[Congressional Record Volume 146, Number 25 (Wednesday, March 8, 2000)]
[Senate]
[Pages S1295-S1300]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE PAEZ NOMINATION
Mr. SESSIONS. Mr. President, I remain very troubled by this
nomination. I know it has been pending for a long time because of the
controversy surrounding the activism of the Ninth Circuit Court of
Appeals to which Judge Paez has been nominated and by Judge Paez's own
personal history of activism and his philosophy of judging that
indicates to me he is quite clearly right along with the leftward group
in tilt and movement of that circuit. We need to remove that circuit to
the mainstream, not continue it out in left field, not having it be
reversed 17 times, unanimously, by the U.S. Supreme Court in 1 year, a
record that has never been met and probably never will be surpassed by
any circuit in history. We need to get that circuit in the mainstream
of law. Judge Paez will keep it out of the mainstream.
But we have had recent developments. We have been looking into Judge
Paez's handling and acceptance of the guilty plea of John Huang, in Los
Angeles, where he is a sitting district judge, Federal court judge. I
believe there are a number of factors that indicate to me that that was
not handled properly, not handled according to the highest standards of
justice and, in fact, the plea bargain and sentence he approved was not
justified under the law, and that he violated Federal guidelines in
order to approve a plea bargain that was unacceptable, in my view, as
to what should have occurred in the disposition of that case.
So I believe, and I have asked, and I have written the majority
leader and asked that he pull this nomination off the floor and we be
allowed to go back to committee and have live witnesses, under oath, to
find out how it was, out of 34 judges who could have heard the Huang
case in Los Angeles, that this case got to Judge Paez, the one who was
already being nominated by the President for a court of appeals that is
one step below the U.S. Supreme Court. How did it go to him?
Also, we had the Maria Hsia case that was recently tried here in
Washington, and she was convicted. I believe there was a mistrial in
California, but he had that case, too. How did this judge, out of 34,
get both those cases that had great potential to embarrass the
President, because this was the key part of the campaign finance
corruption scandal? John Huang is the guy who raised $1.6 million in
illegal funds from foreign sources that the Democratic National
Committee had to return because they were illegally obtained.
Then he comes in and the Department of Justice, which was urged by
the chairman of the Judiciary Committee of the Senate and the House,
Members of this body--we urged the Department of Justice to send a
special prosecutor to handle this case, and she did, in a number of
cases; Attorney General Janet Reno did make special appointments.
Mrs. BOXER. Will the Senator yield for a question?
Mr. SESSIONS. I will be glad to yield.
Mrs. BOXER. I hope my friend understands that in the Maria Hsia case
there were two trials. The campaign trial he is talking about did not
go to Judge Paez. The trial he had with her had to do with a tax
evasion case where there was a jury that deadlocked. My friend keeps
bringing up these cases injecting politics into this. My friend knows
all these cases are taken on a random basis. My friend knows there are
rated--
[[Page S1296]]
Mr. SESSIONS. Mr. President, I reclaim the floor. I appreciate the
question.
Mrs. BOXER. I want my friend to comment on it.
The PRESIDING OFFICER. The Senator from Alabama has the floor.
Mr. SESSIONS. Maria Hsia was indicted in California and charged here.
She had a hung jury there and was convicted here. That was a critical
case to the Clinton-Gore administration. It was important to them. She
had the potential to cooperate and talk.
At any rate, it still remains odd to me that in these high-profile
cases about which much has been written in recent weeks, one of which
was tried here in Washington, Judge Paez got both of them.
I submit to my colleagues that perhaps that circuit is assigning
those cases randomly, but this case of John Huang did not come off an
indictment; it came off a plea bargain. I have a copy of the plea
bargain which is part of the public record in California. It was signed
by John Huang, his attorneys, and the prosecutor, a Department of
Justice employee of Janet Reno who holds her job in Washington at the
pleasure of the President of the United States, whose campaign was
involved in this illegality. That is who was making the decision on the
prosecutorial end.
To me, the question is whether or not the judge handled himself
correctly. Some say the judge did not know of all this material and it
was not his fault; it was the prosecutor's fault. I do believe the
prosecutors failed in advocating effectively the interests of the
people of the United States and the rule of law in this case.
In California, young people every day are getting sent to jail for 15
years, 20 years, without parole, for dealing in crack cocaine and other
violations. A guy raises $1.6 million from the Chinese Government and
launders it into the Democratic National Committee, and what does he
walk out with? Total probation, not a day in jail. That is wrong.
