[Congressional Record Volume 146, Number 25 (Wednesday, March 8, 2000)]
[Senate]
[Pages S1254-S1255]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             NOMINATIONS OF MARSHA BERZON AND RICHARD PAEZ

  Mr. DASCHLE. Mr. President, among the constitutional responsibilities 
entrusted to the Senate, none is more critical to the well-being of our 
democracy than providing advice and consent on Presidential 
nominations. Later on today, we take up that solemn responsibility in 
connection with two very distinguished judicial nominees, Marsha Berzon 
and Judge Richard Paez.
  Let me commend the majority leader for his commitment to the Senate, 
and to these nominees, that we would take up these nominees for 
consideration and ultimately for a vote on confirmation before the 15th 
of March. We

[[Page S1255]]

would not be here were it not for the fact that he persisted and that 
he was willing to hold to the commitment he made to us last year.
  Both nominees have waited an extraordinarily long time for this 
consideration. Marsha Berzon, a nominee for the Ninth Circuit, has been 
kept waiting for a vote more than 2 years. Judge Paez, another Ninth 
Circuit nominee, has waited for more than 4 years. That is longer than 
any Federal court nominee in history--a statistic that should shame the 
Senate.
  Judge Paez and Ms. Berzon are both exceptional legal minds and 
remarkable people. But before I discuss their qualifications, I wish to 
say something about the context in which these nominations are being 
considered. Since the 106th Congress convened in January, the President 
has nominated 79 men and women to fill the vacancies on the Federal 
bench. Without exception, these nominees have come to us with the 
highest marks from their peers. Yet of the 79 nominees, only 34--fewer 
than half--were confirmed last year, and only 4 have been confirmed so 
far this year.
  Looking at those figures, one might assume we have no pressing need 
for Federal judges. In fact, just the opposite is true. Today, there 
are 76 vacancies on the Federal bench. Of those 76 vacancies, 29 have 
been empty so long they are officially classified as ``judicial 
emergencies.'' The failure to fill these vacancies is straining our 
Federal court system and delaying justice for people all across this 
country.
  This cannot continue. As Chief Justice Rehnquist warns, ``Judicial 
vacancies cannot remain at such high levels indefinitely without 
eroding the quality of justice.''
  The Ninth Circuit court, to which both Judge Paez and Marsha Berzon 
have been nominated, is also one of our Nation's busiest courts. It has 
also been hardest hit by our neglect. More than 20 percent of the Ninth 
Circuit bench is vacant. This is a court that serves almost 20 percent 
of the United States.
  Procter Hug, the Chief Justice of the Ninth Circuit Court of Appeals, 
was appointed in 1980 when the court had 23 active judges and a 
caseload of 3,000 appeals. Today, with six vacancies, the Ninth Circuit 
has 22 active judges to hear more than 9,000 appeals. They have one 
fewer judge today than they had 20 years ago--with 300 percent more 
cases.
  So I thank my colleagues for finally coming together to address this 
urgent question. The failure to fill Federal court vacancies harms 
plaintiffs and defendants alike. Both are forced to wait too long for 
justice. The failure to fill Federal court vacancies also imposes heavy 
and unjustifiable burdens on judicial nominees and their families. Can 
any of us imagine what it would be like to be kept waiting more than 4 
years, as Judge Paez has? What would it be like to be unable to make 
personal or professional plans for 4 years? I have met Judge Paez, and 
I have to tell you, I am amazed by the dignity and grace he has 
exhibited during this ordeal. Perhaps that is not surprising, though, 
from a man lawyers routinely rate as exceptional in both his judicial 
temperament and his command of legal doctrine.
  For a long time, those who opposed Marsha Berzon and Judge Paez would 
not say why. Now some of them say the problem isn't with the nominees, 
the problem is with the court itself. The Ninth Circuit, they claim, is 
a ``rogue'' circuit. They claim the Ninth Circuit's reversal rate by 
the Supreme Court is too high. They argue, therefore, that we should 
refuse to confirm anymore Ninth Circuit judges. We should just let the 
vacancies go unfilled.
  The fact is, the Eleventh, Seventh, and Fifth Circuits all have a 
higher rate of reversal than the Ninth Circuit. The Ninth Circuit is 
completely within the mainstream of prevailing judicial opinion.
  Even if that were not the case, this Senate has no right to attempt 
to punish the citizens who rely on the Ninth Circuit in this manner. 
Nor do we have the right to try to influence the independence of the 
court in this way. That is unconstitutional.
  Our responsibility under the Constitution is to vote on whether to 
confirm judges. It is not our responsibility, and it is not our right, 
to try to influence or intimidate judges after they are confirmed.
  As we consider the nominations of Judge Richard Paez and Marsha 
Berzon, let us remember that these votes are not a referendum on the 
Ninth Circuit, or on President Clinton.
  And they should not be about partisan politics. These votes are about 
two people. Two distinguished and inspiring Americans who are eminently 
qualified for the bench.
  Richard Paez has been a judge for 18 years. He is the first Mexican-
American ever to serve as a federal district judge in Los Angeles. He 
was confirmed by this body in 1994; that vote was unanimous.
  Judge Paez has received the highest rating the American Bar 
Association gives for federal judicial nominees. He has worked for the 
public good throughout his career, working first as a legal aid lawyer, 
and then, for 13 years, as a Los Angeles Municipal Court judge.
  In his current position, as a United States District Judge, Judge 
Paez has presided over a wide variety of complex civil and criminal 
cases. For his work, he has garnered bipartisan support, and the 
support of such law enforcement organizations as the Los Angeles County 
Police Chiefs' Association and the National Association of Police 
Organizations.
  Time and again, on the bench he has demonstrated the qualities that 
are essential to a strong and respected judicial system--wisdom, 
courage, and compassion. We need judges like Richard Paez on the bench. 
Without public servants like him, this system fails.
  Marsha Berzon is equally qualified.
  She is a nationally known and extremely well regarded appellate 
litigator with a highly respected San Francisco law firm. She is also a 
former clerk for the United States Supreme Court. She has served as a 
visiting professor at both Cornell Law School and Indiana University 
Law School. She is a widely recognized expert in the field of 
employment law--an area of the law that requires the increasing 
attention of our federal judiciary.
  She has argued four cases in the Supreme Court of the United States, 
and has filed dozens of Supreme Court briefs on complex issues. To 
quote my friend Senator Hatch, her ``competence as a lawyer is beyond 
question.''
  Ms. Berzon also has the support of the National Association of Police 
Organizations, business and Republican leaders. She enjoys a reputation 
among colleagues and opposing counsel for being a fair-minded, well 
prepared, and principled advocate. I have also met Ms. Berzon, and I 
find her temperament and seriousness well-suited for the job she has 
been nominated to fill.
  The federal judiciary has been described as ``the thin black line 
between order and chaos.'' I have faith that Richard Paez and Marsha 
Berzon, once confirmed, will live up to that challenge.
  Mr. President, I yield the floor.

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