[Congressional Record Volume 145, Number 150 (Friday, October 29, 1999)]
[Senate]
[Pages S13544-S13547]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LONG-PENDING JUDICIAL NOMINATIONS BEFORE THE SENATE
Mr. LEAHY. Mr. President, I thank the Majority Leader for the
proposal he made to the Senate last night on moving a portion of the
Executive Calendar. I would like to see those nominees he mentioned
confirmed as well as the others on the calendar. I want to work with
him to have them all considered and confirmed. I want to be sure that
the Senate treats them all fairly and accords each of them an
opportunity for an up or down vote. I want to share with you a few of
the cases that cry out for a Senate vote:
The first is Judge Richard Paez. He is a judicial nominee who has
been awaiting consideration and confirmation by the Senate since
January 1996--for over 3\1/2\ years. The vacancy for which Judge Paez
was nominated became a judicial emergency during the time his
nomination has been pending without action by the Senate. His
nomination was first received by the Senate almost 45 months ago and is
still without a Senate vote. That is unconscionable.
Judge Paez has twice been reported favorably by the Senate Judiciary
Committee to the Senate for final action. He is again on the Senate
calendar. He was delayed 25 months before finally being accorded a
confirmation hearing in February 1998. After being reported by the
Judiciary Committee initially in March 1998, his nomination was held on
the Senate Executive Calendar without action or explanation for over 7
months, for the remainder of the last Congress.
Judge Paez was renominated by the President again this year and his
nomination was stalled without action before the Judiciary Committee
until late July, when the Committee reported his nomination to the
Senate for the second time. The Senate refused to consider the
nomination before the August recess. I have repeatedly urged the
Republican leadership to call this nomination up for consideration and
a vote. The Republican leadership in the Senate has refused to schedule
this nomination for an up or down vote.
Judge Paez has the strong support of both California Senators and a
`well-qualified' rating from the American Bar Association. He has
served as a municipal judge for 13 years and as a federal judge for
four years.
In my view Judge Paez should be commended for the years he worked to
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provide legal services and access to our justice system for those
without the financial resources otherwise to retain counsel. His work
with the Legal Aid Foundation of Los Angeles, the Western Center on Law
and Poverty and California Rural Legal Assistance for 9 years should be
a source of praise and pride.
Judge Paez has had the strong support of California judges and law
enforcement representatives familiar with his work, such as Justice H.
Walter Crosky, and support from an impressive array of law enforcement
officials, including Gil Garcetti, the Los Angeles District Attorney;
the late Sherman Block, then Los Angeles County Sheriff; the Los
Angeles County Police Chiefs' Association; and the Association for Los
Angeles Deputy Sheriffs.
I have previously commended the Chairman of the Judiciary Committee
for his support of this nominee and Senator Boxer and Senator Feinstein
of California for their efforts on his behalf. In the Senate's vote
earlier this month on the nomination of Justice Ronnie White,
Republican Senators justified their vote by deferring to home state
Senators and local law enforcement. When it comes to Judge Paez, he has
the strong support of both home state Senators and local law
enforcement. Accordingly, I would hope and expect that the Senate will
see a strong Republican vote for Judge Paez.
The Hispanic National Bar Association, the Mexican American Legal
Defense and Educational Fund, the League of United Latin American
Citizens, the National Association of Latino Elected and Appointed
Officials, and many, many others have been seeking a vote on this
nomination for what now amounts to years.
Last year the words of the Chief Justice of the United States were
ringing in our ears with respect to the delays in Senate consideration
of judicial nomination. He had written:
Some current nominees have been waiting 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.
Richard Paez's nomination to the Ninth Circuit had already been
pending for 24 months when the Chief Justice issued that statement--and
that was almost 2 years ago. The Chief Justice's words resound in
connection with the nomination of Judge Paez. He has twice been
reported favorably by the Judiciary Committee. It was been pending for
45 months. The court to which he was nominated has multiple vacancies.
In fairness to Judge Paez and all the people served by the Ninth
Circuit, the Senate should vote on this nomination.
I have been concerned for the last several years that it seems women
and minority nominees are being delayed and not considered. I spoke to
the Senate about this situation on May 22, June 22 and, again, on
October 8 last year, and a number of times this year, including on
October 15 and October 21. Over the last couple of years the Senate has
failed to act on the nominations of Judge James A. Beaty, Jr. to be the
first African-American judge on the Fourth Circuit; Jorge C. Rangel to
the Fifth Circuit; Clarence J. Sundram to the District Court for the
Northern District of New York; Anabelle Rodriguez to the District Court
in Puerto Rico; and many others.
In explaining why he chose to withdraw from consideration for
renomination after waiting 15 months for Senate action, Jorge Rangel
wrote to the President and explained:
Our judicial system depends on men and women of good will
who agree to serve when asked to do so. But public service
asks too much when those of us who answer the call to service
are subjected to a confirmation process dominated by
interminable delays and inaction. Patience has its virtues,
but it also has its limits.
