Congressional Record, Volume 146 Issue 26 (Thursday, March 9, 2000)

[Congressional Record Volume 146, Number 26 (Thursday, March 9, 2000)]
[Senate]
[Pages S1336-S1368]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

NOMINATION OF MARSHA L. BERZON, OF CALIFORNIA, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE NINTH CIRCUIT

______

NOMINATION OF RICHARD A. PAEZ, OF CALIFORNIA, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE NINTH CIRCUIT

The PRESIDING OFFICER. The Senate will now return to executive
session and resume postcloture debate on the two Ninth Circuit judicial
nominations which the clerk will report.
The legislative clerk read the nominations of Marsha L. Berzon, of
California, and Richard A. Paez, of California, to be United States
Circuit Judges for the Ninth Circuit.
The PRESIDING OFFICER. Under the previous order, the Senator from New
Hampshire, Mr. Smith, shall be in control of up to 3 hours of total
debate on both nominations and the Democratic leader or his designee
shall be in control of up to 1.5 hours of total debate on both
nominations.
Mr. SMITH of New Hampshire. Mr. President, I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent
that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SMITH of New Hampshire. Mr. President, as we have gone through
this debate, although my name was not attached to anything in terms of
a filibuster, it is no secret that I have been the person who has
filibustered these two nominees, Judge Berzon and Judge Paez. The issue
is, why are we here? What is the role of the Senate in judicial
nominations?
The Constitution gave the Senate the advise-and-consent role. We are
supposed to advise the President and consent if we think the judge
should be put on the court. We do not get very much opportunity to
advise because the President just sends these nominations up here--he
does not seek our advice--and then we are asked to consent.
Based on some of the comments that have been made to me privately and
some of the things I have read publicly, it seems as if the Senate
should be a rubber stamp, that we should just approve every judge who
comes down the line and not do anything with the advise-and-consent
role. That is not the way I read the Constitution.
I believe that is wrong. We have an obligation under the Constitution
to review these judges very carefully. I have certainly voted for more
than my share of judicial nominations this President has put forth. But
I point out that the two nominees before us, in terms of their legal
opinions--and that is all we are talking about; we are not talking
about any personal matters other than their legal opinions--I believe
are activist judges; they are out of the mainstream of American
thought, and I do not think either one should be put on the court. The
bottom line is they are controversial judges.
I was criticized by some for filibustering, that ``we are on a
dangerous precedent'' of filibustering judges. The filibuster is over.
We are now on the judges. The filibuster is a nonissue.
Filibuster in the Senate has a purpose. It is not simply to delay for
the sake of delay. It is to get information. It is to take the time to
debate and to find out about what a judge's thoughts are and how he or
she might act once they are placed on the court.
I was told by some of my colleagues yesterday that we are going down
``a dangerous path'' to debate these judges and slow them down, whether
it be through a filibuster or debate in this Chamber. My colleagues
will find there will be very few people who will speak in the roughly 3
hours on our side under my control. That is sad. I believe we should
air the concerns we have.
As far as the issue of going down a dangerous path and a dangerous
precedent, that we somehow have never gone before, as I pointed out
yesterday and I reiterate this morning, since 1968, 13 judges have been
filibustered by both political parties appointed by Presidents of both
political parties, starting in 1968 with Abe Fortas and coming all the
way forth to these two judges today.
It is not a new path to argue and to discuss information about these
judges. In fact, Mr. President, Chief Justice William Rehnquist sat in
your chair about a year ago finishing up the impeachment trial of
President William Jefferson Clinton. When William Rehnquist was
nominated to the Court, he was filibustered twice. Then after he was on
the Court, he was filibustered again when asked to become the Chief
Justice. In that filibuster, it is interesting to note, things that
happened prior to him sitting on the Court were regurgitated and
discussed. So I do not want to hear that I am going down some trail the
Senate has never gone down before by talking about these judges and
delaying. It is simply not true. I resent any argument to the contrary
because it is simply not true.

I will talk a bit about the Ninth Circuit on which these two judges
are about to go. Make no mistake about it, this is going to be a tough
vote to win. I know that. But it does not mean the fight should not be
made. We are all judged as Senators based on what we do, what we say,
and how we act. History will judge us, as it has judged the great
Senators such as Clay, Calhoun, and Webster who debated the great
issues before and during the Civil War. We are judged on what positions
we take. Maybe history will prove a Senator is right; maybe history
will prove a Senator is wrong. When it comes time to make that vote,
one does not have anyplace to hide. One has to make it and take the
consequences one way or the other. I do what I do with the best
information I have.
I can assure my colleagues that I have researched both of these
judges very carefully. I have looked at the Ninth Circuit very
carefully, and I have grave concerns about two very controversial
judges being placed on a very controversial circuit court, the ninth.
This is a renegade circuit court that is out of the mainstream of
American jurisprudence. It has been reversed by the Supreme Court 90
percent of the time. It is important to let that sink in. Ninety
percent of the decisions this Ninth Circuit has made have been
overturned by the U.S. Supreme Court.
I want to repeat some of those statistics. From 1999 to now, 7 of 7,
100 percent of their cases, have been reversed. In 1998 to 1999, 13 of
18 were reversed, 72 percent.
From 1997 to 1998, 14 of 17, or 82 percent, were overturned. We can
go on and on. From 1996 to 1997, 27 of 28 cases this court gave a
decision on were overturned, 96 percent. From 1995 to 1996, 10 of 12
were overturned, 83 percent--and on and on and on. The average is: 90
percent of the cases were overturned in the past 6 years. There have
been 84 reversals in the last 98 cases. That is an abysmal record, to
put it mildly.
The Ninth Circuit is routinely issuing activist opinions. While the
Supreme Court has been able to correct some of these abuses, the record
is replete with antidemocratic, antibusiness, and procriminal decisions
which distort the legitimate concerns and democratic participation of
the residents of the Ninth Circuit. Some of the more outrageous
opinions include striking down NEA decency standards, creating a
``right-to-die,'' blocking an abortion parental consent law, and a slew
of obstructionist death penalty decisions.
I hope the American people and my colleagues understand that when you
hear these terrible stories about prisoners getting out after 5 years,
or people committing terrible crimes and never going to jail or getting
pardoned or getting lenient sentences, this is not an accident. This
happens because of the people we put on the court.
We are here as Senators to advise and consent, or not to consent, on
the basis of these nominees. How many times do you read in the paper
some judge let some criminal out, and the guy committed a crime again
and again, and he got out again and did it again? It goes on and on--
stalking, rape, murder, robbery, armed robbery, assault, over and over
and over again. Time after time after time we hear about that
happening. We sit around our living rooms at night, we watch
television, we talk to each other, our families, and ask: Why did this
happen? What in the world is the matter with the judges?

[[Page S1337]]

I say, with all due respect, when you have judges who are this far
left out of the mainstream, surely out of the hundreds and hundreds of
judges all over America, on the various district courts in this
country, we can find somebody to serve on the circuit court who is not
this controversial.
That is the bottom line. That is what this debate is about. That is
why I am here on the floor. That is why, even though I know I am going
to lose, I want this case made. That is why I have asked for the time
to do it.
Again, the Senate, and particularly Republican Senators from Ninth
Circuit States, are on record in favor of splitting this court; it is
so controversial, making it into two circuits.
There was a commission called the White commission that recommended a
substantial overhaul of the circuit's procedures, and that has not been
implemented. It found that the circuit has so many judges that they are
unable to monitor each other's decisions and they rarely have a chance
to work together. That is what is going on. There are so many judges
they cannot even monitor the decisions.
The Ninth Circuit covers 38 percent of the country, more than twice
as much as any other circuit. It covers 50 million people, more than 20
million more than any other circuit. Not surprisingly, it has the most
filings in the country.
President Clinton has already appointed 10 judges to the circuit.
Democratic appointees compromise 15 of the 22 slots currently occupied.
There is no need to put more controversial nominees on the court from a
lame duck President.

Paez and Berzon have attracted significant opposition both within and
outside the Senate. Both were reported out of the Judiciary Committee
by a 10-8 vote. That is a pretty narrow vote. Neither would move the
circuit to the mainstream. In fact, they are activist judges.
In Paez' case, the U.S. Chamber of Commerce is officially opposed to
the Paez nomination, principally due to his decision in the Unocal case
in 1997 allowing U.S. companies to be sued for the human rights abuses
of foreign governments. Think about that. How would you like to be a
U.S. company and be sued for the human rights violations and abuses of
a foreign government? That is the way Paez ruled.
The letter notes the chamber's serious concern about a judge pursuing
a foreign policy agenda in this fashion and argues that it ``has the
potential to cause significant disruption in the U.S. and world
markets.''
The Judicial Selection Monitoring Project at Free Congress Foundation
circulated a letter signed by 300 grassroots organizations opposing
this nomination. The letter highlights Paez's 1995 Boalt Hall
inappropriate remarks regarding pending ballot initiatives, on the
belief that he ``is an activist judge,'' and his lack of ``judicial
temperament.''
The ACLU of Southern California applauded his nomination as ``a
welcome change after all the pro-law enforcement people we've seen
appointed to the state and federal courts.'' Think about that statement
by the ACLU. No matter what you think about the ACLU, let me repeat
that statement. They stated, this nomination is ``a welcome change
after all the pro-law enforcement people we've seen appointed to the
state and federal courts.'' What does that tell you about this guy? I
am telling you, my colleagues, I really wish we would stop and think
about what we are doing.
Even the Washington Post, not exactly a bastion of conservatism,
stated, in an October 29, 1999, editorial: ``Republican opposition to
[Paez] is not entirely frivolous.'' It argued that his Boalt Hall
speech was ``inappropriate'' and that a ``principled conservative could
suspect, based on Judge Paez' comments, that he might be sympathetic to
such [liberal activist] thinking and would be more generally a liberal
activist on the bench.''
That is the Washington Post's nice way of saying: This guy may not be
that good after all.
There is a lot of evidence out here. You have to understand the
framework: A liberal activist court that has been overturned 90 percent
of the time--the Ninth Circuit--and now we put a judge on there who is
being lauded as ``a welcome change'' after all the prolaw enforcement
people we have seen on the court.
I say to the American people and my colleagues, when you hear stories
about people getting out of jail or not going to jail or committing
crimes over and over and over again--and you ask yourself: Oh, those
liberal judges, what are we going to do about them?--ask your Senators
what they did about liberal judges when they came before the Senate,
before we put them on the court. That is a legitimate question: Do you
support people who are lauded because they are antilaw enforcement?
Maybe you ought to ask them that question because that is exactly what
is happening.
In Berzon's case, the Berzon nomination was described by the National
Right to Work Committee as the ``worst judicial nomination President
Clinton has ever made.'' She has been associate general counsel of the
AFL-CIO since 1987 and has represented unions in the automobile, steel,
electrical, garment, airline, Government, teachers, and other sectors
both in a day-to-day capacity and in appellate practice.

Among the positions she has espoused which courts have rejected: One,
State bars should be able to use compulsory dues of objecting members
for lobbying. That is the way she ruled. You are forced, as a member of
a union, to give dues. You are forced to allow those dues to be used
for lobbying for something with which you disagree. The bottom line is:
I want my job. I pay my union dues. And on top of that, they rub my
nose in it further by saying: Now, in addition to that, we are going to
spend money lobbying for something you disapprove of. She ruled yes;
she would do that.
Secondly, unions should be able to prohibit members from resigning
during a strike. So somebody goes on strike, they decide they want to
perhaps do something else, resign, for whatever reason--how about if it
is for their health?--she is prohibiting them from resigning during a
strike. What does that mean? If somebody has a heart attack, they
cannot quit?
What have we come to in this country? You should not be surprised
when you hear about these outrageous decisions coming down through the
courts because we are putting the people on the courts who give us
these outrageous decisions. We do not deal with it in a forthright
manner.
There are better judges than this. Bill Clinton can bring better
judges than this before the Senate. Frankly, he has, and they have been
approved. They may not believe everything to my way of thinking, but he
is the President. But we do not want judges who are so far over to the
left that they swing the pendulum way over there against what American
people want.
Another opinion she has espoused which courts have rejected is:
Unions should be able to use nonmembers to subsidize union litigation
in organizing. That is the way she ruled.
She describes herself as a believer in the labor movement, which is
fine, but when you come on the court with an agenda, the Constitution
should be your agenda, not labor, not a conservative or liberal or
moderate cause. No, the Constitution should be your cause. If it is not
constitutional, then you should not be for it.

The bottom line: The Senate should not confirm more judges to the
Ninth Circuit unless and until its structure is reformed, and unless
the nominee will help bring the circuit's jurisprudence back into the
mainstream. This is clearly not the case with Judge Paez or Marsha
Berzon. Neither nominee should be confirmed. It is that simple.
Now, let's look at some of the politics of the Ninth Circuit. In the
Washington Times yesterday, Wednesday, March 8, was an article by
Thomas Jipping:

Politics of the Ninth Circuit. Senators should reject
judicial nominees.

I want to read one paragraph out of that op-ed piece:

[[Page S1338]]

thirds of its judges are Democratic appointees. The Supreme
Court has reversed its decision 90 percent of the time over
the past 6 years--far more than any other circuit. And in
1996, Chief Justice Rehnquist wrote, ``Some panels of the
Ninth Circuit have a hard time saying no to any litigant with
a hard luck story.'' In its 1997-98 term, the Supreme Court
reversed 27 of the 28 Ninth Circuit decisions it reviewed, 17
unanimously and 7 without either briefing or oral argument.
Because this aggressive activism so grossly distorts the law,
many Senators have long urged special scrutiny of Ninth
Circuit nominees.

I ask unanimous consent that this entire article be printed in the
Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:

[From the Washington Times, March 8, 2000]

Politics of the Ninth Circuit

Senators should reject judicial nominees

(By Thomas L. Jipping)

The Senate this week will vote on two of the most
controversial judicial nominations in recent memory. The
result may well demonstrate whether Republicans deserve their
majority status.
President Clinton has nominated U.S. District Judge Richard
Paez and labor lawyer Marsha Berzon to the U.S. Court of
Appeals for the Ninth Circuit. Nearly twice as large as other
circuits, it may also be the most influential, which is
unfortunate because even the liberal New York Times calls it
``the country's most liberal appeals court.'' Two-thirds of
its judges are Democratic appointees. The Supreme Court has
reversed its decisions nearly 90 percent of the time over the
past six years, far more than any other circuit. In 1996,
Chief Justice Rehnquist wrote that ``some panels of the Ninth
Circuit have a hard time saying no to any litigant with a
hard-luck story.'' In its 1997-98 term, the Supreme Court
reversed 27 of the 28 Ninth Circuit decisions it reviewed, 17
unanimously and seven without either briefing or oral
argument. Because this aggressive activism so grossly
distorts the law, many senators have long urged special
scrutiny of Ninth Circuit nominees.
Even ordinary scrutiny shows that these nominees will push
that court further in the wrong direction. The L.A. Daily
Journal quotes Judge Paez, who calls himself a liberal,
describing his own aggressively activist judicial philosophy.
Courts, he says, must tackle political questions that
``perhaps ideally and preferably should be resolved through
the legislative process.'' America's Founders, however, did
not suggest that legislatures exercise legislative power
merely as an ideal or a preference; the first article of the
Constitution they established, and that Judge Paez is sworn
to uphold, states that ``all legislative powers'' are granted
only to the legislature.
The L.A. Times says Judge Paez was a liberal state court
judge. When nominated to the federal district bench, no less
an arbiter of liberalism than the American Civil Liberties
Union considered him ``a welcome change after all the pro
law-enforcement people we've seen appointed.''
Judge Paez struck down a Los Angeles anti-panhandling
ordinance enacted after a panhandler killed a young man over
a quarter. He ruled that companies doing business overseas
can be held liable for human rights abuses committed by
foreign governments. The Institute for International
Economics says this novel ruling would ``vastly expand the
jurisdiction of the U.S. court system.'' The U.S. Chamber of
Commerce, which normally steers clear of nomination fights,
cites this decision in opposing Judge Paez. His decision
against any jail time for U.S. Rep. Jay Kim, guilty of the
largest admitted receipt of illegal campaign contributions in
congressional history, prompted the newspaper Roll Call to
suggest that Judge Paez may be ``too soft on criminals to be
an appellate judge.''
The nominee also appears to place politics ahead of both
judicial impartiality and independence. In a 1995 speech, for
example, he attacked two California ballot initiatives while
they were still in litigation even though the judicial code
of conduct prohibited him from comments that ``cast
reasonable doubt on [his] capacity to decide impartially any
issue that may come before [him].''
Marsha Berzon's record may be as a lawyer and not a judge,
but the clues lead to the same conclusion. Her training in
the political use of the law had early impetus as a law clerk
to activist Supreme Court Justice William Brennan and
continued with membership or leadership of activist legal
organizations such as the Brennan Center for Justice and
Women's Legal Defense Fund. Hers is not benign disinterest;
the political agenda these groups pursue in the courts, she
says, hold ``a lot of importance and meaning for me.''
Miss Berzon repeatedly pressed extreme arguments that
ignored the plain meaning of statutes and Supreme Court
precedent, the very hallmarks of judicial activism. These
include arguing that state bar associations can use
compulsory dues of objecting members for political
lobbying and that the right to refuse to join a labor
union is somehow less protected by the First Amendment
than other speech. These and other aspects of her
controversial record made her one of only two Clinton
nominees ever to receive eight negative votes in the
Judiciary Committee.
Senators concerned about a politicized judiciary should
find these nominations easy to oppose. Three things stand in
the way. First, since a politicized judiciary is impossible
to defend, its advocates stoop to playing the race and sex
cards. Mr. Clinton first chooses women and minorities as some
of his most radical nominees. Senators who would oppose white
males with the same record face those dreaded labels
``racist'' and ``sexist'' if they don't create a double-
standard and vote for these. Hopefully, senators will reject
this perverse tactic and focus on the record which has led
more than 300 grassroots organizations to oppose Judge Paez.
Second, those who cannot defend a politicized judiciary
continue playing the numbers game. Batting 338-1 so far,
however, Mr. Clinton has appointed more than 44 percent of
all federal judges in active service. Democratic appointees
now outnumber Republicans throughout the judiciary.
Third, the lure of patronage tempts individual senators to
put their personal interests ahead of the country's
interests. Rejecting these radical nominees means showing
Americans that the Republican Party stands for at least basic
principles of the rule of law and a judiciary independent
from politics.
In 1993, then-Senate Minority Leader Bob Dole appeared on a
live public affairs television show and a caller criticizes
him for failing to block Mr. Clinton's judicial nominees. He
responded: ``Give us a majority and if we don't produce, you
ought to throw us out.'' Americans gave Republicans the
majority and rejecting the Berzon and Paez nominations is
their chance to produce.

Think about that. When you think about the makeup of the U.S. Supreme
Court, there are some liberal justices there and some conservative
justices there, but some of these decisions have been overturned
unanimously; that is, with Scalia, Thomas, and Ruth Bader Ginsburg on
the same vote. So they have to be outrageous to get that kind of
support to overturn it. That is the whole point. So why are we adding
more fuel to the fire?
I want to break into some categories here and a few of the Court's
decisions on the Ninth Circuit. Let's look at criminal justice for a
moment. It is very notorious for its anti-law enforcement record, as I
said. And, again, Judge Paez is being praised for his anti-law
enforcement status. So we are going to put another judge on the court
that is anti-law enforcement, and he is being praised because he is
being put on there.
In Morales v. California, 1996, the circuit struck down the
California State law governing when defendants could present claims
during habeas corpus appeals which had not been made during appeals in
State courts. According to the California-based Criminal Justice Legal
Foundation, this holding opened ``the doors to a flood of claims that
would be barred anywhere else in the country.''
In U.S. v. Watts, in 1996, the Supreme Court issued summary reversals
in two cases without even hearing arguments after the Ninth Circuit
allowed past acquittals to be considered during sentencing. They are so
outrageous they just rule.
In Calderon v. Thompson, in 1998, the Supreme Court reversed the
Ninth Circuit's decision to block the scheduled execution of a
convicted rapist and murderer with a bizarre and rarely used procedural
maneuver, calling it a ``grave abuse of discretion.''
In Stewart v. LeGrand, 1999, the circuit blocked an execution on the
grounds that the gas chamber was cruel and unusual punishment. The
Supreme Court reversed that without even hearing the arguments.
So over and over and over again, we are hearing these arguments about
how bad this court is.
I know there are other speakers on the floor on both sides here. So I
am going to suspend in a moment.
Mr. President, I ask unanimous consent that the majority leader be
recognized at 12:30 for up to 20 minutes relative to the pending
nominations, and the 20 minutes be considered as time used under the
control of Senator Smith.
I further ask consent that the votes scheduled to occur at 2 p.m.
today be postponed to now occur at 2:15 p.m. under the same terms as
outlined in the previous consent.
The PRESIDING OFFICER (Mr. Bunning). Without objection, it is so
ordered.
The Senator from Nevada is recognized.
Mr. REID. Mr. President, I know the sincerity of the Senator from New
Hampshire. But I also recognize that sincerity sometimes does not
create the facts that are necessary to substantiate the sincerity.

[[Page S1339]]

With the Ninth Circuit Court of Appeals, what we have to understand
is that, yes, they have been reversed a lot of times. For example,
during the 1995-1996 term, five other circuits had higher reversal
rates than the Ninth Circuit.
I also say to my friend that if you take, for example, this past
year, we have had seven reversals so far. Four of them have come from
judges who wrote the opinions and were appointed by Presidents Reagan
and Bush.

The Supreme Court reverses most cases they take from the circuits.
That is what they do. With the Ninth Circuit, they have thousands of
cases. There are 51 million people who live within it. Mr. President, I
think there is some substance to the fact that we need to take a look
at the Ninth Circuit. Maybe it is too big. Maybe we need to revamp how
it operates. But don't pick on Berzon and Paez because of that.
Also, Judge Paez is a very nice man. He graduated from one of the
most conservative universities in the entire country, Brigham Young
University. He went to one of the finest law schools in America, Boalt
Hall, University of California Berkeley. It is always rated in the top
10. It is a fine, fine law school. His record is one of significant
distinction. Here is a man who is unquestionably qualified for the
Ninth Circuit or any other court. He has been a judge for 18 years.
They have pored over all of the decisions he has made and they found
relatively nothing.
I can't help what the ACLU says, but I can relate to you that there
are many organizations that support his nomination and that are law
enforcement-oriented organizations. We can talk about the National
Association of Police Organizations; the Los Angeles Police Protective
Association; the Los Angeles County Sheriff, Sherman Block, who
recognizes his skills; Los Angeles District Attorney Garcetti; James
Rogan, a Republican House Member and member of the impeachment team
here just a year ago, supports Judge Paez. The Los Angeles County
Police Chiefs Association, the Association for Los Angeles Deputy
Sheriffs, Incorporated, and its president, Pete Brodie, support him.
Also, there has been some talk about how antibusiness Judge Paez is.
I don't really want to get into this, but the simple fact is that in a
very important decision in California--an issue in a very important
discovery matter--he ruled for Philip Morris, the largest tobacco
company in America. Does that mean he is protobacco? He also ruled in
favor of the Isuzu Motor Company in a suit against the Consumers Union.
Does that mean he is pro-foreign car manufacturers? Does that mean he
is pro-big business? The answer is no. The Unocal case shows that he is
a judge who follows the law and plays no favorites, as indicated in the
Philip Morris case and the Isuzu Motor Company case.
His preliminary ruling in the Unocal case to dismiss may have
displeased the company. His decision on that issue no more proves he is
antibusiness than he is protobacco or pro-big automobile manufacturer.
There has been some talk that this man is antireligion. He is not
antireligion. In fact, the case they continually refer to is a case
where they are saying he said you can't use a Bible in the courtroom.
Here is an exact transcript as to what he told the defendant. This is
in court. Everybody was there. He says:

I don't have a problem with the Bible. I don't care if you
have it there on the table. My concern is I don't want any
attempt to sway the jury. I don't want any demonstrative
gesture that is not proper.

That is the end of the quote.
The report also says he told the defendants he would consider
permitting the defendants to quote the Bible during closing arguments
or to carry the book to the witness stand when they testified. I am not
sure I would allow that if I were a judge. But he decided he would do
it.
I have tried a lot of cases. When somebody comes up to that jury
stand, it would be my personal opinion that it is improper to carry the
Bible up there. I just do not think it is appropriate. Judge Paez
believed it would be.
There has been some talk that he has bad judicial temperament. The
Almanac of the Federal Judiciary isn't written about Democrats,
Republicans, conservatives, or liberals. It includes reviews from
attorneys who have appeared before all the Federal judges. They not
only have the ability to look at his Federal judicial record but also
his 13 years as a State judge in California where he served in the
courts of unlimited jurisdiction. The Almanac for 1999 that reviews
both his State court experience and his Federal court experience says:

Lawyers reported that Paez had an excellent judicial
temperament.

Some of the quotes from these lawyers include:

I think he has great temperament.
He has a very good demeanor.
He is professional.
He doesn't have any quirks.
He is very good in the courtroom.
He is courteous to everyone.

I think we should have an up-or-down vote on Judge Paez and Ms.
Berzon.
I heard the distinguished chairman of the Judiciary Committee, the
senior Senator from the State of Utah, talk about Ms. Berzon. He talked
about what a great legal mind she has. You may not like her clients.
She has done a lot of work for organized labor. But no one questions
her qualities. She has a very fine, incisive political mind and will be
a great addition to the Ninth Circuit.
As I have said, the Ninth Circuit is something of which I am very
proud. I am proud of the Ninth Circuit. I fought when there was an
attempt to split Nevada off from California. I practiced law in Nevada
and in the courts in Nevada. Whether we like it or not, I fought the
landmark decision made in the State of California. I fought to make
sure Nevada would remain part of the California circuit.
I also am very proud of the Ninth Circuit because the senior judge,
the man who is the administrative head of the Ninth Circuit Court and
the chief judge of the Ninth Circuit, is a Nevadan, Judge Proctor Hug,
Jr. He is a man who has a great legal mind. He excelled academically at
Stanford Law School, and he has excelled on the Ninth Circuit.
I don't know, but I would bet that Judge Hug has written some
opinions that have been reversed. That doesn't make him a bad man or a
bad lawyer.
I hope we will look closely at what we are doing here. Judge Paez has
a great record in the courtroom, in the classroom, and in the world and
society in which he lives. He is a fine man, as is Marsha Berzon.
I hope we can move forward with these nominations. I hope there is an
overwhelming vote. I think it would send a great message out of this
Senate that we need to start doing things on a bipartisan basis. We
hear the call for that all the time. There is no clearer example to
show that than by voting overwhelmingly for these fine people--Judge
Paez and Marsha Berzon. Both have established in their lives records of
superior quality.

