[Congressional Record Volume 147, Number 174 (Friday, December 14, 2001)]
[Senate]
[Pages S13287-S13290]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF EUGENE SCALIA

  Mr. HATCH. I rise to join many of our colleagues to express my 
frustration with the leadership for failing to permit a floor vote on 
the nomination of Eugene Scalia to be the Solicitor General of the 
Labor Department. I was mystified as to what reasons there could 
possibly be to hold up the President's choice, his pick, for this vital 
position at a time when it is of national urgency for the Labor 
Department to have its team in place.
  I have heard it said in the press it is because Scalia is the son of 
Justice Antonin Scalia and that this is some sort of payback for the 
Bush v. Gore decision. I personally find that hard to believe. Such a 
motive would be far below the dignity of the Senate. The notion that 
this Chamber would in effect punish a Supreme Court Justice or his 
family for a decision, any decision, would be abhorrent to anyone who 
loves this institution or the Constitution.
  I also find it hard to believe because the Senate confirmed Ted 
Olsen, who litigated the Bush v. Gore case, although some did try to 
stop his confirmation despite his unquestionable qualifications. We 
also confirmed Janet Rehnquist, the daughter of the Chief Justice, to 
be inspector general of the Department of Human Services. But that is 
what is being said to the public. We wonder why the public is so 
cynical about the Congress.
  I, personally, do not believe that is the reason Mr. Scalia is being 
held up. But I have also heard, and this reason is very troubling to 
me, that it is because Eugene Scalia is a devout, pro-life Catholic. He 
is being targeted by radical fringe elements because his name has 
symbolic value. I only hope this is not true. If that is true, this is 
also troubling because it shows that an appearance has been created 
that there is an ulterior partisan motive.
  I ask unanimous consent to have printed in the Record an op-ed by 
Marianne Means, who wrote, ``Two

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Scalias In Our Government Are Too Many.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             Two Scalias in Our Government Are Two Too Many

                (By Marianne Means, Hearst News Service)

       Washington.--When President Bush nominated the son of 
     conservative Supreme Court Justice Antonin Scalia to the 
     third-highest post in the Labor Department, the terrorist 
     attacks had not occurred and Bush was not yet in a political 
     unity mode.
       This week, however, Eugene Scalia's nomination to be the 
     department's solicitor--its top lawyer--was before the Senate 
     Judiciary Committee threatening to blow up the fragile aura 
     of bipartisanship the president is currently trying to 
     foster. During his hearing, Scalia was sternly grilled by 
     Democratic members and lavishly praised by the Republicans.
       Giving Scalia power to interpret the administration's 
     policies toward organized labor, which worked hard to defeat 
     Bush in the 2000 election, was a deliberately vengeful move. 
     Looming over the selection is the dark shadow of his cranky 
     father, the architect of the court's rightward drift on civil 
     rights and the mastermind of the court's convoluted ruling 
     that handed the presidency to Bush. Eugene Scalia's 
     nomination inescapably looks like a gigantic political 
     payback, meant to reaffirm Bush's authority by slapping the 
     Democrats in the face.
       In April when he picked Scalia, Bush had embarked on a 
     crusade to drive the country to the right, rolling over the 
     Democratic congressional minority and his own party's 
     moderates. In those days, he had no interest in 
     bipartisanship.
       His first choice as Labor Secretary, the conservative anti-
     labor commentator Linda Chavez, proved to be too 
     controversial and was forced to withdraw her name. She was 
     replaced by Elaine Chao, whose attitude is less ideological 
     than Chavez's and is therefore less objectionable to the 
     major unions. Scalia, 37, seems to have been selected to give 
     Chao the backbone to be tough on the labor movement whenever 
     possible.
       During his career as a labor lawyer, Scalia campaigned 
     vigorously to repeal Clinton-era federal ergonomics rules 
     designed to reduce repetitive-motion injuries and lower back 
     problems. He said he doubted the ``very existence'' of the 
     problem, which union officials take very seriously, and 
     mocked ergonomics as ``junk science.'' The Clinton rule was 
     killed by the Republican-controlled Congress earlier this 
     year, and Chao is currently reviewing proposals for revised 
     ergonomics rules.
       Senate Health, Education, Labor and Pensions Committee 
     Chairman Edward Kennedy, D-Mass., is unequivocal in his 
     opposition to Scalia. The senator says his writings and his 
     record ``clearly suggest that his views are outside the 
     mainstream on many issues of vital importance to the nation's 
     workers and their families.''
       The committee is divided along party lines, with all 10 
     Democrats opposed to Scalia and all 10 Republicans supporting 
     him. When the committee votes next week, the tie will be 
     broken by former Republican-turned-independent James Jeffords 
     of Vermont. Recently Jeffords said awkwardly, ``I think I'll 
     probably support him . . . reluctantly.''
       That means the nomination will go to the Senate floor, 
     where Kennedy vowed ``there will be a battle.'' Business 
     groups have lined up behind Scalia, and the AFL-CIO is 
     campaigning against him, making the outcome uncertain.
       The floor vote is likely to break down along party lines, 
     marking the first serious tear in the bipartisan fabric Bush 
     is trying to weave.
       He visited the Labor Department Thursday and warned, ``This 
     is not a time to worry about partisan politics.''
       He should have thought of that before he picked such a 
     partisan nominee. Scalia, a choice left over from the pre-
     unity era, is a flagrant example of the partisan excesses of 
     that period before the terrorist attacks. It is impossible 
     for the Democrats to embrace Scalia, and Bush knew it when he 
     chose him. It would be disingenuous of the president to claim 
     now to be shocked that the nomination has provoked a partisan 
     confrontation.
       If Bush is really serious about working in a bipartisan 
     fashion, he should withdraw the nomination. There are other 
     qualified Republican labor lawyers who would not raise so 
     many hackles and cost the president so much in good will.

