[Congressional Record Volume 147, Number 177 (Wednesday, December 19, 2001)]
[Senate]
[Pages S13668-S13671]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. DURBIN. Mr. President, over the last few weeks, many
conservatives have launched an extensive public relations campaign to
assail Democrats on the Senate Judiciary Committee, and particularly
Chairman Pat Leahy. They have been critical of the pace of judicial
nominations. This campaign is wholly unwarranted. Coming during a war
when Democrats are committed to working with the President to shore up
our Nation's defenses, it is particularly ill timed.
The Washington Times has compared Democrats to terrorists, referring
to the pending nominations as a ``hostage crisis.'' Another
conservative publication, Human Events, labeled my colleague, Chairman
Leahy, as ``Osama's Enabler.''
Sadly, these outrageous charges are not limited to right-wing media
outlets. Many colleagues in the Senate from the other side have leveled
the following accusations: One Senator said the Democrats are guilty of
racial profiling. Another Senator said the Democrats on the Judiciary
Committee are actively hindering the war effort. Another Republican
Senator said we are drawing out a session to deny the President a
chance to make recess appointments.
In truth, Senator Leahy has done an excellent job of moving the
President's nominees along--far better than the Republicans ever did
over the previous 6\1/2\ years. We have already confirmed 27 judges
since July of this year. When all is said and done, we may well end up
confirming more than 30. That is more judicial nominees than were
confirmed during the entire first year of President Clinton's term in
office, when the Senate was controlled by the same party. It is double
the number of nominees confirmed during the entire first year of the
first Bush administration.
Chairman Leahy has had to contend with Senate reorganization,
terrorists attacks, a massive antiterrorism bill, and anthrax
contamination that shut down his personal and committee offices. We all
recall the news reports about the anthrax letter being sent to Chairman
Leahy. He has had ample occasions to delay hearings. Yet he has not. He
easily could have used any of these obstacles as an excuse to cancel
hearings, and he did not.
In little more than 5 months, Chairman Pat Leahy has held more
judicial nomination hearings than Republicans held in all of 1996,
1997, 1999, and the year 2000.
The Democrats, under his leadership, have eliminated the anonymous
holds that crippled the judicial confirmation process for the last 6
years.
If you are not here in the Senate, anonymous holds may be a term you
don't understand. Let me explain it. Under Republican leadership, any
Senator could block a nominee for any reason, without even identifying
him or herself to the rest of the Senate. A nominee would come before
the Senate Judiciary Committee and sit there week after week, month
after month, and in some cases year after year without any Senator
standing up and saying: I am the person who is holding this judicial
nominee. It was totally unfair.
On some of the nominees, I used to go around the Chamber begging
Republican Senators to tell me: Do you have a problem with the nominee?
I want to talk about it.
They wouldn't say. It was anonymous. That is over. Under Senator
Leahy's leadership, the anonymous holds that have crippled this process
for the last 6 years has been eliminated. We have made public a
Senator's support or opposition to judicial nominees from their home
State. We have moved nominees approved by the committee swiftly to the
floor. I presided personally over two or three of these hearings. And
those nominees went straight from the committee to the floor in a
matter of days. We have voted unanimously to confirm nominees vetted by
the committee. The only vote against all of President Bush's nominees
coming out of committee was cast by minority leader Trent Lott.
Quite frankly, it is a bit ironic to hear many of our Republican
colleagues complain about unfair delays in judicial nominations. It is
no secret that many of our colleagues systematically blocked Democratic
appointments, regardless of qualifications, to the Federal courts of
appeal. In 1996, for example, the Republicans failed to confirm one
single appellate court nominee--not one.
[[Page S13669]]
In the 106th Congress, Republicans failed to act on an astonishing 56
percent of President Clinton's appellate nominees, despite the fact
that his nominees received extraordinarily high ratings from the
American Bar Association, and support on a bipartisan basis.
Some of President Clinton's nominees languished after a hearing or
committee vote; many more never even got a hearing.
Let me tell you about one: Helaine White, a nominee for the Sixth
Circuit in Michigan. She waited in vain for over 1,400 days for the
Judiciary Committee to schedule a hearing. For approximately 4 years,
she sat in that committee.
If my Republican colleagues got a letter marked ``Return to Sender''
after 1,400 days, they would abolish the Post Office.
They thought it was all right to let Ms. White, a nominee for this
important judicial vacancy, sit there for approximately 4 years.
The situation was so bad under the Republican leadership of the
Judiciary Committee that Chief Justice of the Supreme Court Rehnquist
criticized the Republican leadership for creating so many vacancies in
the Federal courts. In fact, one of President Bush's own judicial
nominees, who was unanimously voted out of the committee last Thursday,
criticized the Republicans last year for employing a double standard
for a Democratic nominee to the courts.