The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, thank you very much. I just arrived on the
floor. I listened to some of the extensive remarks made by my friend
from New Hampshire, Senator Smith. I really came over to refute some of
those remarks and some of those comments.
I have been through this fight over the judicial nominations once
before. When Margaret Morrow was nominated and kept on the hook, people
came to the floor of the Senate and said she was an activist, a
liberal--the same buzzwords we are hearing. These buzzwords are: ``Out
of control,'' ``liberal''--all of these words.
That was a great speech. But, unfortunately, it doesn't have anything
to do with Margaret Morrow, who is as mainstream and as apple pie as
you can get.
I say to my friend from New Hampshire, because I know people have
varied opinions of this President, President Clinton, that I happen to
think he has brought us out of the deepest, darkest economic nightmare
we ever faced and I think will go down in history for that. But that is
up to the historians. There is one thing about this President that I
don't think anyone would refute. He is a pragmatist. He knows what he
can get through this Senate. He certainly knows that if he puts someone
before the Senate who is not in the mainstream, they are not going to
get confirmed. He is not going to go through the exercise. It is very

[[Page S1340]]

painful for people to be nominated if they have no chance of being
approved by the Senate. This President doesn't do that. In all my
recommendations to him, and in all of Senator Feinstein's
recommendations to him, we have been very careful to make sure we
refute things.
I hope the Senator from New Hampshire will appreciate this.
If I believe a judicial nominee is not going to pass the mainstream
test, I don't even bother with it. If I don't believe a judicial
nominee has Republican support, I will not even bother with it.
I have had several conversations with Chairman Hatch. He has been
very clear. He says: Barbara, you are not going to get people through
who are not in the mainstream. You are not going to get people through
who do not have bipartisan support. You will not get people through who
do not have law enforcement support.
Yesterday, as Senator Sessions was speaking--believe me, I respect
both of my colleagues' right to vote against these two nominations, if
they so choose--I pointed out this wonderful record of support these
two candidates have from Republicans and Democrats alike in law
enforcement. My goodness, Sheldon Sloan, the head of Governor Pete
Wilson's Judicial Advisory Committee, is the one who is backing Judge
Paez.
Listen to this. I will repeat it. The head of Governor Pete Wilson's
Judicial Advisory Committee is backing Richard Paez.
I ask unanimous consent to have printed in the Record several
editorials supporting Richard Paez and Marsha Berzon.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Los Angeles Times, Feb. 6, 2000]

Judge Deserves Rousing Approval

Perhaps this week the full Senate will finally take up the
nomination of Judge Richard Paez to a seat on the U.S. Court
of Appeals for the 9th Circuit. With a decisive vote to
confirm Paez, the Senate can redeem itself after its
disgraceful treatment of this worthy jurist.
Paez, since 1964 a federal district judge in Los Angeles,
was first nominated for the appellate bench by President
Clinton more than four years ago. No nominee in memory has
waited longer for a confirmation vote, a reflection on the
Senate.
The first time the Senate Judiciary Committee considered
his nomination, it refused to act, and the second time it
voted approval, only to have the nomination die when Senate
leaders refused to call an up-or-down vote. Last July, the
panel once again forwarded Paez's name to the Senate, with
committee Chairman Orrin G. Hatch (R-Utah) and one other
Republican supporting the judge. But not until November did
Majority Leader Trent Lott (R-Miss.) agree to set a Senate
vote for March. Now March is upon us and Lott says he will
deliver on his promise of a floor vote.
On the bench and before that as an attorney, Paez, a 52-
year-old Latino, has earned a reputation for being
thoughtful, fair and committed to civil rights. He would be
an asset to the circuit court.
Republican leaders, whose treatment of Paez and other
nominees stems from their deep animus toward President
Clinton, are now anxious to cast themselves as an inclusive
lot after divisive debates over religion and race in the
presidential primary campaigns. A resounding vote to confirm
Judge Paez is a good place to start.
____

[From the Los Angeles Times, Jan. 20, 2000]

Infamous Anniversary for Courts

Next Tuesday, four long years will have passed since
President Clinton first nominated U.S. District Judge Richard
A. Paez to a seat on the 9th Circuit Court of Appeals. It's a
sorry moment.
The Senate has long toyed with Clinton's judicial nominees,
grilling them mercilessly at Judiciary Committee hearings,
then deep-freezing the nominations by refusing to call an up-
or-down floor vote. No one has waited as long as Paez. First
nominated to the 9th Circuit on Jan. 25, 1996, Paez, now 52,
has been before the Judiciary Committee three times. Once,
the committee refused to act; once, it approved him only to
have the Senate let his nomination die by failing to vote.
Last July, the committee approved Paez again, but the Senate
still has not voted.
Why the delays? What so troubles Senate leaders about Paez?
An extensive review of Paez's record, on the federal trial
bench and, before that, on the Los Angeles Municipal Court
and as a public-interest attorney, was published earlier this
week in the Los Angeles Daily Journal, which covers legal
affairs. The record reveals a jurist who is thoughtful, smart
and unbiased. Regardless, some conservatives remain
convinced, largely without evidence, that Paez has
``activist'' tendencies.
Late last year, Senate Majority Leader Trent Lott (R-Miss.)
said he would call a floor vote by March 15 on Paez and a San
Francisco lawyer, Marsha Berzon, whose nomination to the 9th
Circuit also has languished.
There are now six vacant seats on the 9th Circuit Court and
76 on federal courts nationwide. The Senate's humiliating
treatment of nominees like Paez and Berzon only serves to
dissuade worthy men and women from serving on the federal
bench.
____

[From the Washington Post, March 3, 2000]

The Paez and Berzon Votes

Senate Majority Leader Trent Lott has indicated that the
Senate will finally hold up-or-down votes on judicial
nominees Richard Paez and Marsha Berzon by March 15. Judge
Paez has waited four years for the Senate to consider his
nomination, and Ms. Berzon has waited two. Both nominees to
the 9th Circuit Court of Appeals are well qualified. It is
time both were confirmed.
The ostensible reason for the opposition to these
appointments is that the nominees allegedly harbor tendencies
toward ``judicial activism.'' In neither case, however, is
the allegation justified. Judge Paez made a single ill-
advised remark about a proposed anti-affirmative action
ballot initiative in California; his opponents also criticize
him because, as a district court judge, he refused to dismiss
a human rights lawsuit against a company doing business in
Burma. Ms. Berzon stands accused of favoring abortion rights
and supporting the labor movement. Such positions may trouble
principled conservatives, but they are not the sort of
ideological differences that should keep well-qualified
nominees off the bench.
Some conservatives dislike the comparative liberalism of
the 9th Circuit itself and so are reluctant to confirm judges
who do not obviously break with that court's current
tendency. But diversity among circuits is healthy, and the
9th Circuit is by no means a rogue operation out of the
bounds of respectable legal thinking. Judge Paez and Ms.
Berzon would be good additions to the court--and they have
waited too long for the Senate to say so.
____

[From the Seattle Post-Intelligencer, February 26, 2000]

Senate GOP Drags Feet on Justices

More than a few defendants have been in and out of U.S.
District Judge Richard Paez's California courtroom--and
prison as well--in the time the distinguished jurist has been
waiting for a vote on his confirmation to the 9th Circuit
U.S. Court of Appeals.
If only the ``speedy trial'' rules that Paez must follow
applied to the U.S. Senate.
It's just our luck here in the 9th Circuit, which
encompasses eight Western states including Washington and
California, that Paez has become the poster child for the
Republican-led Senate's refusal to schedule timely votes on
nominations submitted by President Clinton.
This circuit, the biggest and arguably the busiest in the
country, has six vacancies, yet Senate Majority Leader Trent
Lott, R-Miss., had the gall to tell reporters Thursday that
he does not believe additional judges are needed at this
time. (Lott and fellow Republicans are really rankled by what
they perceive as the court's left-leaning nature, but that's
another tale.)
Lott disclosed that as he announced he would vote against
Paez, who still stands a chance of becoming the first
Hispanic on this appellate court. Well, that's some progress.
At least Paez will have his day in ``court,'' although it
will come more than four years after Clinton first sent his
name to the Senate.
Paez's fitness is not the issue; the American Bar
Association has given him its highest ranking. Timeliness is.
Seven years ago it took an average of 83 days for the Senate
to vote a federal judicial nominee up or down; now it takes
more than three times that long.
Justice delayed is justice denied, whether it's for judges
or defendants.
____

[From the New York Times, March 9, 2000]

Ending a Judicial Blockade

The Senate is scheduled to hold confirmation votes today
that would finally end the egregious stalling by Republicans
that has blocked consideration of two worthy nominees for the
United States Court of Appeals for the Ninth Circuit, on the
West Coast. Richard Paez, a respected federal district judge
in Los Angeles, has been waiting four years for the full
Senate to act on his nomination. Marsha Berzon, a prominent
appellate litigator in San Francisco, has been waiting two
years.
Both these candidates were approved by the Senate Judiciary
Committee with the support of its chairman, Orrin Hatch. But
a floor vote was stalled by a few Republicans who reflexively
branded the nominees as too liberal and too ``activist.''
Only after Democratic complaints about the Republicans'
slowness in approving minority and female nominees did the
majority leader, Trent Lott, agree to allow the full Senate
to vote on their nominations.
The Senate should approve the Paez and Berzon nominations,
then promptly vote on the 35 other pending judicial
nominations. At the current sluggish pace, the Senate stands
to approve even fewer judges this year than the 34 it
confirmed last year, an indefensible record at a time when
federal courts are facing rising caseloads and huge backlogs.
The fact that this is a presidential election year is no
excuse for inaction. In 1992, President Bush's last year in
office, the Senate,

[[Page S1341]]

then Democratic, confirmed 66 judges. In the last year of the
Reagan administration, 42 judges were approved. The quality
of justice suffers when the Senate misconstrues its
constitutional role to advise and consent as a license to
wage ideological warfare and procrastinate in hopes that a
new president might submit other nominees.

Mrs. BOXER. I guess we have a conflict between the Washington Times
and the New York Times. The New York Times writes today: ``Ending a
Judicial Blockade.''

They recite the history, then state the Senate should approve the
Paez and Berzon nominations.
The Los Angeles Times, editorial board, which is now dominated by
Republicans, says: ``Judge Deserves Rousing Approval.'' It says:

On the bench and before that as an attorney, Paez, a 52-
year-old Latino, has earned a reputation for being
thoughtful, fair and committed to civil rights. He would be
an asset to the circuit court.

The Washington Post says:

Judge Paez has waited four years for the Senate to consider
his nomination, and Ms. Berzon has waited two. Both nominees
to the 9th Circuit Court of Appeals are well qualified. It is
time both were confirmed.

We hear the word ``activist'' mentioned. If I were to name an
activist on the Republican side of the aisle, it would be my friend Bob
Smith. He is the best activist that the antichoice people have. He is
an activist. He is the best activist the Humane Society has. When it
comes to Judge Paez, when it comes to Marsha Berzon, I dispute the
``activist'' tag. Some have made the term ``activist'' a bad name. I
don't think it is.
These two nominees have temperaments that fit the court. They are
well reasoned. When Judge Paez was reviewed by 15 experts in the law
profession, they said his opinions will stand the test of time; that he
is well reasoned. The lawyers have refuted everything that has been
said on this floor by people who don't know Judge Paez.
I will read statements from lawyers, the people who appear before him
day after day, and anonymous quotes they gave to the Judicial Almanac
when talking about Judge Paez and his temperament.
We are turning the word ``activist'' into something different.
Margaret Morrow had to struggle to be confirmed. I think some of my
friends on the other side of the aisle think you are an activist if you
have a heartbeat or a pulse, if you are alive. Nominees have to have
some opinions; that is what a judge does.
Accusing Judge Paez of being soft on crime is an incredible
statement, because, as I understand it, a criminal sentence by Judge
Paez has never, ever been overturned.
To hear people talk about letting rapists and other criminals free,
some might have done it but not Judge Paez. He has never been
overturned on a criminal sentence in his entire career, and he has been
on the bench for 18 years.
Sometimes people come to the floor making an argument about the Ninth
Circuit. How about putting two people on the Ninth Circuit who will
make it better? That is the opportunity we have today.

I will read some comments made by the lawyers who appear before Judge
Paez all the time. These are people who take all sides of the issue: He
is a wonderful judge. He is outstanding. He is highly competent. He is
smart. He is thoughtful. He is reflective.
``I don't know anyone,'' one lawyer said, ``who hasn't been
exceedingly impressed by him. He does a great job.''
``He is very well prepared,'' says another.
``He knows more about a case than the lawyers.''
Here is another: ``I think he has a great temperament. He never says
or does anything that is off. He has a good demeanor. He is
professional. He doesn't have any quirks.''
I listened to my friend, Senator Smith, who is eloquent, but he is
not talking about the man these lawyers know. He certainly is not
talking about the man whom all the law enforcement people who have
endorsed him know.
We hear Judge Paez is soft on crime. Why, then, does the National
Association of Police Organizations endorse him? Also endorsing him is
the Los Angeles Police Protective League, the Los Angeles County Police
Chief Association, the Association of Los Angeles Deputy Sheriffs, the
Department of California Highway Control Commissioner. Why would he
have bipartisan support from California State judges and justices, such
as California Court of Appeals Justice Walter Croskey, bar leaders,
business leaders, community leaders, the whole Hispanic community?
There is a lot of discussion about what party deserves to get the
votes of the Hispanics. I hope we can rise above this, but I do hope we
can listen to the Hispanic Chamber of Commerce which strongly support
Judge Paez.
I will read from their letter:

To the Senate majority leader from the United States
Hispanic Chamber of Commerce:
I urge you to consider the views of the U.S. Hispanic
Chamber and of the Hispanic small business community as we
await a decision from the Senate on the nomination of Judge
Paez. Judge Paez would be a great asset to the Ninth Circuit
Court of Appeals.

They conclude:

I therefore urge you to listen to the voice of the Hispanic
community and confirm Judge Paez to the Ninth Circuit Court
of Appeals.

Here is a joint statement from the Hispanic Chamber of Commerce--the
businesspeople--and the Hispanic National Bar:

The Hispanic community is justifiably proud of Judge Paez's
achievement. He is a jurist of integrity and decency, a role
model for Hispanics everywhere. Yet he has been kept waiting
for more than 49 months for a Senate vote. We applaud Senator
Lott's decision to give Judge Paez a vote and urge the Senate
to give him full and fair consideration.

They conclude:

If Judge Paez's record is reviewed fairly, he will be
confirmed on a bipartisan basis.

I know there is some thought as we get ready for an up-or-down vote
on these two nominees that there might be a motion made to indefinitely
postpone this vote. I have had discussions with the Parliamentarian who
believes that motion would be in order. I say it would be precedent
setting. We have these candidates. They have gone through a very
difficult confirmation process, being nominated a few times, getting
through the committee a few times, being asked extensive questions,
surviving an important cloture vote, which, frankly, they won
overwhelmingly. Eighty-some Senators said they have a right to have a
vote. I admire those Senators who voted for that, even though they
won't vote finally for either Marsha or Richard.
I make an appeal: If we vote to indefinitely postpone a vote on these
two nominees or one of these two nominees, that is denying them an up-
or-down vote.
That would be such a twisting of what cloture really means in these
cases. It has never been done before for a judge, as far as we know--
ever. Again, it would undermine what Senator Lott said when he said
these people deserve an up-or-down vote.
So I make a plea to my friend, Senator Smith. He and I go at it on
many issues, but we are good friends and we like each other. Consider
what you would do if you were to make such a motion, or another Senator
would do so. You would be saying these two people do not deserve an up-
or-down vote. I think that would be an undermining of the spirit of
what we did yesterday.
I hope we will not go that route. What goes around comes around.
Then, when you have a President who sends down a nominee, you are
setting your party's President up for this kind of twisting in the wind
that I do not think any nominee ought to go through.
I thank my friends for their indulgence. I believe very deeply we
have two mainstream, strong candidates, supported by Democrats and
Republicans alike, both inside the Senate and outside the Senate. We
have two people who have proven their mettle. I thank them for hanging
in there. I know there were times when they wondered whether it was
worth it; that they had

[[Page S1342]]

to look at their families one more time and say, ``We don't know yet.
We don't know yet. We don't know when we are getting a vote.'' That is
why I brought their pictures to the floor the last couple of days, to
put a face on these nominees. They have children. They have spouses.
They have community friends. They work hard. Their lives have
essentially been in limbo--for Marsha for a couple of years.
It is tough when you are in a law firm and you have been nominated.
The partners don't know what to do. Do they give you more cases? Do
they not? If you start a case, will you be pulled? It is a very
difficult thing for an attorney in that situation.
For Judge Paez, it has been tough for him to hear some of the things
that have been said when he is a man who has such broad-based support
in the community.
Colleagues on both sides of the aisle, this is a big and important
day. If there should be a motion made to indefinitely postpone this
nomination, please do not support it. That would undermine what we
promised these nominees way back several months ago when we told them
they would have a vote. If we have that vote, please turn against it.
And then, please vote for these nominees. They deserve your vote.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, I might say to my
colleague, she knows we respect each other and like each other
personally.
The points she makes about the families, when a nominee comes before
the Senate and there is a long delay, we understand that. That is not
easy for anybody. But I might also say, as far as I know--and I speak
for myself, and I am pretty sure I speak for everyone else--I remember
Clarence Thomas and people going in to find out what videos he
purchased. He had a family. And Robert Bork had a family. And Doug
Ginsburg had a family. I remember some very nasty things being said
about those nominees.
We are looking at court cases of these nominees, and that is all we
are looking at. I have not said, nor has anyone said on the Senate
floor, one word about their personal lives. I have no desire to go
there. This is about their court cases. In terms of Judge Paez in
particular, his judicial philosophy, his activist philosophy, I will
use his own words:

I appreciate the need for courts to act when they must.
When the issue has been generated as a result of a failure of
the political process to resolve a certain political
question, there is no choice but for the courts to resolve
the question that perhaps ideally and preferably should be
resolved through the legislative process.

The legislative process is to write the laws. That is what we do
here. It is not up to the courts to write the laws. It is up to the
legislature to write the laws. You should not put your activist views,
conservative or liberal, on the court. I want judges who will interpret
the Constitution.
These are his own words. I also want to point out--and I am just now
analyzing the case--I know it is not a criticism because I did not know
it either until this morning, but apparently there was a criminal case
of Judge Paez that was overturned yesterday. I am trying to analyze
that now, or maybe Senator Sessions may get into it later. So there was
at least one, in terms of a criminal overturn.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I will note, just before I start, a couple
of points.
The distinguished Senator from New Hampshire spoke about video rental
records of Judge Bork or Judge Thomas. He may recall when that
happened, a law was passed, the Leahy-Simpson law, which I proposed,
initiated, and drove through in short order, to make it illegal for
anybody to go and check somebody's video records. Ideally, I would like
to see us have as strong a law for our medical records, something that
has been held up while we spend a lot of time on a lot of other things.
That is something being held up by this Congress on medical privacy. I
wish we could do the same with that situation. But on Judge Bork or
Judge Thomas or any other judges, the Leahy-Simpson law says we cannot
look at their records.
I also note it was the Democrats who said very strongly about both
Judge Bork and Judge Thomas, there should be no filibuster. As I
recall, we expedited them relatively quickly for votes. It was also
this Senator, joined by some others on this side, who, on the Ginsburg
matter, when items were being leaked to the press--as it turned out,
some from the same White House from which his nomination came--it was
this Senator who took to the floor, and spoke elsewhere, and said let
us give Judge Ginsburg a hearing; he should not be subjected to
anonymous leaks, wherever they are coming from. As I said, some, it
turned out, came from the White House. It was the White House that then
announced, news to him, he was going to be withdrawing his name, which
of course he did.
It was approximately 12 weeks from the time Judge Bork was nominated
until we had a vote. It was something like 15 weeks from the time Judge
Thomas was nominated before we had a vote. Of course, on Judge Paez it
has been 4 years; on Marsha Berzon, 2 years.
I think we should talk about facts. Up to this date, there have been
a lot of red herrings set out on these two nominees. They have been
held without votes. Now at the 11th hour, some have sought to raise the
random assignment of the case against John Huang in the District Court
of the Central District of California as another reason to extend what
has already been a 4-year delay in our consideration of the nomination
of Judge Richard Paez.
I have yet to hear anybody suggest that there was anything untoward
in the assignment of Judge Paez on this case. The suggestion is out
here, somehow this was some nefarious thing, to put Judge Paez on this
case. So I checked around about what the court rules are in assigning
cases, because most courts have rules on how cases are assigned. They
are not secret. They are public, and they are publicly available. I
know they are in my own State of Vermont. They are elsewhere. But I
thought maybe there was something that those who were objecting to his
assignment to this case knew that we didn't. So I checked with the
Central District of California, and of course they do have court rules
governing the assignment of cases.
In fact, I understand the assignment of cases in the central district
is pursuant to general order No. 224 of that court. I mention this
because I wonder if any of those who have impugned Judge Paez sitting
on this case even bothered to check that rule as I did, as anybody can,
simply by picking up the phone and calling.
Section 7 of that order deals with the assignment of criminal cases.
Paragraph 7.1 says:

The assignment of criminal cases shall be completely at
random through the Automated Case Assignment System. . . .

That is how the cases are assigned. The order allows exceptions under
supervision of the chief judge. In the Huang case, there is no
indication any exception was involved. Quite the contrary. I am told
the assignment was done pursuant to a random assignment. That is what I
was told when I called. That is what anybody would have been told if
they had bothered to call instead of slandering this judge.
Then to make sure, because I am amazed anybody even questioned that
because it is such a longstanding rule, I went to the extraordinary
length of getting a statement under oath subject to the penalty of
perjury by the district court executive and clerk of court explaining
how these cases are assigned; Sherri Carter, district court executive
and clerk of court.
I must apologize on the record to Ms. Carter for any indication that
the Senate does not take her word for this or that people insist she
submit this statement under penalty of perjury. I say to her, this is a
strange time. Any lawyer who practices anywhere in this country knows
that practically any court has these same kind of random assignments.
State courts do it. Federal courts do it. Certainly any lawyer in
California knows it is a random assignment. I suspect the bailiffs can
tell you that. The janitors can tell you in that court, but the Senate
is so far removed from it that we need an affidavit telling us
something that everybody else outside of the sacred 100 in this Chamber
know.

[[Page S1343]]

I ask unanimous consent that the sworn affidavit of Sherri Carter,
district court executive and clerk of court, saying that district judge
Richard Paez was randomly assigned to the Huang case under the district
court-approved random assignment methodology using an automated
information processing system be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. District Court,

Central District of California,

Los Angeles, CA.
I, Sherri R. Carter, District Court Executive and Clerk of
Court, for the United States District Court, Central District
of California, declare that case number CR-99-524-RAP, U.S.A.
v. John Huang, was randomly assigned to District Judge
Richard A. Paez, on June 14, 1999 through the District Court
approved random assignment methodology utilizing an automated
information processing system.
Pursuant to 28 UCS 1746, I, Sherri R. Carter, District
Court Executive and Clerk of Court, declare under penalty of
perjury that the foregoing is true and correct executed on
March 8, 2000.

Sherri R. Carter,

District Court Executive
and Clerk of Court.

Mr. LEAHY. Mr. President, I am sure Judge Paez had no interest in
being assigned that case or the case against a former Member of
Congress, Republican Representative Jay Kim, or any other high-profile
case. I suspect any judge who has a pending confirmation would be
delighted to avoid such high-profile cases, but they follow the rules.
If the machine comes up and says ``you are assigned,'' then that judge
hears that case. Judge Paez ought not continue to be penalized for
doing his job in ruling in those assigned cases.
There is no allegation--no credible allegation, no believable
allegation, no factual allegation, no whisper of an allegation--outside
this Chamber that he did anything to obtain jurisdiction over those
matters. None whatsoever. That ought to settle this matter once and for
all.
It is the same as buying a lottery ticket and having the machine pick
the numbers for you. It is done automatically. He did not win the
lottery on this because he did not want a high-profile case, but he did
his job, the job he was sworn to do. We ought to do the job we are
sworn to do and vote up or down on these two people and not, as some
have suggested, have a vote to suspend indefinitely. That is the Senate
saying: Notwithstanding we are being paid to vote yes or no, we decide
to just vote maybe.
Let's vote up or down. In this particular case that has been talked
about, Judge Paez sentenced John Huang to 1 year probation, 500 hours
community service, and a $10,000 fine after he pled guilty to a felony
conspiracy charge on August 12, 1999. He agreed to plead guilty after
he reached an agreement, not with the judge but with the prosecution
for the Department of Justice. Based on that agreement, the prosecutors
recommended no jail time in exchange for the defendant's cooperation.
Judge Paez's approval of the prosecutor's recommendation was not
unusual.
During my years as a prosecutor, I can think of a number of times
when I said to the judge: Would you give this type of a sentence
because we are getting cooperation from this person? I am after bigger
fish; I have bigger fish to fry. I need their cooperation. Will you
please sentence him to what might appear to be a lighter sentence?
Judge Paez did put the sentencing off for 10 days, from August 2 to
August 12. Why? To consider a request by a Republican Congressman, Dan
Burton, who asked Judge Paez to delay sentencing until Huang testified
in front of his committee investigating campaign finance abuses. The
Congress asked him to delay. The Federal prosecutors objected to
Representative Burton's request for the indefinite suspension of
sentencing, and having delayed to consider the matter, Judge Paez
proceeded with the sentencing on August 12. I believe he was correct in
doing so. Huang's lawyer told the prosecutor he would cooperate with
Representative Burton's committee, notwithstanding sentencing. My
recollection is that is exactly what he did.
When it became clear, in virtually unprecedented fashion, Judge Paez
and Marsha Berzon would have to leap over a 60-vote margin in cloture,
and when it became clear the Senate would not add to the disgrace and
humiliation of holding them up this long, that we would invoke cloture
they want to suspend it indefinitely. After four years we should be
more than prepared to vote for him for the Ninth Circuit.
Suspending a vote on this nomination would be a tragedy. Here is a
remarkable man: a Hispanic American who has reached the Federal bench,
has the highest rating that bar associations can give for a nominee,
one of the most qualified people I have seen before the committee,
Republican or Democrat, in my 25 years here. He has been waiting,
dangling, for 4 years, humiliated by the actions of the Senate.
Now they ask to delay him again. It does not match up to what should
be the standards of a body that calls itself the conscience of the
Nation. Let us be clear, the Huang plea agreement, the transcript of
the sentencing and related documents are not new. They have been in the
possession of the Judiciary Committee since at least September of 1999.
Six months they have been here.

The sentencing, his postponement, and the position of sentence did
not happen in secret. It was in the glare of nationwide publicity.
Thousands of sentencings go on every year in this country in all kinds
of courts rarely covered by the press. This one was. These events
extend back to last August and before. It is not a justification for
asking for new information. It has been here.
I think the opponents misdirect their complaints about the plea
agreement between the Government and Mr. Huang at Judge Paez. Complain
about the Government's recommendation. That is one thing. Do not blame
the judge who followed them.
Moreover, in spite of the impression sought to be created here, the
plea agreement, dated May 21, 1999, expressly provides that Mr. Huang
is not immune from Federal prosecution under ``laws relating to
national security or espionage'' but covers only that conduct he had
disclosed to prosecutors. In fact, his own attorney acknowledged at the
time of sentencing that this plea agreement, OK'd by the prosecutors
and the judge, leaves Mr. Huang open to further prosecution.
As far as the sentencing, let's be clear what happened. The Senate
should know, pursuant to the agreement, Mr. Huang pled guilty to one
count of conspiracy, a charge that carries the maximum penalty of up to
5 years. As for the calculation of the sentencing guidelines, both the
Government and the probation office agreed on that calculation. They
further agreed that in light of his substantial cooperation, he should
receive a sentence of 1 year's probation and 500 hours of community
service.
In fact, the only disagreement between the prosecutors and the
probation office was on the amount of the fine. In this case, Judge
Paez disregarded what the probation office recommended and went with
the prosecutors' recommendation, the higher fine, and he imposed that
fine.
If you read the sentencing transcript, you see the judge acted in a
conscientious manner. He insisted on a probation officer's report and
recommendation before proceeding. He did not proceed until he was
advised of the extent and nature of Huang's cooperation that was
expected. The Government informed the court that Huang provided
substantial, credible information helpful in task force investigations.
The judge emphasized that Mr. Huang was expected to continue to
cooperate after his sentencing.
I mentioned being a former prosecutor. I can tell you, when I was
prosecuting cases nothing was more infuriating than when people did not
know the facts of a case or the extent of cooperation or the value of
the plea agreement, and they would try to pick apart an agreement after
the fact.
I can think of cases where people would say: Oh, my gosh, how can
this person get a light sentence? Why? Because they helped us catch
five other people we would not have caught without them.
It is easy enough to criticize and second-guess. It is always easy to
say someone else settled too cheap, that they made a bad deal. That
undermines the role and morale of good prosecutors. We all know how
clogged the already overloaded courts would be if prosecutors could not
use their best

[[Page S1344]]

judgment and enter into plea agreements.
We have 75 vacancies in the Federal court. Prosecutors are under
pressure all the time to move cases through because we have not
confirmed the judges; we have not added the extra judges they need. The
courts are backlogged. You cannot get civil cases heard because of all
the criminal cases. Prosecutors have to make their best judgment.
Whether one agrees or disagrees with the agreement, no one can say,
with a straight face, that we suddenly found out about it, or that now
we have to have a last-minute postponement. We do not need such a
thing.
This has been pending for 4 years. The facts have been here for 4
years. The nomination has been here for 4 years. Local law enforcement
has strongly backed Judge Paez for 4 years. His home State Senators
have strongly backed him for 4 years.
He is supported by the Los Angeles district attorney, the Los Angeles
Police Protective League, the National Association of Police
Organizations, the Association for Los Angeles Deputy Sheriffs, the Los
Angeles County Police Chiefs' Association. This guy sounds like the
kind of judge I would have liked to have had my cases assigned to when
I was a prosecutor.
We have made this highly qualified man jump through hoops for 4
years. He was required to review his criminal sentences for his whole
career on the Federal bench. This is what we asked him to do after he
was pending for 4 years. He had two confirmation hearings, and had been
voted out twice by the Republican-controlled Judiciary Committee.
A lesser person would have said: Enough is enough. This is such petty
harassment. He did not complain. He complied. What do the facts show?
He is a tough sentencer. Those are the facts, not the comment of some
reporter thrown into a political story here in Washington.