This is how they did it. This is a plea agreement. First and
foremost, a judge is not bound to accept the plea agreement. He does
not have to accept it. I am going to read the language in this
agreement that talks about that. This is Huang and his attorneys and
the U.S. attorney prosecutor. They signed this agreement. It says:
This agreement is not binding on the Court.
And the court in this case is Judge Paez.
The United States and you--
Huang--
understand that the Court retains complete discretion to
accept or reject the agreed-upon disposition provided for in
Paragraph 15(f) of this Agreement.
They had an agreement, but the judge had every right not to accept
it. It goes on to say:
In addition, should the Court reject the Agreement and
should you thereafter withdraw your guilty plea--
They said if the judge did not follow this recommendation of
probation, John Huang could withdraw his plea and go to trial and
declare his innocence and they would not use anything he said against
him.
It goes on to say:
. . . without prejudice . . . to indictment--
In your defense.
It goes on in detail about it. That is normally done. I was a Federal
prosecutor. I am aware of that.
They had the deal arranged. They took it to him. He was not given all
of the facts in the case, but he was given enough facts in the case and
he was aware of enough facts to reject this plea.
I want to go over with my colleagues a couple of the items. I
mentioned them earlier, but this is so critical. This is why we need to
take some time to pause before we confirm this man for a lifetime
appointment to a court one step below the U.S. Supreme Court. We waited
and fought for 4 years as to whether or not he should be confirmed. Now
we have these new charges pending, and I do not see why in the world we
cannot be given 3 weeks--just 3 weeks--to inquire into it and make a
decision.
This is what he was given. He was given evidence that a substantial
part of the fraudulent scheme was committed outside the United States
because this was foreign money. If that is true, the judge was required
to add two levels to the sentencing. He added no levels to the
sentencing for that.
He was told there were 24 illegal contributions spread out over a
course of 2 years involving multiple overseas corporate entities of
which June Huang was responsible for soliciting the money and
reimbursing the contributions. That should have added two to four new
levels.
He was an officer and a director in a bank, and as an officer and a
director, he should have had two levels added for abusing a position of
public or private trust.
These are not requests. These are matters at which the judge is
supposed to look. They are mandates of law. He ignored all of those,
and that is how the judge came out with a sentence level of 8 and not
maybe 14 because if it had been a level 9, one more level up, and this
sentence would have required John Huang to go to jail at least some
time.
The Department of Justice did not want him to go to jail. They wanted
him to have a deal. He spent not one day in jail and pled to a
contribution to the mayor's race of the city of Los Angeles and did not
plea to any criminal charge relating to the 1996 Presidential campaign
and, in fact, I want to note what this plea agreement said. It grants
him immunity on all of those charges. This is what the agreement said,
America. Listen to this. This is serious business.
It said: Judge, if you accept this plea, the prosecutors of the
United States will not prosecute you, John Huang, for any other
violations of law other than those laws relating to national security
or espionage occurring before the date of this agreement signed by you.
He could have been found to commit murder. Giving blind immunity is a
very dangerous commitment to make. He could have committed
embezzlement. He could have committed bribery. He could never be
prosecuted. He got his probation deal, he walked out of court, and he
received no time in jail.
There was no evidence presented in court about the $1.6 million he
spent in this campaign for the Democratic National Committee, which was
illegal and had to be returned. None of that came out. It was not a
plea bargain; it was a wrong plea bargain. He should have looked those
lawyers in the eye and said: Gentlemen, I have the right to reject this
plea and I do. This is a matter of national importance. It is a matter
that goes to the core of justice and our commitment in this country to
equal justice under law.
He did not do so. He actually went along with a procedure in which he
accepted guideline levels that he could not justify and that were
wrong. He was affirmatively wrong. He maybe should have had more
evidence, but he had enough to reject this agreement.
I know my time is up, Mr. President. I believe strongly in this. We
ought not to be doing this. We ought not to be shoving this through.
This man ought not to be on the bench until we know precisely how he
got this case and why, and have him stand up under oath and explain why
he did not follow the plain guidelines of the law of the United States
of America. I believe strongly in it. I have voted for an overwhelming
number of Federal judges put forth by this administration. This
Congress has rejected only 1 out of over 300-something. This one has
been controversial from the beginning, and he ought not go forward.
Mr. President, my time is up, and I yield the floor.
Mr. HATCH. Mr. President, I support the nominations of Ms. Berzon and
Judge Paez, and spoke yesterday urging my colleagues to do the same.
