[Congressional Record Volume 145, Number 132 (Monday, October 4, 1999)]
[Senate]
[Pages S11867-S11875]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE CALENDAR

  Mr. STEVENS. Mr. President, pursuant to the consent agreement of 
Friday, October 1, I now ask unanimous consent that the Senate proceed 
to executive session for the consideration of judicial nominations.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
nominations will be stated.
  The legislative clerk read as follows:


                             THE JUDICIARY

       Ronnie L. White, to be United States District Judge for the 
     Eastern District of Missouri; Brian Theadore Stewart, to be 
     United States District Judge for the District of Utah; and 
     Raymond C. Fisher, to be United States Circuit Judge for the 
     Ninth Circuit.

  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, we have a number of judges to discuss 
tonight:
  There is Brian Theadore Stewart--I see the distinguished Senator from 
Utah on the floor, who I am sure will be speaking of him.
  There is Justice Ronnie L. White--I see the distinguished Senator 
from Missouri, who will be speaking about him and has specific reserved 
time for that.
  And there is the nomination of Raymond C. Fisher.
  Utilizing some of the time reserved to me and the distinguished 
chairman of the Senate Judiciary Committee, I will make sure that 
whatever amount of time the distinguished Senator from Utah wishes will 
be available to him.
  I would like to start by mentioning how we got here. On Friday, the 
Democratic leader was able to get an agreement from the majority leader 
scheduling an up-or-down vote on Ray Fisher, Ted Stewart, and Ronnie 
White tomorrow afternoon, with some debate this evening. I thank the 
Democratic leader for his assistance in obtaining those agreements. I 
know that it was not easy to obtain a date certain for a vote on the 
Fisher nomination and I am especially grateful that at long last, after 
27 months, the Senate will finally be voting on the White nomination.
  I begin with the Fisher nomination. Raymond Fisher is a distinguished 
Californian. After being confirmed by the Senate in 1977, he has served 
as Associate Attorney General of the United States. He served on the 
Los Angeles Police Commission from 1995 to 1997. He chaired it from 
1996 to 1997. In 1990, he was deputy general counsel for the 
Independent Commission on the Los Angeles Police Department, better 
known as the Christopher Commission, chaired by Warren Christopher.
  He received his undergraduate degree in 1961 from the University of 
California at Santa Barbara; And he received his law degree from 
Stanford Law School in 1966, where he was president of the Stanford Law 
Review. Following law school, he clerked for the Honorable J. Skelly 
Wright on the U.S. Court of Appeals for the District of Columbia 
Circuit and for the Honorable William Brennan on the U.S. Supreme 
Court. In other words, a lawyer's lawyer.

  For almost 30 years, he was a litigation attorney in private practice 
in Los Angeles at Tuttle & Taylor and then as the managing partner of 
the Los Angeles offices of Heller, Ehrman, White & McAuliffe. He is a 
highly respected member of the bar and a dedicated public servant.
  He has the very strong support of both California Senators. He 
received a rating of well qualified--in other words, the highest 
rating--from the American Bar Association. He has the support of Los 
Angeles Mayor Richard Riordan, the Los Angeles police department, the 
National Association of Police Organizations, and the Fraternal Order 
of Police.
  He was nominated back on March 15, 1999. He had a hearing before the 
Judiciary Committee and in July he was promptly and favorably reported. 
I do not know why his nomination was not taken up immediately and 
confirmed before the August recess, but it is still here and will now 
receive consideration. The Senate should vote to confirm him, as I 
fully expect we will.
  I note that the Senate has before it ready for final confirmation 
vote two other judge nominees to the same court, the Ninth Circuit, 
Judge Richard Paez and Marsha Berzon. Also pending before the Judiciary 
Committee are the nominations of Ron Gould, first nominated in 1997; 
Barry Goode, first nominated in June 1998; and James Duffy to the Ninth 
Circuit. It is a Court of Appeals that remains one quarter vacant with 
7 vacancies among its 28 authorized judges.
  We should be voting up or down on the Paez and Berzon nominations 
today. I think we need to fulfill our duty not only to each of these 
outstanding nominees as a matter of conscience and decency on our part, 
but also for the tens of millions of people who are served by the Ninth 
Circuit. Unfortunately, as was brought out Friday, a few Republican 
Senators--anonymously--are still holding up action on these other 
important nominations.
  To his credit, the majority leader has come to the floor and said he 
will try to find a way for the two nominations to be considered by the 
Senate. I know that if the majority leader wishes the nominees will 
come to a vote. The way is to call them to a fair up-or-down vote. We 
should find a way to do that as soon as possible.

[[Page S11868]]

  I certainly have tried to work directly and explain what I have done 
on the floor in working with the majority leader on the nominations. I 
am happy to work with the Senators who are blocking them from going 
forward, but we do not know who they are. In fact, we had a policy 
announced at the beginning of this year that we would no longer use 
secret holds in the Senate. Unfortunately, Judge Paez and Marsha Berzon 
are still confronting a secret hold as their nominations are obstructed 
under a cloak of anonymity after 44 months and 20 months, respectively. 
That is wrong and unfair.
  The distinguished Senators from California, Mrs. Boxer and Mrs. 
Feinstein, have urged continuously over and over again on this floor, 
in committee, in caucuses, in individual conversations with Senators on 
both sides of the aisle, that the nominations of Berzon and Paez go 
forward. I see the distinguished Senator from California, Mrs. Boxer, 
on the floor.
  I think I can state unequivocally for her, as for Senator Feinstein, 
that no Democrat objects to Judge Paez going forward. No Democrat 
objects to Marsha Berzon going forward. If nobody is objecting on this 
side of the aisle to going forward, I strongly urge those who support--
as many, many do--Judge Paez and Marsha Berzon's nominations, that they 
call each of the 55 Senators on the other side of the aisle and ask 
them: Are you objecting to them going forward? Would you object to them 
going forward? Find out who is holding them up. They are entitled to a 
vote.