Last year the average for all nominees confirmed was over 230 days
and 11 nominees confirmed last year took longer than 9 months: Judge
William Fletcher's confirmation took 41 months--it became the longest-
pending judicial nomination in the history of the United States, a
record now held by Judge Paez; Judge Hilda Tagle's confirmation took 32
months, Judge Susan Oki Mollway's confirmation took 30 months, Judge
Ann Aiken's confirmation took 26 months, Judge Margaret McKeown's
confirmation took 24 months, Judge Margaret Morrow's confirmation took
21 months, Judge Sonia Sotomayor's confirmation took 15 months, Judge
Rebecca Pallmeyer's confirmation took 14 months, Judge Ivan Lemelle's
confirmation took 14 months, Judge Dan Polster's confirmation took 12
months, and Judge Victoria Roberts' confirmation took 11 months. Of
these 11, 8 are women or minority nominees. Another was Professor
Fletcher who was held up, in large measure because of opposition to his
mother, Judge Betty Fletcher.
In 1997, of the 36 nominations eventually confirmed, 9, fully one-
quarter of all those confirmed, took more than 9 months before a final
favorable Senate vote.
In 1996, the Republican Senate shattered the previous record for the
average number of days from nomination to confirmation for judicial
confirmation. The average rose to a record 183 days. In 1997, the
average number of days from nomination to confirmation rose
dramatically yet again, and that was during the first year of a
presidential term. From initial nomination to confirmation, the average
time it took for Senate action on the 36 judges confirmed in 1997 broke
the 200-day barrier for the first time in our history. It was 212 days.
Unfortunately, that time grew again last year to the detriment of the
administration of justice. Last year the Senate broke its dismal
record. The average time from nomination to confirmation for the 65
judges confirmed in 1998 was over 230 days. The independent and
bipartisan study of Task Force on Judicial Selection formed by Citizens
for Independent Courts recently confirmed what I have been observing
for the past few years--the time to consider judicial nominations has
been increased significantly over the last few years and women and
minority judicial nominees are more likely to take significantly longer
to be considered, if they are considered at all.
We have had too many cases in which it has taken women nominees years
before the Judiciary Committee would act and the Senate would vote.
Eventually, we have been able to confirm many of these outstanding
nominees, people like Margaret Morrow, Sonia Sotomayor, Ann Aiken,
Margaret McKeown and Susan Oki Mollway. The current victim of the
extensive delays caused by unusually intensive scrutiny of many women
judicial nominees is Marsha Berzon.
Marsha Berzon is one of the most qualified nominees I have seen in 25
years, and Senator Hatch has agreed with that assessment publically. He
voted for her in the Judiciary Committee. 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. She was first nominated in January 1998, some 20 months
ago. Her nomination remains the subject of ``secret holds'' from
anonymous Senate Republicans.
Senator Feinstein has made the point that it may be subtle forms of
disparate treatment and double standards to which these nominations are
subjected. She has lectured the Committee and the Senate from time to
time on our insensitivity to the experiences of these nominees. Women
still do not have the good old boy network of some nominees and often
show leadership and get experience by being involved in community
activities and with charities and with organizations that some
conservative Republicans apparently view negatively and with suspicion.
Marsha Berzon is an outstanding nominee. By all accounts, she is an
exceptional lawyer with extensive appellate experience, including a
number of cases heard by the Supreme Court. She has the strong support
of both California Senators and a well-qualified rating from the
American Bar Association.
She was initially nominated in January 1998, 21 months ago. She
participated in an extensive two-part confirmation hearing before the
Committee back on July 30, 1998. Thereafter she received a number of
sets of written questions from a number of Senators and responded in
August of last year. A second round of written
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questions was sent and she responded by the middle of September of last
year. Despite the efforts of Senator Feinstein, Senator Kennedy,
Senator Specter and myself to have her considered by the Committee, she
was not included on an agenda and not voted on during all of 1998. Her
nomination was returned to the President without action by this
Committee or the Senate last October.
This year the President renominated Ms. Berzon in January. She
participated in her second confirmation hearing in June, was sent
additional sets of written questions, responded and got and answered
another round. I do not know why those questions were not asked last
year.
Finally, on July 1 almost 4 months ago, the Committee considered the
nomination and agreed to report it to the Senate favorably. After more
than a year and one-half the Senate should, at long last, vote on the
nomination. Senators who find some reason to oppose this exceptionally
qualified woman lawyer can vote against her if they choose, but she
should be accorded an up or down vote. That is what I have been asking
for and that is what fairness demands.
Senator Hatch was right 2 years ago when he called for an end to the
political game that has infected the confirmation process. These are
real people whose lives are affected. Judge Richard Paez has been
waiting patiently for 45 months, almost 4 years, for the Republican
Senate to vote on his nomination, a nomination that Senator Hatch voted
for twice. Marsha Berzon has been held hostage for 21 months not
knowing what to make of her private practice or when the Senate will
deem it appropriate to finally vote on her nomination.