I would hope my remarks prove persuasive. But if they do not, my
colleagues of course are free to reasonably disagree with my view and
to cast a vote against these candidates.
It is quite another story, however, for members of this body to
frustrate a majority vote on these nominees by forcing a super-majority
cloture vote.
I have reached this conclusion after having been part of this process
for over 20 years now, and having served as Chairman of the Judiciary
Committee for more than half a decade.
There are times when legislators must, to be effective, demonstrate
their mastery of politics. But there are also times when politics--
though available--must be foresworn.
[[Page S1297]]
I am reminded of the great quote of Disraeli, which I will now
paraphrase--``next to knowing when to seize an opportunity, the most
important thing is knowing when to forego an advantage.'' I hope my
colleagues will forego the perceived advantage of a filibuster.
Simply put, there are certain areas that must be designated as off-
limits from political activity. Statesmanship demands as much. The
Senate's solemn role in confirming lifetime-appointed Article III
judges--and the underlying principle that the Senate performs that role
through the majority vote of its members--are such issues. Nothing less
depends on the recognition of these principles than the continued,
untarnished respect in which we hold our third branch of Government.
On the basis of this principle, I have always tried to be fair, no
matter the President of the United States or the nominees. Even when I
have opposed a nominee of the current President, I have voted for
cloture to stop a filibuster of that nominee. That was the case with
the nomination of Lee Sarokin.
To be sure, this body has on occasion engaged in the dubious practice
of filibusters of judicial nominees. But such episodes have been
infrequent and, I shall add, unfortunate.
During a number of occasions in the Reagan and Bush Administrations,
my colleagues on the other side engaged in filibusters of judicial
nominees. Frequently, they backed off, ostensibly realizing there were
enough votes to stop a filibuster.
And just last year, I watched with sadness as the minority made
history by filibustering one of its own party's nominees. Forcing a
cloture vote on Clinton nominee Ted Stewart--who is now acquitting
himself superbly as a district judge in Utah--reflected nothing more
than a political gambit to force action on other judicial nominees.
Fortunately, the effects of that filibuster were short-lived, as the
minority recognized the errors of its ways.
These unfortunate episodes do not a precedent make. The fact that
these actions precede us does not establish a roadmap for the Senate's
handling of future nominations.
Moreover, these filibusters were limited in number. During some of
the Reagan and Bush years, I thought our colleagues on the other side
did some reprehensible things in regard to Reagan and Bush judges. But
by and large, the vast majority of them were put through without any
real fuss or bother, even though my colleagues on the other side, had
they been President, would not have appointed very many of those
judges. We have to show the same good faith on our side, it seems to
me.
My message against filibusters of judicial nominees is one I hope to
make abundantly clear to my colleagues in the majority. This is so
because, to the extent our majority party gives repeated credence to
the practice of filibustering judicial nominees, we can expect the
favor to be returned when the President is one of our own. We hope in
earnest that the next President will hail from our party. And if we are
gratified in that hope, how short-sighted it will have been that we
gave a fresh precedent to the minority party in this body to defeat--by
requiring not 51 but a full 60 votes--that Republican President's
judicial nominees.
It is important to remember another reason against filibustering
judicial nominees. Most of the fight over a nomination has occurred
well before a nominee arrives at the Senate floor. Proverbial battles
are fought between people in the White House and members of the
Judiciary Committee.
As a general matter, when nominees get this far, most of them should
be approved. Though there are some that we will continue to have
problems with, it is our job to look at them in the Judiciary
Committee. That is our job--to look into their background. It is our
job to screen these candidates.
In the case of both Ms. Berzon and Judge Paez, each was reported
favorably to the floor. And now we have the unusual situation of a
Democrat President, the Republican and Democrat Senate Leaders, and
Republican and Democrat Chairman and Ranking Member of the Judiciary
Committee, all agreeing that votes on the nominees should go forward.
But certain Senators who oppose these nominees have nonetheless elected
to thwart such votes.
At bottom, it is a travesty if we establish a routine of
filibustering judges. We should not play politics with them.
Mr. FEINGOLD. Mr. President, I am pleased that the Senate is finally
going to act on the nomination of Marsha Berzon to be a judge on the
Ninth Circuit Court of Appeals. The history of her nomination is one of
the most disappointing episodes in the Senate's recent shameful
treatment of judicial nominees. One of America's most qualified
appellate litigators has been held hostage by opponents who raise
complaints without substance or merit to impede her confirmation. Today
I hope to dispel some of the myths that opponents of her confirmation
have used to block Marsha Berzon's nomination. I urge the Senate to
confirm her, and put a highly qualified lawyer on the bench where she
belongs.