The people of California, the people who know him best, named him the
Federal Criminal Law Judge of the Year in 1999. He has had sentences
within the sentencing guidelines more often than the national average
for district judges. We ought to be praising him for that. People say
district judges don't follow the guidelines. We ought to praise him for
being above average in that.
We talk about his criminal judgments appealed. There were 32 criminal
judgments appealed. He was affirmed 28 times. Two of the appeals were
dismissed for lack of jurisdiction; one was remanded. Only 1 of the 32
was reversed, in part.
We talk about how we want people who are going to be upheld on
appeal. There isn't a district court judge--Republican, Democrat, or
anything else--who would not be delighted to have a record on appeal
like Judge Paez.
He is a tough judge, a really tough judge. He is also a good judge, a
well-trained judge, a highly intelligent judge, and a judge who wins on
appeals.
Obviously, every Senator has a right to vote how he or she wants, but
at least vote. I do not think it is right to hold somebody up. It would
certainly be an outrageous mark of shame on the Senate if we took the
unprecedented step, for a Federal judicial nominee, after cloture, to
move to indefinitely postpone. It would be the first time that sequence
would be followed in the Senate. That would be a mark of shame on us.
But what bothers me is the way people look for any reason--real or
imagined--to vote against Judge Paez.
There seems to be no interest in looking at his whole record of
public service. I have heard no mention of Judge Paez's decision in the
Great Western Shows, Inc. case. That was a controversial case. I am
sure he did not ask to be assigned to it. But he applied the law fairly
and objectively. Let's mention this case.
We heard he may be a liberal judicial activist, whatever that is. It
must mean, like the majority in the Supreme Court in the last year or
so, taking away more rights from the States and people in patent cases,
and so on. But let's talk about this.
In the Great Western Shows case, he heard and granted a motion for a
preliminary injunction against a Los Angeles county ordinance that
would have effectively banned gun shows, the sale of firearms and
ammunition on county property. He went against those who wanted to ban
the gun show because he found substantial questions that the ordinance
was preempted by State law. So he granted an injunction so the gun show
could proceed.
To me, that does not sound like a judicial activist. It reminds me of
the courage that a Vermont district court judge showed back in 1994
when his nomination to the Second Circuit Court of Appeals was likewise
pending before the Senate. At that time, Judge Fred Parker handed down
his decision in the Frank case in which Judge Parker held the 10th
amendment prohibited Congress from usurping the power of Vermont's
Legislature and declared certain provisions of the Brady law
unconstitutional.
I remember that very well because it was about the same time I was
down asking the President of the United States to appoint Judge Parker,
a conservative Republican, who served as the deputy attorney general of
our State. I was asking the President to appoint Judge Parker to the
Second Circuit. I also knew Judge Parker was an extraordinarily
brilliant person. He was a classmate of mine in law school. He is
highly honest. Usually he had supported my opponents.
I had to tell the President, who was strongly supporting the Brady
law: This judge I want you to appoint to the Second Circuit Court of
Appeals has just found a hunk of that law unconstitutional. The
President said: Anything else you want me to do for you today?
But to Bill Clinton's credit, he did appoint Judge Parker to the
Second Circuit. Oh, just as a little footnote, to Judge Parker's
credit, the U.S. Supreme Court upheld him. They said he was right, that
the way it was drafted, that part of the Brady law--which we have since
changed--was unconstitutional.
The point is, both these judges, Judges Parker and Paez, acted with
courage to do their duty. They applied the law to the facts, and they
did their judicial duty. They did so at some personal risk while their
nominations to higher courts were still pending before the Senate. I
think the strength they show is commendable. They are the kinds of
judges we need in our Federal courts to act with independence and in
accordance with the law. All the Senators who were in the Senate at
that time voted for Judge Parker.

I hoped they would give the same with respect to Judge Paez. He
doesn't tailor rulings or sentences to please political supporters. He
is not soft on crime. This is a man who gets upheld on virtually all
his criminal cases. He is a person with great resolve and temperament
and intellect. Those who seek to diminish this man or his record should
reconsider and support his prompt confirmation.
I understand why people support him so strongly. I ask that a
sampling of letters from the Hispanic National Bar Association,
national Hispanic Leadership Agenda and its more than 30 constituent
organizations, the League of United Latin American Citizens, and the
U.S. Hispanic Chamber of Commerce in support of Judge Paez be printed
in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:

Hispanic National Bar Association,

Washington, DC, February 20, 2000.
Hon. Patrick Leahy,
Courthouse Plaza,
Burlington, VT.
Dear Senator Leahy: It is the understanding of the Hispanic
National Bar Association that Majority Leader Trent Lott has
agreed to call a floor vote on the nomination of Judge Paez
by March 15. Therefore, as the Regional President of the
Hispanic National Bar Association with jurisdiction over the
State of Vermont, I am writing to inquire into your position
on the nomination of Judge Richard A. Paez to the United
States Court of Appeals for the Ninth Circuit.
The Hispanic National Bar Association is a non-partisan
organization with over 22,000 members that has as one of its
goals to promote the appointment of qualified Hispanic
candidates to the Bench. We have reviewed the qualifications
of Judge Paez and strongly support his confirmation. In fact,
his confirmation is one of our top priorities for this year.
I will contact your office within the next few days to see
if you, or your staff, are available to meet with us to
discuss this important nomination. If you have any questions,
please feel free to contact me at (617) 565-3210.
For your information, I have attached a copy of a Los
Angeles Daily Journal article on Judge Paez which, upon your
perusal,

[[Page S1345]]

should clear up any misconceptions and incorrect labels that
are currently the foundations of objections to his
nomination.
I appreciate your attention to this request.
Sincerely,
R. Liliana Palacios,
Regional President.
____

National Hispanic

Leadership Agenda,

Washington, DC, March 3, 2000.
Dear Senator: As members of the Board of Directors of the
National Hispanic Leadership Agenda (NHLA), we are writing to
reiterate our strong support for Judge Richard Paez to the
Ninth Circuit Court of Appeals and our request that you vote
to confirm him.
About two weeks ago, you should have received a letter from
the NHLA signed by our Chair, Manuel Mirabal. Because we wish
to convey to you fully the importance of this matter to the
Latino community, we have decided to send you this additional
letter with our individual signatures.
The NHLA represents a highly diverse and important cross-
section of the national Latino community. Our organizations
have offices and constituents throughout the country, and we
come together when we find issues of mutual concern. We
submit this letter on behalf of the organizations we
represent, and we sign this letter as individuals prominent
in various fields, including business, legal, labor, health,
scientific, among others as well.
We come together to support a highly qualified candidate to
the Ninth Circuit Court of Appeals--Judge Richard Paez. In
1994, Judge Paez became the first Mexican American appointed
to the Central District Court of California in Los Angeles.
This was a milestone for the Latino community. Now that Judge
Paez has been nominated to the Ninth Circuit, we believe he
will serve well not only the 14 million Latinos living in the
Ninth Circuit, but all Americans who seek a fair review of
the matters they bring to court.
Thank you again for considering our strong backing for
Judge Paez, and we urge you to support his confirmation.
Sincerely,
Elena Rios, MD, National Hispanic Medical Association;
Kofi Boateng, Executive Director, National Puerto Rican
Forum; Elisa Sanchez, CEO, MANA, A National Latina
Organization; Delia Pompa, Executive Director, National
Association for Bilingual Education; Manuel Oliverez,
President & CEO, National Association of Hispanic
Federal Executives; Guarione M. Diaz, President &
Executive Director, Cuban American National Council;
Gabriela D. Lemus, Ph.D., Director of Policy, League of
United Latin American Citizens.
Manuel Mirabal, President, National Puerto Rican
Coalition; Arturo Vargas, Executive Director, National
Association of Latino Elected and Appointed Officials;
Anna Cabral, President, Hispanic Association on
Corporate Responsibility; Gumecindo Salas, Hispanic
Association of Colleges and Universities; Al Zapanta,
President, U.S.-Mexico Chamber of Commerce; Mildred
Garcia, Deputy Director, National Hispanic Council on
Aging; Andres Tobar, Executive Director, National
Association of Hispanic Publications.
Oscar Sanchez, Executive Director, Labor Council for
Latin American Advancement; Gilberto Moreno, President
& CEO, Association for the Advancement of Mexican
Americans; Roberto Frisancho, President, Latino Civil
Rights Center; Lourdes Santiago, Hispanic National Bar
Association; Ronald Blackburn-Moreno, President, ASPIRA
Association, Inc.; George Herrera, President/CEO, U.S.
Hispanic Chamber of Commerce; Juan Figueroa, President
and General Counsel, Puerto Rican Legal Defense and
Education Fund; Raul Yzaguirre, President, National
Council of La Raza; Antonia Hernandez, President &
General Counsel, Mexican American Legal Defense and
Educational Fund.
____

League of United

Latin American Citizens,

Washington, DC, March 6, 2000.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: On behalf of the League of United Latin
American Citizens, the oldest and largest Hispanic
organization in the United States, I urge you to vote to
confirm Judge Richard Paez to the Ninth Circuit Court of
Appeals. Judge Paez was first nominated to serve on the Ninth
Circuit on January 25, 1996--more than four years ago. This
is an unusually long time to wait, especially considering
Judge Paez's qualifications for the position.
Judge Paez currently serves with distinction as a Federal
District Judge in the Central District of California, where
he has been for over five years. Before that he served as a
municipal judge in Los Angeles for thirteen years. When first
considered by the Senate, Judge Paez was confirmed
unanimously. Many of the Senators who agreed to his
nomination in 1994 are still in office. Since he was
nominated to the Ninth Circuit, Judge Paez has been through
two hearings to review his qualifications and both times he
was voted favorably out to be considered by the full Senate.
He has been rated well-qualified by the American Bar
Association and is supported by a wide array of individuals
and organizations, including representatives from the
business and law enforcement communities.
By March 15, 2000, Senate Majority Leader Trent Lott will
move for a vote on Judge Paez. I strongly urge you to support
his confirmation. His confirmation is important to LULAC not
only because we have the opportunity to place an excellent
judge in this important position, but as a Latino, he
represents one of a very few opportunities for our community
to be present at this level. It is also important to our
judicial system, both how it operates and how it is perceived
to operate, that individuals who have worked hard, played by
the rules, and are qualified receive a fair chance just like
others who may be different from them. Judge Paez has done
everything it takes to be qualified for the position on the
Ninth Circuit; he deserves your vote.
I hope we can count on you to support Judge Paez. LULAC
will be recommending that this vote be include in the
National Hispanic Leadership Agenda scorecord which will be
published at the conclusion of this session.
Sincerely,
Rick Dovalina,
National President.
____

United States Hispanic

Chamber of Commerce,

Washington, DC, October 6, 1999.
Hon. Trent Lott,
Senate Majority Leader,
U.S. Capitol,
Washington, DC.
Dear Senate Majority Leader: On behalf of the Board of
Directors of the United States Hispanic Chamber of Commerce
(USHCC). I urge you to encourage a vote on the nomination of
Federal District Court Judge Richard Paez to the Ninth
Circuit Court of Appeals. I urge you to consider the views of
the United States Hispanic Chamber of Commerce and of the
Hispanic, small-business community as we await a decision
from the Senate on the nomination of Judge Paez.
As you may know, the USHCC's primary goal is to represent
the interests of over 1.5 million Hispanic-owned businesses
in the United States and Puerto Rico. with a network of over
200 Hispanic chambers of commerce across the country, the
USHCC stands as the preeminent business organization that
effectively promoters the economic growth and development of
Hispanic entrepreneurs. In addition, the USHCC provides and
advocacy on many issues of importance to the Hispanic
community. Hispanic entrepreneurs are interested in promoting
the growth and development of Hispanics in the United States.
For this reason, the USHCC supports the confirmation of Judge
Paez to the Ninth Circuit.
Judge Paez was nominated to the Ninth Circuit Court of
Appeals in 1996. He has been awaiting confirmation by the
United States Senate for three and a half years, one of the
longest pending nominations in history. Judge Paez has
demonstrated the leadership and accomplishments that are well
suited to a candidate for a Ninth Circuit Court Judge. He
served as a judge in the Los Angeles Municipal Court for 13
years. While serving on that court, he was selected to serve
in various leadership positions, including Presiding Judge.
He was also elected to serve as Chair of the Los Angeles
County Municipal Court Judges Association. In 1994, he was
confirmed to the Central District Court of California where
he currently serves.
Judge Paez would be a great asset to the Ninth Circuit
Court of Appeals. He has the support of many civil rights,
law enforcement and community groups, including that of the
National Hispanic Leadership Agenda (NHLA) of which the USHCC
is a member organization. The NHLA is a coalition of over 30
national and leading. Hispanic organizations in the United
States. The USHCC has been supportive of NHLA's efforts
regarding the confirmation of Judge Paez. I therefore urge
you to listen to the voice of the Hispanic community and
confirm Judge Paez to the Ninth Circuit Court of Appeals.
Respectfully submitted,

George Herrera,

President and
Chief Executive Officer.

Mr. LEAHY. Mr. President, I hope today we will close the chapter of
what has not been the greatest light and the greatest time of the
Senate--close this chapter of 4 years of delay and harassment of this
wonderful man and confirm him today.
Mr. President, how much time remains for the Senator from Vermont?
The PRESIDING OFFICER (Mr. Allard). There are 33 minutes remaining.
Mr. LEAHY. Mr. President, I yield the floor and reserve the remainder
of my time. I thank my distinguished friend from New Hampshire for
yielding.
The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
Mr. SMITH of New Hampshire. Mr. President, in a moment I will yield
to my colleague from Alabama. I want to respond to a couple of points
that were made during the debate, in terms of

[[Page S1346]]

process, by the distinguished Senator from California, Mrs. Boxer, and
Senator Leahy of Vermont.
The criticism on the filibuster is a bit unwarranted. I could have
come down here and thrown the Senate into quorum calls and delayed and
delayed just for the sake of delay. None of us on our side, including
me, did any such thing. We worked out an agreement with the majority
leader for a limited amount of time, which on our side was 3 hours--it
could have been 30, No. 1--after cloture. Secondly, I agreed to move
the cloture time up, and the leader agreed with me.
The real purpose of that was to get facts out about these two
judicial nominees, Berzon and Paez. I know in the case of Senator
Sessions, who will speak for himself on this, he has new information
about Judge Paez. I believe that when new information is there, in
spite of the fact that this judge has been before the Senate for 4
years, it should be shared with the Senate. I think Senator Sessions
has every right to share it. Frankly, I think Senators will want to
hear it. So I hope they will listen when Senator Sessions speaks in
detail about the new information he has because I think it is very
important in the case of the nomination of Judge Paez.
I want to speak for just a moment on the issue of the random rule
that my colleague from Vermont talked about. He indicated, to his
credit, that he called and asked about the random rule, and he got a
statement from the clerk that that was in fact random. Well, that is
one statement, and it may well be true. I think we have a right to
check that out to make sure it was random. If it were random, I ask my
colleague, should this judge who is before the Senate to be confirmed
for the circuit court, nominated by President Bill Clinton--is it the
right thing to do, perception-wise, to sit on a case involving Maria
Hsia, who has just been convicted for part of the fundraising scandal,
along with John Huang who was also involved in that scandal? It seems
to me, even if it did come out randomly, it would be good, common sense
to say I will recuse myself from these cases because I don't think it
looks good.
The random aspect has a problem, which Senator Sessions will address.
The random aspect presents a problem for me because there are 34 judges
there, and the fact that those 2 cases would be randomly assigned to
this judge is pretty suspicious. But if you give them the benefit of
the doubt, a bad judgment was made by Judge Paez in taking them.
Finally, much has been made here this morning as to comments about
Hispanic judges. I think the implication is, somehow there is bias
here. I remind my colleagues and the American people that we had a vote
of whatever it was--95-0--on Judge Fuentes the other day. I voted for
that judge, as did all of my colleagues. I certainly didn't assign any
racial bias when Judge Thomas was opposed by many on the other side of
the aisle, who happened to be a conservative black, which was the first
sin--and probably the only sin, as far as I know--he committed. For
that, he went through a living hell for a long time. Had he been a
liberal black judge, I don't think there would have been a problem at
all.

So I don't think we need to get into name calling and give the
insinuation that somehow because Paez happens to be Hispanic--that is
uncalled for, and I hope we can get away from that kind of debate. I
look at each person on the basis of their qualifications and their
decisions. For all I know--OK, Paez, is that a Hispanic name? I don't
even know. I could care less. So I hope we can get beyond that.
At this time, I yield to my colleague from Alabama, Senator Sessions,
whatever time he may consume.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, I thank the Senator and I appreciate his
leadership on this issue and his courage in standing up for it.
It is really offensive to me that it would be suggested I or other
Members would oppose someone simply because they were Hispanic, African
American, or any other nationality, religion, or racial background. I
hardly knew he was Hispanic until we were into this matter. He has been
held up for a number of years for reasons that have been discussed in
some detail. He has stated, as a State judge, a philosophy of judging
that is the absolute epitome of judicial activism. He said that when a
legislative body doesn't act, it is the responsibility of the judge, or
the judiciary, to act and fill the void. Well, when a legislative body,
duly elected by the people of the United States, fails to act, that
body has made a decision--a decision not to act. But they are elected.
If they do the wrong thing, they can be removed from office. But now we
want to have a Federal judge who is unelected, with a lifetime
appointment, to blithely walk in and say: Well, I don't like this
impasse. You guys have a problem and you didn't solve it, so I am going
to reinterpret the meaning of the Constitution. That word doesn't mean
that, or ``is'' means something else. So I am going to make this
legislation say what I want it to say. I am going to solve this
problem. You guys in the legislative branch would not solve it; you
failed to solve it, and you are thinking about special interests. But I
am above that, and I will do the right thing.
Mr. President, that is judicial activism. That is an antidemocratic
act at its most fundamental point because that judge has a lifetime
appointment. He has no accountability to the public whatsoever.

It is a thunderous power that the Founding Fathers gave Federal
judges. And for the most part they have handled themselves well. But
this doctrine of judicial activism that they have a right to act when
the needs of the country are at stake is malicious, bad, and wrong. It
undermines the rule of law. It undermines the democracy at its very
core.
Hear me, America. When you have a Federal judge who is an unelected
person unaccountable to the people, we have gone from a democracy to
something else. I believe that is not healthy. His statement in that
regard is a fundamental statement that indicates to me he is
particularly not a good choice for the Ninth Circuit.
As the Senator so ably pointed out, it is the most activist circuit
of all. I know the Senator mentioned the recent case in which he was
reversed.
The city of Los Angeles passed a statute against panhandling after an
individual on the street of Los Angeles was murdered when he wouldn't
give somebody 25 cents. They passed legislation. The Los Angeles City
Council is not a city council that has set about to deny civil
liberties. They are one of the most open cities in the world.
What did Judge Paez do, according to the Federal Supplement opinion
of his district court order in 1997? He found that the ordinance was
invalid on its face under the California Constitution's Liberty of
Speech clause for discriminating on the basis of content between
categories of speech.
The case was appealed to the Federal court. They certified that
question, as they sometimes do, to the California Supreme Court. This
is a California statute, and the Federal judge was invalidated by the
California Supreme Court.
Out of deference and respect to the California Supreme Court, what is
your opinion of that? They reviewed the matter. They came back and
concluded that the judge was wrong after having delayed the
implementation of a duly passed statute by the duly elected leadership
of the city of Los Angeles. This one sitting, lifetime-appointed judge
unaccountable to the American people wiped it out. The California
Supreme Court said this:

As noted above, the regulation of solicitation long has
been recognized as being within the government's police
power. And, yet, plaintiff's suggested approach to content
neutrality in many instances would frustrate or preclude that
means--

Let me stop--

[T]he kind of narrow tailoring that is generally demanded
with regard to the exercise of such police power regulation
in the area of protected expression. If, as plaintiff
suggests, lawmakers cannot distinguish properly between
solicitation for immediate exchange of money and all other
kinds of speech, then it may be impossible to tailor
legislation in this area in a manner that avoids rendering
the legislation impermissibly over-inclusive.

It is free speech to say ``stick'em up, turn over your money or your
life''? No, it is not.
This is a pretty cutting and direct rebuttal, and a blunt
condemnation of Judge Paez from the Supreme Court of California--not a
right-wing court, I submit:

[[Page S1347]]

In our view, a court should avoid a constitutional
interpretation that so severely would constrain the
legitimate exercise of government authority in an area where
such regulation has long been acknowledged to be
appropriate.

Indeed, one of the main reasons our murder rate fell in this country
a few years ago was because Rudy Giuliani, as mayor of New York,
examined what was happening to crime in New York, and he decided that
what was happening was we were allowing panhandlers and drug dealers to
be wandering the streets and they focused on small crime. They had a
plummeting of the murder rate in New York. It dropped by about two-
thirds in almost 1 year's time. In fact, there was almost a one-half
decline in the murder rate in 1 year.
This judge would say those kinds of regulations that allow a city to
take control of its streets is not valid, and it was reversed by the
Supreme Court of California in pretty blunt language. To say he is not
an activist and not willing to use his power as an unelected public
official to set public policy in America is wrong.
That is only one of the cases that is involved here.
I am concerned about the sentencing of John Huang. It is a very
important case. It is a case of real national importance. His
activities were followed. The Democratic National Committee had to give
back $1.6 million in contributions that had come from illegal sources,
mainly foreign sources--the Lippo Group, and Riady, and so forth. That
was a major news story, and it was for years.
We, as members of the Judiciary Committee, the chairman of the
Judiciary Committee, leaders in the House and Senate, urged Attorney
General Janet Reno to set up an independent prosecutor to investigate
this campaign finance problem. She steadfastly refused to do so,
although she did in a lot of other cases.
The employees of the Department of Justice are answerable to the
Attorney General, who holds her office at the pleasure of the President
of the United States. She can be removed at any moment by the President
of the United States. She decided she would hold onto that case. She
would not give it up, and she assured us that they would effectively
prosecute it; they would get to the bottom of it and crack down on
these illegal contributions from foreign governments, mainly believed
to be the People's Republic of China, a Communist nation, and a
significant competitor of the United States, while they were stealing
our secrets at the same time from our laboratories.
This is a serious matter. She would not give it up. She said she
would do a good job with it, and they took the case and investigated
it. Her underlings met with John Huang's lawyers in Los Angeles, and
they discussed the case and the disposition of it.
I was a Federal prosecutor for 15 years. I have some experience. I
have been here for 3 years, but most of my career was as a Federal
prosecutor.
So they have this meeting and they reach a plea agreement. I have a
copy of the plea agreement. They had a plea agreement and presented it
to the judge.
I tell you, a judge is not required to accept a plea agreement under
the law, and I can document that entirely. A judge is not required to
accept a plea agreement presented to him by a prosecutor. It is common
knowledge and everyday practice. You present a plea to the judge. By
accepting it, he accepts the guilty plea of that defendant. If he
rejects it, he doesn't take the plea.
What did the plea agreement say about that particular issue? They
said: Oh, you know, the judge is just a victim of the prosecutor. He is
just bound by them.
I am telling you that a judge is a force. A Federal judge to a
Federal prosecutor is a force. What he says or she says goes. They can
demand all kinds of things before they take a plea, and they should
demand all kinds of things before they take a plea.
For those who think the judge had no authority, I will read the exact
language between John Huang and the Clinton Department of Justice
prosecutors.

Paragraph 15: This agreement is not binding on the court.
The United States and you understand that the court retains
complete discretion to accept or reject the agreed-upon
disposition as provided for in paragraph 15(f) of its
agreement. If the court does not accept the recommended
sentence, this agreement will be void, you will be free to
withdraw your plea of guilty. If you do withdraw the plea,
all that you have said and done in the course of leading to
this plea cannot be used against you.
In addition, should the court reject this agreement, and
should you, therefore, withdraw your guilty plea, the United
States agrees it will dismiss the information, the charge,
that is brought against you, without prejudice to the United
States right to indict you on charges contained in the
information and any other appropriate charges.

This is basic. They go to the court and plead guilty. The judge does
a pre-sentence report, as the Senator from Vermont said. A judge ought
to be impeached if they don't do a pre-sentence report on a case such
as this. That is routine. A pre-sentence report is made, which has not
been made part of the record. There was a plea on what is called an
information, not an indictment.
That means the case was not presented to a grand jury of 24 citizens
to have them vote on what charges should be brought against John Huang.
Remember, the investigation began out of the charges of $1.6 million
to the 1996 Democratic National Committee to benefit the Clinton-Gore
campaign.
Some say: Jeff, you are just playing politics. You want to talk about
campaign finance reform.
I am talking about the judge who took the plea on the man who was a
central figure in the gathering of this money from a Communist nation.
This is serious business. We ought not to treat this lightly.
Any judge who had already been nominated by this President for a
higher Federal court position, I believe, should have realized the
significance of the position he was in and conducted himself with a
particularly high level of scrutiny. It was produced after this plea
agreement was signed between the prosecutor and John Huang and his
attorneys. They produced an agreed-upon charge--not an indictment
because it wasn't a grand jury; it is called an information. It is
written by the prosecutor, saying: The United States charges.
They did this, and presumably filed the case on the docket. In some
fashion, the case went to Judge Paez. Out of 34 judges, this case goes
to the Judge who is already being nominated by the President for
another high court position. I know we have a clerk who has written a
letter, but clerks get their fannies in trouble if they don't say those
kinds of things. I don't know how this case got to him. I would like to
have that clerk under oath for about an hour, and I will know after
that whether or not it was handled in a legitimate way. That is what I
believe. This little one- or two-line statement doesn't say a lot that
satisfies me. I have seen many of those statements. The President
submitted a many affidavits saying, ``I didn't do anything wrong'' in
his civil cases. We learned later that he did do some things wrong.
It is curious to me that Judge Paez had drawn the other significant
campaign finance reform case for the Democratic National Committee in
the Clinton-Gore campaign. That was a Maria Hsia case. Maria Hsia is
the one laundered the money through the Buddhist nuns for the campaign.
He got both of those cases. That is a pretty high number. I would like
to see a mathematical calculation of the chances of the two most
prominent campaign finance reform cases both falling to 1 judge out of
34 judges in Los Angeles, California. I don't know how it happened.
Maybe there is a good explanation. If there is, I am pleased to accept
it.
I have been in courts and my experience is, and this is the reason I
am concerned, usually in Federal courts, if there are 50 indictments
returned by grand jury, they go on some sort of ``wheel'' and are
randomly assigned. Cases that proceed on information by a prosecutor do
not move through a grand jury. They move through the system in a
different direction and do not always go on random selection.
Years ago, I remember when we would take the case to whatever judge
was available. If a defendant wanted to plead guilty and we were
satisfied, we called the judge and said: Judge, can you take the plea
this afternoon at 4 o'clock? He would say, OK, or we would find another
judge.