  To continue this delay demeans the Senate. I have said that I have 
great respect for this institution and its traditions. Certainly after 
25 years, my respect is undiminished. But in this case, I see the 
treatment of these nominations as part of a pattern of what has 
happened on judicial nominations for the last few years. If you are a 
minority or a woman, it takes longer to go through this Senate as a 
judicial nomination. That is a fact. It is not just me noting it, but 
impartial outside observers have reported in the last few weeks that a 
woman or a minority takes longer to be confirmed by the Senate as it is 
presently constituted.
  The use of secret holds for an extended period is wrong and beneath 
the Senate. We can have 95 Senators for a nominee but 5, 4, 3, 2, or 1 
can stop that person--after 4 years with respect to Judge Paez; after 2 
years with respect to Marsha Berzon.
  Let us vote up or down. If Members do not want either one of them, 
vote against them; if Members want them, vote for them. But allow them 
to come to a vote. Do not hide behind anonymous holds. Do not allow 
this precedent to continue that we seem to have started that women and 
minorities take longer.
  Judge Richard Paez is an outstanding jurist and a source of great 
pride and inspiration to Hispanics in California and around the 
country. He served as a local judge before being confirmed by the 
Senate to the federal bench several years ago and is currently a 
Federal District Court Judge. He has twice been reported to the Senate 
by the Judiciary Committee in connection with his nomination to the 
Court of Appeals and has spent a total of 9 months over the last 2 
years on the Senate Executive Calendar awaiting the opportunity for a 
final confirmation vote. His nomination was first received by the 
Senate in January 1996, 44 months ago.
  Marsha Berzon is one of the most qualified nominees I have seen in 25 
years and the Republican Chairman of the Judiciary Committee has said 
the same thing. 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. Nominated for a 
judgeship within the Circuit that saw this Senate hold up the 
nominations of other qualified women for months and years--people like 
Margaret Morrow, Ann Aiken, Margaret McKeown and Susan Oki Mollway--she 
was first nominated in January 1998, some 20 months ago.
  The Atlanta Constitution noted recently:

       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 * * * to get 
     their colleagues to vote on the pair at long last, the 
     Republicans scuttled the maneuver. * * * 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. * * * This ideological 
     obstructionism is so fierce that it strains our justice 
     system and sets a terrible partisan example for years to 
     come.

  It is against this backdrop that I, again, ask the Senate to be fair 
to these judicial nominees and all nominees. For the last few years the 
Senate has allowed 1 or 2 or 3 secret holds to stop judicial 
nominations from even getting a vote. That is wrong.
  The Chief Justice of the United States Supreme Court wrote in January 
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.

  At the time the Chief Justice issued this challenge, Judge Paez' 
nomination had already been pending for 24 months. The Senate received 
the Berzon nomination within days of the Chief Justice's report. That 
was almost 2 years ago and still the Senate stalls and refuses to vote. 
Let us follow the advice of the Chief Justice. 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.
  Recently, the Washington Post 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 * 
* * should receive them immediately.''
  Democrats are living up to our responsibilities. The debate over the 
last couple of weeks has focused the Senate and the public on the 
unconscionable treatment by the Senate majority of selected nominees. 
The most prominent examples of that treatment are Judge Paez and Marsha 
Berzon. With respect to these nominations, the Senate is refusing to do 
its constitutional duty and vote.
  The Florida Sun-Sentinel wrote recently: ``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 on a badly undermanned federal bench. . . 
. The stalling, in many cases, is nothing more than a partisan 
political dirty trick.''
  A recent report by the Task Force on Judicial Selection of Citizens 
for Independent Courts verifies that the time to confirm female 
nominees is now significantly longer than that to confirm male 
nominees--a difference that has defied logical explanation. The report 
recommends that ``the responsible officials address this matter to 
assure that candidates for judgeships are not treated differently based 
on their gender.'' Those responsible are not on this side of the aisle. 
I recall all too well the gauntlet that such outstanding woman nominees 
as Margaret Morrow, Ann Aiken, Margaret McKeown, Susan Oki Mollway, 
Sonia Sotumayor 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 she will be confirmed 
if allowed a fair up or down vote.
  I likewise recall all too well the way in which other qualified 
nominees were held up and defeated without a vote. The honor roll of 
outstanding minority nominees who have been defeated without a vote is 
already too long, including as it does Judge James A. Beaty, Jr., Jorge 
C. Rangel, Anabelle Rodriquez and Clarence Sundram. It should not be 
extended further. Senate Republicans have chosen to stall Hispanic, 
women and other minority nominees long enough. It is wrong and should 
end.
  Nominees deserve to be treated with dignity and dispatch--not delayed 
for 2 and 3 and 4 years. I continue to urge the Republican Senate 
leadership to proceed to vote on the nominations of Judge Richard Paez 
and Marsha Berzon. There was never a justification for the Republican 
majority to deny these judicial nominees a fair up or down vote. There 
is no excuse for their continuing failure to do so.

[[Page S11869]]