What kind of nominee do we have before us today in the person of
Marsha Berzon? We have a woman who has distinguished herself at all
levels, from clerkship through successful private appellate practice.
We have a woman who has already argued before the Supreme Court four
times and has repeatedly appeared before Circuit courts around the
country.
Thirty years ago Ms. Berzon received the honor of being picked as
U.S. Supreme Court Justice William Brennan's first female law clerk.
Her opponents have seized on this honor as suggesting that Ms. Berzon
possesses a liberal and activist judicial philosophy. I say to those
who believe serving as a Supreme Court clerk is emblematic of one's
political beliefs that they are wrong to believe a clerk adopts her
Justice's philosophy for life. First, to be chosen by any Justice of
the Supreme Court as a clerk is a rare and noteworthy honor, reserved
for the most promising legal minds from the finest law schools. So the
most important thing to be gathered from Ms. Berzon's service as a
Supreme Court clerk is that her promise as a lawyer and future judge
was already apparent thirty years ago just as she was beginning her
career.
Second, it is demonstrably untrue that you can tell the philosophy of
an individual by the belief of his or her former boss. I'm sure we all
know examples of people who have worked for us in the Senate who don't
share our views on every issue. But perhaps the best example of the
unfairness of assuming that Marsha Berzon believes everything that
Justice Brennan did is another former Brennan clerk, Judge Richard
Posner of the 7th Circuit Court of Appeals. Many consider Judge Posner
the most creative legal mind of his generation, and no one who is
familiar with his law and economics philosophy would call him a
liberal.
So let's put that fallacious line of argument to rest.
Listen to the praise our Judiciary Committee Chairman, my friend Sen.
Hatch, heaped upon Marsha Berzon when the Committee considered her
nomination before forwarding it to the full Senate. Chairman Hatch
called Berzon ``one of the best lawyers I've ever seen.'' He noted in a
letter supporting her nomination that her ``competence as a lawyer is
beyond question'' and that she has the ``sound temperament that will
serve her well as a federal judge.'' At the time Chairman Hatch also
noted that Marsha Berzon had attracted ``both Republican and Democratic
support.'' I am pleased that the Chairman continues to support her
nomination on the floor.
Opponents of Marsha Berzon have questioned her credentials unfairly.
Despite graduating with honors from Harvard/Radcliffe college and
teaching law school courses at both Cornell and Indiana University Law
schools, her scholarship has been attacked.
Some who have opposed Berzon's nomination have even called her a
labor zealot. But Mr. President, there are a number of people in this
room who were attorneys before joining the Senate. They know, as do I,
that the code of professional responsibility requires zealous advocacy
on a client's behalf. So to mention her zeal for her practice is simply
to highlight one of those qualities which makes her such a fine
candidate for the 9th Circuit. It shows that she has taken her practice
of law to the highest and most professional level.
[[Page S1298]]
And lest her opponents complain about professionalism and infer
unfairly that a former labor lawyer cannot be fair to management,
listen to what numerous management-side attorneys who have litigated
against her say about Marsha Berzon. Let's take the case of W.I. Usery,
Jr., a former Republican Secretary of Labor:
Usery said Ms. Berzon ``has all the qualifications needed, as well as
the honesty and integrity that we need and deserve in our court system
today. . . I know she will be dedicated to the principles of fairness
and impartiality in all her judicial activities.''
Or perhaps, we should listen to Fred Alvarez, President Ronald
Reagan's former EEOC Commissioner and Assistant Secretary of Labor.
Alvarez says:
Someone with the intellect and integrity, which Ms. Berzon
has demonstrated, understands the difference between advocacy
and the solemn responsibilities undertaken as a federal
appellate court judge . . . I can think of no other union-
side lawyer who would command so strong and so compelling a
consensus from management lawyers on her suitability for such
an important position on the 9th Circuit Court of Appeals.
So there you have it Mr. President. Top Republican officials--who we
can be sure favor management positions by personal philosophy--endorse
Berzon and her professionalism without reservation.
So let's put the foolish argument that Marsha Berzon can't be fair
concerning labor issues to rest.
Let's review. We've shown that arguments that Berzon is some liberal
by her association with Justice Brennan are fallacious. We've shown
that arguments that she is a zealous advocate and should be rejected as
an ideologue in fact highlight her mastery of the practice of law and
make her highly qualified for this position. We've exploded the myth
that she is anti-management and incapable of impartiality in hearing
cases pitting management versus labor, and found that she works towards
reaching consensus. So one has to wonder Mr. President, what is really
going on here?
