[Congressional Record Volume 145, Number 132 (Monday, October 4, 1999)]
[Senate]
[Pages S11875-S11876]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       NOMINATIONS OF RAY FISHER, MARSHA BERZON, AND RICHARD PAEZ

  Mrs. FEINSTEIN. Mr. President, I want to first thank our minority 
leader for all of his effort in bringing public attention to the plight 
of pending judicial nominees.
  Thanks to Senator Daschle's efforts, we have made some progress. Jim 
Lorenz, a fine California attorney who served seven years on my 
judicial selection committee, was confirmed on Friday along with Victor 
Marrero of New York.
  Jim Lorenz's confirmation will help address a desperate shortage of 
judges in the Southern District of California. I have spoken several 
times with Marilyn Huff, Chief Judge of the Southern District of 
California, about the District's caseload crisis.
  A recent judicial survey ranked the Southern District as the most 
overburdened court in the country. The weighted average caseload in the 
Southern District is 1,006 cases per judge, more than twice the 
national average.
  It is also a significant step forward for the Senate that we will 
have a vote tomorrow on Associate Attorney General, Ray Fisher, to be a 
Circuit Judge on the Ninth Circuit Court of Appeal.
  Ray Fisher is an extraordinary nominee who will add some support to 
the skeleton crew of judges currently presiding on the Ninth Circuit.
  Currently, the Ninth Circuit has seven vacancies, which is 25 percent 
of the total judgeship positions on the circuit.
  Each one of these judicial vacancies qualifies as a judicial 
emergency. The Chief Judge of the Ninth Circuit reports that the 
Circuit could handle 750 more cases right now if the vacancies were 
filled.
  Prior to his appointment as Associate Attorney General, Ray Fisher 
was considered one of the top trial lawyers in Southern California. His 
legal skills are so highly regarded that he recently was inducted into 
the American College of Trial Lawyers, an honor bestowed on only the 
top one percent of the profession.
  During his 30 year career in private practice, Ray Fisher specialized 
in the toughest of cases, complex civil litigation, and in alternate 
dispute resolution. In 1988, he founded the Los Angeles Office of 
Heller Ehrman, White and McAullife, an office that has grown from 6 
attorneys to 48.
  The Standing Committee on Federal Judiciary of the American Bar 
Association has deemed Mr. Fisher ``Well Qualified'' for appointment as 
Judge of the United States Court of Appeals.
  Ray Fisher graduated from Stanford Law School in 1966, where he was 
president of The Stanford Law Review and awarded the Order of the Coif. 
Following law school, he served as a law clerk for Judge J. Skelley 
Wright of United States Court of Appeals for the District of Columbia 
Circuit and Supreme Court Justice William Brennan.
  I am confident Ray Fisher's acute interest in public service, 
specifically in public safety, and his overarching concern for fairness 
will serve the Ninth Circuit well.
  However, I am disappointed that the Senate could not confirm other 
pending Ninth Circuit nominees. Ray Fisher is a start, but six 
vacancies remain on the Ninth Circuit Court of Appeals.
  Two of those vacancies should be filled by Marsha Berzon and Judge 
Richard Paez.
  It is a disturbing fact that women and minority nominees are having a 
difficult time getting confirmed by the Senate.
  A report by the independent, bipartisan group Citizens for 
Independent Courts released last week found that during the 105th 
Congress, the average time between nomination and confirmation for male 
nominees was 184 days, while for women it was 249 days--a full 2 months 
longer.
  This disturbing trend continues this year. Women and minorities 
constitute over 55 percent of the President's nominees in 1999; by 
contrast, only 41 percent of the nominees confirmed this year by the 
Senate are women or minorities.
  All we have ever asked for Marsha Berzon and Richard Paez is that 
both nominees get an up-or-down vote. If a Senator has a problem with 
particular nominees, he or she should vote against them. But a nominee 
should not be held up interminably by a handful of Senators.
  Let me assure my colleagues, this does not mark the end of a fight. 
At some point, legislation is not going to move until Marsha Berzon and 
Judge Richard Paez get an up-or-down vote. Let me take a moment to 
discuss the nominations process that these two nominees have 
experienced.
  Judge Richard Paez, the first Mexican-American District judge in Los 
Angeles, was nominated on January 25, 1996--almost four years ago. He 
still hasn't made it to the Senate Floor for a vote. Any problem with 
his nomination can't be with his legal background.