[[Page S1348]]

It is much more possible there is ``judge shopping'' on a plea to an
information than on an indictment returned by a grand jury.
I think we ought to know this before we vote on a lifetime appointee.
I wish it had been discovered sooner.
This is not an individual member of a law firm who had his practice
disrupted. He is now a sitting Federal judge with a lifetime
appointment. If he is not confirmed by this Senate, he will still be a
Federal judge. He was previously confirmed by this Senate to be a
Federal judge for the district court. I submit it is not too much to
ask for a few weeks, 2 or 3 weeks, to have the matter cleared up. It
has been 4 years; what is 3 more weeks to get the matter settled? That
is what we ought to do if we want to do our duty.
I believe the evidence shows with some clarity why I believe the
judge's actions at a minimum did not meet standards required of him.
There has been a lot of talk from those who defend Judge Paez. They
say he is a victim of the prosecutor. Prosecutors have to take the
pleas. It is routine to take the pleas.
This was not routine, No. 1.
Then they say the prosecutors were not doing their job. The
prosecutors didn't tell him everything. He could not know everything.
We have examined the portions of the sentencing record we have been
able to obtain, and we know at least some of those facts of which he
was aware. I will analyze, based on the record, what he knew and what
the sentencing guidelines require in terms of a sentence. I think I
will demonstrate to the satisfaction of any fair observer that the
judge did not follow the sentencing guidelines effectively. He found a
lower level of wrongdoing than he should have. That level of wrongdoing
allowed him to issue a light sentence instead of a sentence in jail.
I take very seriously the sentencing guidelines that were passed by
this Congress a number of years ago. In the early 1980s, I was a U.S.
attorney, a Federal prosecutor. The whole world held its breath when
the U.S. Congress eliminated parole. It said to Federal judges: We are
tired of one Federal judge giving 25 years for bank robbery and another
giving probation for the same bank robbery offense. We don't want one
judge who doesn't like drug cases giving everyone probation and another
judge hanging an individual for minor amounts.
We are going to have guidelines. They passed detailed guidelines, and
say the range would be 26 to 30 years. If the judge desired, he would
give the lowest sentence allowed, 26; if he desired, he could give an
individual 30.
The guidelines mandated and controlled sentencing. It was designed
out of concern that there had been racial disparity. It was designed
out of concern about an individual judge's predilictions to be soft or
tough, and tried to create a uniform sentencing policy.
We held our breath. We didn't know if judges got their back up. They
didn't like that. They had complete discretion before. They fussed. We
wondered if they would follow. They did follow it. The courts of
appeals and the Supreme Court directed them to follow. If they didn't
follow guidelines, they reversed the sentences and sent the case back,
saying: Follow these sentencing guidelines.
Even if we don't like them, they were passed by the elected
Representatives of America in Congress. We, as judges, have to abide by
those guidelines.
That is the basic point on that.
The plea agreement was stunning, in my view. And the information that
was filed for the case was very troubling to me. We have a national
matter involving the very integrity of the Presidential election by the
infusion of large sums of illegal cash. It made national news, TV,
radio, magazines, newspapers. What do the Department of Justice
prosecutors do? Where do we charge John Huang with this fundamental
violation of the 1996 election? Is that what he pled guilty to, in this
information and plea agreement? I have it right here. He did not plead
to one dime of illegal contributions to the Clinton-Gore Democratic
National Committee campaign in 1996. His plea was to a $5,000 and a
$2,500 campaign contribution to the Michael Woo for Mayor Campaign
Committee in Los Angeles. That is what he pled guilty to. That is all
he pled guilty to.

What did the prosecutor recommend? He recommended a nonincarcerated
sentence of 1 year probation, no jail time, don't go to the Bastille,
don't get locked up, don't serve time in jail for one of the biggest
intrusions of illegal cash in the history of American political life.
Plead guilty to a violation in a mayor's race. Don't discuss the matter
of the Presidential election; it might embarrass the boss of the
prosecutor who is handling the case.
This is raw stuff. It goes to the absolute core of justice in
America. As U.S. attorney in Mobile, I prosecuted friends of mine,
classmates of mine, business people I knew in the community, and drug
dealers galore because I swore an oath we would have ``equal justice
under law.'' It is on the Supreme Court, right across this street. Go
look at it: ``Equal Justice Under Law.''
I assure you that, this very day in Los Angeles, CA, 25-year-old
crack cocaine dealers are getting sentenced to 20 to 25 years in jail;
some, life without parole. I was involved in a cocaine smuggling case.
Five guys from Cleveland or somewhere brought in 1,500 pounds of
cocaine, and the five of them got life without parole the same day
because the Federal sentencing guidelines are tough on drug dealers.
And they have tough provisions for corruption cases. But what did he
get? He got 1 year probation and a $10,000 fine.
Do you think Mr. Riady would be glad to pay that fine? Do you think
the Lippo Group could afford to pay a $10,000 fine for their buddy
Johnny Huang? He testified. They said, you need to get at the bigger
fish, and they did this because John Huang agreed to testify. Against
whom did he testify? Did he provide important information? That is what
prosecutors have to ask themselves. They had apparently debriefed him
at the time of his plea and gotten him to tell what he knew and what he
was going to cooperate about.
Who was the big fish? Who was the big fish that this great team of
prosecutors agreed to prosecute? It was Maria Hsia. That is the only
person, to my knowledge, John Huang has ever testified against. From
what I hear, it was a pretty weak bit of testimony in a recent case in
Washington. So they plea-bargained with John Huang, the big fish, and
ended up getting testimony against some little fish.
What happens to Maria Hsia, the lady who raised all that laundered
money at the Buddhist temple for Vice President Gore, the President of
this Senate, when he chooses to be, there raising the money? She got
convicted on five counts, allowing her to be sentenced for up to 25
years in jail.
It has always been curious to me why they did not try that case in
Los Angeles, which would have been a much more favorable forum,
according to most experts, than here in Washington. They brought it up
here. Many say the Department of Justice was shocked they got a
conviction, but they got a conviction. So now we have John Huang who
raised $1.6 million, who pled guilty to a piddling mayor's race case
and got 1 year probation, testifying against Maria Hsia, who, in my
view, would be less culpable than he. She is subjected to up to 25
years in jail.

I am not talking just about politics. I love the Department of
Justice. I spent over 15 years of my career in the Department of
Justice. I love the ideals of the Department of Justice. When they
sentence young people to jail for long periods of time, any prosecutor,
any judge who does not have a moral commitment of the most basic kind
to ensure that when people in suits and ties who have a lot of money
commit crimes, they serve their time, is not much of a judge or
prosecutor, in my view. They are not worthy to carry the badge.
What else did they do in this great prosecution that Janet Reno held
onto? I was stunned. He was given transactional immunity. Listen to
page 3 of the prosecutor's agreement that the judge approved. Not only
did they not indict him for the $1.6 million or any of those funds,
they gave him absolute immunity. Look at the language. This is the
agreement, the contract between the prosecutor and Huang:

The United States will not prosecute you for any other
violations of Federal law other than those laws relating to
national security or espionage, occurring before the date
this agreement is signed by you.

[[Page S1349]]

That is a very dangerous plea agreement. I always warned my assistant
U.S. attorneys not to sign those kinds of agreements. Under this
agreement, had John Huang committed overt bribery, had it been proven
he walked into the Oval Office, as I think he did on a number of
occasions, and met the President of the United States and gave him $1
million cash for some bribe, he could never be prosecuted for that. He
had complete immunity once this plea agreement was accepted. If he had
committed a murder, he had complete immunity under Federal law based on
this agreement. If he brought in drugs from the East, he would have
been given complete immunity and could not be prosecuted for it.
He was given a sweetheart deal, a year probation and a $10,000 fine.
That is not worthy of justice in America, I submit. It is a pitiful
example of prosecuting, a debasement of justice. It is wrong, not
right, not according to ideals and standards. I am stunned reading this
document.
How did they do it? These Federal Sentencing Guidelines contain some
pretty tough stuff. How did they wiggle this thing down to get a
probation deal? Let's see. I have the document here. We looked at it.
We looked at the factors in this kind of case, including the evidence
the judge had, according to the transcript of sentencing. There is
probably more evidence than this he could have considered, but we know
that the judge was given these facts.
The judge started out with a base level of 6. That is the basic
sentencing level for this type of fraud or deceit activity. I do not
disagree with that. The prosecutors recommended a number of things, and
the judge agreed. They recommended only a four-level departure downward
for his cooperation. Apparently, the prosecutors felt the level of
cooperation rendered by John Huang was not that significant. They asked
for a four-level downward departure.
In addition, he had to then deal with the factors that would require
an upward raising from level 6.
The judge found more than minimal planning. He upped it two.
Certainly there was more than minimal planning in this deal to raise
the money, even for the race in Los Angeles. It was 100-something
thousand dollars--$156,000, I believe, for the total--even though he
pled guilty specifically to $7,500. They gave him that sentencing and
some other increases and decreases and adjustments.
I will go over several on which I believe the judge was clearly
wrong.
In the facts before Judge Paez, I believe the evidence was clear that
a substantial part of this fraudulent scheme was committed outside the
United States. Indeed, the money came from outside the United States.
That is what was illegal about it.
In the facts, the prosecutor said in the very information itself:

In 1992--

This is about the mayor's race--

. . . defendant Huang and other Lippo Group executives,
entered into an arrangement by which (1) Huang and others
would identify individuals and entities associated with Lippo
Group that were eligible to contribute to various political
committees.

They would find some people who were not identified as foreign and
identify them. That is the first step.
The second step, according to the Justice Department prosecutors,
was:

Huang would solicit the Contributors to make contributions
to various political campaign committees.

Huang would find buddies at Lippo, and say: You are eligible to give;
you give this money. And he would solicit them to give the money.
No. 3, the illegal part:

Lippo Group--

A foreign corporation out of Jakarta, Indonesia, with direct
connections to Communist China.

Lippo Group would reimburse the Contributors for their
contributions.

Do my colleagues see what that is? It is the classic launder. Lippo
Group cannot give a contribution, so they take one of their employees,
Huang, and get him to identify some people who can, and then reimburse
him for the contributions. That is specifically provided for in the
Federal election campaign law, and it is illegal. Wrong. No-no. You
cannot do that.
Did some of this involve out-of-the-United States activities? Yes.
Under the Federal guidelines, a judge is required to add two levels to
the sentencing for that. Did Judge Paez do that? No, he ignored that
provision of the sentencing guideline. He had that information because
it was in the charge brought against Huang to which Huang admitted
and pled guilty.

By the way, apparently the pattern of the contributions to the
mayor's race was exactly the same as they used in the Presidential
race: At least 24 illegal contributions spread out over a course of 2
years involving multiple U.S. and overseas corporate entities of which
John Huang was responsible for soliciting and reimbursing the illegal
contributions.
Those are the facts that were before the court. Judge Paez had that
information.
Under the normal reading of the sentencing guidelines, that would
have added between two and four levels because he would have been
acting as an organizer or manager in this criminal activity. He clearly
was. He was the hub of it. He was the organizer, the manager, and
manipulator of it all. He was the one doing the dirty work to put it
together. What did Judge Paez do? He ignored that and did not increase
it one level for being an organizer and manager. I believe he clearly
was required to do so if he were following the law that was mandated
from this Congress.
These were the facts before the court.
No. 3: John Huang was an officer and director of various corporate
entities involved in this case and also was director and vice chairman
of a Lippo bank.
According to the guidelines, if a person commits a crime, and at the
time of committing that crime, abuses ``a position of public or private
trust,'' such as a director of a bank--we have that all the time.
Bankers are being sentenced, directors are being sentenced, and they
have their sentence enhanced because if they are an officer of a bank,
the court holds them to a higher standard and they get more time than a
teller would get for a similar crime.
For abusing ``a position of public or private trust . . . in a manner
that significantly facilitated the commission or concealment of the
offense,'' as section 3B1.3, add two levels. Did the judge do that? No;
no increase in levels.
When it all settled, Judge Paez was able to do what the prosecutors
wanted. He helped them out. He bent the rules. He ignored the rules. He
violated the rules. And what level of offense did he find? He found
level 8.
Why is that important? Level 8 calls for a sentence of from zero to 6
months. A judge can give zero or as high as 6 months. That is the only
range if he finds this level. If it had been level 9, zero would not be
in the chart. It would not fit. If it was level 9, he would have had to
serve time in jail. If it would have added up to, as I think it should
have, at least to eight more levels, he would have faced from 12 to 30
months in the slammer, where he ought to be. That would be a good deal
for him because that does not include the $1.6 million he raised in the
Presidential campaign.
I do not know how in America we have become so blase. We have been so
beaten down and so overwhelmed with manipulation of lawsuits and courts
that I do not think we realize what is happening in this country. I am
amazed there was not an absolute outrage by the people who were
following this case over this plea. Maybe they thought he really was
going to blow the whistle on somebody. Maybe they thought he was going
to blow the whistle on the chairman of the Democratic Party or the Vice
President or the President or the chairman of the campaign committee or
some big fish. Maybe they thought this was not such a bad idea because
certainly the prosecutors would not give away the case to get some
piddling testimony against Maria Hsia. They probably did not need his
testimony against her anyway.

I do not know about this. We need a hearing with Judge Paez. Having
sentenced young people to jail with no background, no money, bad homes,
dealing in drugs, how can he send them off to jail regularly and not
send this guy in a suit and tie connected to one of the most wealthy
enterprises in the world, the Lippo Group out of Indonesia, connected
to Communist China, to jail? Why didn't he see fit to do anything about
that? Did it have anything

[[Page S1350]]

to do with the fact the President of the United States had nominated
him already for the Ninth Circuit Court of Appeals?
That is a troubling thought. He is entitled to have a day's hearing
on it, be asked about it, and defend what he did. My analysis is this
is not good.
Further, in my practice before Federal judges, they were not at all
worried about prosecutors. If I had walked into the Southern District
of Alabama, before any of the Federal judges in that district--
basically, good, solid judges, not political, not out to befriend any
political entity--and said, ``In our plea agreement, judge, he is going
to plead guilty to contributing to the race of the mayor of Mobile; we
are going to give him immunity for all these other charges'', I do not
believe I would have the guts to walk in that courtroom.
That judge would say: Counsel, I am reading in the New York Times
this man gave $1.6 million to the President's race. You have him plead
guilty to contributing to the mayor's race, and you give him immunity
for that plea? You want me to accept that plea? You are going to have
to convince me. Show me.
None of that happened. He did not question this plea a bit. He
facilitated this coverup because he accepted all their accounting
measures which manipulated the guidelines so he could get the
sweetheart deal of probation. That is wrong. That is not good. I am
troubled by it.
I wish I realized this had happened and that we would have slowed
down the hearings when they came up so we could have gotten into it. I
wish I had. I do not supervise the staff of the Judiciary Committee who
does most of the background work. They do a great job. Somehow it just
did not get into our brains that this was a problem.
The more I investigate, looking in recent weeks at the actual
documents from the court, and the more I read about this agreement and
the sentencing guideline violations, the more this matter is stunning
to me. I do not like it. I believe it is potentially an abuse of
justice in America. If that is so, and it was done to protect a
political party, or a Presidential candidate, or a Vice President, then
why should we reward this judge with an elevation to a higher court by
this very President who was protected? Why should we do that? I do not
think it is a good idea.
In our committee, it was a 10-8 vote that reported out this
nomination. Eight members of the committee, based on the judge's own
judicial activist views, opposed this nomination. That was before we
focused on this at all. I am concerned about that.
I wrestled with how to debate this procedurally. I have not agreed
with some of my distinguished colleagues that we ought to conduct a
filibuster. I just do not like that. I know Senator Leahy talked about
distinguished jurists and all. He did not have any hesitation to oppose
Judge Bork, an extremely brilliant person, for the Supreme Court, but
he did not filibuster that nomination. We took the vote. He fought it
as hard as he could, but he did not filibuster it.
I am not one who thinks we need to get into filibustering these
nominations. He would be 1 of 28 judges. It would be unfortunate to
move us farther to the left in the Ninth Circuit and make it even
harder to get back to the mainstream.
We ought to recognize he is a sitting Federal judge; he gets a
paycheck every week. The difference in pay for a district judge and a
circuit judge is not much, frankly; he would hardly miss the money. I
think we ought to take a few weeks here and get into this. Let's have a
hearing on it.

Motion To Indefinitely Postpone

Mr. President, I move, in a postcloture environment, to postpone
indefinitely the nomination of Richard Paez in order for this body to
get the answers I believe every Senator deserves with regard to the
concerns I have raised about Judge Paez over the last several days. It
is not in order for me to move to postpone to a time certain, according
to our parliamentary and Senate rules, or I would do so.
Personally, I think 3 weeks, unless there is some complication, would
be more than enough time to have a good hearing. I am willing to vote;
if he is confirmed, fine. If he has good answers for all this, fine.
The PRESIDING OFFICER. The motion is debatable.
Mr. SESSIONS. Mr. President, I ask for the yeas and nays on the
motion.
The PRESIDING OFFICER. Is there a sufficient second?
There is not a sufficient second at the moment.
Mr. SESSIONS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. SESSIONS. I thank the Chair, and I thank the Senator from
Vermont, the distinguished ranking member of the Judiciary Committee,
who has always played a big role in these issues and is an outstanding
advocate. If I ever got into trouble, I would like him to represent me.
I think that is what we should do. That is the purpose of my motion.
In a prompt evaluation of this matter, the public and this country are
entitled to know about it, because, remember, once that confirmation is
concluded, there is absolutely no other action this or any other body
in the United States can take against any judge--in this case, Judge
Paez--short of impeaching him for a criminal act.
We ought to consider that and take our time here in a few more weeks
to settle this matter. We will feel better about ourselves. Perhaps the
judge will have an answer. He certainly has a number of friends. He has
a good family.
I believe his deficiencies for the position revolve around an
honestly held political philosophy that I do not agree with--judicial
activism. That is the main basis for opposing his nomination. But I am
very troubled by the case I cited because I do not understand how it
could have been disposed of in the way it was. I believe the judge
should have blown the whistle on this with a proper plea bargain. It
was not done. I would like to have him have an opportunity to explain
why.
I yield the floor.
Mr. SMITH of New Hampshire. Mr. President, a parliamentary inquiry:
As I understand it, the debate continues, and at the completion of the
debate, there will be a vote on Senator Sessions' motion, and a debate
on Paez and then Berzon--or is it Berzon and then Paez?
The PRESIDING OFFICER (Mr. L. Chafee). If the motion fails, then
there would be a vote on the Paez nomination.
Mr. SMITH of New Hampshire. That is the order? It is Berzon, Paez, or
the other way around?
The PRESIDING OFFICER. Berzon and Paez, Berzon first.
Mr. SMITH of New Hampshire. So there will be a vote, then, on Berzon
and, after that, there will be the Sessions motion. And then, if that
does not prevail, a vote on Paez?
The PRESIDING OFFICER. That is correct.
Mr. SMITH of New Hampshire. I thank the Chair.
As we continue this debate, I refer back to the Ninth Circuit chart
behind me. This is a situation where we see, again, nearly 90 percent
of the Ninth Circuit cases have been reversed by the Supreme Court. I
have had this chart up all morning because I think that is a very
significant number, to say the least.
Earlier in the debate, my colleague, Senator Reid, made the argument
that oftentimes we have higher numbers, as much as 100-percent
reversal, with some of the circuit courts. He is correct. But what he
did not say is that sometimes the reversals are one or two cases. For
example, he said there were several times when the First and the Second
Circuits were reversed 100 percent of the time. He is right. In the two
cases he cited, one was when there was only one case, another was when
there were six. Several of them were in the D.C. Circuit, the Federal
Circuit, and others, a 100-percent overturn rate. The

[[Page S1351]]

100-percent overturn rate was based on one case.
What we are talking about here in the Ninth Circuit is, in 1996 and
1997, 27 of 28 cases overturned, a 96-percent overturn ratio. I think
it is very important to understand what we are talking about. This is
not 100 percent based on one case or two cases; this is based on 27 of
28 cases in 1996 and 1997. In the 1997-98 term of the Ninth Circuit, 13
of 17 were reversed, for a 76-percent rate. Then again, the Senator
from Nevada referred to some other circuits that year. Of course, the
Eleventh had two overturned out of two, for 100 percent. So it is
pretty misleading to suggest that 90 percent is very common in
overturning these circuit cases because there are higher percentages in
other cases when, again, it is based on 1 or 2 cases, not on 27 or 28,
as it was in 1996-97. It is based on 13 out of 17 in 1997-98. As of
June 1999, it was 14 out of 18, for a total of 78 percent.

Yes, wherever you see a 100-percent overturn ratio, it is usually
almost exclusively one or two cases at the most. Those are very
dramatic and significant statistics.
I think what we have here is a situation where we have a rogue
circuit that is basically way out of the mainstream of American
political thought. Now we are putting two more judges on that court
who--I think it is pretty obvious based on the information we have
heard--are going to add to that out-of-the-mainstream majority.
Let us look at specifically each of these judges. Richard Paez is one
of the nominees we are considering. It is no secret I am opposed to
that nomination. In general, I oppose nominees who are judicial
activists. I don't think judicial activism is what the Constitution or
the Founding Fathers meant. I don't think they meant judicial activism
on the right, and I don't think they meant judicial activism on the
left.
I think what they meant is, interpret the Constitution, don't
legislate from the bench, and uphold the Constitution as it was
written. That is what they meant. That is not what we have gotten from
many, certainly not from these two judges, and it is certainly not what
we have gotten from several other judges who were put on the bench over
the years.
In 1981, Richard Paez became Los Angeles Municipal Court judge, where
he served until 1994. Since then, he has served as a U.S. district
judge for the Central District of California. We can go back through a
lot of cases; we have done a lot of research. If we go back to Prop.
187 and Prop. 209 in California, Proposition 187 was the California
initiative to limit public assistance to illegal immigrants, and
Proposition 209 was the California initiative to end State-run racial
preference programs.
In 1995, Judge Paez spoke to the University of California at Berkeley
Law School. This is what he said:

The Latino community has for some time now faced heightened
discrimination and hostility which came to a head with prop
187. The proposed anti-civil rights initiative will inflame
the issues all over again without contributing to any serious
discussion of our differences and similarities or ways to
ensure equal opportunity for all.

Here we have a sitting Federal judge. He has his right to his
opinion. We all do. But he is a sitting Federal judge talking about a
California ballot initiative that was likely the subject of litigation.
Why is he taking that position publicly on that particular proposition?
The answer is simple: Because he has an agenda. Those comments were
inappropriate for a Federal judge because his agenda is that he didn't
like Prop. 187. So, therefore, he said so.
I think we all know--I have heard judge after judge after judge after
judge after judge come before the Judiciary Committee and, much to my
consternation and frustration in trying to find out their philosophy,
not answer questions about any case that might be pending or be before
them. As frustrating as it is not to get an answer, that is correct. I
don't think a sitting judge should be doing this. I think that issue
alone on that one statement is enough to reject this nominee, just on
that.
Again, Proposition 187 later became California Proposition 209, and
it passed. And Proposition 209 ended affirmative action in California
State programs. Paez should know that the Judicial Code of Conduct
prohibits him from comments that cast any doubt on his capacity to
decide this case or any case on an impartial basis. So he went over the
line on an issue that he knew was going to come before him or certainly
was reasonable to assume was going to come before him.

Is there any doubt about how Judge Paez would now rule on any
California proposition that affects affirmative action? Regardless of
how one feels about affirmative action, that is not the issue here. We
now know how he feels. He has already told us. So I don't know how he
gives us a fair decision when he has already said what his decision is.
He did say he was an activist judge in his own words, even though
some on the floor have said he is not. I will repeat this again. He
said:

I appreciate the need for courts to act when they must when
the issue has been generated as a result of the failure of
the political process to resolve a certain political
question. There is no choice but for the courts to resolve a
question that perhaps ideally and preferably should be
resolved through the legislative process.

In the Constitution, it doesn't say ``ideally'' and ``preferably'' in
terms of the legislative process. If you can find that in the
Constitution somewhere, that it says ideally and preferably the
legislature should pass the laws, ideally and preferably the executive
branch should enforce the laws, or ideally and preferably the judicial
branch should interpret the laws--it doesn't say any of that. There is
a very clear distinction in the Constitution: Three separate but equal
branches of the United States Government.
It is very clear who is supposed to legislate, who is supposed to
write the laws. It is not the Supreme Court. It is not the circuit
court. It is not the district court. It is not any Federal court. We
have a Federal judge talking about a California ballot initiative that
was likely the subject of litigation. I think that is inappropriate.
Now, again, let's go back to another example. This was a decision
rendered by Judge Paez in the case of John Doe I v. Unocal in March of
1997. I will read an excerpt from a letter that the U.S. Chamber of
Commerce sent to me Monday, March 6, about Judge Paez. I ask unanimous
consent that this letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

Chamber of Commerce of the

United States of America,

Washington, DC, March 6, 2000.
Hon. Robert Smith,
U.S. Senate, Washington, DC.
Dear Senator Smith: I am writing to inform you of the U.S.
Chamber's opposition to the nomination of Richard A. Paez to
the U.S. Court of Appeals for the Ninth Circuit. Our
opposition to this nomination rests principally on a decision
rendered by Judge Paez in John Doe I v. Unocal (hereafter,
Unocal) in March of 1997.
Judge Paez' decision in the Unocal case suggests that U.S.
companies conducting business in a foreign country may be
held liable for the actions of that foreign government or the
actions of any business enterprise owned by the foreign
government. Aside from the constitutional question of whether
it is appropriate for the courts to pursue their own foreign
policy agendas; the Paez decision has the potential to cause
significant disruption in U.S. and world markets.
Although the decision in the Unocal case dealt with a
pretrial motion to dismiss and is currently on appeal, we
view it as a serious threat to international commerce.
Moreover, the Unocal decision represents a dangerous and
unconstitutional intrusion by the courts into the formulation
and implementation of U.S. foreign policy--a prerogative that
rests solely with the Congress and the Executive Office.
As you know, improving the ability of American business to
compete in the global marketplace is a top priority of the
U.S. Chamber of Commerce. As part of our efforts to advance
free trade, the Chamber's legal arm--the National Chamber
Litigation Center--has challenged similar attempts by state
and local governments to impose unilateral economic trade
sanctions. Recently, the United States Court of Appeals for
the First Circuit upheld a challenge supported by the
National Chamber Litigation Center to the so-called
Massachusetts Burma Law, which imposed sanctions on companies
doing business with Burma (Myanmar).

Mr. SMITH of New Hampshire. Mr. President, I am quoting a couple of
paragraphs from the letter from Mr. Bruce Josten of the U.S. Chamber:

Dear Senator Smith:
I am writing to inform you of the Chamber's opposition to
the nomination of Richard A. Paez to the U.S. Court of
Appeals for the Ninth Circuit. Our opposition to this
nomination rests principally on a decision rendered by Judge
Paez in John Doe I v. Unocal in March of 1997.
Judge Paez's decision in the Unocal case suggests that U.S.
companies conducting

[[Page S1352]]

business in a foreign country may be held liable for the
actions of that foreign government, or the actions of any
business enterprise owned by the foreign government. Aside
from the constitutional question of whether it is appropriate
for the courts to pursue their own foreign policy agendas,
the Paez decision has the potential to cause significant
disruption in U.S. and world markets.

The next paragraph:

Although the decision in the Unocal case dealt with a
pretrial motion to dismiss and is currently on appeal, we
view it as a serious threat to international commerce.
Moreover, the Unocal decision represents a dangerous and
unconstitutional intrusion by the courts into the formulation
and implementation of U.S. foreign policy--a prerogative that
rests solely with the Congress and the Executive Office.