  I know the Senate will do the right thing and confirm Ray Fisher to 
the Ninth Circuit tomorrow and that he will be an outstanding judge. I 
will continue my efforts to bring to a vote the nominations of Judge 
Richard Paez and Marsha Berzon.
  We also will get the opportunity tomorrow to vote on the nomination 
of Justice Ronnie White. As I reminded the Senate last Friday, he is an 
outstanding jurist and currently a member of the Missouri Supreme 
Court. We have now a judicial emergency vacancy on the District Court 
of the United States for the Eastern District of Missouri while his 
nomination has been held up for 27 months.
  Ronnie White was nominated by President Clinton in June of 1997--not 
June of 1999 or 1998, but June of 1997. It took 11 months before the 
Senate would allow him to have a confirmation hearing. At that hearing, 
the senior Senator from Missouri, Mr. Bond, and Representative Bill 
Clay, the dean of the State's congressional delegation, came forward 
with strong praise for the nominee. Senator Bond urged Members to act 
fairly on Judge White's nomination to the district court and noted 
Justice White's integrity, character, and qualifications, and concluded 
that he believes Justice White understands the role of a Federal judge 
is to interpret the law, not to make law.
  Once considered at a hearing, Justice White's nomination was reported 
favorably on a 13-3 vote by the Senate Judiciary Committee on May 21, 
1998. Senators Hatch, Thurmond, Grassley, Specter, Kyl, and DeWine were 
the Republican Members voting for him, along with all Democratic 
Members.
  Even though he was voted out 13-3, the nomination was held on the 
Senate Executive Calendar without action until the Senate adjourned 
last year, and returned to the President after 16 months with no Senate 
action. A secret hold had done its work and cost this fine man and 
outstanding jurist an up-or-down vote. The President renominated him 
back in January of this year. We reported his nomination favorably a 
second time this year a few months ago.
  Justice White deserves better than benign negligence. The people of 
Missouri deserve a fully qualified and staffed Federal bench. He has 
one of the finest records and experience of any lawyer to come before 
the Judiciary Committee in my 25 years there. He served in the Missouri 
Legislature, the Office of the City Council for the city of St. Louis, 
and as a judge in the Court of Appeals for the Eastern District of 
Missouri before his current service as the first African American ever 
to serve on the Missouri Supreme Court.
  I believe he will be an invaluable asset. I am pleased we are finally 
having a discussion, even though 27 months is too long to wait, too 
long to wait for a floor vote, on this distinguished African American 
justice. Finally he will get the respect he should have from this body.
  Acting to fill judicial vacancies is a constitutional duty that the 
Senate--and all of its Members--are obligated to fulfill. In its 
unprecedented slowdown in the handling of nominees since the 104th 
Congress, the Senate is shirking its duty. That is wrong and should 
end.
  Let us show respect to the federal judiciary and to the American 
people to whom justice is being denied due to this unprecedented 
slowdown in the confirmation process. I am proud to support the 
nomination of Justice Ronnie White for United States District Judge for 
the Eastern District of Missouri. I was delighted when last Friday, the 
Democratic leader was able to announce that we had finally been able to 
obtain Republican agreement to vote on this nomination. I thank the 
Democratic leader and all who have helped bring us to the vote tomorrow 
on the nomination of Justice White. It has been a long time coming.
  Tomorrow the Senate will act on the nomination of Brian Theadore 
Stewart, who has not had to wait a long time with the others. I have 
said over the last few weeks that I do not begrudge Ted Stewart a 
Senate vote; rather, I believe that all the judicial nominations on the 
Senate Executive Calendar deserve a fair up or down vote. That includes 
Judge Richard Paez, who was first nominated 44 months ago and Marsha 
Berzon who was first nominated 20 months ago.
  Tomorrow we will vote on the Stewart nomination but Senate 
Republicans still refuse to vote on these two other qualified nominees 
who have been pending far longer.
  The Senate was able to consider and vote on the nomination of Robert 
Bork to the United States Supreme Court in 12 weeks, the Senate was 
able to consider and vote on the nomination of Justice Clarence Thomas 
in 14 weeks. It is now approximately 2 months from the Senate's receipt 
of the Stewart nomination, and we are now about to vote on his 
confirmation. I feel even more strongly that we should also 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.
  Despite strong opposition from many quarters from Utah and around the 
country, from environmentalists and civil rights advocates alike, I did 
not oppose the Stewart nomination in Committee. I noted Mr. Stewart's 
commitment to examine his role in a number of environmental matters 
while in the State government and to recuse himself from hearing cases 
in those areas. In response to questions from Chairman Hatch and 
Senator Feingold, Mr. Stewart committed to ``liberally interpret'' the 
recusal standards to ensure that those matters would be heard by a fair 
and impartial judge and to avoiding even the appearance of impropriety 
or possible conflicts of interest.
  I cooperated in Chairman Hatch's efforts to expedite Committee 
consideration of the Stewart nomination with the expectation that these 
other nominees who have been held up so long, nominees like Judge 
Richard Paez and Marsha Berzon, were to be considered by the Senate and 
finally voted on, as well. The Chairman and I have both voted for Judge 
Paez each time he was considered by the Committee and we both voted for 
and support Marsha Berzon.
  I have tried to work with the Chairman and with the Majority Leader 
on all these nominations. I would like to work with those Senators whom 
the Majority Leader is protecting from having to vote on the Paez and 
Berzon nominations, but I do not know who they are. Despite the policy 
against secret holds, there are apparently secret Senate holds against 
both Paez and Berzon. That is wrong and unfair.
  As we prepare to vote on the nomination of Ted Stewart, the Senate 
should also be voting on the nominations of Judge Richard Paez and 
Marsha Berzon. The Stewart nomination has been pending barely 2 months, 
the Berzon nomination has been stalled for almost 2 years and the Paez 
nomination has set a new, all-time record, having now been pending for 
almost 4 years. The Paez nomination was referred to in the Los Angeles 
Times recently as the ``Cal Ripken of judicial confirmation battles.'' 
What is most shameful is that the Senate is obstructing an up-or-down 
vote on these nominations without debate, without accountability and 
under the cloak of anonymity.
  Certainly no President has consulted more closely with Senators of 
the other party on judicial nominations, which has greatly expanded the 
time this Administration has taken to make nominations. The Senate 
should get about the business of voting on the confirmation of the 
scores of judicial nominations that have been delayed without 
justification for too long. We should start by voting up or down on the 
Paez and Berzon nominations without further delay. That is the fair 
thing to do. The Majority Leader committed last Friday to finding a way 
to bring these two nominations to a vote. It is time for those votes to 
be occur.
  This summer, in his remarks to the American Bar Association, the 
President, again, urged us to action. 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 Senate 
leadership to attend to these nominations without obstruction and 
proceed to vote on them with dispatch. The continuing refusal to vote 
on the nominations of Judge Richard Paez and Marsha Berzon demeans the 
Senate and all Americans.

[[Page S11870]]