  He has 17 years of judicial experience. The American Bar Association 
found him to be ``well-qualified.'' He is also strongly supported by 
the legal community in Los Angeles including Gil Garcetti, the District 
Attorney, the Los Angeles County Police Chiefs' Association and the 
Association for Los Angeles Deputy Sheriffs. Judge Paez has described 
this interminable nominations process as a ``cloud'' hanging over his 
head. Litigants in his court constantly query him if the case is going 
to be continued, if his case is going to be assigned to someone else, 
or if Judge Paez is going to keep it. No nominee should have to face 
this uncertainty. His family has been thrust into the public limelight, 
and for four years every action he has taken has been subject to 
microscopic scrutiny.
  Marsha Berzon was nominated almost a year and a half ago. She had her 
first hearing on July 30, 1998, and a second hearing in June 1999. Only 
in July 1999 was she reported out of committee and her nomination is 
pending before the Senate. Nationally renowned appellate attorney with 
over 20 years of appellate practice, she clerked for Supreme Court 
Justice Brennan and U.S. Court of Appeals Judge James Browning. She 
graduated Order of the Coif from Boalt Hall, has the support of law 
enforcement including the National Association of Police Organizations 
(NAPO) and the International Union of Police Organizations, has strong 
bipartisan support including former Idaho Senator James Mclure and 
former EPA Administrator William D. Ruckelshaus.
  The slow pace of this nomination has caused an incredible burden on 
Marsha Berzon both personally and professionally. Due to uncertainty 
over her future, she has significantly curtailed her private practice, 
and no longer is representing clients before the Supreme Court or the 
Ninth Circuit.
  Chief Justice Rehnquist recently said that ``[t]he Senate is surely 
under no obligation to confirm any particular nominee, but after the 
necessary time for inquiry it should vote him up or vote him down.''
  Richard Paez and Marsha Berzon do not deserve to have their 
distinguished

[[Page S11876]]

careers and personal lives held in limbo. Our institutional integrity 
requires an up-or-down vote.
  Until Marsha Berzon and Richard Paez get votes, this nominations 
process will remain tainted.
  I assure my colleagues in the Senate that the nominations of Marsha 
Berzon and Richard Paez will not fade away. We will keep pressing for 
these nominees until they get the vote they deserve.
 Mr. HATCH. Mr. President, it is a great pleasure for me to 
support--on the Senate floor--the confirmation of a judicial candidate 
who is the epitome of good character, broad experience, and a judicious 
temperament.
  First, however, I think it appropriate that I spend a moment to 
acknowledge the minority for relenting in what I consider to have been 
an ill-conceived gambit to politicize the judicial confirmations 
process. My colleagues appear to have made history on September 21 by 
preventing the invocation of cloture for the first time ever on a 
district judge's nomination.
  This was--and still is--gravely disappointing to me. In a body whose 
best moments have been those in which statesmanship triumphs over 
partisanship, this unfortunate statistic does not make for a proud 
legacy.
  My colleagues--who were motivated by the legitimate goal of gaining 
votes on two particular nominees--pursued a short term offensive which 
failed to accomplish their objective and risked long-term peril for the 
nation's judiciary. There now exists on the books a fresh precedent to 
filibuster judicial nominees whose nominations either political party 
disagrees with.
  I have always, and consistently, taken the position that the Senate 
must address the qualifications of a judicial nominee by a majority 
vote, and that the 41 votes necessary to defeat cloture are no 
substitute for the democratic and constitutional principles that 
underlie this body's majoritarian premise for confirmation to our 
federal judiciary.
  But now the Senate is moving forward with the nomination of Ted 
Stewart. I think some of my colleagues realized they had erred in 
drawing lines in the sand, and that their position threatened to do 
lasting damage to the Senate's confirmation process, the integrity of 
the institution, and the judicial branch.
  The record of the Judiciary Committee in processing nominees is a 
good one. I believe the Senate realized that the Committee will 
continue to hold hearings on those judicial nominees who are qualified, 
have appropriate judicial temperament, and who respect the rule of law. 
I had assured my colleagues of this before we reached this temporary 
impasse and I reiterate this commitment today.
  This is not a time for partisan declarations of victory, but I am 
pleased that my colleagues revisited their decision to hold up the 
nomination. We are proceeding with a vote on the merits of Ted 
Stewart's nomination, and we will then proceed upon an arranged 
schedule to vote on other nominees in precisely the way that was 
proposed prior to the filibuster vote.