I'm concerned about the appearance that Marsha Berzon has had such a
long, hard road to confirmation because she is a woman. And I don't
blame the public for taking that message from this delay when a highly
qualified appellate attorney is held up for years and the arguments
against her confirmation are so thin.
At the end of 1999, the entire federal judiciary included only 158
women--that's a scant and embarrassing 20% of sitting judges. Rather
than attempting to address that disparity, this Senate has chosen to
continue the policies of limiting the upward elevation of talented and
capable women attorneys and judges. We've repeatedly delayed action on
a host of female candidates. What's the impact? If fewer women get
confirmed, there are fewer lower court judges to elevate to the
nation's appellate courts. And if the judiciary remains a male bastion,
as far as we've come in this country in recognizing equal rights for
women, we risk creating the perception that gender biases will continue
to plague our judicial system well into the 21st century.
I believe Ms. Berzon is highly qualified to sit on the 9th Circuit,
and her confirmation should wait no longer. I enthusiastically support
her and I urge my colleagues to do the same.
I yield the floor.
Mr. BUNNING. Mr. President, I rise in opposition to the nominations
of Richard Paez and Marsha Berzon to sit on the 9th Circuit Court of
Appeals.
There are serious problems with the 9th Circuit. It has become a
renegade Circuit, far out of the mainstream of modern American
jurisprudence, and I am afraid that if these nominees are confirmed,
they will only make a bad situation worse.
Over the past six years, the 9th Circuit has been overturned 86% of
the time by the U.S. Supreme Court, a terrible record. During this
period, the Supreme Court has reviewed 99 decisions from the 9th
Circuit, and overturned 85 of those decisions. During the current
session, the 9th Circuit has been overturned in all of the 7 cases
reviewed by the Supreme Court, and in one term--1996-97--27 of 28
decisions were overturned, including 17 by unanimous votes.
This is the worst record of any circuit, and is especially troubling
given the size and influence of the 9th Circuit. It covers almost 40%
of the country, and 50 million Americans--20 million more than any
other circuit. The fact that the 9th Circuit has been slipping toward
judicial extremism is no laughing matter, and directly affects a large
part of our nation and almost one-fifth of our citizens.
The main reason for the judicial imbalance on the 9th Circuit is that
Democratic appointees currently comprise 15 of the 22 positions on the
9th Circuit, 10 of whom were appointed by President Clinton. I do not
begrudge President Clinton his appointees; he is the President, and has
the constitutional right and responsibility to fill the federal bench.
But the 9th Circuit has become lopsided with activist judges that has
helped push it far out of the judicial mainstream. The circuit cries
out for balance.
Confirming Richard Paez and Marsha Berzon to the 9th Circuit would
only exacerbate its problems. Mr. President, I do not know the nominees
and I have nothing against them. Their records show that they have long
legal backgrounds, and deserve a final vote on their nominations. But,
the record also shows that they both tilt far too left in their
judicial views and would not help to restore balance or judicial
sensibilities to the 9th Circuit.
Ms. Berzon has worked as the general counsel of the AFL-CIO for over
a decade, and was long active with the ACLU. At least one conservative
group has described her as the ``worst judicial nomination President
Clinton has ever made.'' Mr. President, Ms. Berzon is entitled to her
views and I am not going to criticize her for her personal beliefs. But
looking at her past and the causes which she has pushed show that, if
confirmed, she is not going to help steer the 9th Circuit toward the
judicial mainstream.
As for Judge Paez, he currently sits on the federal district court in
the 9th Circuit, and his nomination is opposed by over 300 grassroots
conservative organizations that are troubled by his judicial activism.
The U.S. Chamber of Commerce, and the Hispanic Chamber of Commerce,
have even taken the unusual step of opposing his nomination because of
their concerns over some of his past decisions, arguing that he has
pursued an agenda that ``has the potential to cause significant
disruption in U.S. and world markets.'' Mr. President, business groups
usually do not become involved in judicial nominations, and when they
do it should make us wonder.
Even the Washington Post editorial page, no friend of conservative
causes, has cautioned that opposition to Judge Paez ``is not entirely
frivolous'', and points to past public remarks by Judge Paez that show
how ``sympathetic'' he is to activist, judicial thinking.
Mr. President, since coming to the Senate I have voted for some of
President Clinton's judicial nominees, and I have opposed several.