You can't say it any more clearly than that. You don't get involved
in U.S. foreign policy on the court. This is a prerogative that rests
only with the Congress and executive branch.
This man is intelligent, and no one is challenging that. He knows
exactly what he is doing. He knows what the Constitution says. We will
certainly give him that. He also knows how to implement his agenda as
opposed to sticking with the Constitution. That is what we are talking
about.
Now, this case is currently before the Supreme Court and we are
hopeful, as Bruce Josten says, that the First Circuit Court decision
invalidating the Massachusetts law will be upheld.
That is in another case involving the national chamber and another
case that is referred to in the letter which will be part of the
Record. So this is serious business.
I also think this hostility to religion is pretty serious. I want to
get into this because this is very disturbing. Again, this is about a
judge's views on issues; it is not about the judge personally. I think
we see an open hostility to religion.
Mr. President, I want to preface what I am going to say just by
saying this: Just to the left of the Chair's left hand is a Bible. In
every court, they say we swear to uphold, to tell the truth, the whole
truth, nothing but the truth. That Bible is on display for everyone to
see here in the Senate Chamber. We swear oaths all the time on Bibles
as witnesses. The President of the United States swears on a Bible and
takes an oath to uphold the Constitution.
Now, in that framework, I want you to think about what I have just
said and then listen to what Paez said. This was in the L.A. Times in
1989 when this case came up. It was a trial of five anti-abortion
demonstrators accused of trespassing and conspiracy, and it flared into
a dispute over whether the defendants can display their Bibles before
prospective jurors. They had Bibles in the courtroom. It says:

In a rare flash of anger, Los Angeles Municipal
Judge Richard A. Paez warned the defendants and their
attorneys that he would instruct the court bailiff to
confiscate the Bibles if they continued to openly consult
or wave them during jury selection.

I want you to think about that. He is going to instruct the bailiff
to haul people out--the defendants--if they are sitting there looking
at their Bibles during jury selection.
Here is what he said:

``I don't want them [the bibles] in view of the jurors,''
Paez said sternly, raising his voice and motioning with his
hand. ``Don't give me a hard time.''

Now, we could go a little bit further:

Paez, who has said he is determined to prevent the trial
from being used as a platform to debate the moral and
political issues surrounding abortion, ordered . . . the
defendants to refrain from displaying their bibles
prominently to the jury box. He had given similar
instructions the day before.

But what happened was the defendants refused, challenging the judge
to go ahead and hold them in contempt.
Further:

Co-defendant Michael McMonegle leaped to his feet, asking
that the prosecutor be removed from the case.
``She is obviously an anti-Christian bigot,'' he said
loudly. Tensions escalated until Paez recessed for lunch.
The showdown between the judge and defense attorney was
averted, however, when [one of the lawyers] did not return
for the afternoon session, saying he had to attend another
trial in Federal Court.
A calmer Paez told the defendants that, while they may keep
the Bible on the counsel table, they must not attempt to
``affirmatively communicate'' their religious beliefs to
potential jurors who are being questioned.''
``I don't have a problem with the Bible. I don't care if
you have it there (on the table),'' Paez said. ``My concern
is I do not want any attempt to sway the jury. I don't want
demonstrative gestures . . . . That is not proper.''
Paez said, on the other hand, that he would consider
permitting the defendants, some of whom are representing
themselves, to quote from the Bible during closing arguments
or to carry the book to the witness stand when they testify.

I wonder whether Judge Paez put his hand on the Bible somewhere when
he became a judge. What is the big deal? Are we going to destroy
ourselves as a society because a group of defendants want to hold a
Bible in their hands when they come into a courtroom? What kind of a
judge is this? This is the kind of judge that Bill Clinton is putting
on the courts. So when you hear about all this moral decadence and you
hear about these problems and you hear about some being outraged by
these decisions, why should you be surprised? Your Senators are putting
them on the court. That is what is happening. Your Senators are
approving these judges.
There is no mystery about this. It is a constitutional process. The
President nominates and we approve or disapprove. So don't be
surprised, and don't blame it on the President. We can stop him if we
don't like them. He has a right to nominate anybody he wants to. We
have a right under the Constitution--sometimes we forget that we do--to
advise and consent. We are talking about extreme activism here. This is
not the mainstream.
How many people in America listening to me now can honestly say they
feel there is a threat to our whole constitutional process or to our
court system because somebody carries a Bible into the room? Maybe we
ought to take it out of here. That will probably be next. Somebody will
stand up in here--who knows--and say I don't want to look at that Bible
in here. That is what is happening in this country. You wonder why.
Read about the Roman Empire and find out what happened to them. Find
out where they went. Moral decadence. That is what happened to them.
They went down the tubes. Is that what is in the future for America? I
certainly hope not. If we keep doing this kind of stuff, it will
happen. There are no surprises here. I don't understand why all these
judges are doing this. There is nothing to understand. They are put on
the bench. Hello, we put them there. The President nominates them and
we approve them and on the bench they go. They make decisions not for
10 days, not for 10 years, but for life. You can't throw them off the
bench for the decisions they make.

That is just one.
Finally, in the case of the Los Angeles Alliance for Survival of the
City of L.A., Paez blocked a city ordinance designed to outlaw
aggressive panhandling--Senator Sessions spoke about it--claiming that
it was facially invalid under California's Constitution. The Supreme
Court of California rejected Paez's decision and held that:

. . . a court should avoid a constitutional interpretation
that so severely would constrain the legitimate exercise of
government authority in an area where such regulation has
long been acknowledged as appropriate.

He is an extreme, liberal activist who is not afraid to say ahead of
the time in a matter that comes before his court how he is going to
vote. He has done it on occasion after occasion.
Mr. LEAHY. Mr. President, will the Senator yield for a question on
the Paez case which he cited?
Mr. SMITH of New Hampshire. Yes; the last one.
Mr. LEAHY. The so-called ``panhandling'' case. Will the Senator
agree, however, that at the time Judge Paez made his decision, there
was a Ninth Circuit decision on all fours, which he as a Federal
district judge within that circuit was bound to follow, and he and all
judges going for confirmation always say they will follow stare
decisis, that they will follow the decision?
Is it not a fact that in that particular case he had a decision on
all fours from his circuit which he had to follow? And is it not also a
fact that the Ninth Circuit then, under a new ruling, submitted it to
the California Supreme Court for their own ruling to the California
Supreme Court? Because, obviously, you cannot appeal to the California
Supreme Court, Judge Paez being a Federal court. But the Ninth Circuit
then submitted it under a certification procedure--a new procedure--in
California to the California

[[Page S1353]]

Supreme Court. And then a year or so later, they came down and said the
Ninth Circuit's earlier ruling did not interpret California law
correctly. They then changed theirs and thus changed the rule Judge
Paez had to follow.
Is that not the fact?
Mr. SMITH of New Hampshire. Why was it overturned, reversed on
appeal?
Mr. LEAHY. The point is, he has to follow what is in his circuit.
Mr. SMITH of New Hampshire. But it was reversed.
Mr. LEAHY. No. The circuit did. Judge Paez's decision, as I
understand it, did not go to the Supreme Court because it couldn't go
to the California Supreme Court. The circuit itself then changed their
earlier decision, came back to the beginning, and had to follow the new
decision, which he very much explained in his confirmation hearing. He
said, among other things, that he lives in these neighborhoods; he has
concerns himself.

But the point is, just as some Federal judge in my State would have
to follow the Second Circuit's decisions, and a Federal judge in the
State of New Hampshire would have to follow the First Circuit's
decisions, he is caught kind of between a rock and a hard place.
What I am basically saying is, he should have followed his own stare
decisis. Yet, if he didn't, then he is an activist judge. This man is
damned if he does and damned if he doesn't.
Mr. SMITH of New Hampshire. I think the Senator is making my case
that the Ninth Circuit is a rogue circuit which does not really follow
the mainstream.
Mr. LEAHY. I notice that the Senator mentioned all the reversals. I
think half of those reversals in the last year were decisions written
by Reagan appointees and Bush appointees. I don't recall the Senator
from New Hampshire or anyone on his side voting against those judges.
Mr. SMITH of New Hampshire. Mr. President, let me briefly discuss the
other nominee, Marsha Berzon.
I think we have made a pretty overwhelming and compelling case about
the Ninth Circuit itself being out of touch in having almost 90 percent
of its cases overturned, as the chart in the back shows. And we are
adding two more judges to that court, if they are approved, who are
basically going to also, obviously, have cases overturned if they
follow along the lines we are talking about.
When I think of all the judges who are qualified, whatever their
political philosophy, if they are qualified to be a circuit court
judge, why do we pick a judge who opposes having somebody carry a Bible
into the courtroom? Because he is afraid somehow that is going to ruin
the whole judicial process and somehow threaten the Constitution or the
liberties of the United States of America? It doesn't make sense. It
really, in my view, says a lot about the nominee.
We have approved many Clinton nominees who have come through this
Senate. I voted for a lot of them myself. Some of them went through
even without a challenge. But I think when you start talking about
people who are this extreme, this is a mistake. I believe it is a
mistake we will regret.
I commend my colleague, Senator Sessions, for what he has done with
the most recent information he brought forth regarding the Maria Hsia
case and the John Huang case.
I am going to bring something up that may set a few people off. But I
am being told, as I stand here now, that there is a possibility the
Vice President of the United States may be called, or has been called,
to come to the chair during the vote on the Sessions motion or perhaps
on the vote on Paez.
I want you to think for a second about the implications of that. He
could be the tie breaker. He could be, in theory, the tie breaker.
Here you have the Vice President of the United States who was a close
personal friend of Maria Hsia who shook down Buddhist nuns for money,
was prosecuted for it, and convicted. And the judge whom Bill Clinton
is trying to put on the court was involved in at least one case--not
that one, but one case involving Maria Hsia, which gave her a break, if
you will, a lenient sentence, and then in the other case, John Huang,
$1.5 million from the Chinese Communist Government into the coffers of
this administration, of which Vice President Gore is a part, and he
goes in before Judge Paez, supposedly randomly selected, and gives the
guy a plea bargain for a $7,500 contribution in the mayoral race in
L.A., as Senator Sessions has pointed out.
Now the Vice President of the United States is going to sit in the
Chair and break a tie for that judge? How far will this administration
go to cover up and to be blatant and in your face on what they have
done?
If he sits in this Chair today and votes on this nomination, if it
should come to a tie, that is an outrage. It is outrageous, and it is
an in-your-face outrage that I think the American people are not going
to tolerate.
As Senator Sessions has so ably pointed out, I don't know whether it
was random or not--there were 34 judges who could have gotten those 2
cases, and he got both of them. That is point No. 1.
Point No. 2: If it were random, then perhaps he should have said: You
know, Bill Clinton nominated me, and I am before the Senate for a
circuit court nomination. Both of these cases involve scandals in the
President's administration. I will take a walk on these. Assign them to
somebody else. But he didn't do it. He gave lenient punishment after he
took them. And we are going to tolerate that by allowing Judge Paez to
come in? It is just outrageous. It is just outrageous. Yet it is
probably going to happen here on the floor.
I yield the floor.
Mr. THURMOND. Mr. President, I rise to express my opposition to the
nominations of Richard Paez and Marsha Berzon for the Ninth Circuit
Court of Appeals.
The Ninth Circuit is clearly out of the mainstream of law in this
country today. It is clearly the most activist circuit in the Nation.
The circuit has been reversed by the Supreme Court in almost 90 percent
of the cases that have been considered in the past 6 years. In fact, in
the current session of the Supreme Court, the Ninth Circuit's record is
zero of seven. These nominees will not correct this problem.
Judge Paez is a self-described liberal. He has made inappropriate
comments regarding ballot initiatives that were pending in California
at the time he discussed them. I also have questions regarding his
sentencing of John Huang. Further, he has made various questionable
rulings that call into question whether he understands the limited role
of a judge in our system of government. For example, he ruled that a
Los Angeles ordinance that prohibited aggressive panhandling was
unconstitutional. He prevented the enforcement of a reasonable
ordinance enacted by the legislative branch because he said it violated
free speech rights. The California Supreme Court later ruled contrary
to Judge Paez after the question was submitted to them. This shows a
lack of deference to the legislative branch. Also, he made a
questionable ruling holding an American corporation liable for human
rights violations committed by a foreign government, which prompted the
U.S. Chamber of Commerce to oppose his nomination.
I also cannot support the nomination of Marsha Berzon. She has spent
much of her career as an attorney for the labor movement, and she has
been involved in liberal legal organizations. She served for years on
the board of directors of the Northern California, ACLU, during which
it filed questionable briefs in various cases.
If these nominees are confirmed, I hope they turn out to be sound,
mainstream judges and not judicial activists from the left. I hope they
will improve the dismal reversal rate of the ninth circuit.
However, we must evaluate judges based on the record before us. I am
not convinced that these nominees are a sound addition to the ninth
circuit, especially when it is already leaning far to the left.
Therefore, I must opposed these nominees.
Mr. KYL. Mr. President, I rise to discuss the nominations of Richard
Paez and Marsha Berzon to the Ninth Circuit Court of Appeals. I intend
to vote against Judge Paez and for Marsha Berzon. Because these
nominations have received a great deal of attention, I would like to
briefly explain the reasons for my votes.
I want to begin by briefly discussing the ninth circuit. As a Senator
from

[[Page S1354]]

Arizona (the state which generates more appeals than any other ninth
circuit state except California), as a member of the Judiciary
Committee, and as someone who practiced law in the ninth circuit for
nearly 20 years, I have a keen interest in matters affecting the ninth
circuit.
Richard Paez and Marsha Berzon are, of course, nominees to the ninth
circuit. I agree with many of my colleagues that nominees to the ninth
circuit should be given special scrutiny because of the problems with
the circuit.
The ninth circuit has received a great deal of criticism--so much, in
fact, that Congress passed bipartisan legislation to require a blue-
ribbon commission to study the circuit. See Public Law No. 105-119,
section 305(a)(1)(B) and (a)(6). Before both the House and Senate
Judiciary Committees, I have testified in detail as to my concerns with
the circuit, so I will not go into detail here. I would like to just
mention one statistic that speaks volumes: In the past 6 years, the
Supreme Court has reversed (often unanimously) the ninth circuit in 86
percent (85 of 99) of the cases it has reviewed. The average reversal
rate for courts other than the ninth circuit is about 57 percent. As
Justice Scalia commented in a September 9, 1998, letter to Justice
White, the chair of the Commission on Structural Alternatives, the
Ninth Circuit's ``reversal rate has appreciably--sometimes
drastically--exceeded the national average.''
This is but one small piece in a mountain of evidence that indicates
that the ninth circuit is out of the mainstream of American
jurisprudence. See, for example, letters to the Commission on
Structural Alternatives by Justice Scalia (August 21, 1998), Justice
Kennedy (August 17, 1998), and Justice O'Connor (June 23, 1998);
Commission on Structural Alternatives, Final Report, December 18, 1998;
Review of the Report by the Commission on Structural Alternatives
regarding the Ninth Circuit and S. 253, the Ninth Circuit
Reorganization Act, hearing before the House Committee on the
Judiciary, 106th Congress, 1st Session (July 16, 1999) (statements of
ninth circuit Judges Pamela Ann Rymer (member of commission) and
Diarmund F. O'Scannlain). It seems clear that the ninth circuit has
problems. Even those who oppose dividing or splitting the circuit
concede this point. Thus, in my opinion, nominees to this circuit--
which is effectively the court of last resort for more than 52 million
people--should be given special scrutiny.
The Constitution imposes an important role upon the Senate. In
exercising its advice and consent power, the Senate must be vigilant in
ensuring that, at a minimum, nominees are of top legal caliber, possess
good judgment, have the proper judicial temperament, are of
unquestioned integrity and impartiality, and would not abuse the great
power of their office--an office they will hold for life.
In this regard, I would like to reiterate the comments that I made
before this body 3 years ago, on March 12, 1997.

Some have attributed the Ninth Circuit reversal rate to the
unwieldy size of the bench. Others point to a history of
judicial activism, sometimes in pursuit of political results.
I suspect there is more than one reason for the problem.
Whatever the case, the Senate will need to be especially
sensitive to this problem when it provides its advice and
consent on nominations to fill court vacancies. The nominees
will need to demonstrate exceptional ability and objectivity.
The Senate will obviously have an easier time evaluating
candidates who have a record on a lower court bench. Such
records are often good indications of whether a judge is--or
is likely to be--a judicial activist, and whether he or she
is frequently reversed. Nominees who do not have a judicial
background or who have a more political background may be
more difficult to evaluate. . . . [T]he Senate has as much
responsibility as the President for those who end up being
confirmed. We need to take that responsibility seriously--
among other things, to begin the process of reducing the
reversal rate of our largest circuit.

I remain quite concerned about the ninth circuit. In the October 1999
term, the U.S. Supreme Court has so far reviewed seven ninth circuit
cases and in all seven cases the ninth circuit has been reversed--four
times unanimously, twice by a 7-2 margin, and once by a 5-4 vote. If
the ninth circuit continues to remain out of step, it will be very hard
to continue to give ninth circuit nominees the benefit of the doubt.
The risk is too great. The ninth circuit covers nine states and two
territories. To have so many subject to a circuit that so often errs
should concern us all.
Within this context, the general rule that a President should be
given deference in making nominations to the federal judiciary is less
relevant to today's nominations.
While Judge Paez is academically qualified, I have reservations about
him for a variety of reasons. First, he made what many consider to be
inappropriate comments while he was a federal district court judge. In
an April 6, 1995 speech at Boalt Hall School of Law in Berkeley,
California, Judge Paez said the following:

The Latino community has, for some time now, faced
heightened discrimination and hostility, which came to a head
with the passage of proposition 187. The proposed anti-civil
rights initiative [Proposition 209] will inflame the issues
all over again, without contributing to any serious
discussion of our differences and similarities or ways to
ensure equal opportunity for all.

Judge Paez was, as I noted above, a sitting federal district court
judge when he made this remark, and litigation was pending in Judge
Paez' own court, the Central District of California, regarding the
constitutionality of Proposition 187. The court had granted a temporary
restraining order and had before it a request for a preliminary
injunction, which the district court did not rule on until November
1995, 7 months after Judge Paez' speech. As Senator Spence Abraham
pointed out in a detailed statement before the Senate, Judge Paez'
remark seems inconsistent with Canon 4(A)(1) of the Model Code of
Judicial Conduct which governs judges' extra-judicial activities. Under
that canon, ``a judge shall conduct all of the judge's extra-judicial
activities so that they do not cast reasonable doubt on the judge's
capacity to act impartially as a judge.'' In discussing Judge Paez'
comments in an October 29, 1999, editorial, the Washington Post stated
that ``[f]or a sitting judge to disparage ballot initiatives that were
likely subjects to litigation was inappropriate.'' And, indeed, the
judge appears to have, at least privately, acknowledged this error.
Judge Paez made another troubling comment. On March 26, 1982, in the
Los Angeles Daily Journal, he is quoted as making the following
statement.

I appreciate * * * the need of the courts to act when they
must, when the issue has been generated as a result of the
failure of the political process to resolve a certain
political question * * * There's no choice but for the courts
to resolve the question that perhaps ideally and preferably
should be resolved through the legislative process.

At the time of this statement, Paez was a municipal court judge. In the
same article, he commented that ``you could characterize my background
as liberal.''
Judge Paez' supporters have made comments that raise concerns. For
example, in an August 13, 1993 Los Angeles Times article, Romana
Ripstein, the executive director of the American Civil Liberties Union
of Southern California, made the following statement in discussing
Paez's nomination to the federal district court: ``It's been a while
since we've had these kinds of appointments to the federal court. I
think it's a welcome change after all the pro-law enforcement people
we've seen appointed to the state and federal courts.'' If this is an
accurate portrayal of his predilections, Ms. Ripstein's
characterization is troubling. Similarly, in a November 17, 1995, Los
Angeles Daily Journal article, trial attorney Steven Yagman commented
that ``Judge Paez embodies the ideal of the '60's. The Judge is an
intelligent, moral person who got power and uses it to do good.''
Judges are not supposed to use power to do good (especially since that
is a subjective term). Judges are supposed to apply the law. That's why
we say we are a nation of laws.
Judge Paez also has been criticized for giving--without explaining
how he arrived at the sentence--what many consider to be a light
sentence to former Representative Jay Kim following Kim's guilty plea
for having accepted more than $250,000 in illegal campaign
contributions, the largest acknowledge receipt of illegal contributions
in congressional history. In the March 10, 1998, Los Angeles Times,
Assistant U.S. Attorney Stephen Mansfield said, ``The sentence . . .
must not

[[Page S1355]]

be a `slap on the wrist.' It must not approximate a penalty for
`jaywalking'.'' The Los Angeles Times also reported that ``[o]utside
the federal courthouse, prosecutors made it clear that they were
disappointed but not stunned by Paez' sentence.'' On March 12, 1998,
Roll Call wrote, ``All the evidence--and the fact that Kim received a
lighter sentence than his former campaign treasurer--makes Judge Paez'
sentence a mere slap on the wrist and makes us think that the Senate
Judiciary Committee ought to question whether Paez isn't too soft on
criminals to be an appellate judge.''
None of these factors would by itself necessarily disqualify a
nominee, but taken as a whole they are troubling and lead me to
conclude that, on balance, Judge Paez is apt to be an activist rather
than a neutral arbiter. As a result, I reluctantly conclude that I
cannot support his nomination.
I have concerns about Marsha Berzon. Almost her entire legal
experience has been in one narrow field--labor law. According to her
Senate Judiciary questionnaire, ``more than 95 percent'' of her work
has been civil. Additionally, she stated that ``I have not personally
examined or cross-examined a witness in any trial'' and that ``I have
not tried any cases myself, jury or non-jury.''
Concerns have been expressed by the National Right to Work Committee
and the Chamber of Commerce because of her narrow labor-oriented
background. While I share these concerns, I am unaware of credible
evidence suggesting that she fails to possess the requisite capability
or temperament to serve on the bench. As a result, although I have
serious concerns about her nomination, I will support it.
Mr. CRAIG. Mr. President, there are few duties of the Senate more
important than the confirmation of nominees to positions on the federal
bench.
It is my strong belief that the qualifications of the nominees must
be weighed carefully and deliberately, no matter what level of the
court system the nominee is supposed to join.
My decision on a judicial nominee's fitness is based on my evaluation
of three criteria: character, competence and judicial philosophy--that
is, how the nominee views the duty of the court and its scope of
authority. This is the original role of the judiciary: neither rubber-
stamping legislative decisions, nor overreaching to act as substitute
legislators. I have heard from citizens complaining about the harm done
by social activists of the bench--harm that may only be reversed by an
extraordinary action on the part of the legislative branch, if at all.
It is exactly this aspect of the nomination before us that concerns
me. I have reviewed the background materials on Judge Paez, and I
cannot ignore the nominee's penchant for imposing his own political
vision on the case before him.
Judge Paez has shown, on more than one occasion, his activist
judicial philosophy. He was quoted in the Los Angeles Daily Journal as
saying: ``I appreciate the need of the courts to act when they must,
when the issue has been generated as a result of the failure of the
political process to resolve a certain political question. . . . There
is no choice but for the courts to resolve the question that perhaps
ideally and preferably should be resolved through the legislative
process.''
That is as clear a statement of judicial activism as I have ever
heard.
On another occasion, Judge Paez demonstrated that his politics were
more important than the appearance of judicial impartially and
independence. In a 1995 speech he attacked California Proposition 187
(to end assistance to illegal immigrants) as anti-Latino
``discrimination and hostility'' and Proposition 209 (to end racial and
gender preferences in California) as anti-civil rights. What strikes me
is that, at the time, both propositions were subject of pending
litigation. Clearly the Judicial Code of Conduct prohibits a judge from
such comments.
Even if these were the only incidents of this kind, they would weigh
heavily with me. But Judge Paez' record contains a number of other
troubling episodes. In the Los Angeles Alliance for Survival case,
Judge Paez ruled that a Los Angeles city ordinance--prohibiting
aggressive panhandling at specified public places and passed in
response to the death of a young man who refused to give a panhandler
25 cents--was unconstitutional under California's constitution. He
affirmed that this law constituted ``content-based discrimination''
because it applied only to people soliciting money and consequently
granted an injunction to prevent it from being enforced. However, apart
from Los Angeles where the ordinance has yet to be enforced, the same
law has been ``peacefully'' upheld in other parts of California by
other federal judges.
The position expressed by Judge Paez was well out of the mainstream.
This became even clearer last week, when the Supreme Court of
California, asked by the Ninth Circuit Court of Appeals to rule on the
merits of Paez' holding, held that the Los Angeles ordinance was
constitutional and valid.
I have also been troubled about the implications and consequences of
the Unocal decision issued by Judge Paez in 1997, in which he ruled
that American companies can be held liable for human rights abuses
committed by the foreign governments or overseas companies owned by the
foreign governments with which they do business. This decision leaves
open a wide range of issues and has the potential to cause significant
consequences in the U.S. and world markets, not to mention U.S. foreign
policy.
It is not surprising that the U.S. Chamber of Commerce has expressed
its opposition to the nomination of Judge Paez to the U.S. Court of
Appeals for the Ninth Circuit, in view of the decision's potential
impact on international commerce. At a minimum, Judge Paez pushed the
limits of prior law in this ruling--but this decision takes on a great
deal more significance in light of his prior statements and other
judgments. This is a judge who is ready, willing, and able to act on an
opportunity to open new frontiers in the law.
I share the concerns that many of my colleagues have raised about the
structure of the ninth circuit itself. It covers 38 percent of the area
of the Nation and serves more than 50 million people, 20 million more
than any other circuit. It has 28 authorized judgeships, 11 more than
any other circuit. I am one of the majority of Senators representing
that circuit who believe it should be split.
The ninth circuit remains, as the New York Times labeled it, ``the
country's most liberal appeals court'' and a circuit out of the
mainstream of American jurisprudence.
Over the past six years, the Supreme Court has reversed nearly 90
percent of the ninth circuit cases it has reviewed: in 1997-98, the
reversal rate was 96 percent (27 out of 28 decisions) and 35 percent of
the decisions reviewed by the Supreme Court were from the ninth
circuit.
It has been suggested that the ninth circuit has difficulty
developing and maintaining coherent and consistent law because, as the
size of the unit increases, the opportunities the court's judges have
to sit together and to develop a close, continual, collaborative
decision making decrease. Of course, this would increase the risk of
intracircuit conflicts since judges are unable to monitor each other's
decisions and very seldom have the chance to work together.
In any event, my constituents and other citizens in the ninth circuit
would hardly be well served by adding yet another liberal judicial
activist to the current mix. Whether or not Congress ultimately
addresses the circuit's problems by agreeing to the split I am
advocating, this Senate should not exacerbate the problems with this
ill-advised nomination.
I know the administration must take the best case possible for its
nominees, but they cannot expect this Senator to ignore ``the other
part of the story.'' Judge Paez' record reflects an eagerness to use
his authority to accomplish social change and a disrespect for
principles of judicial decision making. In sum, I strongly believe it
would be a mistake to advance Judge Paez to the ninth circuit, and I
will vote against his confirmation.
Mr. GORTON. Mr. President, the nomination of U.S. District Court
Judge Richard Paez to the Ninth Circuit Court is, to put it mildly,
controversial. His nomination has now been before the Senate for almost
4 years, a period of time close to a dubious record. He deserves a
vote, and at least serious consideration of an affirmative vote, for
that reason alone.