  Ultimately, it is my hope for us, as an institution, that instead of 
signaling a trend, the last two weeks will instead look more like an 
aberration that was quickly corrected. I look forward to moving ahead 
to perform our constitutional obligation of providing advice and 
consent to the President's judicial nominees.
  And now, I would like to turn our attention to the merits of Ted 
Stewart's nomination. I have known Ted Stewart for many years. I have 
long respected his integrity, his commitment to public service, and his 
judgment. And I am pleased that President Clinton saw fit to nominate 
this fine man for a seat on the United States District Court for the 
District of Utah.
  Mr. Stewart received his law degree from the University of Utah 
School of Law and his undergraduate degree from Utah State University. 
He worked as a practicing lawyer in Salt Lake City for six years. And 
he served as trial counsel with the Judge Advocate General in the Utah 
National Guard.
  In 1981, Mr. Stewart came to Washington to work with Congressman Jim 
Hansen. His practical legal experience served him well on Capitol Hill, 
where he was intimately involved in the drafting of legislation.
  Mr. Stewart's outstanding record in private practice and in the 
legislative branch earned him an appointment to the Utah Public Service 
Commission in 1985. For 7 years, he served in a quasi-judicial capacity 
on the commission, conducting hearings, receiving evidence, and 
rendering decisions with findings of fact and conclusions of law.
  Mr. Stewart then brought his experience as a practicing lawyer, as a 
legislative aide, and as a quasi-judicial officer, to the executive 
branch in state government. Beginning in 1992, he served as Executive 
Director of the Utah Departments of Commerce and Natural Resources. And 
since 1998, Mr. Stewart has served as the chief of staff of Governor 
Mike Leavitt.
  Throughout Mr. Stewart's career, in private practice, in the 
legislative branch, in the executive branch and as a quasi-judicial 
officer, he has earned the respect of those who have worked for him, 
those who have worked with him, and those who were affected by his 
decisions. And a large number of people from all walks of life and both 
sides of the political aisle have written letters supporting Mr. 
Stewart's nomination.
  James Jenkins, former president of the Utah State Bar, wrote, ``Ted's 
reputation for good character and industry and his temperament of 
fairness, objectivity, courtesy, and patience [are] without blemish.''
  Utah State Senator, Mike Dmitrich, one of many Democrats supporting 
this nomination, wrote, ``[Mr. Stewart] has always been fair and 
deliberate and shown the moderation and thoughtfulness that the 
judiciary requires.''
  And I understand that the American Bar Association has concluded that 
Ted Stewart meets the qualifications for appointment to the federal 
district court. This sentiment is strongly shared by many in Utah, 
including the recent president of the Utah State Bar. For these 
reasons, Mr. Stewart was approved for confirmation to the bench by an 
overwhelming majority vote of the Judiciary Committee.
  To those who would contend Mr. Stewart has taken so-called anti-
environmental positions, I say: look more carefully at his record. Mr. 
Stewart was the director of Utah's Department of Natural Resources for 
5 years, and the fact is that his whole record has earned the respect 
and support of many local environmental groups.
  Indeed, for his actions in protecting reserve water rights in Zion 
National Park, Mr. Stewart was enthusiastically praised by this 
administration's Secretary of the Interior.
  And consider the encomiums from the following persons hailing from 
Utah's environmental community:
  R.G. Valentine, of the Utah Wetlands Foundation, wrote, ``Mr. 
Stewart's judgment and judicial evaluation of any project or issue has 
been one of unbiased and balanced results.''
  And Don Peay, of the conservation group Sportsmen for Fish and 
Wildlife, wrote, ``I have nothing but respect for a man who is honest, 
fair, considerate, and extremely capable.''
  Indeed, far from criticism, Mr. Stewart deserves praise for his major 
accomplishments in protecting the environment.
  Ultimately, the legion of letters and testaments in support of Mr. 
Stewart's nomination reflects the balanced and fair judgment that he 
has exhibited over his long and distinguished career. Those who know 
Ted Stewart know he will continue to serve the public well.
  On a final note, Ted Stewart is needed in Utah. The seat he will be 
taking has been vacant since 1997. So, I am deeply gratified that the 
Senate is now considering Mr. Stewart for confirmation.

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