  It is my hope that the example we set here tonight and tomorrow will 
move the Senate into a new and more productive chapter of our efforts 
to consider judicial nominations. We are proceeding to vote on a 
judicial nominee that some Democratic Senators oppose in order to 
demonstrate our commitment to fairness for all. There was never a 
justification for the Republican majority to deny any judicial nominees 
a fair up or down vote. There is no excuse for their continuing failure 
to do so.
  I will close with this. Let us move to a new and more productive 
chapter in our efforts to consider judicial nominations. Let us erase 
what has become a badge of shame for the Senate: You are a judicial 
nominee, and if you are a minority or a woman, no matter how good your 
qualifications are, you take much longer to go through this body than 
does a white male. That is a badge of shame on this great institution. 
Before we finish this year, we should erase it. We should say the 
Senate does not have a gender or a race or ethnicity qualification for 
judges. The Senate will vote on men nominees; vote them up or vote them 
down, but we will vote on them. We will not say if you are a woman or a 
minority you have to wait longer than anybody else because that is what 
the Senate has been doing and it is wrong. It is shameful. It is 
inexcusable. It demeans this great and wonderful institution.
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEAHY. I yield time to the Senator from California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I know my colleague from Missouri is going 
to speak, as will others. But I did want to follow the great Senator 
from Vermont, Mr. Pat Leahy, who has done such an admirable job as the 
ranking member of the Judiciary Committee in fighting for fairness. If 
you listen to his remarks carefully, what he is basically saying is: 
Bring to the floor of the Senate the nominees who have been voted out 
of the committee; let's debate them; let's talk about them; let's talk 
about their merits. If you have a problem with them, put it out there. 
But let's vote. That is the least we can do for these good people.
  Every single one of these people who have gone through the committee, 
has a current job. When they were nominated, and especially when they 
were voted out of the committee, they assumed they would be going to a 
new job, to be a judge. They had every reason to assume that because a 
good vote out of that committee--getting the support of Senator Hatch 
and usually one or two or three more on the Republican side, and all 
the Democrats--means you had the votes to get to the floor of the 
Senate.
  As my friend has pointed out, it is very sad. We have had some bad 
situations develop. I was very hopeful, in this new round of approvals 
we have gone through--and I am grateful for the fact we have moved a 
few judges through--I was hopeful we would break the logjam with Judge 
Richard Paez and with Marsha Berzon, for several reasons.
  One, they are terrific people. They would make great judges. They 
were voted out of the committee several times. They deserve a vote. 
They have loving family members. I have had the wonderful opportunity 
to meet their families: In the case of Richard Paez, his wife and 
children; in the case of Marsha, her husband and children. They are 
waiting for something to happen. This is not fair.
  So while I am glad we are moving some court nominees--I am pleased we 
are doing that--I think we need to do more in the interests of the 
country. We need to do more. In the interests of fairness to these 
people, we need to do more.
  Let me go into a few details about Richard Paez. Currently, he serves 
on the Federal bench as a district court judge in the Central District 
of California. He was first nominated by President Clinton to the court 
of appeals on January 25, 1996. Seven months later, on July 31, 1996, 
the Judiciary Committee finally held a hearing on Judge Paez' 
nomination.
  Let me point out something. This is the same Judge Paez who came 
right through this Senate when we supported him for district court. So 
he is not a stranger to the Judiciary Committee. He is not a stranger 
to the Senate. We already approved him when he was nominated and took 
his seat on the district court. So here we have a situation where it 
took him 7 months to get his first hearing and then the Senate 
adjourned for the year without having reported the nomination. That was 
1996.
  Now we get to 1997. The President nominates Judge Paez for the second 
time. On February 25, the Judiciary Committee held a second hearing on 
the nomination. That was 1997.
  On March 19, 1998, 1 year and 2 months later, Judge Paez' nomination 
was finally reported by the Judiciary Committee to the full Senate. But 
in the 7 months following, the Senate failed to act on the nomination, 
and it adjourned with that nomination still on the Executive Calendar.
  Again, this year, for the third time, the President nominates Richard 
Paez to the Ninth Circuit Court. May I say, there are several vacancies 
on that court, more than half a dozen. So we are looking at a court 
that is not running at full speed. When there are 28 members is when 
they are completely full. Now they have all these vacancies. So the 
nomination is reported favorably by the Judiciary Committee on July 29 
of this year, but again the full Senate has failed to act.
  So it brings us to this day, where we have a little bit of a 
breakthrough. We are going to move forward five judges. I am glad we 
are doing it. But we have to be fair and look at this terrific judge, 
Judge Richard Paez.
  I think we have an obligation to him and his family, and frankly, to 
the President, who is the President who has nominated this gentleman 
several times.
  Sure, if the shoe was on the other foot and we had a Republican 
President, I do believe my colleagues would be saying: Give us an up-
or-down vote. I do not think that Richard Paez, the wonderful human 
being that he is, deserves to be strung out by the Senate--3\1/2\ years 
strung out. I cannot understand why. I looked back through the record, 
and there is no one else who has been treated like this.
  I say to my Republican friends, we do not know who has put a hold----
  The PRESIDING OFFICER. The time allotted to the Senator from Vermont 
has expired.
  Mrs. BOXER. What is the agreement because Senator Leahy's staff is 
surprised his time has run out. Can the Chair tell me how much time 
remains?
  The PRESIDING OFFICER. There was to be 45 minutes equally divided 
between the Senator from Vermont and the chairman of the Judiciary 
Committee, Senator Hatch, with an additional 15 minutes reserved for 
the distinguished Senator from Missouri.
  Mr. BENNETT. Mr. President, I will be happy to yield an additional 2 
or 3 minutes to the Senator from California so she may finish her 
statement.
  Mrs. BOXER. Can the Senator from Utah make that 7 minutes since we 
accommodated the Senator from Missouri? If I may have 7 minutes, I can 
conclude.
  Mr. BENNETT. I accede to the unanimous consent request for 7 
additional minutes, not coming off our time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. Mr. President, I thank my colleague. I will try to finish 
in 5. I have not gotten to Marsha Berzon yet.
  We are setting a record of which we should not be proud. This man has 
been strung out for 3\1/2\ years. He is a good man. He has a solid 
record, and we have an obligation to him and his family, the members of 
the legal and law enforcement communities, to the judicial system 
itself, and to the Latino community that is so very proud of him. 
Again, the Senate approved him to the district court. He has served 
with distinction there.
  Judge Paez not only served in the district court, but he also served 
13 years as a judge on the L.A. Municipal Court, one of the largest 
municipal courts in the country. He is such a leader that his 
colleagues elected him to serve as both supervising judge and presiding 
judge.
  His support in the law enforcement community is pretty overwhelming. 
The late Sheriff Sherman Block of Los Angeles, a Republican, supported 
him. He is supported by Sheldon Sloan, the

[[Page S11871]]

former chairman of the judicial selection committees for both Senators 
Pete Wilson and John Seymour.
  He is supported by Representative James Rogan, who was his colleague 
on the municipal court. Those who know me and James Rogan know we do 
not agree on a lot of things. We agree on Judge Paez.
  He is supported by Gil Garcetti, district attorney for Los Angeles.
  All these people have written wonderful things about him.
  James Hahn, the Los Angeles city attorney, says ``his ethical 
standards are of the highest caliber. . . .''
  Peter Brodie, president of the Association of L.A. Deputy Sheriffs, a 
6,000-member organization, wrote to Chairman Hatch in support of Judge 
Paez's nomination.
  The commissioner of the Department of California Highway Patrol says 
that ``Judge Paez . . . [is very] well qualified,'' and ``his character 
and integrity are impeccable.''
  We have a good man here. Let's vote him up or down. I know the Senate 
will vote him in. I know that. I have not only spoken, I say to my 
friend from Vermont, to Democrats, but I have spoken to Republicans who 
intend to support him. So he will win that vote.
  The second nominee, Marsha Berzon, is another example of a 
longstanding nominee who is being denied a vote by the full Senate.
  In 1998--Senator Leahy laid it out--she received an extensive two-
part confirmation hearing, written questions, written answers, and she 
extensively answered every question of the committee. In 1999, she was 
favorably reported out of the committee.
  Again, she is so well qualified. Marsha Berzon graduated cum laude 
from Radcliffe College in 1966, and in 1973, she received her Juris 
Doctor from UC Berkeley, Boalt Hall Law School, one of the greatest law 
schools in the country.
  She has written dozens of U.S. Supreme Court briefs and has argued 
four court cases before the U.S. Supreme Court. She has had extensive 
experience appearing in Federal appeals courts, and it goes on and on.
  She has received significant Republican support. Former Republican 
Senator James McClure of Idaho says:

       What becomes clear is that Ms. Berzon's intellect, 
     experience and unquestioned integrity have led to strong and 
     bipartisan support for her appointment.

  J. Dennis McQuaid, an attorney from Marin County, my opponent when I 
first ran for the House of Representatives in 1982, says of Marsha:

       Unlike some advocates, she enjoys a reputation that is 
     devoid of any remotely partisan agenda.

