[Congressional Record Volume 147, Number 171 (Tuesday, December 11, 2001)]
[Senate]
[Pages S12817-S12821]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF JOHN D. BATES, OF MARYLAND, TO BE UNITED STATES DISTRICT 
                   JUDGE FOR THE DISTRICT OF COLUMBIA

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will go into executive session and proceed to Executive Calendar 
Nos. 586, 587, and 591.
  The clerk will report Calendar No. 586.
  The bill clerk read the nomination of John D. Bates, of Maryland, to 
be a U.S. District Judge for the District of Columbia.N O T I C E

Effective January 1, 2002, the subscription price of the 
Congressional Record will be $422 per year or $211 for six months. 
Individual issues may be purchased for $5.00 per copy. The cost for 
the microfiche edition will remain $141 per year with single copies 
remaining $1.50 per issue. This price increase is necessary based 
upon the cost of printing and distribution.                          
                                    Michael F. DiMario, Public 
Printer

[[Page S12818]]

  Mr. HATCH. Madam President, I rise to express my enthusiastic support 
for the three judicial nominees the Senate is about to consider. All 
three are extremely well-qualified nominees who have distinguished 
themselves with hard work and great intellect. I think they will do 
great service for the citizens of our country.
  One of the nominees we are considering today is John Bates. Mr. Bates 
has compiled an impressive resume during his 25-year legal career, 
having masterfully handled complex litigation in both the public and 
private sectors. He began his career with a federal district court 
clerkship, then joined the highly regarded Washington, D.C. firm of 
Steptoe & Johnson as an associate. In 1980, he left private practice to 
became an Assistant United States Attorney here in D.C. He developed a 
specialization in handling complex civil cases, eventually rising to 
become chief of the office's civil division.
  After 15 years at the U.S. Attorney's Office and a detail to the 
Office of the Independent Counsel investigating Whitewater, Mr. Bates 
returned to the private sector in 1998, joining the D.C. firm of Miller 
& Chevalier as a member. Despite the demands of his legal practice, he 
has demonstrated a true commitment to his community through his service 
on the Board of Directors of the Washington Lawyers' Committee on Civil 
Rights and Urban Affairs. The breadth and depth of Mr. Bates's legal 
career will serve him well as a federal district court judge here in 
the District of Columbia.
  Another one of our district court nominees is Kurt Engelhardt, who 
has been nominated to be a federal district judge in the Eastern 
District of Louisiana. During his 15-year legal career, Mr. Engelhardt 
has handled a wide array of civil litigation cases, including 
commercial litigation, bankruptcy, and casualty and professional 
malpractice defense work.
  In 1995, the Conference of the Louisiana Court of Appeal Judges 
nominated Mr. Engelhardt to serve on the Judiciary Commission of 
Louisiana, which is the body of the Louisiana Supreme Court responsible 
for hearing allegations of ethical violations by state judges and 
making disciplinary recommendations. This appointment reflects the high 
esteem in which Louisiana's judges hold Mr. Engelhardt. I am confident 
that his demonstrated exercise of sound judgment will bring honor and 
fairness to the federal bench.
  Julie A. Robinson has been nominated for the federal bench in the 
District of Kansas. She graduated from the University of Kansas School 
of Law and then went to work as a law clerk to the Chief Bankruptcy 
Judge for the District of Kansas. She must have liked that clerkship 
for the last six years, she has been sitting as a Bankruptcy Judge on 
that very same court, and also currently serves as a Judge on the Tenth 
Circuit Bankruptcy Appellate Panel. In between, Judge Robinson gained a 
wealth of both criminal and civil experience as an Assistant U.S. 
Attorney in the District of Kansas. Judge Robinson is a Fellow of the 
American Bar Foundation and sits on many committees as a member of the 
National Conference of Bankruptcy Judges, the Kansas Bar Association, 
and as a past president of the Board of Governors for the University of 
Kansas School of Law. She is currently a Master of the Sam Crow Inn of 
Court. Judge Robinson's obvious skills, work ethic, and devotion to her 
profession make it clear that the people of Kansas will be well served 
with her on the District Court bench.
  It is a pleasure to speak on behalf of these nominees prior to their 
votes. I encourage my colleagues to vote for their confirmation.
  The ACTING PRESIDENT pro tempore. The question is, Will the Senate 
advise and consent to the nomination of John D. Bates, of Maryland, to 
be a U.S. District Judge for the District of Columbia? On this 
question, the yeas and nays have been ordered, and the clerk will call 
the roll.
  The bill clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Ohio (Mr. Voinovich), 
the Senator from Nebraska (Mr. Hagel), and the Senator from Oklahoma 
(Mr. Inhofe) are necessarily absent.
  I further announce that if present and voting the Senator from 
Oklahoma (Mr. Inhofe) would vote ``yea.''
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 97, nays 0, as follows:

                      [Rollcall Vote No. 361 Ex.]

