[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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