  W.I. Usery, a former Republican Secretary of Labor under President 
Ford, has said that Marsha Berzon has all the qualifications needed, 
and he goes on.
  Senator Specter has said very flattering things about Marsha Berzon. 
She has strong support from both sides of the aisle.
  We have lots of vacancies on this court, and we have two fine people 
who are just waiting for the chance to serve. These people do not come 
along every day.
  I want to address myself to the question raised by my friend from 
Vermont who has shared with me that there have been some independent 
studies that show, sadly, that if you are a minority, or if you are a 
woman, you do not seem to get looked at by the Senate; you do not seem 
to get acted on. You hang around; you wait around for a vote.
  This is not a reputation the Senate wants. We want to give everyone a 
chance, and these are two candidates, a woman and a minority, who are 
so qualified that they were voted out in a bipartisan vote of the 
committee. I call on my friends on the other side of the aisle who may 
be holding up these nominees--I do not know who they are. I thought we 
said you have to come out and identify yourself, but so far I do not 
know who is holding these up.
  I beg of you, in the name of fairness and justice and all things that 
are good in our country, give people a chance. If you do not think they 
are good, if you have a problem with something they said or did, bring 
it down to the floor. We can debate it. But please do not hold up these 
nominees. It is wrong. You would not do it to a friend. You would not 
do it to someone of whom you thought highly, so do not do it to these 
good people. They have families. They have jobs. They have careers. 
They are good people.

  All we are asking for is a vote. I do not want to see people 
throughout the country coming to see us in our offices and claiming 
that women and minorities are not getting fair treatment. That is not 
what we should be about, and I do not think that is what we are about. 
But that is the kind of reputation this Senate is getting across this 
land.
  We can fix it. We should follow the leadership of Senator Leahy from 
Vermont because he has said very clearly for many months now: Bring 
these good people forward.
  I want to say a kind word about Senator Hatch. Senator Hatch has said 
to me from day 1: Senator Boxer, when you bring me a nominee, I want 
you to make sure that not only are they well qualified, but that they 
have bipartisan support.
  He looked me in the eye, even though he is a foot taller, and said: 
You promise me that.
  I said: Senator Hatch, I will do that.
  I have done that in these cases. These are two Ninth Circuit nominees 
who were nominated by the President, but I have supported them and 
Senator Feinstein has supported them. They got the vote of Senator 
Hatch because he knows we have been very careful to nominate people who 
have mainstream support in the community. I promised him that. I have 
done that. He has been fair to me. I hope all of the Senate will be 
fair to these two nominees.
  Mr. President, I thank Senator Bennett for his kindness in giving me 
the additional time. I look forward to moving forward with these 
nominees we have before us and certainly, at a minimum, on Marsha 
Berzon, Richard Paez, and the others who are waiting in the wings for 
their day. I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, I believe I have 15 minutes on the 
nomination of Missouri Supreme Court Judge Ronnie White.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. ASHCROFT. Mr. President, I rise today to oppose the nomination of 
Judge Ronnie White to the United States District Court for the Eastern 
District of Missouri.
  Confirming judges is serious business. People we put into these 
Federal judgeships are there for life, removed only with great 
difficulty, as is evidenced by the fact that removals have been 
extremely rare.
  There is enormous power on the Federal bench. Most of us have seen 
things happen through judges that could never have gotten through the 
House or Senate.
  Alexander Hamilton, in Federalist Paper No. 78, put it this way:

       If [judges] should be disposed to exercise will instead of 
     judgment, the consequence would equally be the substitution 
     of their pleasure to that of the legislative body.

  Alexander Hamilton, at the beginning of this Nation, knew just how 
important it was for us to look carefully at those who would be 
nominated for and confirmed to serve as judges.
  A judge who substitutes his will or her will for the legislative 
will, by displacing the legislative intent in enlarging the 
Constitution or amending it by saying, it is an evolutionary document 
and I am going to say now it has evolved to this state or that state, 
as opposed to an earlier state--that kind of judge is involved in what 
I call ``judicial activism.'' Judicial activism is simply the 
substitution of one's personal politics instead of the legislative will 
as expressed in our documents of the Constitution or in the law.
  At no other place in our Republic do voters have virtually no 
recourse. This is an important thing for us to consider as we evaluate 
judges and we seek to determine whether or not their confirmation would 
be appropriate.
  So as it relates to Judge Ronnie White, who serves now as a supreme 
court judge in the State of Missouri, upon his nomination I began to 
undertake a review of his opinions, and especially those circumstances 
and dissents where, as a judge on the Missouri Supreme Court, Judge 
White would have sought to change or otherwise extend or amend the law 
as it related to a variety of matters, especially in the area of 
criminal law. I also heeded carefully his answers during his 
confirmation

[[Page S11872]]

hearing and his answers to followup questions.
  I believe Judge White's opinions have been and, if confirmed, his 
opinions on the Federal bench will continue to be procriminal and 
activist, with a slant toward criminals and defendants against 
prosecutors and the culture in terms of maintaining order; he will use 
his lifetime appointment to push law in a procriminal direction, 
consistent with his own personal political agenda, rather than defer to 
the legislative will of the people and interpret the law rather than 
expand it or redirect the law.
  I believe the law should be interpreted as written, as intended by 
the legislature, not as amended or expanded by the courts. I believe 
Judge White will, as Alexander Hamilton so aptly described in 
Federalist 78, improperly ``exercise will instead of judgment.'' This 
is particularly true in the area of criminal law.
  I am not alone in this view. Judge White's nomination has sparked 
strong concerns from a large number of Missouri law enforcement 
officials. Seventy-seven of the 114 sheriffs in the State of Missouri 
have decided to call our attention to Judge White's record in the 
criminal law. I do not take lightly the fact that 77 of these law 
enforcement, ground-zero sheriffs--people who actually are involved in 
making the arrests and apprehending those who have broken the law--
would ask us to look very carefully at this nominee. They cite specific 
opinions he has written and say these are the kinds of opinions that 
give them great pause.
  Anyone who knows something about Missouri's political system knows 
that 77 out of 114 sheriffs would be a bipartisan delegation. As a 
matter of fact, over 70 percent of all the public officials in Missouri 
who are nominated and elected are Democrats. So you have 77 of the 114 
sheriffs of Missouri on record saying: Look carefully. Evaluate very 
carefully this nominee to the federal bench.
  The Missouri Federation of Police Chiefs, an organization of police 
chiefs that spreads all across the State of Missouri, has indicated to 
us that we ought to tread very lightly here. As a matter of fact, they 
express real shock and dismay at the nomination. Prosecutors have 
contacted me with their public letters. And, frankly, other judges in 
the State have suggested to me I should think and consider very 
carefully whether or not we proceed in this matter.

  The letter from the Missouri Federation of Police Chiefs is very 
direct. It says:

       We want to go on record with your offices as being opposed 
     to his nomination and hope you will vote against him.