  Mr. HATCH. Members can see why I am concerned. I have always tried to 
judge nominations without bias or self-interest. I am concerned, 
however, that the Senate is not demonstrating similar fairness to the 
President and this nominee. But these partisan remarks, extraneous to 
Mr. Scalia's qualifications, are bound to arise when the Democratic 
leadership refuses to allow Mr. Scalia and his qualifications to be 
openly debated in the light of day.
  If you do not like Mr. Scalia for any reason at all, including the 
fact that he is a pro-life Catholic, or the fact that he is Justice 
Scalia's son, then vote against him and show your bigotry that way.
  But the fact is, he ought to have a vote. The President ought to have 
a vote. Even if Members do not like Mr. Scalia, he is the President's 
choice. He ought to have a vote.
  I have to say the allegation by some that it is because he is a pro-
life Catholic bothers me. As a practicing member of the Church of Jesus 
Christ of Latter Day Saints, I have known much bigotry due to my faith, 
and especially because I am a pro-life member of my faith. As we all 
know, mine is the only denomination that had mobs go against it, with a 
pogrom ordered against it within the United States of America. I find 
bias against a person because of his or her religious beliefs 
particularly repugnant. I worry about that type of thing.
  I know people in the Congress who will not vote for anybody who is 
pro-life. I believe there are some people who will not vote for anybody 
because they are pro-choice. I think that is abysmal. I think the 
President, whomever he or she may be, should be given tremendous 
support with regard to the nominees they send up here--unless there is 
some legitimate reason for rejecting the nominee. That is another 
matter.
  I have also heard it is because Mr. Scalia may have a differing 
opinion on ergonomics. My gosh, ergonomics could not get through the 
Congress because a majority happened to be against the ergonomics 
proposal. It seems very bad to hold it against Mr. Scalia because he 
may differ with a minority in the Congress.
  There is no apparent reason for some of these things, and in my years 
on the Judiciary Committee I have learned a thing or two about judging 
the qualifications of lawyers who serve in our Government. It is clear 
that Eugene Scalia is highly qualified to hold the position for which 
the President has nominated him. Mr. Scalia has a distinguished career 
in private practice and has been an influential writer and laborer in 
employment law.
  He has been strongly supported by lawyers to whose views my 
Democratic colleagues and I normally give great weight--William 
Coleman, former Secretary of Transportation and a great civil rights 
leader, a dear friend to most all in this body; Professor Cass 
Sunstein, one of the two or three leading advisers to my Democratic 
colleagues on the Judiciary Committee, not known for conservative 
politics, but liberal politics, a very good guy; and Professor William 
Robinson, the chair of the College of Labor and Employment Lawyers who 
describes how Mr. Scalia taught on a volunteer basis at the UDC law 
school when that predominantly minority institution had financial 
difficulties and could not afford to pay a full faculty.
  This person gives his time voluntarily in a primarily minority 
institution, a law school, and does not ask for a cent and does it out 
of the goodness of his heart. That ought to be given some consideration 
around here.
  This is hard to believe, but Mr. Scalia was nominated more than 7 
months ago. Seven months ago! He was reported favorably out of 
committee and has been waiting for a floor vote for 6 weeks.
  Still a vote has not been scheduled. Why not? Well, it saddens me, 
but it is becoming ever more believable that Mr. Scalia is being 
treated this way for reasons beyond his qualifications, whatever they 
may be, and I hope they are not the two I have mentioned. Whether 
because of the Bush v. Gore Supreme Court decision or otherwise, they 
want to punish Eugene Scalia for his association with his father's 
opinions, and I surely hope it is not because he is pro-life and a 
devoted member of the Catholic faith.
  The President of the United States is working hard for the American 
people. The least we can do in the Senate is to confirm his qualified 
nominees to serve in his administration unless there is something 
gravely wrong with their records. We owe this to the President. We owe 
it to the American people. We need to let President Bush staff up his 
administration so he has the people he needs to get the job done.
  Every time we play partisan games with a Presidential nomination, we 
make the President's job that much harder and we fail to discharge our 
constitutional duty. We prevent the President and his top people at the 
White House from focusing on the war

