[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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