  I want to express that the concern about Judge Ronnie White is far 
broader than some of us in the Senate; it goes to a majority of the 
sheriffs in the State, with an official letter of expression from the 
Missouri Federation of Police Chiefs. There are prosecutors who have 
come to me and asked me to think very carefully about the 
qualifications and the philosophy expressed by this nominee.
  This opposition stems largely from Judge White's opinions in capital 
murder cases. These opinions, and particularly his dissents, reflect a 
serious bias against a willingness to impose the death penalty.
  Judge White has been more liberal on the death penalty during his 
tenure than any other judge on the Missouri Supreme Court. He has 
dissented in death penalty cases more than any other judge during his 
tenure. He has written or joined in three times as many dissents in 
death penalty cases, and apparently it is unimportant how gruesome or 
egregious the facts or how clear the evidence of guilt. He has been 
very willing to say: We should seek, at every turn, in some of these 
cases to provide an additional opportunity for an individual to escape 
punishment.
  This bias is especially troubling to me because, if confirmed, Judge 
White will have the power to review the death penalty decisions of the 
Missouri Supreme Court on habeas corpus. In the seat of district court, 
Judge White's sole dissents are transformed into a veto power over the 
judicial system of the State of Missouri. I do not think that should 
happen.
  Let me give you an example of Judge White's sole dissent in the 
highly publicized case of Missouri v. Johnson.
  James R. Johnson was a brutal cop killer. He went on a shooting 
rampage in a small town called Carolina, MO. It sent shock waves across 
the entire State in 1991--during the time I had the privilege to serve 
as Governor of the State. At that time, James Johnson stalked and 
killed a sheriff, two sheriff's deputies, and Pamela Jones, a sheriff's 
wife.
  Johnson first shot a deputy who had responded to a call about a 
domestic dispute at Johnson's house. He shot the deputy in the back and 
then walked over, as the deputy lay on the ground, and shot him in the 
forehead, killing him.
  Johnson then reloaded his car with guns and drove to the local 
sheriff's home. There the sheriff's wife, Pamela Jones, was having a 
Christmas party. Johnson fired a rifle repeatedly through the window, 
hitting Mrs. Jones five times. Mrs. Jones died of those wounds in her 
home in front of her family.
  Then Johnson went to another deputy sheriff's home and shot him 
through a window as the deputy spoke on the phone. That deputy was 
lucky and survived.
  Johnson then went to the sheriff's office, where other law 
enforcement officers had assembled to try to address the ongoing 
rampage that was terrorizing the town. Johnson lay in wait until 
officers left the meeting and then opened fire on them, killing one 
officer.
  Then as another officer arrived on the scene in her car, Johnson shot 
and killed her. It was then that Johnson fled to the house of an 
elderly woman who he held hostage for 24 hours. She eventually 
convinced Johnson to release her, and she notified the authorities who 
apprehended Johnson. He was tried and convicted on four counts of first 
degree murder and given four death sentences, convicted on all counts, 
received four separate death sentences. In a sole dissent urging a 
lower legal standard so that this convicted multiple cop killer would 
be allowed a second bite at the apple to convince a different jury that 
he was not guilty, Ronnie White sought to give James Johnson another 
chance.
  Sheriff Jones, obviously, opposes this nomination. He is urging law 
enforcement officers to oppose it because he believes there is a 
pattern of these kinds of decisions in the opinions and dissents of 
Judge White. He believes there is a pattern of procriminal opinions, 
and I think if one looks carefully, one might see that pattern.
  Judge White was also the sole dissenter in a case called Missouri v. 
Kinder. In that case, the defendant raped and beat a woman to death 
with a lead pipe. White voted to grant the defendant a new trial, 
despite clear evidence of guilt, including eyewitness testimony that 
Kinder was seen leaving the scene of the crime at the time of the 
murder with a pipe in his hand, and genetic material was found with the 
victim. White dissented based on the alleged racial bias of the judge, 
which he urged was made evident by a press release the judge had issued 
to explain his change in party affiliation. The judge changed parties 
at sometime prior to this case, and the judge, in explaining his change 
of party, said he was opposed to affirmative action, discriminating in 
favor of one race over another race. He left the one party he was in 
because he disagreed with their position on affirmative action. That 
was the only basis for Judge White to provide a new opportunity for 
this individual to get a second bite at the apple, not the evidence 
about his conduct, the genetic material, or the eyewitness testimony.
  Judge White's procriminal jurisprudence is not limited to murder 
cases. It extends to drug cases as well. In the case of Missouri v. 
Damask, Judge White's sole dissent in a drug and weapons seizure case, 
I think, reveals this same tendency on the part of this judge to rule 
in favor of criminal defendants and the accused in a procriminal matter 
and procriminal manner.
  This was a case, Missouri v. Damask, about a drug checkpoint set up 
by the Missouri State police. The State police had erected a traffic 
sign on the highway in the middle of the night indicating ``drug 
checkpoint ahead.'' The sign was placed just before a remote exit, one 
which only local residents would have cause to use. Those seeking

[[Page S11873]]