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effort, getting the economy moving, and a host of other things the 
American people care about.
  The Labor Department has front line responsibilities for worker 
safety and economic security. It has been working hard to help 
employers deal with the anthrax threat, and it has been helping 
employees laid off by the economic downturn. We are not helping the 
Labor Department, we are hurting it, and we are hurting American 
workers if we do not allow a vote so the Department can have its top 
lawyer in place.
  Some have said the reason he is not getting a vote in the Senate is 
that the unions do not want him. I have to say there are times when 
people on our side have not wanted what the unions want, and there are 
people on the other side who have not wanted what the unions want. The 
ergonomics rule was the perfect illustration. The resolution of that 
issue should not be held against anybody. People ought to have a right 
within the framework and the mainstream of the law to think what they 
want.
  I have to admit, I am sure the AFL-CIO, as much as I respect it, as 
much as I respect its leadership--having been one of the few Senators 
who have actually held a union card--I went through an informal 
apprenticeship, became a journeyman in the AFL-CIO, I understand there 
are irritations with some of President Bush's nominations, but no less 
than there were with President Clinton's nominations. They were put 
through, or at least they were allowed a vote.
  Mr. Scalia is one of the finest people I know yet he is not even 
given the consideration of a vote. Back in July, five former Solicitors 
of Labor urged us to move quickly on this nomination. Both of President 
Clinton's Labor Solicitors joined that letter. We not only have the 
ones I have mentioned, who are strong Democrats, but the two Clinton 
Solicitors of Labor who said Mr. Scalia deserves a vote and should be 
supported. The five Solicitors said it was harming the Department of 
Labor and the workers whom the Department serves the longer we delay 
this decision. So I say let us have a vote on this highly qualified 
nominee before we adjourn.
  Last but not least, and changing the subject, I praise the 
distinguished Senator from Vermont, Mr. Leahy, for the movement we have 
had in the last month on Federal district court judges. Admittedly, 
they are people who have Democrat support, or have both Democrat and 
Republican support. They are people who are slam dunks, unanimous 
consent type of people, but I think virtually everyone President Bush 
has nominated to the judiciary is a slam dunk, unanimous consent 
supported individual.