Last week I received a Resolution from the National Association of
Women Judges. I hope that the Senate will respond to Resolution, in
which the NAWJ urges expeditious action on nominations to federal
judicial vacancies. The President of the Women Judges, Judge Mary
Schroeder, is right when she cautions that ``few first-rate potential
nominees will be willing to endure such a tortured process'' and the
country will pay a high price for driving away outstanding candidates
to fill these important positions. The Resolution notes the scores of
continuing vacancies with highly qualified women and men nominees and
the nonpartisan study of delays in the confirmation process, and even
more extensive delays for women nominees, found by the Task Force on
Judicial Selection formed by Citizens for Independent Courts. The
Resolution notes that such delay ``is costly and unfair to litigants
and the individual nominees and their families whose lives and career
are on hold for the duration of the protracted process.'' In
conclusion, the National Association of Women Judges ``urges the Senate
of the United States to bring the pending nominations for the federal
judiciary to an expeditious vote so that those who have been nominated
can get on with their lives and these vacancies can be filled.''
Although this is not just about numbers, the numbers are damning. So
far this year the Senate has received 70 judicial nominations and
confirmed only 25. By this time last year, the Senate had confirmed 66
judges--more than twice as many. By this time in 1992, the last year of
President Bush's term, a Democratic Senate had confirmed 64 judges. By
this time in 1994, a Democratic Senate had confirmed over 100 judges.
There are judicial emergencies vacancies all over the country. The
Fifth Circuit Court of Appeals has had to declare that entire Circuit
in an emergency. Its workload has gone up 65 percent in the last 9
years; but they are being forced to operate with almost one-quarter of
their bench vacant. The Senate has not given any attention to the two
nominees pending in Committee--either Enrique Moreno or Alston Johnson.
We had a similar emergency a year or so ago in the Second Circuit. We
finally ended that crisis when we fought through secret Republican
holds and got the Senate after 15 months to vote on the nomination of
Judge Sonia Sotomayor. She was confirmed overwhelmingly.
At the time I was struck by an article by Paul Gigot in the Wall
Street Journal, which explained why Judge Sotomayor was being held up--
it was not because she was not qualified to serve on the Second Circuit
but because some felt that she was so well qualified President Clinton
might nominate her to the United States Supreme Court if a vacancy were
to arise. Imagine that, anonymous holds to ensure that a superbly
talented Hispanic woman judge not be seen as a good bet to nominate to
the Supreme Court. I fear that the opposition to Marsha Berzon may
partake of some of this kind of thinking. She is so well qualified, so
clearly likely to be an outstanding judge on the Ninth Circuit, that
perhaps some anonymous Republican Senators are afraid that she will be
too good, that her opinions will be too well reasoned that her
application of the law will be too sound.
Weeks ago the Majority Leader came to the floor and said that he
would try to find a way to have the Paez and Berzon nominations
considered by the Senate. I have tried to work with Majority Leader on
all of 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
announced at the beginning of this year doing away with ``secret
holds,'' that is what Judge Paez and Marsha Berzon still confront as
their nominations continue to be obstructed under a cloak of anonymity
after 45 months and 21 months, respectively. That is wrong and unfair.
This continuing delay demeans the Senate, itself. I have great
respect for this institution and its traditions. Still, I must say that
this use of secret holds for extended periods that doom a nomination
from ever being considered by the United States Senate is wrong and
unfair and beneath us. Who is it that is afraid to vote on these
nominations? Who is it that is hiding their opposition and obstruction
of these nominees? After almost 4 years with respect to Judge Paez and
almost 2 years with respect to Marsha Berzon, it is time for the Senate
to vote up-or-down on these nominations.
The Senate should be fair and vote on these nominations. Anonymous
Republican Senators are being unfair to the judicial nominees on the
calendar. These qualified nominees are entitled to an up or down vote,
too.
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 one or two or three secret holds to stop judicial
nominations from even getting a vote. That is wrong.
The Washington Post has 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.
The Florida Sun-Sentinel has written:
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.
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.
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
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the 104th Congress, the Senate is shirking its duty. That is wrong and
should end. These are the nominations that the Senate on which the
Senate should be working toward action.
I understand that nominations are not considered in lockstep order
based on the date of receipt. I understand and respect the prerogatives
of the majority party and the Republican leader. I do not want to
oppose any nomination on the calendar and only ask that the Senate be
fair to these other nominees, as well. Nominees like Judge Richard Paez
and Marsha Berzon should be voted on up or down by the Senate. We are
asking and have been asking the Republican leadership to schedule votes
on those nominations so that action on all the nominations can move
forward.
I know that there were no objections on the Democratic side of the
aisle to the three judicial nominations that the Majority Leader
included in his proposal last night. No Democrat has a hold on the
nominations of Judge Florence-Marie Cooper, Barbara Lynn or Ronald
Gould. No Democrat has any objection to proceeding to confirm by voice
vote or to proceed to roll call votes on these nominations. No
Democratic Senator has any objection to proceeding to confirm by voice
vote or to proceed to rollcall votes on any of the 9 judicial
nominations on the Senate's executive calendar. What we do ask is that
Judge Paez and Marsha Berzon not be left on the calendar without a vote
at the end of another session of Congress. We have been unable even to
obtain a commitment from the Majority Leader to schedule a fair up or
down vote on these nominations at any time in the future. We
respectfully request his help in scheduling such action by the Senate.
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