                                YEAS--97

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone
     Wyden

                             NOT VOTING--3

     Hagel
     Inhofe
     Voinovich
  The nomination was confirmed.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Madam President, I am about to make a unanimous consent 
request on these judges. I want people to know the three judicial 
nominations before us today fill vacancies in the District of Columbia, 
the eastern district of Louisiana, and Kansas. When we act favorably on 
these nominations, we will have confirmed 24 Federal judges since July, 
including 6 to the courts of appeals.
  I mention that because when I became chairman of the Judiciary 
Committee in July, Federal court vacancies were rising to 111. Since 
July, we have worked very hard. The Senate has been cooperative. We 
have confirmed two dozen judges. We are lowering the number of 
vacancies. In fact, since I became chairman, we have had 19 additional 
vacancies arise. But we have not only outpaced this high level of 
attrition, we have lowered the vacancies to under 100. Of course, we 
would not have had nearly as many vacancies had the Senate confirmed 
the judges nominated by President Clinton.
  We have made progress and outpaced attrition. We have filled 
vacancies. We are moving forward. I thank Senators on both sides of the 
aisle who have helped so much on this, who have worked with us even 
when we had to move out of the Senate office buildings because of 
anthrax attacks and the September 11 attacks. We have kept going. 
Contrary to what one person said on TV, inaccurately, and I assume by 
mistake, this weekend about not keeping up with attrition, we not only 
have kept up with attrition, we have outpaced attrition.
  We will try to keep that number moving in the right direction. In 
spite of the upheavals we have experienced this year with the shifts in 
chairmanship, the delay in reorganizing the Senate and assigning 
Members to the committees, the vacancies that have arisen since this 
summer, the need to focus our attention on responsible action in the 
fight against international terrorism and the threats and dislocations 
of the anthrax attacks, we are making progress.
  Far from taking a ``time out,'' as Republicans were suggesting, this 
Committee has been in overdrive since July and we redoubled our efforts 
after September 11, 2001.
  During the last 6\1/2\ years when a Republican majority controlled 
the process, the vacancies rose from 65 to at least 103, an increase of 
almost 60 percent.
  Since July, we have been making strides to reverse that record and 
have worked hard to reduce vacancies below the 111 vacancies that 
existed in July.
  In addition to the three nominations being considered by the Senate 
today, another three nominations to vacancies on the District Courts in 
New Mexico, Arizona and Georgia are on the Senate Executive Calendar, 
and another five nominations were included in a hearing last Wednesday.
  If the Committee is able to report those nominations and the Senate 
acts favorably on them before recessing for

[[Page S12819]]

