[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.

                          ____________________