Yesterday, in fact, I voted to confirm Julio Fuente to sit on the Third
Circuit. But confirming Richard Paez and Marsha Berzon to sit on the
9th Circuit would be a mistake, and would directly affect 50 million
Americans. The 9th Circuit has serious problems, and confirming these
nominations are not going to fix those problems. Consequently, I am
going to oppose them.
Mr. FEINGOLD. Mr. President, I rise to speak today in strong support
of the nomination of Richard Paez to be a judge on the Court of Appeals
for the 9th Circuit. By finally moving on the nominations of Judge Paez
and Ms. Marsha Berzon this week, the Senate will take long-delayed
steps towards returning the 9th Circuit dockets to a manageable level.
Action on these nominees is long overdue. I believe their nominations
should be confirmed, and I hope, after all this delay, there will be
strong bipartisan votes in favor of them.
Four years, 1 month, and 11 days. Just over forty-nine months. One
thousand, four hundred and ninety-nine days. That's right. 1499 days,
two short of 1500. That is how long Judge Richard Paez has been waiting
for the Senate to act on his nomination. In the same amount of time, a
young adult could enter and complete a full college degree program. Let
me repeat that. Judge Paez has waited for the Senate to grant him the
simple grace of voting his nomination up or down for longer than it
takes a young American to complete an entire college education. A
President or Governor could be inaugurated, serve his or her entire
term
[[Page S1299]]
and be re-inaugurated during that same four year time period. While I'm
sure Judge Paez is a patient man, possessed of the proper judicial
temperament that makes him an excellent candidate to sit on the 9th
Circuit, I know that even his patience must have long-ago worn thin
waiting for the Senate to act on his nomination.
First nominated to fill a 9th Circuit vacancy on January 26, 1996,
Judge Paez has been subject to delay after delay after delay, and yet
his opponents have not been able to give a convincing reason why we
shouldn't confirm his nomination. Even with his 13 year record as a LA
Municipal Court Judge and nearly 6 years as a U.S. District Court Judge
for the Central District of California, those who don't want him on the
bench can't build a case against his elevation to the 9th Circuit. They
charge that he is an ``activist judge,'' but the record simply doesn't
support this allegation.
Judge Paez now bears the dubious distinction of suffering through the
longest pendency of a nomination to the federal bench in the history of
the United States.
All Judge Paez, has ever asked for was this opportunity: an up or
down vote on his confirmation. Yet for years, the Senate has denied him
that simple courtesy.
I find it ironic that Judge Paez, the same judge who diligently
worked to reduce the length of delays in resolving civil matters in Los
Angeles and throughout California's court system through his design and
implementation of a civil trial delay reduction project, should himself
be subjected to such egregious delay in getting his ``day in court''
before the full Senate. Particularly when the Senate confirmed his
nomination for a District Court judgeship in July 1994 by unanimous
consent. Now I recognize that control of this body has changed since
1994, but his nomination to the District Court was confirmed without
objection. And his record on that court has been exemplary.
This delay has not simply been unfair to Judge Paez and his family.
It has affected the administration of justice. Listen to the concerns
of Procter Hug, Jr., Chief Judge of the 9th Circuit. Chief Judge Hug
has responsibility for overseeing the functioning and managing the
caseloads of the entire Circuit. Currently, of the 28 spots on the 9th
Circuit, 6 stand vacant. Chief Judge Hug explained in a letter this
past week to the Judiciary Committee that during his term as Chief
Judge, the Senate has left him with up to 10 vacancies on the court at
any one time. He has responded to this judicial emergency by begging
his colleagues to redouble efforts to resolve cases and then increased
their dockets to prevent even longer delays in resolution of cases. Hug
argues forcefully for the confirmation of Judge Paez and Ms. Berzon and
asks this body to swiftly fill the other 4 vacancies on the court.
Now Mr. President, let me address the argument made by the Majority
Leader and others that the pending 9th Circuit nominations should be
rejected because that circuit has a supposedly high level of reversals
when its decisions are reviewed by the Supreme Court. This argument
simply doesn't hold water.
First, if we assume that this argument is not meant to be critical of
the views or qualifications Judge Paez or any other nominee personally,
it makes no sense at all. Even if we disagree with the direction of
that court, why would we deny the 9th Circuit adequate resources,
thereby depriving the litigants in that circuit of efficient
administration of justice? It just makes no sense.
