clinton's appointment of Stewart by
freezing action on the others, then tried to slip his man
through without a vote on those who have waited so long.
Democrats retaliated by filibustering Stewart's nomination,
and all progress had come to a complete halt as of this
writing.
While Hatch's conduct was unconscionable, there is plenty
of blame to go around here. Clinton has taken an average of
315 days--the most of any president ever--to choose nominees
to fill judgeships. By comparison, President Carter averaged
240 days.
The Senate also is taking far longer than ever, from 38
days, in 19777-78 to 201 in 1997-98.
Ideally, senators name a candidate, whom the president can
accept or reject. If accepted, the nominee's name goes to the
Senate Judiciary Committee and, if approved, then to the full
Senate. The Senate should be able to vote within two months
after the president's nomination. These days, it takes years.
Even U.S. Supreme Court Chief Justice William Rehnquist has
criticized the Senate for moving too slowly.
Almost one in 10 positions weren't filled at the end of
1997. Today, 63 of the 843 federal judgeships are open--23 in
appellate courts, 38 in district courts and one in
international trade courts.
`Vacancies cannot remain at such high levels of
indefinitely without eroding the quality of justice that
traditionally has been associated with the federal
judiciary,' Rehnquist said. `Fortunately for the judiciary, a
dependable corps of senior judges has contributed
significantly to easing the impact of unfilled judgeships.'
That isn't fair to overworked senior judges or to those
whose cases gather dust on backlogs. Both are common in
Colorado. And it is an injustice to the nominees whose
careers are frozen as they await appointment or rejection.
The president and senators should make the selection of
judges a high priority and stop staging delays as strategic
moves. The federal judiciary is at stake.
____
[From the Washington Post, Thurs., September 23, 1999]
A Vote for All the Judges
The nomination of Ted Stewart to a federal district
judgeship in Utah has been a strange affair from the
beginning. Tuesday it turned into a circus.
Mr. Stewart, a favorite of Judiciary Committee Chairman
Orrin Hatch, was nominated by President Clinton after Sen.
Hatch essentially froze consideration of the nominees to
force his appointment. When the White House finally gave in,
hoping to free some long-waiting appeals court judges, Mr.
Hatch moved Mr. Stewart through committee within days--even
though other nominees have waited years to get confirmed.
Now Mr. Stewart is awaiting a floor vote, as are several
nominees who should have had one long ago. Yet on the Senate
floor last week, Majority Leader Trent Lott announced that he
planned to move Mr. Stewart to a vote without also holding
votes for Richard Paez or Marshal Berzon, two of the most
abused administration nominees. Mr. Stewart, if Mr. Lott had
his way, would be confirmed a few weeks after his nomination,
while nominees who have waited around endlessly will continue
to wait.
Democrats understandably balked at this, so on Tuesday they
took the extraordinary step of filibustering a judicial
nomination from the Clinton White House--not in order to
prevent his confirmation but rather to ensure that other
nominees get votes. Afterward, Democrats sought to force
consideration of Judge Paez and Ms. Berzon, but Republicans
stopped this in two more party-line votes. The result is that
nobody is getting considered, though all of the nominees on
the floor likely have the votes for confirmation.
The filibuster of a judicial nomination is a very bad
precedent, one we suspect Democrats will come to regret, but
it's hard to see what choice they had. The conduct of the
Republican majority here is simply baffling--and the rhetoric
equally so. Mr. Hatch pleaded with the Senate Tuesday evening
to ``stop playing politics with this nomination and allow a
vote expeditiously''--as though he had not himself played
games to get Mr. Stewart nominated in the first place. Trent
Lott last week expressed dismay that a minority of only 41
senators would be able to block a nomination. But as Sen.
Patrick Leahy pointed out in response, there is a deep irony
in fretting about the ability of a minority of 41 senators to
stop a nomination when Judge Paez has been held up for more
than three years by a tiny group of senators who do not even
have to give their names to keep his nomination from coming
to a vote.
Mr. Lott's other comments were worse still. He made it
clear that confirming judges is something he would rather not
do at all. ``There are not a lot of people saying: Give us
more federal judges,'' the majority leader said on the floor
last week. ``I am trying to help move this thing along, but
getting more federal judges is not what I came here to do.''
The honesty of this comment, at least, is refreshing. But the
Constitution does not make the Senate's role in the
confirmation process optional, and the Senate ends up
abdicating responsibility when the majority leader denies
nominees a timely vote. All the nominees awaiting floor
votes, Mr. Stewart included, should receive them immediately.
Mr. LEAHY. Mr. President, again, I make this heartfelt plea. I have
made the same plea in private to the Republican leader, the Democratic
leader, and others. I love the Senate for what it can and should do. I
know that, like everybody else my time here is only as long as the
voters and my health allow. I also know that someday I will be gone and
somebody else from Vermont will fill this seat.
I look at the Senate as the conscience of this great Nation. It is a
body moving by precedence, moving sometimes by what some would say is
an overformalized ritual, but moving in a way that the country can
respect and in which the best of the country can be reflected, a body
that is built on precedence.
A famous Thomas Jefferson story spoke of the Senate as the saucer
that allows cooling of passions, the Senate also allows us to step
above partisan politics because of our 6-year terms. We have not done
that with the judiciary. We have a duty to protect the Senate, but
also, because of our unique role in the confirmation process, we have a
duty to protect the integrity and independence of the Federal
judiciary. We are failing both in our duties
[[Page S11799]]
as Senators and we are failing in our duty to the Federal court.
Let us all take a deep breath and think about that and go back to
doing what we should--not for this President or any past incident, but
for all Presidents, present and future, and for all Senates, present
and future, and for the American people, and for the greatest Nation on
Earth, present and future.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LOTT. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________