to avoid the ``drug checkpoint'' by exiting met with a real drug 
checkpoint at the top of the exit ramp. There were no gas stations, no 
restaurants or facilities at that exit. Motorists exiting at that exit 
were stopped and asked why they exited. If police were able to 
determine from their answers that they were suitably suspicious to 
warrant a search, they searched their cars. It was a very successful 
program, netting numerous arrests.
  The Missouri Supreme Court upheld the practice as a reasonable search 
and seizure under the fourth amendment, consistent with many rulings of 
our Federal courts interpreting the fourth amendment.
  Judge White was the sole dissenter in an opinion that seemed less 
concerned with the established fourth amendment precedent than with 
whether the search was intimidating. Judge White's opinion would have 
hamstrung this effective tool in the war on drugs.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BENNETT. Mr. President, I yield the Senator an additional 10 
minutes.
  Mr. ASHCROFT. I thank the Senator from Utah.
  It is these opinions and other opinions like them that have generated 
the concern in the Missouri law enforcement community about Judge White 
and have caused me to conclude that I must oppose his confirmation. It 
doesn't mean I oppose his coming to the floor. I am entirely willing to 
let the Senate express itself in this respect. But I urge my fellow 
Senators to consider whether we should sanction the life appointment to 
the responsibility of a Federal district court judge for one who has 
earned a vote of no confidence from so many in the law enforcement 
community in the State in which he resides. Many of my fellow Senators 
on the Judiciary Committee determined we should not and voted against 
his nomination.
  I ask my fellow Senators to review Judge White's record carefully. 
Keep in mind that he will not only sit for life, but he will still have 
occasion to vote on death penalty cases reviewed by the Missouri 
Supreme Court.
  Again, as a district judge, he will be able to hear habeas corpus 
petitions challenging death sentences that have been upheld by the 
Missouri Supreme Court; only, as a district judge, his sole dissenting 
vote will be enough to reverse a unanimous opinion by the Missouri 
Supreme Court. He will have a veto over the Missouri Supreme Court in 
death penalty cases. And based on Judge White's track record, this is 
not a situation that the law-abiding citizens of Missouri should have 
to endure.
  As I conclude my remarks, I will read some of the text of 
communications I have received concerning this nominee. Sheriff Kenny 
Jones, whose wife was murdered by James Johnson, put it this way: Every 
law enforcement and every law-abiding citizen needs judges who will 
enforce the law without fear or favor. As law enforcement officers, we 
need judges who will back us up and not go looking for outrageous 
technicalities so a criminal can get off. We don't need a judge such as 
Ronnie White on the Federal court bench.
  I quote again from another paragraph: The Johnson case isn't the only 
antideath penalty ruling by Judge White. He has voted against capital 
punishment more than any other judge on the court. I believe there is a 
pattern here. To me, Ronnie White is clearly the wrong person to 
entrust with the tremendous power of a Federal judge who serves for 
life.
  A letter from a prosecutor: Judge White's record is unmistakably 
antilaw enforcement, and we believe his nomination should be defeated. 
His rulings and dissenting opinions on capital cases and on fourth 
amendment issues should be disqualifying factors when considering his 
nomination.
  A letter from the Missouri Sheriffs Association: Attached please find 
a copy of the dissenting opinion rendered by Missouri Supreme Court 
Judge Ronnie White in the case of State of Missouri v. James R. 
Johnson.
  Then a recitation of how James Johnson murdered Pam Jones, the wife 
of the Moniteau County sheriff, Kenny Jones. And then: As per attached, 
the Missouri Sheriffs strongly encourage you to consider this 
dissenting opinion in the nomination of Judge Ronnie White to be a U.S. 
district court judge.
  Mr. LEAHY. Will the Senator yield for a question? Mr. President, will 
the Senator from Missouri yield for a question?
  Mr. ASHCROFT. Yes, I will.
  Mr. LEAHY. It is my understanding that Justice White has voted 17 
times for death penalty reversals. Is that the understanding of the 
Senator from Missouri?
  Mr. ASHCROFT. I don't have the specific count.
  Mr. LEAHY. The numbers I have seen are that he has voted 17 times for 
reversal. Justice Covington, however, has voted 24 times for reversal 
in death penalty cases; Justice Holstein, 24 times; Justice Benton, 19 
times; and Justice Price, 18 times. It would appear to me that at least 
Justices Covington, Holstein, Benton and Price, all on the Supreme 
Court, have voted many more times to reverse death sentences than 
Justice White has. Are these numbers similar to what the Senator from 
Missouri has?
  Mr. ASHCROFT. Mr. President, I think I can go to the question here 
that I think the Senator is driving at. I will be happy to do that. The 
judges that the Senator from Vermont has named have served a variety of 
tenures, far in excess of the tenure of Judge White.
  The clear fact is that, during his tenure, he has far more frequently 
dissented in capital cases than any other judge. He has, I believe, 
participated in 3 times as many dissents as any other judge. To try to 
compare a list of dissents or items from other judges from other 
timeframes, longer intervals, and a variety of different facts, with 
the tenure that Judge Ronnie White has served is like comparing apples 
and oranges. And the numerics thereof, without that additional aspect 
of the situation being revealed, may appear to cause a conclusion that 
would be different.
  With that in mind, if you will think carefully about what I said, I 
believe I thought carefully when I said ``Judge White's record during 
his tenure''; that is what you have to be able to compare, judges 
during the same interval of time. With that in mind, during that same 
interval of time, he has been the champion of those dissenting in death 
penalty cases and has dissented in ways which, very frankly, have 
occasioned an outcry from the law enforcement community in Missouri. 
None of the other judges that I know of have been the recipients of 
that kind of outcry.
  There is one final point that I will make. Those are other notable 
judges and they have records and serve on the Missouri Supreme Court. 
They are not persons against whom the law enforcement community has 
raised issues. But they are also not persons who have been nominated 
for service on the U.S. District Court, a court which could set aside 
the verdicts of the Missouri Supreme Court in habeas corpus cases. So 
while I think those particular judges are important--and if they are 
nominated for the Federal Court, I think we ought to look carefully at 
their work product.
  So there are two points to be made here. One, the relevance of the 
numbers is only relevant in the context of the interval. To suggest 
that the numbers are out there, without defining the interval, would be 
inappropriate and misleading. So I would not do that.
  Secondly, I think the relevance of a record that is unsatisfactory is 
directly appropriate to the judge who has been nominated. So we are not 
here to talk about other judges so much as we are to talk about whether 
or not Ronnie White ought to be confirmed as a member of the U.S. 
District Court. In my judgment, the law enforcement community in 
Missouri has expressed serious reservations about his lean toward 
defendants, and I think we should not vote to confirm him. I urge my 
colleagues not to vote to confirm Judge White, based on this 
understanding of the Missouri law enforcement community and a reading 
of his judicial papers.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. LEAHY. Will the Senator yield me 30 seconds?
  Mr. BENNETT. I am happy to.
  Mr. LEAHY. I just note that Justice Ronnie White is far more apt to 
affirm a death penalty decision than to vote as one of many members of 
the Supreme Court to reverse it. He has voted

[[Page S11874]]

to affirm 41 times and voted to reverse only 17 times.