More importantly, arguing that the Ninth Circuit is out of step with
the Supreme Court and needs to be reined in doesn't get opponents over
the hurdle that they have not yet been able to satisfy--to show that
Judge Paez is unsuitable for the appellate bench. He is obviously not
responsible for past decisions of the 9th Circuit. So the argument has
to be that his elevation will continue the Circuit on its supposedly
misguided course. The evidence of Judge Paez being unable to follow
Supreme Court precedent is thin indeed, if not non-existent.
But more fundamentally, it is simply not factually correct that the
9th Circuit is out of step with the Supreme Court and other circuit
courts. Chief Judge Hug in his letter convincingly refutes the argument
that his circuit is reversed more often than others. In fact, its clear
from the numbers that even in 1996-1997, when the 9th Circuit's
reversal rate was at its highest level of recent years, it was reversed
less frequently than 5 other circuits--the 5th, 2nd, 7th, D.C. and
Federal--each of which were reversed 100% of the time that year by the
Supreme Court. In more recent years, the statistics show even more
clearly that the 9th Circuit is not a runaway train that somehow needs
to be slowed down, but many in the Senate would like it to become a
more conservative circuit, perhaps to be broken into two conservative
circuits. And they are willing to hold up Judge Paez and others to
achieve that political objective.
Furthermore, I have to point out that reversal rates are a very poor
criteria for judging a court's work. The Supreme Court is not required
to review every appellate decision. It picks which cases to review. So
it is hardly surprising that when it does take a case, it reverses a
lower court. Chief Judge Hug quite rightly points out that the 9th
Circuit decides about 4,500 cases on the merits each year. 4,500. So
the fact that 10 or 20 cases per year are reversed really should not
trouble us. It is just not a plausible argument against a nominee for
this Circuit that its decisions are out of the mainstream.
We ought to congratulate the women and men currently serving on the
9th Circuit for so successfully fulfilling their judicial roles at the
same time vacancies are greatly increasing their dockets and stretching
their time thin. The pressure to carefully make the proper judicial
decisions is great, and these Judges are responding with
professionalism. I thank them for that, but I cannot help but think
that we are putting an unconscionable burden on them.
So what is the point of raising meritless arguments against this
nominee? Why the long delay? Let me suggest two possibilities, neither
of which reflect well on the Senate. First, Senators delaying these
nominations may be trying to run out the clock until President Clinton
leaves office. Confirmations always slow down in a presidential
election year. In 10 months, we will have a new President. Perhaps a
different President will put forward a different nominee. But Judge
Paez was actually nominated a year before the President's 2nd
inaugural. So holding up this particular nomination for purely
political reasons is most unfair. In some ways, this nomination should
get special treatment. We had an intervening election after the
nomination was first made, and President Clinton won. It is
indefensible to hold a nomination hostage for his entire second term.
It defies the clear constitutional prerogatives of the duly elected
President to choose nominees to the bench and the duty of the Senate to
say yes or no.
Some Senators may also object to moving the nomination of Judge Paez
because of a perceived judicial philosophy. Some opponents of his
nomination look to his long and distinguished service in legal aid and
attempt to tar him with the epithet of ``liberal,'' forgetting that his
exemplary judicial career has been filled with distinction at all
levels. A close look at his record as a U.S. District Court judge since
the Senate confirmed his nomination in 1994 debunks attempts to label
his opinions as conservative or liberal, reactionary or progressive.
The Los Angeles Daily Journal, which is a newspaper devoted to
covering the courts and the legal profession in Los Angeles
commissioned 15 legal experts to examine Judge Paez's decisions in
seven different cases. Each case was reviewed by at least 2 experts.
The results were clear. Thirteen of the legal scholars and
practitioners found Paez's opinions ``well-reasoned and well-written.''
Two others were mildly critical. And, in the one decision in which the
experts were critical of Judge Paez's decision not to dismiss claims
that Unocal Corporation was liable for human rights abuses in Burma, a
third expert countered the criticism of Judge Paez's decision, saying
``I would give Judge Paez very good marks on his ruling.'' What's the
point here? In a variety of decisions, the commentators praised the
work of Judge Paez. Here are some of their comments:
[[Page S1300]]
I carefully read Judge Paez's opinion and found that it was
excellent in every respect.
His writing was clear and his expression was good. He did
not show any ideological or personal bias.
Judge Paez's injunction--in a case against anti-abortion
demonstrators--was entirely consistent with the reasoning and
result in conservative jurisdictions.