[[Page S1356]]

The President nominates, and by and with the advice and consent of
the Senate, appoints judges to the Federal courts. That constitutional
system allows Senators as much latitude to approve or disapprove
judicial nominations on the basis of the nominee's judicial and
political philosophies as it does to the President in making those
nominations. In my view, however, that senatorial prerogative does not
extend to rejecting Presidential nominees solely on the ground that a
Senator would have chosen someone else. If a nominee clearly falls
within a fairly broad philosophical mainstream and is otherwise
competent, he or she should probably be confirmed.
In my view, Judge Paez falls within that broad mainstream. I have
considered carefully the objections of colleagues whose views I greatly
respect. But I have also considered the views of Republicans and
conservatives from California and who know Judge Paez best--including
Congressman Rogan. Their views persuade me to vote to confirm Judge
Paez to the Ninth Circuit.
The nomination of Marsha Berzon to the Ninth Circuit, however, seems
to me to create too great a risk that we are confirming someone for a
lifetime appointment to the most influential circuit court in the
country, who falls on the far side of the philosophical divide I
described in my remarks on Judge Paez. Ms. Berzon has a relatively
narrow scope of private practice in a highly ideological field, and has
been active and ideological in the expression of her political views.
Ms. Berzon also has no judicial experience, and so has no record by
which to determine whether her ideological activism will be curtailed
once she is on the bench. It certainly is possible that it would be. It
is also possible that it will not. Given the concerns of many,
including my colleagues on the Judiciary Committee who voted against
her confirmation, that the Ninth Circuit already is ideologically
unbalanced, I simply am not willing to take this risk. I see no clear
reason to consent, in constitutional terms, to her nomination.
Mr. BIDEN. Mr. President, I rise in support of Richard Paez'
nomination to the United States Court of Appeals for the Ninth Circuit.
And I must say, this vote is long, long overdue. I have heard a lot of
talk here on the floor along the lines of hey--this is politics as
usual. ``Oh when Senator Biden was chairman of the Judiciary Committee,
we held nominees up all the time.''
Let me say this: forget my tenure as chairman of the Judiciary
Committee. As far as I know, no judicial nominee in the history of this
nation has waited as long as Judge Paez has for a vote. Four years is
not even within the ballpark of a reasonable delay.
Judge Paez is a well-respected, experienced jurist. We already
confirmed his nomination to the federal district court bench. He has
served with distinction for 6 years on the federal district court and
for 13 years before that as a municipal court judge in Los Angeles. The
American Bar Association has given Judge Paez its highest rating,
pronouncing him ``well qualified.'' Judge Paez enjoys broad bipartisan
support in his own community, including from law enforcement officials.
Judge Paez is an honorable man, a man of integrity, and a man who has
devoted his entire career to service--first, to service to the poor as
a committed poverty lawyer, and then to service to the public at large
as a state and then federal judge. His record does the President and
his supporters proud.
From what I can tell, listening to the debate on the floor, the
opposition to Judge Paez boils down to a few main points. First, to
some off-hand remarks that he made about the California initiatives
that maybe were ill-advised, but I believe may have been misconstrued--
but we have already heard this discussed at length on the floor. I
think it is a real shame to judge a man's distinguished 19-year record
on the bench on the basis of any single remark.
More importantly, though, opponents cite concerns about the allegedly
out-of-whack ninth circuit, which detractors like to call a ``rogue''
court. Aside from the fact that several circuits are reversed as or
more often than the ninth circuit, I say this: If you have a problem
with the ninth circuit, let's consider whether we should change the
ninth circuit. I'm not saying whether we should or that we shouldn't,
but there are several proposals out there to restructure the court.
Let's debate them.
Why should we punish the millions of people who live in the ninth
circuit by depriving them of the judges they need to mete out timely
and fair justice? There are six vacancies on the ninth circuit--that is
more than 20 percent of the 28 positions authorized for the court. And
even more judges are needed to handle that court's heavy case load. All
of these vacancies, by the way, are characterized by the Judicial
Conference as judicial emergencies.
Let's not take out our differences on the ninth circuit on the people
who live there and more importantly for today, let's not take out our
differences on this nominee or--for that matter, on Marsha Berzon,
another outstanding nominee who we are also voting on today.
The Los Angeles Daily Journal did an in-depth study of the criticisms
leveled against Judge Paez and found that they were unfounded. What
they concluded was this:

The portrait that emerged is of a thoughtful, unbiased and
even-tempered judge, propelled into the political spotlight,
only to be trapped in a seemingly never-ending and bitterly
polarized nominations process.

Let us end that nominations process for Judge Paez here and now, and
let it end with a vote of support.
Mr. REED. Mr. President, I thank Chairman Hatch and Senator Leahy for
all of the hard work they've put into, and continue to put into, the
judicial nomination process.
I also recognize Senator Lott for making a commitment to bring the
Paez and Berzon nominations to the Floor for a vote by March 15, over
the protests of certain members of his caucus.
First, a process comment. One of the most important duties of the
United States Senate, as envisioned by our founding fathers, is the
confirmation of Presidential appointments. Article II, Section 2, of
the Constitution states that the President shall nominate and ``appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States'' with the ``Advice
and Consent of the Senate.'' This is one of our enumerated duties in
the Constitution, and to my mind, we have egregiously failed to uphold
this duty in the case of Judge Richard Paez.
More often than not, nominations move through the Senate the way
they're supposed to. However, in this case, the system has broken down.
As a result, considerable public attention is being paid to this
nomination, especially among members of the Latino community, because
the Senate is not doing its job. This is troubling. In regards to
nominations, the public rightly expects us to move judiciously and
expeditiously and without regard to politics.
No nominee for judicial office should have to wait four years to have
his appointment confirmed. Allowing Judge Richard Paez and his family
to wait four years for this body to perform its constitutional duty is
inexcusable.
Judge Paez has opened up his life and resume for our examination, so
that we can make a very important decision about his qualifications for
a very important job, lifetime tenure on the United States Ninth
Circuit Court of Appeals. This is appropriate. Judge Paez should be
subject to serious scrutiny by this body.
But no citizen of this country should have to wait three Congresses
for this body to act. Just as he has presented his qualifications to us
to the best of his ability, we need to make a decision about these
qualifications to the best of our ability in a timely fashion.
In the private sector, how many of us would subject ourselves to the
process that Judge Paez has subjected himself in order to be on the
Board of Directors or the CEO of one of America's top companies. Most
of us would choose not to go through that process at all.
And that is exactly my point, we should not make this process so
painful that America's best and brightest attorneys are unwilling to
subject themselves or their families to what has become an increasingly
unpleasant and distressing process. We should be doing everything that
we can to encourage people like Judge Paez to aspire to be members of
our judicial branch. This,

[[Page S1357]]

despite lower pay and greater responsibility than most lawyers have in
private practice.
As the Chief Judge of the Ninth Circuit Court of Appeals wrote in a
March 2, 2000 letter to Senators Hatch and Leahy, the Ninth Circuit
Court has had a 300% increase in workload with no increase in active
judges.
Unfortunately, the Paez and Berson nominations are indicative of a
greater systemic breakdown that should be disturbing to both
Republicans and Democrats. Even Justice Rehnquist has felt it necessary
to comment on the problems being caused by greater federal court
workloads, and too few judges.
Second, it's clear that the President has nominated lawyers of
extraordinary ability when it comes to Judge Richard Paez and Ms.
Marsha Berzon. Both have received the American Bar Associations's
highest rating (``well-qualified'') and we are fortunate that these
individuals have been willing to go through such a grueling federal
judicial nomination process thus far.
I ask my colleagues today take their constitutional duty seriously
and vote for these nominees on the basis of their objective
qualifications, and not on the basis of petty politics. This process is
much too important to the citizens of this great democracy to do
otherwise.
Mr. MURKOWSKI. Mr. President, I see the Senator from California. I
see the majority leader noticeably present on the floor. I am curious
to know about the procedure. Are we going to continue?
Mr. SMITH of New Hampshire. Yes. There is a unanimous consent for the
majority leader to speak now and, after he finishes, we go back to the
debate.
Mr. MURKOWSKI. I wonder, after the majority leader speaks and the
Senator from California speaks, if I could be recognized, in that
order.
Might I ask the senior Senator from California how long she will
speak?
Mrs. FEINSTEIN. I thank the Senator from Alaska. I will yield myself
10 minutes from our manager's time.
Mr. MURKOWSKI. And the leader, of course, will go on for whatever
time is necessary. I ask unanimous consent for that time allotment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The majority leader is recognized.
Mr. LOTT. Mr. President, what we do today with a vote on these
nominations is important. It does matter. I am sure both of these two
individuals, Richard Paez and Marsha Berzon, are fine people and are
well intentioned in the positions they take, but we are going to vote
on them being confirmed to the Ninth Circuit Court of Appeals for life.
That is serious.
Yes, the President has a right to make nominations to the Federal
bench of his choice. However, we have a role in that process. We
should, and we do, take it very seriously. We should not give a man or
a woman life tenure if there is some problem with his or her
background, whether academically or ethically, or if there is a problem
with a series of decisions or positions they have taken.
I certainly don't take this lightly. I would have preferred if these
individuals had never been nominated, never been reported out of the
Judiciary Committee, and that the situation would not have arisen in
which there is this vote on the floor. But after a lot of consultation
back and forth with my colleagues, a reasonable case could be made they
should at least have a vote on their confirmation one way or the other.
As majority leader, I must make decisions as to the time and manner
in which matters are considered. Sometimes my colleagues think it is
the right way and the right time; sometimes that is not the case. Once
I make a commitment for a vote, I am going to keep that commitment the
best I can, keep my word, and go forward.
I have colleagues on my side of the aisle who don't like going
forward with this vote. At this time, I think it is appropriate that we
have a vote. I urge my colleagues to vote against these two nominees.
However, it is time we have the vote, and we will do so today.
Let me discuss why I feel so strongly that these two nominees should
not be confirmed. First, it is about the Ninth Circuit Court of
Appeals, which is clearly a circuit court of appeals that is out of
sync with the mainstream and has been repeatedly reversed by the
Supreme Court.
In recent days, I have seen references to the Ninth Circuit as
containing ``California, Arizona, and a handful of other states.'' My
state is in the Fifth Circuit Court of Appeals, but I would take
umbrage if my circuit was referred to as ``the circuit that has Texas
and other States.'' But there are only three States in our circuit, the
Fifth Circuit.
The Ninth Circuit clearly has a problem. It is too large, it is too
unwieldy, and it is not functioning effectively. It is not serving the
people of the circuit well, and we must remember that it is not just
the ``circuit of California, Arizona, and other States.'' How would
someone like to be in the circuit that is referred to that way if one
lives in Utah, Nevada, Montana, Idaho, Washington, Oregon, Alaska,
Guam, and Hawaii?
We need to do something about this. We have known we needed to do
something about it for years, but we haven't done it. Millions of
people who live in the States of the Ninth Circuit must submit their
disputes to a court that has consistently flouted the statutes and the
Constitution of the United States.
It covers 50 million people. Nearly 40 percent of the area of this
country is in this one circuit. In the past 6 years, the Ninth Circuit
has been reversed by the Supreme Court in 85 out of 99 cases
considered, roughly a 90-percent reversal rate. In most classes, that
would be rated as an abysmal failure. There is something not right
here.
It was bad before the President Clinton appointees were added, and it
has gotten worse. In the 1996-1997 term, the Ninth Circuit was reversed
27 out of 28 times, including 17 unanimous reversals. There is
something wrong with this circuit.
Let me give some specific examples of the kind of decisions they are
entering:
In Washington v. Glucksberg, the Ninth Circuit found a constitutional
right to die, a decision reversed unanimously by the Supreme Court;
In Calderon v. Thompson, 1997, the Ninth Circuit blocked an execution
based on a procedural device the Supreme Court called a ``grave abuse
of discretion'';
In Mazurek v. Armstrong, 1996, the Ninth Circuit enjoined a Montana
law allowing only doctors to perform abortions, only to be reversed
once again by the Supreme Court.
I have a long list of decisions from the Ninth Circuit, and I ask
unanimous consent I be able to have these lists and other material
printed at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. LOTT. There is a problem with this circuit. It is a circuit that
has serious problems with its rulings. It is an extremely liberal
circuit, and it will get worse with these two nominees. That is one of
the reasons I have been hesitant to bring up the nominees.
Now, let me go to the next point. I hope it won't happen, but I
suspect there is going to be somebody in this Chamber, or certainly in
the media, who will suggest that the consideration of these nominees
has something to do with their race or gender.
These charges are totally false. We don't have a place where we check
race or gender when we consider these nominees. It is irrelevant. We
had a nominee last year who was defeated in the Senate that turned out
to be African American. I am confident at least half the Senators
didn't even know that. We didn't talk about that.
In this case, the fact that Judge Paez is Hispanic is not a
consideration at all. We need more minorities and women on the courts.
Let me make this point so everybody will be aware of it now: Last year,
18 of the 34 judicial nominees confirmed by the Senate, or 53 percent,
were women or minorities. By contrast, only 51 percent of President
Clinton's nominees were women or minorities. However, I am not going to
charge him with some sort of discrimination based on race or gender.
I will have printed for the Record a list of some of the statistics
showing this Senate is more than willing and desirous of confirming
women and minorities of all backgrounds to the courts. Over the past
several years, we have confirmed a high percentage from minority groups
or women, including a unanimous or near-unanimous confirmation of an
Hispanic nominee to

[[Page S1358]]

the Third Circuit Court of Appeals earlier his week.
While some have expressed concern at the delay in bringing up the
nominations we are considering today, it is important to keep in mind
that each of these nominees was opposed by almost half of the Members
of the Judiciary Committee. This is the committee charged with
reviewing the background and qualifications of nominees. Any time so
many Members of the Judiciary Committee express this level of concern,
this body should proceed with caution.
The charges that race has somehow played a part in the Senate's
consideration of these or other nominees is more than false. It demeans
the Senate and those making the charges. If the charges are made in a
cynical attempt to gain some political advantage, that is even worse.
No real or perceived political advantage is worth debasing your own
integrity by falsely impugning that of others.
Let me go to the specifics of Judge Paez. Some say: How long must he
wait? What will happen? He is on the Federal district court now, so it
is not as if he is waiting for employment.
He has a long record and philosophy that is very liberal. That is not
disqualifying anymore than we should disqualify somebody because they
are conservative. He has a record also of highly questionable rulings
and political statements while sitting on the bench. When he was being
considered as a judge, for instance, he was quoted as saying:

The courts must tackle political questions that ``perhaps
ideally and preferably should be resolved through the
legislative process''.

That is the point. He believes the courts should be willing to do
what is our job, not theirs. That is a fundamental problem.
When he was being nominated to the Federal district bench, no less an
arbiter of liberalism than the American Civil Liberties Union
considered him a ``welcome change after all the pro law enforcement
people we have seen appointed.''
I think the American people want pro law enforcement people appointed
to the bench regardless of their background or any other consideration.
There have been some astounding cases: Judge Paez struck down a Los
Angeles antipanhandling ordinance enacted after a panhandler killed a
young man over a quarter; he ruled companies doing business overseas
can be held liable for human rights abuses committed by foreign
governments.
Excuse me? How in the world could he extrapolate anything in the laws
of this country or the Constitution that would allow him to make such a
decision?
Now we have the situation with John Huang. I do not know what
happened there, but it seems to me there is a conflict of interest. The
American people need to understand. He somehow or other was selected to
be the judge in the John Huang case, and he agreed to a very light
plea-bargained sentence at a time, I believe, when his confirmation was
still pending, involving a matter where the President of the United
States was clearly implicated. There is something not right about that.
It does not pass the smell test.
Am I willing now to charge some illegality, or some totally unethical
act? No. But we should have done more on this, on that point, before we
came to this vote.
Last, but not least, when you are on the bench--I have kidded my
friends who are Federal judges about how they ascend to someplace in
the sky, never to be heard from again: Retirement to the Federal bench.
They laugh. I laugh. But in a way, that is the way it is and that is as
it should be. Because when you go on the bench, your political
involvement, your personal preferences, should remain private. You
should assume the bench and keep your mouth shut until you rule
appropriately.
When you have a judge speak out, as Judge Paez did in 1995, for
example, and attack two California ballot initiatives while they were
still in litigation or potentially the subject of litigation, that is a
big problem. The Judicial Code of Conduct prohibits judges, as it
should, from comments that ``cast reasonable doubt on his capacity to
decide impartially, any issue that may come before him,'' that is a
fundamental point.
You cannot, as a Federal judge, make political statements on
initiatives on the ballot that bring into question your impartiality in
these cases in any way. It is highly inappropriate.
With regard to the nomination of Ms. Berzon, she does not have a
record of judicial decisions, having served as a prominent labor lawyer
for many years. Clearly, however, her positions are very questionable
in terms of how she would rule when she got on the Ninth Circuit Court
of Appeals. I think it would be a mistake.
I am particulary troubled by some of the extreme pro-labor positions
she has advocated--positions that have been summarily rejected by the
Supreme Court.
Some of the questionable positions she has advocated include arguing
that new employees, or more junior employees that worked during a
strike, must be layed off in favor of more senior employees when the
strike is over. She also argued unsuccessfully that unions should be
able to prevent members from resigning during a strike.
Finally, her statements on the use of union funds for political
activities--or other activities not directly related to union
negotiations and bargaining--raise serious questions about her
willingness to live within the letter and spirit of the Beck decision.
It is no wonder that the proponents of these nominations ignore the
record of the Ninth Circuit and the judicial approach of these
nominees. We are told instead of their strong qualifications and
personal attributes. I have no doubt that Judge Paez and Ms. Berzon are
fine lawyers and are technically competent. My concern is with their
judicial philosophies and their likely activism on the court.
Let me go back to my beginning point. This is very serious. We are
going to be voting on putting these two individuals on the Ninth
Circuit for life. I think the record is clear that they would be
activists on the bench.
Judicial activism is a fundamental challenge to our system of
government, and it represents a danger that requires constant
vigilance. In our tradition and under our laws, we give power not to a
specific group of trained experts, but rest our faith in the ability of
all Americans, whatever their backgrounds, to participate in their
government. Judicial activism robs the people of their role, and
undermines the basis of our democracy.
Nowhere is this problem of judicial activism greater than in the
Ninth Circuit. And nowhere is it more incumbent upon us as Senators to
take seriously our responsibility to restore a proper respect for our
system of representative government.
I believe these nominees should not be confirmed. Number 1, because
there is a problem with this circuit; No. 2, because, in the case of
Judge Paez, of the rulings he has been involved in, many of them of a
highly questionable nature; No. 3, in his case, for remarks he has made
in the political arena while sitting as a judge on issues that could
come before him.
While her public record is not as extensive, the same questions exist
for Ms. Berzon, particulary when you look at her positions with regard
to the type of issues that may well be coming before the Ninth Circuit,
and eventually, before the Supreme Court. There is great doubt about
the basis for her confirmation.
While I have kept my word and we will vote on these judges today, I
will vote against them both.

Exhibit 1

ninth circuit reversals by the supreme court

For the period from 1994 through 2000, 85 of the 99 Ninth
Circuit cases considered by the Supreme Court were
overturned:
1999-2000 7 of 7--100%.
U.S. v. Locke (3/6/00--unanimous)--improper to allow state
regulation over oil tankers when area was federally
preempted.
Rice v. Cayetano (2/23/00)--improper to uphold Hawaii
constitutional provision allowing only certain race to vote.
Roe v. Flores--Warden (2/23/00)--remanded ineffective
counsel case.
U.S. v. Martinez-Salazar (1/19/00--unanimous)--improper to
throw out conviction when juror was stricken with preemptory
challenge after refusal to excuse the juror for cause.
Smith v. Robbins (1/19/00)--improper to strike down
California law concerning indigent appeals.
Guiterrez v. Ada (1/19/00--unanimous)--improper statutory
interpretation of Guam election law.
Los Angeles Police Department v. United Reporting Pub.
Corp. (1/7/99)improper to

[[Page S1359]]

strike down California law on arrestee information.
1998-1999 13 of 18--72%.
1997-1998 14 of 17--82%.
1996-1997 27 of 28--96%.
1995-1996 10-12--83%.
1994-1995 14 of 17--82%.

record on confirming minority and female judicial nominees

President Clinton has touted his record of appointing
qualified minority and female nominees to the bench. Since
all of these judges received Senate confirmation, the
Senate's record must, by definition, mirror the President's.
In fact, in 1999, 53% of the nominees confirmed were women
and/or minorities, compared to only 51% of Clinton's
nominees.
This Congress, over half (21) of the total number (42) of
nominees reported out of the Senate Judiciary Committee were
either a minority, a female, or both. Similarly, over half
(18) of the total number (34) of nominees confirmed were
either a minority, a female, or both.\1\ Half of the 34
nominations pending in committee are white males. (Statistics
as of 2/29/00)
---------------------------------------------------------------------------
\1\ These figures include non-controversial nominees such as
Charles Wilson (Eleventh Circuit), Ann Claire Williams
(Seventh Circuit), Adalberto Jose Jordan (S.D. Fla.), Carlos
Murguia (D. Kan), William Haynes, Jr. (M.D. Tenn.), Victor
Marrero (S.D.N.Y.), and George Daniels (S.D.N.Y.), all of
whom were confirmed within 7 months of their nomination.
---------------------------------------------------------------------------
According to the Judiciary Committee, during the first
session of the 106th Congress, on average minorities were
reported out of committee faster (108 days) than white male
candidates (123 days). Similarly, on average minorities were
confirmed faster (122 days) than white males (143 days).
Senator Hatch in an Op-Ed to the Washington Post cited a
Task Force on Federal Judicial Selection study reporting that
the pace of actual confirmations was the same for minorities
and non-minorities in 1997-98.
In the Democratic-controlled 102nd Congress, the Senate
took 18% longer to confirm minority and female district court
nominees than white males. In comparison, the Republican-
controlled Senates in 97th, 98th, and 99th Congresses moved
female nominees faster than males.

Mr. LEAHY. Mr. President, first, I do thank the distinguished
majority leader for keeping the commitment he made to me, to Senator
Daschle, to the two Senators from California, and others last year to
bring these nominations to a vote. I appreciate that. I wish, of
course, he would vote for the two nominees, but that is his right.
We keep talking about these reversal rates, the Ninth Circuit being
reversed the most. Of course, that is not the case. I will put in the
Record later on a letter from Chief Judge Hug, who shows a number of
circuits that have been reversed far more than the Ninth Circuit.
I will also point out, as I did earlier, about half of the most
recent reversals have been on decisions written by appointees of
President Reagan and appointees of President Bush. So I would not be
blaming President Clinton for this.
We have heard a great deal about the so-called panhandling decision.
The judge had no choice in that matter. He had a case on all fours from
his own circuit. As a district judge, he had to follow that decision.
Whether he liked it or not, that is what he had to follow.
Subsequently, when his own circuit reversed its position on it, then he
would have to follow the new position.
Last, I am disturbed to have it suggested that the judge could not
tell litigants in a courtroom that they could not wave anything in the
face of jurors, whether it is a Bible or a newspaper. I yield to nobody
in this body in my defense of the first amendment. I have certainly
received more first amendment awards than anybody serving here. I would
say also if they were to wave a newspaper and a headline in the face of
jurors, a judge could say: No, you can't do that.
That is not freedom of the press. That is not freedom of religion. No
judge anywhere is going to allow litigants to wave anything in the face
of jurors to influence them, nor to act outside of the regular rules of
court, or when you can refer to an item in evidence or not, when you
can refer to it in argument.
I just point that out. We continuously attack this man for doing the
things he is supposed to do.
I yield to the distinguished Senator from California who seeks 10
minutes, I understand. I yield 10 minutes.
Mrs. FEINSTEIN. Mr. President, I want to take a few minutes as a 7-
year member of the Judiciary Committee, to set the record straight on
some of the comments that have been made with respect to the Ninth
Circuit Court of Appeals. I have heard that circuit called a rogue
circuit, out of control, out of sync with the rest of the Nation. All
of this is based on statistics for 1 year, 1996-1997, when the Supreme
Court reversed that circuit 27 out of 28 times.
The question is, Even in that year, did that place it as the most
reversed circuit? The answer is no because even in that year they fell
in the middle of the pack. When the Ninth Circuit's reversal rate was
95 percent, it was still less than five other circuits: The Fifth, the
Second, the Seventh, D.C., and Federal Circuits all had a 100-percent
reversal rate.
You can seek out the Ninth Circuit because it has 9,000 cases on
appeal as opposed to a circuit with 1,000 or 1,500 cases. But the
record is the record, even in that year, that much maligned year that
is the basis of all of these comments.
Let's look at some of the other years. In the 1998-1999 Supreme Court
session, the Supreme Court reviewed 18 cases of the Ninth Circuit; 4
were affirmed, 11 were reversed, and 3 had mixed rulings. So only 11
out of 18 cases were outrightly reversed. That is a 61-percent reversal
rate.
Is that the worst? No. This is less than the reversal rates for the
Third Circuit, 67 percent; the Fifth Circuit, which was reversed 80
percent of the time; and the Seventh Circuit, 80 percent of the time;
the Eleventh Circuit, 88 percent; and the Federal Circuit, 75 percent.
In terms of reversals, the Ninth Circuit is not at the bottom of the
pack, it is in the middle of the pack.
I think I know why there were newspaper articles. The Ninth Circuit
has been made a target by many conservatives who either want to see it
split or, in some way, destroyed. That has become very clear to me as a
member of the Judiciary Committee as I have watched proposal after
proposal surface.
Am I always pleased with the Ninth Circuit? Absolutely not. Do I like
all the decisions? Of course not. But the point is, the Ninth Circuit
is well within the parameters, and in virtually every year that one can
look at reversals, one will see the Ninth Circuit is approximately in
the middle of the pack.
The argument is also made that Clinton appointees are making
decisions that are being reversed. I have looked at the Ninth Circuit
judges who were reversed over the last 3 years by the Supreme Court.
Once again I correct the record. On only eight occasions in the last
three full Supreme Court terms have Clinton appointees on the Ninth
Circuit joined in decisions later reversed by the Supreme Court. At the
end of the 1998-1999 term, Clinton appointees were 20 percent of the
judges on the Ninth Circuit.
If one wants to compare, compare Clinton appointees with Reagan
appointees. Reagan appointees on the Ninth Circuit have been overturned
in 30 instances from the 1996-1997 Supreme Court term through the 1998-
1999 term. Currently, there are the same number of Reagan appointees on
the Ninth Circuit as Clinton appointees.
I have wondered, as I have watched this debate emerge for the last 7
years, why there is this persistent effort to demean, to break up, in
some way to destroy this court. I have a hard time fathoming why.
Mr. President, I ask unanimous consent to print in the Record a
letter from the Chief Judge of the Ninth Circuit Court of Appeals.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

United States Courts

for the Ninth Circuit,

Reno, NV, March 1, 2000.
Hon. Orrin Hatch,
U.S. Senator, Dirksen Senate Office Building, Washington, DC.

Hon. Patrick Leahy,
U.S. Senator, Russell Senate Office Building, Washington, DC.
Dear Senators Hatch and Leahy: I write on behalf of the
Ninth Circuit Court of Appeals to emphasize the importance of
filling the judicial vacancies on this court.
During the four years that I have been Chief Judge of the
Ninth Circuit, we have had up to ten vacancies on the court
of appeals. We now have six vacancies, two have been vacant
since 1996, two since 1997, one since 1998, and one since
1999. It has been very difficult to operate a court of
appeals with up to one-third of our active judges missing. As
you know, I have worked with the White House and the Senate
in an attempt to fill these vacancies in a timely manner, and
I am continuing to do so.