  Mr. BENNETT. Mr. President, the Senator from Alabama has asked for 5 
minutes. I yield 5 minutes to the Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank the Senator from Utah for his 
leadership in this matter. I want to share a few thoughts with Members 
of this body. I do believe in the rule of law. I believe that we ought 
to maintain it. I practiced full time in Federal Courts throughout my 
career, for almost 17 years. I respect Federal Judges and Federal law 
deeply. When appropriate, I have tried to support President Clinton's 
nominees for Federal Judgeships, because I believe a President should 
have some leeway in deciding who should serve on the Federal bench.
  But I want to say a couple things about the Ninth Circuit. Since I 
have been in this body--a little over 2 years now--having left the 
practice of law as a full-time Federal prosecutor, I have had an 
understanding of the Ninth Circuit better than a lot of other people. I 
see Ninth Circuit criminal cases cited in Alabama and other areas very 
frequently because they are usually very pro-defendant. There will be 
no other criminal case in America that has been partial to a defendant 
in a given situation--for example a search and seizure, or something 
like that--and they will find a pro-defendant case in the Ninth 
Circuit.
  I can say with confidence, from my experience, that the Ninth Circuit 
authorities are not well respected by the other circuits in America. 
They are out of the mainstream. In fact, the Supreme Court has begun to 
really rap their knuckles consistently. In 1996 and 1997, 28 cases from 
the Ninth Circuit went up to the U.S. Supreme Court for review, and 27 
of them were reversed. In 1997 and 1998, 13 out of 17 were reversed. In 
1998 and 1999, it was 14 out of 18. In the past, the numbers have been 
equally high--for over a decade.
  The New York Times recently wrote that a majority of the members of 
the U.S. Supreme Court consider the Ninth Circuit to be a ``rogue'' 
circuit, a circuit out of control based on the history of their 
reversal rates. This is not me making this up; that is according to the 
New York Times.
  I have been urging the President of the United States to nominate 
mainstream judges for the Ninth Circuit. That is what we are asking 
for. Let's get this circuit back into line so that we can have the 
largest circuit in America give the 20 percent of the people in the 
United States who are under the Ninth Circuit's jurisdiction justice 
consistent with the other circuits in America. These people are 
currently denied this justice because of their extremely liberal, 
activist circuit. There is no other way to say it. There was an Oregon 
Bar Bulletin article that studied this issue. The article examined the 
question of why the Ninth Circuit was being reversed so much in 1997. 
The article says: ``There is probably an element of truth to the claim 
that the Ninth Circuit has a relatively higher proportion of liberal 
judges than other circuits.'' It goes on to note how many are Carter 
and Clinton nominees. Already, a substantial majority--12 of the active 
21 judges--were Carter or Clinton nominees. There is nothing wrong with 
that per se, however the nominees the White House has been sending to 
us from California have been even more liberal than the nominees 
President Clinton has nominated in other circuits. I don't see this 
kind of activism in nominees to other circuits. So the way I see this 
thing--and this is important for the members of this Senate to 
realize--we have the responsibility of advice and consent on judicial 
nominations. That is a responsibility given to us. We have to exercise 
it.

  What I have been saying to President Clinton is, Mr. President, 
listen to us. Let's get this circuit--this rogue circuit--back into 
line. Give us mainstream nominees.
  Mr. Fisher is, in my view, a fairly liberal Clinton appointee.
  The PRESIDING OFFICER. The Senator's 5 minutes have expired.
  Mr. SESSIONS. If I could have 1 more minute.
  Mr. BENNETT. I yield the Senator an additional minute.
  Mr. SESSIONS. It is part of our responsibility to advise and consent. 
It is our duty to examine the state of justice in America, and to tell 
President Clinton that we are not going to continue to approve activist 
nominees for the Ninth Circuit. We have to have some mainstream legal 
talent on that circuit, not ACLU members or the like. And, if he will 
give us that, we will affirm them. If he does not, this Senator will 
oppose them.
  I thank the Chair. I yield my time to the Senator from Utah.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I am somewhat unfamiliar with the 
assignment of handling judicial nominees, that being the daily bread of 
my senior colleague, Senator Hatch. He is unable to be here, and 
therefore has asked me to step in in his place. I am glad to do 
whatever I can to help.
  Ted Stewart has a background that, in my view, qualifies him to be a 
Federal judge, a view shared by the American Bar Association that has 
labeled him as qualified, and by a large number of Utahans of both 
political parties.
  I first met Ted Stewart when I decided to run for the Senate. I found 
that he had beat me in that decision and was already in the field. I 
knew little or nothing about him. But I quickly learned as we went 
through the process of traveling the State in tandem with the other 
candidates that he was a man of great wisdom, an articulate man, and a 
man of good humor. We became fast friends even though we were opponents 
for the same seat.
  One of the proudest moments in my campaign was the fact that after 
the State convention had narrowed the candidates to two, eliminating 
Ted Stewart, his organization became part of my organization. He 
maintained an appropriate judicial neutrality between me and the other 
candidate. But our friendship was established and has gone forward 
until this day.
  I point out that judicial neutrality because it is typical of Ted 
Stewart. I know he had a personal preference. I will not disclose what 
it was. He was appropriately judicial, however, in keeping that 
personal preference to himself and taking the position that was right 
and proper under those circumstances. That demonstrates what we hear 
referred to around here from time to time as ``judicial temperament.''
  The Senator from Alabama has talked about the reversal rate of the 
Ninth Circuit. We have had experience with the reversal rates in the 
State of Utah from Federal judges.
  I remember on one occasion where I was in the presence of a young 
woman who had served on a jury of a highly celebrated case in the State 
of Utah and had voted in a way that was reversed when the case got to 
the circuit court. I asked her about it because it was interesting to 
me. She said: Well, I didn't want to vote that way, and neither did any 
other member of the jury, but the charge we received from the judge 
made it impossible for us to vote any other way.
  After the trial was over, she said she and the other members of the 
jury were visiting with the lawyer who had supported the losing side, 
and they apologized to him for voting against him. They said: We 
thought you had the best case. But under the charge we were given by 
the judge, we had no choice but to vote against you. The lawyer smiled, 
and said: I know. And I expected that to happen because the judge in 
this case has such a high record of reversal that I didn't want to run 
the risk of having won a trial in his court. I knew my chances of 
winning on appeal were far greater if I had this judge on record 
against me.
  Those who know this judge rated him as one of the most brilliant men 
ever appointed to the bench. He may have had that great intellect, but 
he did not have the common sense and the judicial temperament that made 
it possible for him to do his job. Tragically, the circuit court did 
his job for him again and again and again at great expense and 
inconvenience not only to the judicial system but to those plaintiffs 
and defendants who came before him.
  I cite that because I am convinced in Judge Stewart's court you will 
not find that kind of bullheadedness and determination to have his own 
way as we saw in this other court.
  In Judge Stewart's court, you will find the kind of levelheadedness, 
the desire to find the right answer, and the

[[Page S11875]]

willingness to work things out wherever possible as he has demonstrated 
throughout his career up to this point.
  He has already had experience on a commission that required him to 
demonstrate that kind of judicial temperament. He handled his 
assignment there in such a way as to win him the endorsement of 
Democrats as well as Republicans.
  I know there is some controversy surrounding him because he is the 
Governor's chief of staff. There are many people who, looking at the 
things he has done in his loyalty to the Governor, have said: Well, his 
opinions are not acceptable to us.
  They have been critical of him. They do not know the man if they 
maintain that criticism because he will never depart from his 
conviction that the law comes first. He has demonstrated loyalty to 
those who have appointed him. But he has also demonstrated a capacity 
to handle the law and handle the regulations that he is charged with 
enforcing in a way that will make all Americans proud.
  I am happy to join my senior colleague in endorsing the nomination of 
Ted Stewart for the Federal bench. I look forward with great enthusiasm 
to voting for him tomorrow.
  I am grateful to the senior Senator from Vermont for his announcement 
that he, too, will vote for Ted Stewart. I hope, with both the chairman 
and the ranking member of the Judiciary Committee solidly in Judge 
Stewart's behalf, that we will have an overwhelmingly positive vote for 
him.

                          ____________________