  What is bothering me is we have an inordinate number of circuit court 
of appeals judge nominations that are not being brought up. At our last 
confirmation hearing for district court nominees, a point was made that 
those nominees had been pending for less than 60 days since receipt of 
their American Bar Association ratings. If this is the standard, then 
the committee is falling woefully behind, especially on circuit court 
of appeals nominations. There are 8 circuit court nominees who have 
been languishing for 157 days or more since receiving their ABA 
ratings. In fact, some of them have been pending for more than 180 days 
since being rated by the ABA and nearly 220 days since their 
nomination.
  I agree with the suggestion that 2 months should be the standard 
limit to review nominees. We should apply this standard or better to 
the circuit court nominees President Bush sent to the Senate nearly 220 
days ago. These are not just nominees, these are some of the finest 
lawyers ever nominated to the circuit courts of appeals, and I will 
mention two of them.
  John Roberts, who was left hanging at the end of the first Bush 
administration, who is considered one of the two best appellate lawyers 
in the country, and who is not known as a partisan Republican, he was 
left hanging then, and now he has been left hanging for almost 220 
days.
  I have heard so many complaints during other Republican 
administrations of not enough women and minorities being nominated, but 
now we have one of the leading minority lawyers in the country, Miguel 
Estrada, and he cannot even get a hearing. He has argued 14 cases 
before the Supreme Court; Roberts, many more. Most lawyers never argue 
a case before the Supreme Court. Estrada is respected by the courts of 
this country. He is one of the brightest lawyers in this country today.
  What really moves me, even more than that, is this is a young man who 
came from a country of abject poverty, graduated with honors from 
Columbia University, then was at the top of his class at Harvard Law 
School, became a law clerk and, of course, has had a distinguished 
legal career. There is not one thing any reasonable person would find 
against him. And he is Hispanic. We are trying to do what is right.
  I do not understand it. If we do not get these judges on the Circuit 
Court of Appeals for the District of Columbia and in other circuits as 
well, we are going to be very directly harmed in this country. The 
people will suffer. We have to quit playing games with this.
  I have to admit there were times when during the Clinton 
administration I wished that I, as chairman of the committee, could 
have done better. There were some people on our side who I think acted 
irresponsibly, as there are people on the other side today acting 
irresponsibly. People of good will, those of us who really believe a 
President's nominees ought to be given their votes, these people ought 
to prevail in this body, and we ought to start establishing a system 
that works with regard to judicial nominations.
  Lest anybody think President Clinton was mistreated, the all-time 
confirmation champion was Ronald Reagan with 382 Federal court judges 
who were confirmed. By the way, President Reagan had 6 years of his own 
party in control of the Senate. President Clinton had 5 fewer than 
Reagan, 377, and would have had 3 more than Reagan had it not been for 
Democrat holds on the other side. Frankly, even President Clinton told 
me he thought we did a good job.
  Were there some exceptions? Sure. There always are. There have been 
for my whole 25 years in the Senate. Somebody has a hold or somebody 
does not like somebody for some stupid reason or another. But the fact 
of the matter is that President Clinton was well treated. When we 
finished, there were 67 vacancies. President Clinton once said that 63 
vacancies, when Senator Biden was the chairman on the Democrat side, 
was a full judiciary.
  Today we have almost 100 vacancies, and we have to do something about 
it, but we are not doing it with regard to these circuit court of 
appeals judges and I sure want to get that going.
  I hope our distinguished chairman and others on the committee will 
help this President get done the nominations he has so carefully, I 
think, selected.
  I yield the floor.
  Mr. HARKIN. I am constrained, after listening to my good friend from 
Utah talk about nominating judges and vacancies--I cannot let the 
moment pass without pointing out that on the Eighth Circuit Court of 
Appeals there is a vacancy today. That vacancy is there because my 
friends on the other side of the aisle would not let us vote last year 
on the former attorney general of Iowa, Bonnie Campbell, to take that 
position as circuit court judge on the Eighth Circuit Court.
  She had a hearing, she came out of committee, but they would not let 
us bring her name up on the floor for a vote. She was perfectly 
qualified to be on the Eighth Circuit Court of Appeals. As I said, we 
had all the hearings. She was supported by everyone. Yet they would not 
permit her name to come up for a vote before we left last year.
  Bonnie Campbell is not on the Eighth Circuit Court of Appeals today 
because of pure politics. Because the Republicans, those on that side, 
last year--I guess correctly--thought they were going to win the 
national election and therefore they didn't have to put through any 
judges on the circuit courts.
  So Bonnie Campbell--there is a vacancy there today because of 
politics. Not that she wasn't qualified. I always said bring her up for 
a vote; if people want to vote against her, vote against her--just the 
same argument the Senator from Utah made right now. I made the same 
argument last year. Bonnie Campbell is qualified. No one says she is 
not. Let's bring her up for a vote. Yet the leadership on that side 
prevented us from ever having a vote on

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Bonnie Campbell's nomination to be Eighth Circuit Court judge.
  I hope my friend from Utah doesn't want to preach too much to me, to 
this Senator, about politics being involved in circuit court judges. I 
know full well what happened last year. It is on the record. This 
Senator stood at the desk right back there, day after day, asking that 
Bonnie Campbell's name come up for debate and vote. Every time it was 
objected to by the other side. So I don't really need any lectures 
about politics being involved in judicial nominations.

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