[[Page S1360]]

As Chief Judge, I have implored our active judges and our
senior judges, on an emergency basis, to carry a larger
caseload during this interim while the vacancies are being
filled, in order to do our best to avoid building up a
backlog of cases with the consequent delay for the litigants.
Our judges have been most responsive in hearing
considerably more cases than would ordinarily be assigned. I
am very grateful, but I cannot expect the judges to do this,
on an emergency basis, for the indefinite future.
In addition, we have called upon the district judges within
our circuit to serve on panels, as well as visiting judges
from other circuits. However, this is not the ideal way to
perform the services of a court of appeals. The appeals from
the Ninth Circuit should be heard by the judges of the Ninth
Circuit Court of Appeals.
Despite all these efforts, we do have a backlog of cases,
which principally affect civil cases, some of which have had
to wait a year or more to be heard. My major concern is that
we have had a significant increase in filings this past year,
which considerably exceed the number of cases we are able to
terminate even with this enhanced effort. In the year ending
December 31, 1999, the number of appeals filed was 9,444, and
the number of appeals terminated was 8,407. This is a
difference of over 1,000 cases.
If our six vacancies were filled and those judges were on
our court, it would mean we could decide an additional 800
cases on the merits. If they are not filled, I can anticipate
considerable delay for the litigants of this circuit.
Our court is very pleased that the leadership of the Senate
has committed to hold a floor vote this month on nominees
Judge Richard Paez and Marsha Berzon. We have every hope that
they will be confirmed. We would ask, however, that the other
nominees, Barry P. Goode, James F. Duffy, Jr., Richard C.
Tallman, and Johnnie B. Rawlinson receive hearings before the
Judiciary Committee in the near future. It is vital to our
Ninth Circuit Court of Appeals.
By the way of emphasizing the need brought about by our
increasing caseload and the importance of filling these
vacancies, I might note a little historical perspective. In
1980, shortly after I came on the court of appeals, we had 23
active judges with a caseload of 3,000 appeals. Today, with 6
of our 28 judgeships vacant, we have 22 active judges to hear
over 9,000 appeals. You can see the importance of proceeding
promptly with the confirmation process.
I might make one other observation--I have noted that the
reversal rate of the Supreme Court in one unusual year, 1996-
97, has assumed some importance in the hearings. Even in that
year, when the Ninth Circuit's reversal rate was 95%, it was
less than five other circuits--the Fifth, Second, Seventh,
D.C., and Federal Circuits--all with a 100% reversal rate. In
the 1997-98 term, the Ninth Circuit's reversal rate was 76%,
equivalent to that of the First Circuit's 75%, and less than
the Sixth and Eleventh Circuits' 100% reversal rate. In the
1998-99 term, the Ninth Circuit's reversal rate was 78%,
equivalent to that of the Second and Federal Circuits' 75%,
and less than the Fifth Circuit's 80%, the Seventh Circuit's
80%, and the Eleventh Circuit's 88% reversal rates.
However, the important point to emphasize, in my opinion,
is that the reversal rate has little to do with the
effectiveness of any circuit court of appeals. For example,
the 13, 14, or 20 cases reversed in a term were out of 4,500
cases decided on the merits in the Ninth Circuit. The
reversal rate in any circuit should also have little to do
with the nomination or confirmation of judges to fill
vacancies on a court.
Our judges on the Ninth Circuit Court of Appeals will
certainly appreciate any efforts on your parts to afford the
judicial nominees a hearing in the near future and a prompt
vote on the floor of the Senate.
Yours sincerely,
Procter Hug, Jr.,
Chief Judge.

Mrs. FEINSTEIN. Mr. President, I will quickly read the paragraph to
which the ranking member alluded. I believe it is worthwhile for
everybody to hear this. Judge Hug said:

I might make one other observation--I have noted that the
reversal rate of the Supreme Court in one unusual year, 1996-
97, has assumed some importance in the hearings.

These are the hearings on confirmation.

Even in that year, when the Ninth Circuit's reversal rate
was 95 percent, it was less than five other circuits--the
Fifth, Second, Seventh and Federal Circuits--all with a 100
percent reversal rate. In the 1997-98 term, the Ninth
Circuit's reversal rate was 76 percent, equivalent to that of
the First Circuit's 75 percent and less than the Sixth and
Eleventh Circuits' 100 percent reversal rate. In the 1998-99
term, the Ninth Circuit's reversal rate was 78 percent,
equivalent to the Second and Federal Circuits' 75 percent and
less than the Fifth Circuit's 80 percent, the Seventh
Circuit's 80 percent, and the Eleventh Circuit's 88 percent
reversal rates.

Once again, the Chief Judge of the Ninth Circuit attests that the
Ninth Circuit's reversal rate is substantially in the middle of the
pack of all the circuits. I hope the record stands corrected.
I want to speak about the two judges before us and indicate my strong
support for the appointment of both Judge Paez and Mrs. Berzon.
Judge Paez has been before this body for 4 years. He has had two
hearings and has been reported out of committee twice. Marsha Berzon
has been before this body for 2 years, and she has had two hearings and
been reported out of committee once.
I have sat as ranking member on one of her hearings. It was equal in
the quality and numbers of questions to any Supreme Court hearing on
which I have sat, and I have sat on two of them. She was asked detailed
questions on the law, questions about her performance, questions about
her background, and, I say to this body, she measured up every step of
the way. She is a brilliant appellate lawyer, and she has represented
both business clients as well as trade union clients.
Judge Paez has 19 years of experience as a judge and 6 years as a
Federal court judge. I will speak about his record on criminal appeals.
According to the Westlaw database, 32 of his criminal judgments have
been appealed; 28 of these were affirmed. The Circuit Court dismissed
two appeals for lack of jurisdiction, remanded one for further
proceedings, and one judgment was affirmed in part or reversed in part.
That is an 87-percent affirmance rate. That is pretty good.
Judge Paez has not been reversed on a criminal sentence. Of his 28
criminal affirmances, they include 6 cases where a sentence he imposed
was upheld by the appellate court; 4 involved his decision to enhance
the defendant's defense level within the guidelines, actually giving
the offender a tougher sentence, and 2 involved Judge Paez's refusal to
grant a downward departure.
Judge Paez was also named Federal criminal judge of the year by the
Century City Bar Association.
As I have looked at this case and listened to members in the
Judiciary Committee, a lot of the objection seems to come down to one
speech he made at the University of California Boalt Hall where he
criticized a proposition on the ballot which was a very incendiary
ballot measure in California. It was Proposition 209, and that may have
been somewhat intemperate.
My point is, one comment does not outweigh 19 years of good judicial
service, 6 of them on the Federal court. I believe strongly that both
these nominees deserve confirmation today.
I thank the Chair.
The PRESIDING OFFICER (Mr. Bunning). The Senator from Alaska is
recognized.
Mr. MURKOWSKI. Mr. President, I want to talk a bit about the matter
before us, the judicial nominations of Paez and Berzon.
I have listened to the debate today, and it is fair to say, to a
large degree, the Ninth Circuit Court has made itself the target. The
suggestion was made the Ninth Circuit is in the middle of the pack with
regard to reversals. Thirty-three percent of the reversals over the
last 3 years have come out of the Ninth Circuit Court. I have talked to
judges in that court. They are so frustrated by the caseload and their
inability to follow the cases in the court that they privately and
publicly suggest something be done.
We have been at this for a long time. We have been discussing it, we
have been arguing, we have been debating how we split it up. Naturally,
California is a little reluctant to see it split up, for lots of
reasons which I do not think are necessary to go into.
The reality is this body has an obligation of timely justice, and
timely justice is not being done in the Ninth Circuit for a couple of
reasons. It serves the largest population of all the circuits. The
judges can't handle all the cases. Legal reasoning has been abandoned
in favor of extremist views. The Ninth Circuit has invited this upon
itself.
The point I make is, we have an obligation on our watch to do
something about this problem. We have to do it. It is inevitable.
This week I introduced legislation to split the Ninth Circuit. These
two nominees are perfect examples of why my bill should be passed
immediately by this body. Senator Hatch and other are co-sponsoring
this bill.
The Ninth Circuit is already plagued with a very activist group on
the judiciary who bring their causes to the bench with them.

[[Page S1361]]

But let's look at the number of cases that have been reversed by the
Supreme Court. This chart shows the number of cases reversed by the
U.S. Supreme Court between 1997 and 1999. The statement has been made
that the Ninth Circuit court is somewhere in the middle. It is more
than the middle. The Ninth Circuit has almost a quarter of all the
court reversals in all of our circuit courts. Next is followed by the
Eighth Circuit and then the Fifth Circuit. It is not a factual
statement to suggest that the reversals in the Ninth Circuit are
somewhere in the middle.
We have another chart I will describe to you as the Ninth Circuit
Court of Appeals, a court that is out of control. From 1994 to the year
2000, the number of decisions reversed, 86 percent; decisions upheld,
14 percent.
If this followed a pattern in the other circuit courts, I would not
be up here arguing; but it is far too high. It suggests it is out of
control. The reality is that 86 percent of the decisions were reversed
in that period, from 1994 to the year 2000; and 14 percent of the
decisions were upheld by the Supreme Court. These are people who were
denied justice--at great cost.
Let's look at the reason why it is so obvious that we have to do
something about it. It is the caseload. Look at the growth of the
caseload. From 1991 through the year 2000, it has gone from 7,500 to
9,500. It continues to increase. What they will tell you is it is
increasing beyond a manageable level. We all know something about
managers and management. Some of us are better managers than others;
some are worse than others. But you have some real problems when the
judges cannot follow the decisions that are coming out of the court.
They will be the first ones to acknowledge that.
Let me show you a chart referencing the population in relation to the
other circuit courts because that is very important. The circuit courts
are depicted on this chart--the First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, currently the Ninth, the Tenth, and Eleventh. I
want to move this chart up a little bit. I am not sure the Presiding
Officer can see it. This is the story. It is cold, hard facts.
Here is the Ninth Circuit shown on the chart. It is almost off the
chart. The Ninth Circuit will increase 26 percent by the year 2010. It
is at 50 million now. That is the problem. We have to split it. The
question is, who is going to accept the responsibility? Are we going to
put it off? The longer we put it off, the less timely justice prevails.
We owe this to the residents of the States affected. They ought to
have something to say about it. We are saying we want it changed. We do
not hear that from California. But the other States say they want a
change; they want an equitable change.
What have we done? We have reached out and tried to get opinions of
people who know something about the problem. Everybody is an expert;
and everybody can get an expert. But the Supreme Court agrees that
reform is needed. How much higher do you have to go?
Here is what they say:

The disproportionate segment of this Court's discretionary
docket that is consistently devoted to reviewing Ninth
Circuit judgments, and reversing them by lop-sided
margins, suggests that this error-reduction function is
not being performed effectively.

That means justice is not being done. That is Justice Scalia.

With respect to the Ninth Circuit in particular, in my view
the circuit is simply too large.

Isn't that what it shows? That is Supreme Court Justice Sandra Day
O'Connor.

In my opinion the arguments in favor of dividing the
Circuit into either two or three smaller circuits
overwhelmingly outweigh the single serious objection to such
a change.

These are the Supreme Court Justices who have to make these
reversals.
I have another chart. You can read, at your leisure, what retired
Supreme Court Chief Justice William Burger said.

I strongly believe that the 9th Circuit is far too
cumbersome and it should be divided.

Supreme Court Justice Anthony M. Kennedy:

I have increasing doubts and increasing reservations about
the wisdom of retaining the Ninth Circuit in its historic
size, and with its historic jurisdiction. We have very
dedicated judges on that circuit, very scholarly judges . . .
But I think institutionally, and from the collegial
standpoint, that it is too large to have the discipline and
control that's necessary for an effective circuit.

We have a hard enough time controlling discipline here, and there are
only 100 of us--plus 100 egos. But I will not go into that.

We (the Ninth Circuit) cannot grow without limit . . . As
the number of opinions increases. . . .

That is the Honorable Diarmuid O'Scannlain, a Ninth Circuit judge, I
might add.
Our former colleague, Senator Mark O. Hatfield:

The increased likelihood of intracircuit conflicts is an
important justification for splitting the Court.

There you have it, one of our own.
In my opinion, this matter before us is further evidence of the
necessity of splitting the court. The circuit is already plagued with
activists on the judiciary who bring their causes to the bench with
them. I do not think that is appropriate. One simply has to look at the
rate of reversals to find the proof. I have gone into that. Now is the
time for Congress to stop this unwieldy circuit. I hope we will because
our inaction is only going to weaken an already detached and out of
control circuit.
Most shocking is that the nominees do little to deflect accusations
that they share an activist judicial philosophy. Justice Paez, in his
own words, stated that he ``appreciate[s] . . . the need of the courts
to act when they must, when the issue has been generated as a result of
the failure of the political process to resolve a certain political
question. . . .''
He then continues:

There's no choice but for the courts to resolve the
question that perhaps ideally and preferably should be
resolved through the legislative process.

I think that statement deserves a great deal of thought and
consideration because he is implying that if we don't take care of it
through the political process, this judge is going to simply take
action into his own hands. I am not ready for that. That, to me, is a
flag.
One does not have to be a legal scholar to see that this is a blatant
infringement upon the Constitution, the Constitution we rely upon to
protect ourselves from improper Government actions. Article I, as I
know the Chair is familiar, clearly states that ``[a]ll legislative
powers herein granted shall be vested in a Congress of the United
States.'' Should this body abdicate its role and confirm nominees who
openly defy the Constitution? I hope we will all answer with a
resounding ``no.''
Unfortunately, Judge Paez's background goes far beyond activist
judicial decisions. I think we should all pause and reflect upon a
nomination for which the director of the ACLU in Southern California
states:

It's been a while since we had these kinds of appointments
to the federal court. I think it's a welcome change after all
the pro-law enforcement people we have seen appointed to the
state and federal courts.

That sends another message to me. I am not sure this judge is going
to have the balance necessary to protect our law enforcement people.
They need a lot of protection. They are hit by the press. They are hit
by mistakes. They are hit by the exposure they have out there,
protecting our property and protecting us. We owe more to the men and
women who risk their lives each and every day to maintain law and
order. We owe more to Americans who see crime around every corner.
There is a lot of it, and a lot of them see it.
Time and time again, Judge Paez has demonstrated a lack of proper
judicial temperament. We should be able to agree that judges should be
impartial and not speak out on matters that may appear before their
court. I think we do agree on that. Yet Paez, during the California
Proposition 209 ballot initiative debate which would have ended racial
quotas and discrimination by the State government, labeled the proposal
``anti-civil rights'' and said it would ``inflame the issue all over
again without contributing to any serious discussion.''
I am realist enough to recognize that people in California and their
elected representation have a better understanding of this than I do.
It sounds a little strange and uncomfortable to me.
A judge is expected to remain impartial. Certainly, they should not
comment upon efforts by the citizens of California, in their wisdom, to
pass a

[[Page S1362]]

legal and constitutional ballot initiative. Judicial Cannon 4(A)(1)
alone requires that a judge do nothing ``to cast reasonable doubt on
the judge's capacity to act impartially as a judge.'' This is not a
person who should be deciding cases that affect 50 million people in
our circuit court.
Here, again, is the chart that shows the proof of why this court is
out of control.
I also find it ironic that supporters of Marsha Berzon are the very
people who claim to be advocates of campaign finance ``reform.'' It is
interesting because there are some political overtones there. There
probably are going to be some more. While quick to target political
speech by national parties, they seem to have turned a blind eye to
true injustice in our campaign finance system. I am referring to the
forced speech that large and radical unions placed upon their willing
members. Many of the union members acknowledge that privately; they are
a little hesitant to do it publicly.
The majority has worked hard to open the workforce to all Americans
and to remove automatic payroll contributions to unions for political
ads of which members disapprove. Shouldn't those members have a right?
I think so.

Now the Clinton administration has sent us a judicial nominee who has
been labeled by the National Right to Work Committee as the ``worst''
Clinton appointee in terms of labor issues. I wonder how objective that
person is.
While representing the Nation's most powerful unions, Ms. Berzon
stated that mandatory union dues ``implicates first amendment values
only to a very limited degree.'' I wonder how limited that is.
Thankfully, the Supreme Court struck down this logic in Communication
Workers of America v. Beck.
Look at the Ninth Circuit's already startling reversal rate by the
Supreme Court. In 1997, it was 95 percent. One can imagine an even more
detached judiciary with the addition of Ms. Berzon. This period this
chart shows is for the years 1994 through 2000: 86 percent of the
decisions reversed, only 14 upheld. That is a reflection on the court,
and it is a reflection on us for not doing something about it.
Mr. Paez is no stranger to the reform debate. During a time when we
expect firm and fair enforcement of our Nation's financing laws, Judge
Paez gave one individual an unusually light sentence after he admitted
to accepting more than $250,000 in illegal campaign contributions. This
is the largest acknowledged receipt of illegal contributions in
congressional history, except for POGO maybe. We have 300-some-odd
thousand in reward money out there that we have to investigate. There
are going to be some heads rolling once that is made public and the
public and this body understands how that system of whistleblowers
works. What was the sentence? The sentence was 1 year on probation and
200 hours of community service. This is for $250,000 illegal campaign
contributions. This is the real problem in campaign financing.
I could go on for a long time. I see the Senator from Maryland
waiting to be recognized. I could continue listing the seemingly
countless reasons why these two nominees should be rejected by this
Senate. But, I find that unnecessary. There really is only one reason.
Because the people of the Ninth Circuit deserve better. They deserve
better.
They deserve a justice system that reflects the temperament of the
society. They deserve a judiciary that creates dependable case law by
following judicial precedent. They deserve a judiciary that provides
swift yet fair justice.
Most importantly, they deserve a judiciary that follows the
Constitution and the rule of law and objectivity. For these reasons, I
urge my colleagues to reject the two nominations before us prior to the
vote this afternoon.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland is recognized.
Ms. MIKULSKI. Mr. President, I ask unanimous consent to speak for 5
minutes as in morning business, ensuring that it doesn't take time from
either side on this debate. This has been cleared with the leadership
on the other side.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Ms. Mikulski pertaining to the introduction of S.
2229 are located in today's Record under ``Statements on Introduced
Bills and Joint Resolutions.'')
Mr. SMITH of New Hampshire. I thank my colleague from Alaska for his
comments in support of the opposition to these two nominees.
I yield myself 5 minutes to summarize.
We have a circuit court, the Ninth Circuit, widely considered by most
objective observers a renegade circuit that is out of the mainstream of
American jurisprudence, a circuit court that has had decisions
overturned by the Supreme Court nearly 90 percent of the time in the
past 6 years. That is a very high percentage of the number of cases
they have. It is the largest circuit in the country. It includes the 7-
7 overturn rate in 1999-2000 and 27-28 reversal rate in 1996-1997. In
fact, 17 of the decisions in 1996-1997 out of the 27 were overturned
unanimously, which means both the liberal and the conservative Justices
on the Supreme Court agree that these decisions were so outrageous,
they had to be overturned.
It is a court that routinely issues activist opinions, opinions that
conflict with the basic American constitutional and legal principles.
We have had a great debate on some of the outrageous decisions that
have come down.
As I have said, these two new nominees will, if approved, add to that
court in a way that is going to continue to have cases overturned.
These two judges, Ms. Berzon as well as Mr. Paez, have both indicated
by their own track records they will be making similar decisions. I
think this is most disturbing.
In the case of Marsha Berzon, we are talking about a potential
judicial activist on labor issues. As I said before, it doesn't matter
what the issues are, what one believes in personally. The job as a
judge is to interpret the Constitution in a way that does not put
personal views on the court but, rather, enforces the Constitution.

Ms. Berzon has described her practice: From the outset of my law
practice, an important client has been the AFL-CIO. Since 1975, I have
devoted a substantial part of my practice to aiding labor organizations
affiliated with the AFL-CIO at the Supreme Court and other appellate
litigation.
There is nothing wrong with that on the surface. She certainly has a
right to represent anyone she chooses to represent if she is asked to
do it in a court of law.
The question is, Why talk about that when she knows that cases
involving labor could come before her? Imagine what would happen on
this floor. We have heard a lot of people outraged by what we have
done, getting a good, thorough debate on the two nominees.
Imagine if we had a nominee before the Senate, the outcry from the
other side of the aisle if we had a guy or gal come before the Senate,
a nominee of any President--say of President Bush in the future--and
this person said, ``I have since 1975 devoted a substantial part of my
practice to fighting gun control and have been affiliated with the
National Rifle Association and gun owners of America in many cases
before the courts of America.''
Imagine what we would hear on the other side. They have a right to
air that if they wish. I think it would be justified if a person were
to say he was going to promote the interests of any particular group or
industry.
It is not new to raise the debate on issues about a particular
nominee. I get tired of hearing talk that we are wrong to raise these
issues because these judges happen to be liberals.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, it is not a question of liberal or
conservative. As I recall, when the Democrats were in control of the
Senate during 6 years overlapping the Reagan and Bush Presidencies, we
voted to confirm about 99 percent of the nominations of President
Reagan and President Bush.
Justice Scalia is considered one of the most conservative Members of
the Supreme Court. As I recall, he got a unanimous vote from the
Republicans and Democrats in the Senate Judiciary Committee. I believe
he had a unanimous vote on the floor of the Senate.
Let's not use this shibboleth. We have also had a number of judicial
nominees who said they were members of the National Rifle Association
and a number who have said they have defended conservative
organizations. I

[[Page S1363]]

never remember a single one having difficulty being confirmed. Let's
not use that.
If we want to assume for the sake of argument that the Ninth Circuit
is dominated by liberal activist judges, these critics urge the Senate
to reject the confirmation of new judges. They are not letting two
basically moderate judges come, thereby adding to the mix. It does not
make a great deal of sense to me that they want to keep the court
exactly the way it is.
I ask unanimous consent to have printed in the Record a letter from
Judge Procter Hug that points out there are a number of circuits that
have far higher reversal rates than the Ninth Circuit.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

United States Courts

for the Ninth Circuit,

Reno, NV, March 2, 2000.
Hon. Orrin Hatch,
Chairman, Senate Judiciary Committee, Russell Senate Office
Building, Washington, DC.

Hon. Patrick Leahy,
Ranking Member, Senate Judiciary Committee, Russell Senate
Office Building, Washington, DC.
Dear Senators Hatch and Leahy: I write on behalf of the
Ninth Circuit Court of Appeals to emphasize the importance of
filling the judicial vacancies on this court.
During the four years that I have been Chief Judge of the
Ninth Circuit, we have had up to ten vacancies on the court
of appeals. We now have six vacancies, two have been vacant
since 1996, two since 1997, one since 1998, and one since
1999. It has been very difficult to operate a court of
appeals with up to one-third of our active judges missing. As
you know, I have worked with the White House and the Senate
in an attempt to fill these vacancies in a timely manner, and
I am continuing to do so.
As Chief Judge, I have implored our active judges and our
senior judges, on an emergency basis, to carry a larger
caseload during this interim while the vacancies are being
filled, in order to do our best to avoid building up a
backlog of cases with the consequent delay for the litigants.
Our judges have been most responsive in hearing
considerably more cases than would ordinarily be assigned. I
am very grateful, but I cannot expect the judges to do this,
on an emergency basis, for the indefinite future.
In addition, we have called upon the district judges within
our circuit to serve on panels, as well as visiting judges
from other circuits. However, this is not the ideal way to
perform the services of a court of appeals. The appeals from
the Ninth Circuit should be heard by the judges of the Ninth
Circuit Court of Appeals.
Despite all of these efforts, we do have a backlog of
cases, which principally affect civil cases, some of which
have had to wait a year or more to be heard. My major concern
is that we have had a significant increase in filings this
past year, which considerably exceed the number of cases we
are able to terminate even with this enhanced effort. In the
year ending December 31, 1999, the number of appeals filed
was 9,444, and the number of appeals terminated was 8,047.
This is a difference of over 1,000 cases.
If our six vacancies were filled and those judges were on
our court, it would mean we could decide an additional 800
cases on the merits. If they are not filled, I can anticipate
considerable delay for the litigants of this circuit.
Our court is very pleased that the leadership of the Senate
has committed to hold a floor vote this month on nominees
Judge Richard Paez and Marsha Berzon. We have every hope that
they will be confirmed. We would ask, however, that the other
nominees, Barry P. Goode, James F. Duffy, Jr., Richard C.
Tallman, and Johnnie B. Rawlinson receive hearings before the
Judiciary Committee in the near future. It is vital to our
Ninth Circuit Court of Appeals.
By the way of emphasizing the need brought about by our
increasing caseload and the importance of filling these
vacancies, I might note a little historical perspective. In
1980, shortly after I came on the court of appeals, we had 23
active judges with a caseload of 3,000 appeals. Today, with 6
of our 28 judgeships vacant, we have 22 active judges to hear
over 9,000 appeals. You can see the importance of
proceeding promptly with the confirmation process.
I might make one other observation--I have noted that the
reversal rate of the Supreme Court in one unusual year, 1996-
97, has assumed some importance in the hearings. Even in that
year, when the Ninth Circuit's reversal rate was 95%, it was
less than five other circuits--the Fifth, Second, Seventh,
D.C., and Federal Circuits--all with a 100% reversal rate. In
the 1997-98 term, the Ninth Circuit's reversal rate was 76%,
equivalent to that of the First Circuit's 75%, and less than
the Sixth and Eleventh Circuits' 100% reversal rate. In the
1998-99 term, the Ninth Circuit's reversal rate was 78%,
equivalent to that of the Second and Federal Circuits' 75%,
and less than the Fifth Circuit's 80%, the Seventh Circuit's
80%, and the Eleventh Circuit's 88% reversal rates.
However, the important point to emphasize, in my opinion,
is that the reversal rate has little to do with the
effectiveness of any circuit court of appeals. For example,
the 13, 14, or 20 cases reversed in a term were out of 4,500
cases decided on the merits in the Ninth Circuit. The
reversal rate in any circuit should also have little to do
with the nomination or confirmation of judges to fill
vacancies on a court.
Our judges on the Ninth Circuit Court of Appeals will
certainly appreciate any efforts on your parts to afford the
judicial nominees a hearing in the near future and a prompt
vote on the floor of the Senate.
Yours sincerely,
Procter Hug, Jr.,
Chief Judge.

REVERSAL RATE 1996-97 TERM
Revised 7/07/97
------------------------------------------------------------------------
Percent
Total Number reversed
cases reversed for
circuits
------------------------------------------------------------------------
Total.................................. 80 57 76
================================
Org.................................... 1 0 0
1st.................................... 1 1 100
2d..................................... 6 6 100
3d..................................... 3 2 67
4th.................................... 2 1 50
5th.................................... 5 4 80
6th.................................... 3 2 67
7th.................................... 3 3 100
8th.................................... 8 5 63
9th.................................... 21 20 95
10th................................... 2 1 50
11th................................... 6 1 17
D.C. Clr............................... 1 1 100
Federal................................ 1 1 100
Arm. Forces............................ 1 0 0
Dist. Cts.............................. 8 4 50
State Cts.............................. 8 5 63
------------------------------------------------------------------------

REVERSAL RATE 1997-98 TERM
(Signed opinions issued amended 7/02/1998)
------------------------------------------------------------------------
Supreme Reversal
Court average
Circuits Total Number reversal for all
cases reversed rate circuits
(percent) (percent)
------------------------------------------------------------------------
Total....................... 91 54 59 55
===========================================
1st......................... 4 3 75
2d.......................... 3 1 33
3d.......................... 4 1 25
4th......................... 2 1 50
5th......................... 12 6 50
6th......................... 3 3 100
7th......................... 7 4 57
8th......................... 13 8 62
9th......................... 17 13 76
10th........................ 1 0 0
11th........................ 2 2 100
D.C. Cir.................... 9 4 44
Federal..................... 2 1 50
Arm. Forces................. 1 1 100
Dist. Cts................... 2 1 50
State Cts................... 8 5 63
Org......................... 1 0 0
------------------------------------------------------------------------
Reversal Rate Average = total circuit reversal rates divided by number
of circuits.

REVERSAL RATE 1998-99 TERM
(Signed & per curiam opinions issued as of June 23, 1999)
------------------------------------------------------------------------
Reversal
Total Number Number rate
cases affirmed reversed (percent)
------------------------------------------------------------------------
Total....................... 81 24 57 70
===========================================
1st......................... 0 0 0 0
2d.......................... 4 1 3 75
3d.......................... 6 2 4 67
4th......................... 4 2 2 50
5th......................... 5 1 4 80
6th......................... 4 2 2 50
7th......................... 5 1 4 80
8th......................... 3 2 1 33
9th......................... 18 4 14 78
10th........................ 4 3 1 25
11th........................ 8 1 7 88
D.C. Cir.................... 2 1 1 50
Federal..................... 4 1 3 75
Arm. Forces................. 1 0 1 100
Dist. Cts................... 3 1 2 67
State....................... 10 2 8 80
Org......................... 0 0 0 0
------------------------------------------------------------------------

Mr. LEAHY. Mr. President, four out of seven recent reversals were
decisions written by either a Reagan or Bush appointee from the Ninth
Circuit. Somehow it wasn't brought out on the other side.
As far as showing fairness, even for Clarence Thomas, who had a tie
vote, with Republicans and Democrats voting against him in the Senate
Judiciary Committee, the Democrats, being in charge of the Senate,
still allowed him to come forward for a vote even though normally that
would have killed it.
The circuits should not all be the same. Different circuits have
different attitudes. They come from different parts of the country. If
they were to be all the same, we might as well just have one big
circuit for the whole country. The Second Circuit is different from the
Third Circuit. The Third is different from the Fifth, and so on.
I remind my friends on the other side, if we are going to have a
litmus test for a circuit, let us understand what this means when
applied to the Fourth Circuit. That is the most conservative and
activist in the country. Ironically enough, we forget the fact the very
conservative circuit can be a very activist circuit. Nobody would deny
it is one of the most activist circuits in the country, rewriting
legislation willy-nilly.