the year, we will have confirmed 32 judges since July and 28 since the 
August recess. This is more judges than were confirmed after the August 
recess in any of the last 6\1/2\ years. It would be more judges than 
were confirmed in the first year of the Clinton administration and 
include twice as many judges to the Courts of Appeals as were confirmed 
that year.
  It would be more than twice as many judges as were confirmed in the 
first year of the first Bush administration, including more judges to 
the Courts of Appeals.
  The President has yet to send nominations to fill more than half of 
the current vacancies. This is a particular problem with the 71 
District Court vacancies, for which 50--more than--70 percent--do not 
have nominations pending.
  We have been able to reduce vacancies over the last 6 months through 
hard work and a rapid pace of scheduling hearings. Until I became 
Chairman of the Judiciary Committee, no judicial nominees had been 
given hearings this year. No judicial nominees had been considered by 
the Judiciary Committee or been voted upon by the Senate.
  After almost a month's delay in the reorganization of the Senate in 
June while Republicans sought leverage to change the way judicial 
nominations had traditionally been considered and abruptly abandoned 
the practices that they had employed for the last 6\1/2\ years, I 
noticed our first hearing on judicial nominees within 10 minutes of the 
reorganization resolution being adopted by the Senate.
  I have previously noted that during the 6\1/2\ years that the 
Republican majority most recently controlled the confirmation process, 
in 34 of those months they held no confirmations for any judicial 
nominees at all, and in 30 other months they conducted only a single 
confirmation hearing involving judicial nominees.
  Since the Committee was assigned its members in early July, 2001, we 
have held confirmation hearings every month, including two in July, two 
during the August recess, two during December and three hearings during 
October. Only once during the previous 6\1/2\ years has the Committee 
held as many as three hearings in a single month.
  On the other hand, on at least three occasions during the past 6\1/2\ 
years the Committee had gone more than five months without holding a 
single hearing on a pending judicial nominee. We have held more 
hearings involving judicial nominees since July 11, 2001 than our 
Republican predecessors held in all of 1996, 1997, 1999 or 2000. In the 
last six months of this extraordinarily challenging year, the Committee 
has held 11 hearings involving judicial nominees.
  Last week the Committee held its tenth hearing on judicial 
nominations and yesterday I chaired our eleventh since the Committee 
was assigned its membership on July 10, 2001. During the three months 
since September 11, the Judiciary Committee has held seven judicial 
confirmation hearings--the same number that the Republican majority 
held in all of 1999 and one more than they held in all of 1996. Since 
July we have held hearings on 34 judicial nominees, including seven to 
the Courts of Appeals.
  Since September 11 we have held hearings on 27 judicial nominees, 
including four to the Courts of Appeals.
  Working with the Majority Leader and the Deputy Leader, I have 
adopted a practice for the second half of this year of working with all 
Senators and with the Administration to try to fill an many judicial 
vacancies as possible. To date we have succeeded in confirming 24 
judges.
  We have persevered through extraordinary circumstances during which 
the Senate building housing the Judiciary Committee hearing room was 
closed, as were the buildings housing the offices of all the Senators 
on the Committee. We persevered through a partisan filibuster 
preventing action on the bill that funds our nation's foreign policy 
initiatives and provides funds to help build the international 
coalition against terrorism.
  We showed patience and resolve when at our November hearing a family 
member of one of the nominees grew faint and required medical 
attention. That hearing was completed after attending to those medical 
needs.
  We have accomplished more, and at a faster pace, than in years past. 
Even with the time needed by the FBI to follow up on the allegations 
that arose regarding Judge Wooten in connection with his confirmation 
hearing, we have proceeded much more quickly than at any time during 
the last 6\1/2\ years. Thus, while the average time from nomination to 
confirmation grew to well over 200 days for the last several years, we 
have considered nominees much more promptly.
  Measured from receipt of their ABA peer reviews, we have confirmed 
the judges this year, including the Court of Appeals nominees, on 
average in less than 60 days. So, we are working harder and faster than 
previously on judicial nominations, despite the difficulties being 
faced by the nation and the Senate.
  We have also completed work on a number of judicial nominations in a 
more open manner than ever before.
  For the first time, this Committee is making public the ``blue 
slips'' sent to home State Senators. Until my chairmanship, these 
matters were treated as confidential materials and restricted from 
public view. We have moved nominees with less time from hearings to the 
Committee's business meeting agenda, and then out to the floor, where 
nominees have received timely roll call votes and confirmations.
  The past practices of extended unexplained anonymous holds on 
nominees after a hearing have not been evident in the last six months 
of this year as they were in the past. Indeed over the past 6\1/2\ 
years at least eight judicial nominees who completed a confirmation 
hearing were never considered by the Committee but left without action.
  Likewise, the extended, unexplained, anonymous holds on the Senate 
Executive Calendar that characterized so much of the last 6\1/2\ years 
have not slowed the confirmation process this year. Majority Leader 
Daschle has moved swiftly on judicial nominees reported to the 
calendar.
  Once those judicial nominees have been afforded a timely rollcall 
vote, the record shows that the only vote against any of President 
Bush's nominees to the federal courts to date was cast by the 
Republican Leader.
  With respect to law enforcement, I have noted that the administration 
was quite slow in making United States Attorney nominations, although 
it had called for the resignations of United States Attorneys early in 
the year.
  Since we began receiving nominations just before the August recess, 
we have been able to report, and the Senate has confirmed, 57 of these 
nominations. We have only a few more United States Attorney nominations 
received in November and December, and await approximately 30 
nominations from the Administration. These are the President's nominees 
based on the standards that he and the Attorney General have devised.
  I note, again, that it is most unfortunate that we still have not 
received even a single nomination for any of the United States Marshal 
positions. United States Marshals are often the top federal law 
enforcement officer in their district. They are an important front-line 
component in homeland security efforts across the country. We are near 
the end of the legislative year without a single nomination for these 
94 critical law enforcement positions.
  It will likely be impossible to confirm any United States Marshals 
this year having not received any nominations in the first 11 and one-
half months of the year.
  In the wake of the terrorist attacks on September 11, some of us have 
been seeking to join together in a bipartisan effort in the best 
interests of the country.
  For those on the Committee who have helped in those efforts and 
assisted in the hard work to review and consider the scores of 
nominations we have reported this year, I thank them. As the facts 
establish and as our actions today and all year demonstrate, we are 
moving ahead to fill judicial vacancies with nominees who have strong 
bipartisan support. These include a number of very conservative 
nominees.
  The nominations before the Senate today are John Bates for the 
District of Columbia, Julie Robinson for the District Court in Kansas, 
and Kurt Engelhardt for the District Court in the Eastern District of 
Louisiana.