The result is that claims that the Judge's record is activist, or
liberally slanted are simply wrong. Claims that he is anti-business are
simply not borne out by the facts. Paez also ruled in favor of Philip
Morris on a second-hand smoke suit and for Isuzu against Consumers
Union. Senators opposing this nominee because they claim he's anti-
business are missing the point. Paez rules on each case on the merits--
yes, on the merits--and shows no favoritism for or against business. So
again, Mr. President, I'm just baffled by these claims of activism or
anti-business philosophy being leveled against Richard Paez.
Now if his record as a judge doesn't support these charges of
``judicial activism'' where did Judge Paez's opponents get the idea
that he must be stopped. Opponents aren't saying it openly but it could
be that they are worried that a judge who formerly worked in a legal
aid capacity must be a liberal, and incapable of making balanced
decisions. Having failed to find any hint of bias or lack of judicial
temperament in 20 years of judicial decisions, what other reason for
opposition could there be other than a belief that if you are an
attorney who agrees to work on behalf of those unable to access the
legal system because they are poor or under-educated, as Judge Paez did
for nine years early in his career, you must be a liberal, right?
Wrong. Dead wrong. The organized Bar in every single state requires
public service of attorneys. Every major law firm has dedicated efforts
to reach under-served populations needing legal advice. That's part of
the profession, a noble part of the profession, and those who would
complain about Judge Paez's service to those in need would do well to
remember their own reasons for choosing to serve the public. For my
part, I applaud the decision of Judge Paez and others like him to serve
the poor, and I cannot imagine how his unique perspective from working
one on one with these populations for nine years would not be desirable
and an advantage to parties before the 9th Circuit. His perspective is
badly needed in a circuit which serves 20% of the nation's population,
many of whom are people who needed legal aid when he was working with
them during the 70s.
If opponents of Judge Paez want to fill the court only with seemingly
conservative judges, they mistake their role in the constitutional
scheme in my opinion. Let's not kid ourselves. Partisan politics
shouldn't play a part in the confirmation of judges, but they do. But
to hold up a well-qualified judge for a President's entire term on the
basis of unsupported allegations of ``judicial activism'' is shameful,
it takes the impact of politics on this process to an extreme that we
have not seen before, and I hope we never see again.
Mr. President, regardless of the reason for delays in acting on Judge
Paez's nomination, the effects of delay are damaging and unmistakable.
I believe they are twofold. First, as I discussed before, justice is
put on hold in the 9th Circuit because of crowded dockets. Second, this
Senate sends a subtle, but unmistakable signal to Hispanic Americans,
or recent immigrants about opportunities in America.
It's an old adage but a true one. Justice delayed is justice denied.
Parties take their disputes to court to reach a resolution. Longer
dockets mean delays for families and businesses seeking to settle legal
conflicts and move forward. Holding up qualified nominees like Judge
Paez and leaving huge holes to fill on appellate benches literally
delays justice.
And the subtle, even subconscious message sent to Hispanic Americans
when they examine who hears their disputes in a court of law is that
Circuit court judgeships are not open to them. Young Hispanic Americans
hearing about Judge Paez will unfortunately learn the message without
it ever being said out loud that there are limitations to their
advancement in careers of public service. The signals sent by Senators'
failure to vote for Paez's confirmation lead to diminished expectations
and a view of limited, not limitless opportunities for millions of
Hispanic Americans. The Washington Post reported on Monday that only 9
Hispanic American judges currently sit on appellate courts in this
country out of a total of 170 appellate judges. And only 31 out of 655
District Judges, including Judge Paez, are Hispanic Americans. That's a
shameful record as we begin the 21st century.
Here's the message sent if Judge Paez is not confirmed. You can go to
law school at UC Berkeley's Boalt Hall School of Law, work tirelessly
with under-served and under-represented populations needing legal
assistance, be a successful and well-respected judge on the local bench
and the federal District Court, get the highest rating from the
American Bar Association, receive endorsements from law enforcement
organizations, bar leaders, business leaders, and community leaders,
and yet be needlessly and unfairly delayed and prevented from being
elevated to the prestigious 9th Circuit Court of Appeals based on
unsubstantiated and vague concerns that you are a ``judicial activist''
or a ``liberal.'' There is only one nominee in this position, whose
nomination has been held up for over 4 years. That is Richard Paez, who
is a Hispanic American. That's the wrong message from this Senate to
millions of Americans, and we should not send it.
I strongly support Judge Paez's confirmation, and urge my colleagues
to join me in quickly filling this and other vacancies on the 9th
Circuit. This long delayed confirmation vote for Richard Paez is an
important test for the Senate. I hope we pass it.
I yield the floor.
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