[[Page S1364]]

If the argument is accepted from the other side, then no nominee
other than one with a more liberal judicial philosophy should be
confirmed in the foreseeable future to the Fourth Circuit. I am not
trying to make that argument. But if you follow their argument, that is
the case.
Mr. President, I thank the Majority Leader for bringing this matter
to a vote. After two years, it is time to vote on the nomination of
Marsha Berzon. She 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.
Marsha Berzon is an outstanding nominee. 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 26 months
ago. 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. 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, two years
ago. A second round of written questions was sent and she responded by
the middle of September, two years ago. 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 the Committee or the Senate in October
1998.
The President renominated Ms. Berzon in January 1999. 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 in
1998.
Finally, on July 1, 1999, almost eight months ago, the Committee
considered the nomination and agreed to report it to the Senate
favorably. After more than two years the Senate will, 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 will finally 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 two 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. Marsha Berzon has been held
hostage for 26 months, not knowing what to make of her private practice
or when the Senate will deem it appropriate finally to vote on her
nomination.

Last fall I received a Resolution from the National Association of
Women Judges. The NAWJ urged 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.'' We
received that Resolution in October 1999 and I included it in the
Record at that time--October 1999.
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 despite highly qualified nominees having been sent
to the Senate by the President.
Continuing dilatory practices demeans the Senate, itself. I have
great respect for this institution and its traditions. Still, I must
say that the 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. After four years with respect to Judge
Paez and two years with respect to Marsha Berzon, it is time for the
Senate to vote up-or-down on these nominations. 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 noted last year:

[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 two or three or four years.

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 the 104th
Congress, the Senate is shirking its duty. That is wrong and should
end.
Today the New York Times included an editorial entitled ``Ending a
Judicial Blockade'' in which it notes: ``The quality of justice suffers
when the Senate misconstrues its constitutional role to advise and
consent as a license to wage ideological warfare and procrastinate in
hopes that a new president might submit other nominees.''
In 1992, a Democratic majority in the Senate acted to confirm 66
judicial nominations for a Republican President in his last year in
office. With the confirmations of Judge Paez and Marsha Berzon to the
Ninth Circuit today, this Senate will have confirmed only seven
judicial nominations so far this year. I look forward, at long last, to
the confirmation of Marsha Berzon and ask other Senators to join with
me to work to confirm many, many more qualified nominees to the federal
vacancies around the country in the weeks ahead this year.
Mr. President, I yield the floor.
Mr. SMITH of New Hampshire. Mr. President, I yield myself 5 minutes.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, several comments have been
made today, I think correctly so. I do not think the information was
out. But it is interesting we now have a capital sentencing case,
Arreguin v. Prunty, in which Judge Paez was reversed, as of yesterday.
Several people had said no criminal case of his had been reversed.
Those statements were correct. That has changed now since March 9. So
here we have this judge being reversed, this judge we are now talking
about putting on the circuit court.
In this case, the defendant was an accomplice to robbery and murder
and he actively encouraged the murder of an innocent civilian.
Under California law, an accomplice can only be sentenced to life
without parole or death if he was a ``major participant'' in the
capital crime.
In Arreguin, an impartial jury unanimously convicted the defendant as
an accomplice to robbery and murder.
The State trial judge instructed the jury on what a ``major
participant'' was. The jury sentenced the defendant to life without
parole.

[[Page S1365]]

The California appellate courts recognized that the State trial judge
made a technical error in giving the ``major participant'' instruction,
but held that the record clearly showed that the defendant was in fact
a ``major participant'' in the robbery-murder and affirmed the sentence
under the harmless error rule.
On habeas review, however, Judge Paez held that the Constitution
somehow created a liberty interest in receiving a perfect jury
instruction--even if he was clearly a major participant in the robbery-
murder.
This is a classic example of the continued liberal activist
interpretation of the Constitution by Judge Paez.
Yestreday, March 8, 2000, a unanimous panel of the Ninth Circuit
reversed Judge Paez and reinstated the sentence of the defendant to
life without parole.
The Ninth Circuit agreed with and quoted the California appellate
court, stating:

. . . under any reasonable interpretation of the evidence,
[Arreguin] was a major participant and the error was harmless
beyond a reasonable doubt.

The [California] court further stated:

Standing within arms's reach of an armed accomplice
exhorting, ``Shoot 'im, shoot 'im'' about the victim,
immediately after another accomplice forcibly broke the truck
window, warrants no other reasonable conclusion than that
appellant was a major participant. Appellant's testimony that
he did not participate at all was necessarily rejected by the
jury in its verdict. This harmless error analysis is
sufficient. . . . Therefore, we reverse the grant of the
writ.

Once again, this shows a continuing liberal, activist interpretation
of the Constitution that even the Ninth Circuit could not agree with.
Judge Paez will not move the Ninth Circuit into the mainstream, he will
make the problem. Accordingly, I will vote against this nominee.
Judge Paez will not move the Ninth Circuit into the mainstream; he is
going to make it the problem.
That is one of the major reasons why I am not going to vote for Judge
Paez, and in my view, respectfully, I do not think others should
either.
I also want to mention the Senate has received over 10,000 signatures
on petitions opposing the Berzon nomination because of her extreme
position on labor matters. Here are the 10,000 signatures. That is a
lot of signatures. That is a lot of time people take to oppose a judge,
and not even a Supreme Court Justice but an appellate court judge or
circuit court judge.
There is a lot of opposition out there. Also, I might add, there is a
lot of knowledge about these nominees.
They should be rejected.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. SMITH of New Hampshire. I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent
that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SMITH of New Hampshire. I ask unanimous consent time be charged
equally to both sides, in the quorum.
Mr. LEAHY. Reserving the right to object, and I shall not, I think it
is probably a moot point right now. I see the distinguished Democratic
leader on the floor going to seek recognition.
Mr. SMITH of New Hampshire. I just wanted to protect the time I had.
I yield the floor.
The PRESIDING OFFICER. The minority leader.
Mr. DASCHLE. Mr. President, I will use my leader time so as not to
take time of either side.
I want to add my voice especially to those of the distinguished
senior Senator from Vermont and the Senator from California, who have
spoken so eloquently on this matter for what seems to be several days.
I want to make three points.
I think the most disconcerting aspect of this debate, for those who
may be watching, is the concern that I would have, having heard many of
our colleagues express their virtual desire to influence the Ninth
Circuit and the decisions made there. Our Founding Fathers did an
extraordinary job of creating the checks and balances in our
constitutional system. As I travel around the world and talk to leaders
from other parts of the world, who have not enjoyed that delicate
balance between the judiciary, the executive, and legislative branches,
the lament I hear all around the world is: We don't have an independent
judiciary. We have a politicized judiciary. Because it is politicized,
we don't have the rule of law. Because we don't have the rule of law,
we don't have the predictability in law that creates the extraordinary
stability that you have in your country.
These leaders tell me: We want the rule of law, and we recognize that
if we are ever going to acquire it, what we have to do is to
depoliticize our judiciary, and we have to ensure that we do what you
have done--respect its independence.
There is a huge difference between voting against somebody's
philosophy or experience or qualifications based upon past judgments in
a particular trial--and Senators have every right to do so on the basis
of whatever qualifications they may choose. All of those criteria, it
seems to me, are fair game. But if we are saying we ought to vote
against someone, or for someone, because we want to influence the
direction of a certain circuit, I think we get precariously close to
creating the kind of politicization of the judiciary that, to me, is
frightening. We need to be very, very careful. For 200 years, we have
been able to maintain that independence and discipline it takes to
ensure the rule of law will always prevail.
I hope as we cast our votes, people will cast them based upon whether
they think Judge Paez and Marsha Berzon are capable--whether they have
the right qualifications. And, frankly, if they want to throw in
philosophy, so be it. But let us not say this ought to be some judgment
on the Ninth Circuit. Let us not say that somehow we want to send a
message to the Ninth Circuit or any circuit, for that matter. That is
not our role. That is not our responsibility. In the Constitution, the
Founding Fathers had no design, no possible thought that we as Senators
ought to be influencing in any way decisions made by the court, an
independent and coequal branch of government.
That is my first point.
My second point is that I believe there is a time and a place for us
to consider any nominee and, once having done so, we need to get on
with it. I cannot imagine that anybody could justify, anybody could
rationalize, anybody could explain why, in the name of public service,
we would put anyone through the misery and the extraordinary anguish
that these two nominees have had to face for years. Why would anyone
ever offer themselves for public service if they knew what they had to
go through was what these two people have had to experience and endure?
I do not know who is going to be President next. I do not know who is
going to be in the majority in the next Congress. But let's just assume
that the roles are reversed and we, the Democrats, are in the majority
and we have a Republican President--which I do not think is going to
happen. If that happens, do we really want to wait 4 years to take up a
Republican nominee? Do we want to pay back our colleagues for having
made these people wait as long as they have? I know that I have heard
from people over the last several months: that we should do to them
what they have done to us.
But, I do not want to hear about that in this body. There is going to
be no payback. We are not going to do to Republican nominees, whenever
that happens, what they have done to Democratic nominees. Why? Because
it is not right.
Will we differ? Absolutely. Will we have votes and vote against
nominees on the basis of whatever we choose? Absolutely. But are we
going to make them wait for years and years to get their fair
opportunity to be voted on and considered? Absolutely not. That is not
right. I do not care who is in charge. I do not care which President is
making the nomination. That is not right.
I hope somehow the nominations that are still pending will not be
subjected to the same extraordinary, unfair process to which these
nominees were subjected. We have 34 nominees pending. There is no
reason why every single one of them cannot be confirmed or at least
considered in the next few months.

[[Page S1366]]

The last point I will make is one I have made a couple of times
before, but it bears repeating. This has been a very difficult process
for a lot of people, and there are a lot of people who deserve some
credit. I have already cited the extraordinary contribution of the
senior Senator from Vermont, our ranking Judiciary Committee member. I
have already noted the efforts made by the California delegation,
especially Senator Boxer. Senator Hatch is here. I note his cooperation
and the effort he has made in getting us to this point.

I thank the majority leader. He and I have talked about this on
several occasions, and it is never easy when you have dissent within
your own caucus to make decisions. He made a commitment last year, and
he held to that commitment this year. He said we would have these
votes, up or down, on the confirmation of these two judicial nominees
before the 15th of March, and we are going to do that. I publicly thank
him and commend him for holding to that commitment. It is not easy. He
has done a difficult thing, but he has done it.
I hope today we can celebrate not only the confirmation of two
judges, but renewed comity between our parties when it comes to all
nominees--regardless of party, regardless of administration, and
regardless of who controls the Senate. I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I ask unanimous consent, since we need a
little more time and I need to make some remarks on this, that the
remaining time be 3 minutes for the distinguished Senator from New
Hampshire, Mr. Smith; 3 minutes for the distinguished Senator from
Vermont, Mr. Leahy; and 8 minutes for myself.
Mr. LEAHY. Reserving the right to object, and I shall not object, as
I understand, normally I would have had 14 minutes. This will
accommodate the distinguished Senator from Utah and the distinguished
Senator from New Hampshire. Do I understand that following that time,
we then will have the vote? Is that part of the Senator's request?
Mr. HATCH. That is part of my unanimous consent request.
Mr. LEAHY. I have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, perhaps I can start first.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I was listening in the past hour to the
eloquent statement of Senator Murkowski explaining why the Ninth
Circuit ought to be split. His statement comes 2 days after Senator
Murkowski and I introduced legislation that would split that circuit
into two more manageable circuits.
It strikes me that this subject is precisely the one that this body
ought to be debating today as the real solution to the stated concerns
about the Ninth Circuit.
As I explained recently on the Senate floor, the massive size of the
circuit's boundaries has confronted the circuit's judges with a real
difficulty in maintaining the coherence of its circuit law.
I will not let my concerns regarding the Ninth Circuit--many of which
appear to me to be structural in dimension--affect my judgment on the
confirmation of Judge Paez, who is an innocent party with regard to
that circuit's dubious record. Doing so would force him into the role
of Atlas in carrying problems not of his own making.
Mr. President, I rise today to speak on the nomination of federal
district Judge Richard Paez to the Ninth Circuit Court of Appeals.
I have to say, I have served a number of years in the Senate, and I
have never seen a ``motion to postpone indefinitely'' that was brought
to delay the consideration of a judicial nomination post-cloture.
Indeed, I must confess to being somewhat baffled that, after a
filibuster is cut off by cloture, the Senate could still delay a final
vote on a nomination. A parliamentary ruling to this effect means that,
after today, our cloture rule is further weakened.
But on occasion, like Justice Holmes' statement about the law, the
life of the Senate is not logic but experience. And I have no interest
in quibbling further with this ruling.
As I turn to the merits of the situation before us, I want to begin
by commending the efforts of my colleague from Alabama for his legal
acumen and tenacity in presenting his case why a further postponement
in considering Judge Paez's nomination would be warranted. I am proud
to have worked with Senator Sessions on legislation involving civil
asset forfeiture, and involving youth violence, and a whole raft of
other issues, as well. Senator Sessions' prosecutorial talents have not
left him, and my respect for him as a principled advocate has never
been greater than today.
The same goes for Senator Smith.
Still, I must take exception to the point that he has so forcefully
advocated. I must explain why the time has finally come for an up-or-
down vote to be cast on Judge Paez's nomination.
Senator Sessions' request for a postponement is grounded in Judge
Paez's handling of the Government's case against John Huang.
Let us begin with the determinative fact: Though Mr. Huang may have
been involved in illegalities in connection with the Clinton-Gore
reelection campaign of 1996, he was not charged with a single such
count.
The Assistant United States Attorney who was asked why no such
charges were brought responded by saying that: ``we investigated all
the allegations and felt that the charges in this case fully addressed
his culpability.''
Ultimately, Mr. Huang pleaded guilty to a single felony charge of
conspiring to violate Federal election law. In that plea, he admitted
to laundering a $2,500 contribution to an unsuccessful contestant in
Los Angeles' 1993 mayoral campaign, and $5,000 to an entity called the
California Victory Fund '94, the funds of which were shared by a
Democrat candidate, the Democratic Party, and two Democrat committees.
Prosecutors--in exchange for Mr. Huang's guilty plea to this single
charge--recommended that Mr. Huang receive no jail time, but instead be
ordered to pay a $10,000 fine and provide 500 hours of community
service.
Judge Paez accepted the prosecutor's recommendation, which was
consistent, by the way, with the report of the probation office.
So with this factual premise, I would like to address Senator
Sessions' argument that Mr. Huang's sentence--which he concedes was the
one recommended by the prosecution--was insufficiently harsh.
From that premise, there are only a few possibilities:
First, that Judge Paez should have ignored the Federal prosecutors
and handed down a stiffer penalty than the one they recommended. But
let's consider this. From a man like Senator Sessions who believes--as
I do--in judicial restraint, it is anomalous to suggest that judges
should depart from the adversarial system and impose their own view of
an appropriate punishment.
A second alternative is that the prosecution should have recommended
a stronger punishment, and that Judge Paez ought to have accepted it.
That may indeed be correct. I am on record as expressing similar
concern about the level of punishment sought. I am very upset about
what the prosecutors did in this matter.
But the problem with this hypothesis is that it is just that --a
hypothesis. The prosecution did not recommend a stronger sentence. And
we should not castigate Judge Paez for the acts of another--in this
case, the prosecution--by holding him accountable for the prosecution's
failure to make a stronger case against John Huang.
In any event, neither of these scenarios is one in which Judge Paez
can fairly be faulted for not acting more aggressively.

Of course, there is nothing to suggest any sort of impropriety
pursuant to which Judge Paez acted in sync with prosecutors to ensure a
lenient handling of a case so sensitive to the Clinton administration.
Nor is there any evidence at all to suggest that a departure was made
in this case from the automated, random case-assignment system utilized
in the Federal court for the Central District of California.
Yes, I believe some inside and outside this administration have
engaged in fraud upon fraud against the laws, ethical norms, and the
people of this country.
But I cannot accept, in the absence of any supporting evidence, that
two

[[Page S1367]]

branches of Government engaged in a conspiracy to alleviate a defendant
of responsibility for violations of Federal law.
This speculative theory should not become the basis for any further
delay by the United States Senate. There is no reasonable basis--let
alone any hint of evidence--to suggest that further delay would amount
to anything other than further delay.
Of course, I can understand and appreciate fully why it is that some
of my colleagues remain so dubious about the results of the Huang
prosecution. It is because that prosecution was born out of an
egregious conflict of interest with the President's own prosecutors--
subject always to his own oversight and control--being asked to
investigate a matter that, if ultimately prosecuted in an appropriately
zealous fashion, could have led to enormous embarrassment to the
President.
The result is that the prosecution's decision not to prosecute any of
the wrongdoing alleged in connection with the President's reelection
campaign can be objectively viewed as a cover-up, and as favoritism to
the President. No less a person than Senator Sessions, among many
others in this body, retain such doubts. And if they have doubts, it is
to be expected that the American people have doubts, thereby
undermining the public's faith in the rule of law in this country.
This is precisely why I called so insistently upon our Attorney
General to appoint an independent prosecutor to investigate all alleged
illegalities involving our Federal campaign laws in connection with the
1996 Clinton-Gore campaign.
The Judiciary Committee, under my direction, was the first to
formally request the appointment of an independent counsel to
investigate alleged illegalities in connection with the President's
1996 reelection campaign. And the Judiciary Committee has formed a
formal task force, led by Senator Specter, to inquire into the
Department of Justice's handling of this and other campaign finance
investigations.
But for purposes of our vote today, the determinative point is that
our concerns about the manner in which our Federal campaign finance
laws have been flouted do not at all implicate Judge Paez.
So we must now proceed to put this matter to a vote, and end the
lengthy delay in this matter by choosing--on the basis of the abundant
evidence known to us at this time--whether it shall be yea or nay on
Judge Paez' nomination. No further information or delay is needed to
cast an intelligent and knowing vote on this nomination.
Mr. President, I thank my colleagues for allowing me to make this
statement.
The PRESIDING OFFICER. Who yields time?
The Senator from Vermont.
Mr. LEAHY. Mr. President, I know we are about to finish this debate.
I do want to compliment the two Senators from California for bringing
before us two fine judicial nominees: Judge Paez and, I hope soon to
be, Judge Marsha Berzon.
I compliment the distinguished Democratic leader for what he said on
the floor--a true leadership statement. I compliment my friend from
Utah, Senator Hatch, who says we should go forward and defeat this
motion to, in effect, kill, by parliamentary maneuver, one of these
nominations.
I agree with what the Senator from South Dakota, our distinguished
Democratic leader, said, that we should not get ourselves in a position
where there is payback. Whoever the next President might be, if it is a
Republican President do we start doing the same things to him the
Republicans have done to President Clinton? That should not be done in
judicial nominations. We should protect the integrity and the
independence of our Federal courts.
I have served here for 25 years. I love and revere this body. The day
I leave the Senate, I will know that I have left the finest time of my
life, the best and most productive time of my life, the time that I
pass on to my children and my grandchildren, by being 1 of 100 men and
women whom I respect and have looked forward to working with every day.
But that is because I think of this body as being the conscience of the
Nation.
If we now use a parliamentary procedure, something totally
unprecedented on a Federal judgeship following a cloture motion, then
we shame the Senate. We should not.
Judged by any traditional standards of qualifications, competence,
temperament, or experience, both Marsha Berzon and Judge Paez should be
confirmed. They will be good judges. They will probably be even great
judges. Their commitment to law and justice will serve the people of
their circuit and our country.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Voinovich). Who yields time?
Mr. SMITH of New Hampshire. Mr. President, I yield 1\1/2\ minutes to
the distinguished Senator from Alabama.
Mr. SESSIONS. Mr. President, I would like to sum up briefly and say
there is new evidence that Judge Paez, a sitting district judge, while
being nominated to the Ninth Circuit, under nomination by the President
of the United States, found on his docket--rightly or wrongly, out of
34 judges--the John Huang case, and he accepts a plea bargain that did
not require Huang to plead at all to the $1.6 million in illegal
campaign money he raised for the Democratic National Committee, for the
Clinton-Gore campaign.
He pled guilty only to a small contribution in the city of Los
Angeles. He was given immunity for that amount.
When the guidelines were calculated based on the evidence the judge
had at that time, he should have added two additional levels for having
a substantial part of the scheme being outside the United States, two
to four additional levels for being an organizer or a manager, and two
additional levels for violating a position of trust as the vice
president of a bank. Those are levels that should have been added by
the judge. He failed to do so. In so doing, he was able to find a level
of eight, the highest possible level in which he could give this
individual zero time in jail, straight probation, and immunity on the
most serious charge. I believe it is wrong, and we need to have a
hearing on it to find out how it happened.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, I don't apologize for
exercising my rights under the Senate rules and the Constitution to
advise and consent and speak against any judge, as did the other side
on William Rehnquist, twice, and four or five other judges in the last
25 or 30 years, to name a few.
In response to what Senator Sessions said, his motion is very
important in regards to Judge Paez. I ask my colleagues to consider one
question: What if it was not random that Paez got the John Huang case?
What if? Well, if you want to put the guy on the court and find out
later, that is up to you.
Finally, this is an activist court. This is a court that has been
overturned 209 percent of the time. We are putting two judges on it,
one who says that a member of a union can't resign in a strike no
matter what the reason, and, finally, Paez, who is opposed by the U.S.
Chamber and who believes that a defendant cannot carry a Bible into a
courtroom, much as that Bible sits here on the desk of the Presiding
Officer right now. Those are the kinds of people we are putting on the
bench.
I strongly urge that both of these nominees be rejected and that
Senator Sessions' motion be supported.
I yield the floor.
The PRESIDING OFFICER. All time has expired.
The question is, Will the Senate advise and consent to the nomination
of Marsha L. Berzon, of California, to be United States Circuit Judge
for the Ninth Circuit?
Mr. SESSIONS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, a point of order.
The PRESIDING OFFICER. The Senator will state the point of order.
Mr. SESSIONS. I understand the Vice President is in the Chamber.
Under the Senate rules, a person who has a personal conflict of
interest in a vote is not allowed to vote. I make a parliamentary
inquiry----
Mr. LEAHY. Regular order.
Mr. SESSIONS. As to whether or not the Vice President should be
required to recuse himself under these circumstances on the vote.

[[Page S1368]]

The PRESIDING OFFICER. The right of the Vice President is in the
Constitution. The question is on confirmation of the nominations.
Mr. SESSIONS. Mr. President, may the Vice President exercise his
discretion and recuse himself?
Mr. LEAHY. Mr. President, regular order.
The PRESIDING OFFICER. Debate is not in order. The yeas and nays have
been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain)
and the Senator from Colorado (Mr. Campbell) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 64, nays 34, as follows:

[Rollcall Vote No. 38 Ex.]

YEAS--64

Akaka
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Bryan
Burns
Byrd
Chafee, L.
Cleland
Collins
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Fitzgerald
Frist
Graham
Harkin
Hatch
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Mack
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Schumer
Smith (OR)
Snowe
Specter
Stevens
Thompson
Torricelli
Warner
Wellstone
Wyden

NAYS--34

Abraham
Allard
Ashcroft
Bond
Brownback
Bunning
Cochran
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Helms
Hutchinson
Hutchison
Inhofe
Lott
McConnell
Murkowski
Nickles
Roberts
Sessions
Shelby
Smith (NH)
Thomas
Thurmond
Voinovich

NOT VOTING--2

Campbell
McCain

The nomination was confirmed.
Mr. LEAHY. Mr. President, I move to reconsider the vote.
Mrs. BOXER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER (Mr. FITZGERALD). The question is on agreeing
to the motion to indefinitely postpone. The yeas and nays have been
ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain)
and the Senator from Colorado (Mr. Campbell) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 31, nays 67, as follows:

[Rollcall Vote No. 39 Ex.]

YEAS--31

Allard
Ashcroft
Bond
Brownback
Burns
Cochran
Coverdell
Craig
Crapo
DeWine
Fitzgerald
Frist
Gramm
Grams
Grassley
Gregg
Helms
Hutchinson
Inhofe
Kyl
Lott
McConnell
Murkowski
Nickles
Santorum
Sessions
Shelby
Smith (NH)
Thomas
Thurmond
Warner

NAYS--67

Abraham
Akaka
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Bryan
Bunning
Byrd
Chafee, L.
Cleland
Collins
Conrad
Daschle
Dodd
Domenici
Dorgan
Durbin
Edwards
Enzi
Feingold
Feinstein
Gorton
Graham
Hagel
Harkin
Hatch
Hollings
Hutchison
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Mack
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Sarbanes
Schumer
Smith (OR)
Snowe
Specter
Stevens
Thompson
Torricelli
Voinovich
Wellstone
Wyden

NOT VOTING--2

Campbell
McCain

The motion was rejected.
Mr. LEAHY. Mr. President, I move to reconsider the vote.
Mr. HATCH. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. SESSIONS. Mr. President, I ask for the yeas and nays on the Paez
nomination.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Richard A. Paez, of California, to be United States Circuit Judge
for the Ninth Circuit? The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Colorado (Mr. Campbell)
and the Senator from Arizona (Mr. McCain) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced, yeas 59, nays 39, as follows:

[Rollcall Vote No. 40 Ex.]

YEAS--59

Akaka
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Chafee, L.
Cleland
Collins
Conrad
Daschle
Dodd
Domenici
Dorgan
Durbin
Edwards
Feingold
Feinstein
Gorton
Graham
Harkin
Hatch
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Mack
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Roth
Sarbanes
Schumer
Smith (OR)
Snowe
Specter
Stevens
Torricelli
Wellstone
Wyden

NAYS--39

Abraham
Allard
Ashcroft
Bond
Brownback
Bunning
Burns
Cochran
Coverdell
Craig
Crapo
DeWine
Enzi
Fitzgerald
Frist
Gramm
Grams
Grassley
Gregg
Hagel
Helms
Hutchinson
Hutchison
Inhofe
Kyl
Lott
McConnell
Murkowski
Nickles
Roberts
Santorum
Sessions
Shelby
Smith (NH)
Thomas
Thompson
Thurmond
Voinovich
Warner

NOT VOTING--2

Campbell
McCain

The nomination was confirmed.
Mr. LEAHY. Mr. President, I move to reconsider the vote.
Mr. BYRD. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I am glad the Senate has done the right
thing. Maybe we should say in this Lenten season that Judge Paez has
now moved out of purgatory into the reward he justly deserves. The
Senate has done the right thing today but did the wrong thing for 4
years in holding this good jurist hostage. Marsha Berzon, another
nominee who I predict will be a stellar judge, was held far too long.
I thank my colleagues who voted to right this injustice and voted for
both of them. I thank those who worked hard to bring this on to the
floor for a vote.
Also, just a footnote, the Senate did the right thing in its second
vote in rejecting the cockamamy idea of having a motion to suspend
indefinitely a judicial nominee following a cloture vote. That may
sound like inside baseball, but that would have been a terrible
precedent. I applaud the distinguished Democratic leader for speaking
out so strongly against that motion, and I compliment the chairman of
our Senate Judiciary Committee, Senator Hatch, for sticking with these
nominees, both of whom passed our committee.
We have done the right thing. We have righted a wrong of 4 years. I
think now the Senate should go on, set aside partisanship, and let us
look at those nominees who are still pending.
I yield the floor.

____________________