[[Page S12820]]

  Before I became Chairman, the last confirmation to the District Court 
for the District of Columbia was that of Judge Ellen Huvelle. Despite 
being a distinguished judge in the D.C. Superior Court for nearly a 
decade, her nomination was pending for almost seven months before she 
received a hearing. Judge Colleen Kollar-Kotelly had similar 
credentials and suffered even worse delays. Judge Kollar-Kotelly also 
served as a distinguished local judge. Her confirmation, nonetheless, 
required two nominations over two years before she was finally 
confirmed in 1997. She was not confirmed for eight months after her 
confirmation hearing. Of course, she has now replaced Judge Jackson as 
the judge in charge of proceedings on the government suit and proposed 
settlement of that legal action against Microsoft.
  Despite nominees for vacancies on the District Court for the District 
of Columbia over the past several years, no nomination to this District 
Court had received a hearing in over two years. Things changed this 
July. First, we moved expeditiously to consider the nomination of Judge 
Reggie Walton to one of those longstanding vacancies. I chaired an 
unprecedented August recess hearing for Judge Walton and he was 
confirmed in September. Now we are proceeding, with the support of 
Representative Norton, to fill a second longstanding vacancy on the 
District Court for the District of Columbia. John Bates will be the 
second confirmation to the United States District Court for the 
District of Columbia in the last three months, after years of inaction.
  The vacancy that is being filled by Judge Robinson is one that 
existed before I became chairman. Indeed, last year the President had 
nominated Keith Gary Sebelius in anticipation of that vacancy.
  In the last 6 months of last year Mr. Sebelius was not included in a 
hearing and his nomination died without Committee action and without 
Senate action when it was returned to the White House last December. 
Last year the Republican majority held only two hearings involving only 
seven District Court nominees in July and no hearings for any other 
judicial nominees in August, September, October, November or December, 
in spite of the vacancies and pending judicial nominations to fill 
them. This year, during the same time frame, the Committee has held 11 
hearings involving 34 judicial nominations of which 27 have already 
been reported favorably to the Senate.
  With respect to the vacancy in Kansas, Senators Roberts and Brownback 
wrote to me in October enclosing a letter from the Chief Judge of that 
District indicating that the vacancy combined with medical leave for a 
senior Judge had created a serious problem in that District. Chief 
Judge Lungstrum noted in his letter to Senator Roberts that the 
District in Kansas was without an active judge it its Topeka division. 
Just as we responded quickly to the Chief Judge of the District Court 
in Montana and the Chief Judge of the District Court in the Eastern 
District of Kentucky, we have responded to Chief Judge Lungstrum. Judge 
Robinson was included in a hearing on November 7 and reported by the 
Committee last month.
  With respect to the vacancy on the Eastern District of Louisiana, 
that vacancy predated my chairmanship, as well. I recall the nomination 
in 1997 of Judge Lemelle to a vacancy on that court, the hearing held 
on his nominations more than 11 months later and his confirmation later 
still that year. I am glad to work with Senators Breaux and Landrieu to 
help fill another vacancy on that important court and to be able to do 
so within one-third the time it took to confirm the last judge to this 
District.
  I am proud of the work the Committee has done on nominations, and I 
am proud that by the end of today we will have confirmed 24 judges. I 
hope that by the end of this session that total will rise to about 30 
as the Committee continues its work on the nominations heard last week 
and the Senate confirms the additional three nominees previously 
reported by the Committee.
  Mr. HATCH. Madam President, I wish to respond to remarks by my good 
friend and colleague, the distinguished Senator from Vermont, about the 
pace of moving judicial nominees. Now, at the outset, I should say I am 
pleased that we are moving the few judges we have moved to date. 
However, despite the confirmation of three Federal judges today, the 
number of vacancies in the Federal judiciary remains at nearly 100--not 
far from where it has hovered ever since the Democrats assumed control 
of the Judiciary Committee. This is no victory--the vacancy rate still 
stands at a staggering 11.3 percent.
  In 1997, Senator Leahy remarked:

       For the past several months I have spoken about the crisis 
     being created by the almost 100 vacancies that are being 
     perpetuated on the Federal courts around the country and the 
     failure of the Senate to carry out its constitutional 
     responsibilities to advise and consent to judicial 
     confirmations. . . . Confirming Federal judges should not be 
     a partisan issue. The administration of justice is not a 
     political issue. Working together, the Senate should do our 
     constitutionally mandated job and proceed to confirm the 
     judges we need for the Federal system.

  I couldn't agree more with these sentiments. One hundred vacancies in 
the Federal judiciary is nothing to brag about, especially when there 
are 40 nominees waiting to fill these gaps. Some of these nominees have 
been waiting for hearings as long as seven months, and it is evident 
that most, if not all, of them will not get a hearing and vote this 
year.
  Maybe some of my colleagues forget that earlier in the year when we 
attempted to move the first of President Bush's judicial nominees, some 
on the other side of the aisle objected that we were moving too fast 
either they wanted the ABA to do an evaluation before they would allow 
us to move or it was a fight over the now infamous blue-slip process. I 
say this in response to claims that somehow it is the Republicans' 
fault for not confirming judges earlier this year.
  I am not the only one who has noticed that the Committee is making 
slow work of its job this year. In a November 30 editorial, the 
Washington Post declared that the Committee should hold more judicial 
confirmation hearings, concluding that ``[f]ailing to hold them in a 
timely fashion damages the judiciary, disrespects the president's power 
to name judges and is grossly unfair to often well-qualified 
nominees.''
  As chairman of the Judiciary Committee during 6 years of the Clinton 
Administration, I responded to the vacancies in the Federal judiciary 
by holding hearings and votes on judges. As a result, 377 Clinton 
appointees are sitting on the Federal bench today. So, in contrast to 
the claims I have heard today, the present vacancy rate is not the 
result of any failure to confirm Clinton nominees. Instead, it is a 
direct result of the failure to confirm Bush nominees.
  What is important to note is that at the end of the 106th Congress, 
there were only 67 vacancies in the federal judiciary for which there 
was a total of 41 nominees--some of whom were not nominated until very 
late in the year. Today, of course, there are nearly 100 vacancies, but 
the Senate has confirmed only 24 judges. So I believe it's fair to say 
that the pace of confirmations has not kept up with attrition.
  I am pleased that we are taking these steps with the confirmation of 
three federal district judges. There are three more judicial nominees 
awaiting floor votes, and seven more judicial nominees awaiting a 
Committee vote, including one circuit judge. I urge my Democratic 
colleagues to act to confirm at least these nominees before the end of 
the session, and work with us to move the roadblocks they have erected 
in the confirmation process of all the other nominees, particularly 
those circuit court nominees who have been pending since May.
  I yield the floor.
  Mr. LEAHY. Madam President, if nobody has any objection, I ask 
unanimous consent that we vacate the yeas and nays on the next two 
nominations and that the Chair put the question of each one of them 
separately to the body on a voice vote.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. BYRD. Madam President, what was the request?
  Mr. LEAHY. If I could respond to the distinguished Senator from West 
Virginia, my request is that we vacate the yeas and nays on the next 
two nominations and that we bring them up separately now and that the 
body be allowed to vote on them by voice vote.

[[Page S12821]]

  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

                          ____________________