Chairman Pat Leahy of Vermont has already held more hearings for the
Fifth Circuit than the Republicans held in over 6 years. In 6 months,
Pat Leahy has held more hearings to fill vacancies in that circuit than
the Republicans held in 6 years. The Democrats have confirmed the first
new judges to the Fifth and Tenth Circuits since 1995--6 years.
Details like this demonstrate there is simply no comparison between
Democratic and Republican records.
Our Republican colleagues would have you believe the Democrats are
dragging their feet because the ratio of President Bush's confirmations
to the number of vacancies is relatively low. But what they don't tell
you is this: Close to 70 percent of the current vacancies in the
Federal courts have been open since President Clinton was in office,
several of them since 1995. They are decrying the number of vacancies
not filled, and yet during President Clinton's Presidency they would
not fill them, even though he sent qualified nominees to the Senate.
The number of judicial vacancies increased by 60 percent during the
6\1/2\ years the Republicans were in charge of the Senate. Due to
concerted opposition by their party, President Clinton appointed
proportionately fewer appellate judges than either President Reagan or
the first President Bush. Now, with a Republican President back in the
White House, our Republican colleagues are suddenly very concerned
about judicial vacancies.
In the wake of September 11, President Bush called on Members of the
House and Senate to come together--and we have--to improve air safety,
to stabilize the airline industry, to give law enforcement additional
tools to fight terrorism, and to strengthen our economy. That is
exactly what the Democrats have done. We put aside partisanship to meet
the demands of our country at war.
Quite frankly, we would have had an easier time of it, and fewer
disputes with the Republicans over judicial nominees, if the President
and his Attorney General had sent up more judicial nominees like those
we have already confirmed, especially for the Federal Court of Appeals.
This simple fact is often lost in the din of partisan rhetoric.
The Democratic leadership has worked hard, in just a few months, to
confirm men and women of real integrity and accomplishment to the
Federal judiciary. We have advanced judges who enjoy widespread
bipartisan support. They have records which demonstrate a commitment to
mainstream American values, including the protection and advancement of
civil rights and civil liberties for everyone. We have intentionally
avoided a contentious and draining fight over controversial nominees.
In the weeks and months ahead, with the immediate national crisis we
face, we will still have to confront many controversial nominees. But
let me remind my colleagues that we are filling lifetime appointments.
These are not temporary. Judges sit on the Federal bench long after
many of us have delivered our last speeches and after Presidents have
come and gone. We will scrutinize them fairly, but carefully.
Our Republican colleagues have said they want us to work three times
as fast because when they were in control they went three times as
slow. Sadly, many of the nominees we have been sent do not really hew
to the mainstream of American politics. The end result--if we follow
and appoint every nominee sent--would be a judiciary that would not
represent the values of this country, the mainstream values which we
should push for when it comes to these important judicial appointments.
The American electorate has been evenly divided over the last 10
years. This country is entitled to a judiciary that reflects that
diversity, not one hijacked by any political extreme, right or left.
Chairman Pat Leahy has done an excellent job as the Senate Judiciary
chairman, and his critics on the right should read the facts.
I yield the floor.
The PRESIDING OFFICER (Ms. Stabenow). The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, I also have come to the floor, along
with the Senator from Massachusetts and the Senator from Illinois, to
talk about this very important topic; and that is, the confirmation
process for Federal judges.
The first thing I want to do is commend the chairman of the Judiciary
Committee, Senator Leahy, for the professional and diligent way in
which he has handled the confirmation process this year, since taking
the helm of the committee in June. His, in some way, is a thankless
job, because, as we have observed, no matter how many hearings he holds
or judges he moves through the committee, there are those in this body
who will never be satisfied. Indeed, it seems that the only thing that
will satisfy the critics is for Chairman Leahy to shortchange the
important constitutional role that the Senate and the committee play in
the confirmation process. But that, I know, he will never do, and the
Nation should be very grateful to him for that.
There has been some harsh criticism of Chairman Leahy from our
colleagues on the other side, and in the press. Given how President
Clinton's nominees were treated during 6 years of Republican control of
the Senate, I find it kind of hard to believe some of the arguments we
now hear. We have here, really, a numbers game. The argument has
reached a new level of absurdity when our Republican friends start
talking about things such as the average number of nominees per
hearing. It is pretty obvious that is a meaningless calculation. To the
extent that statistics matter, the numbers that count are the number of
judges for which hearings have been held and the number of judges
confirmed.
When you look at those numbers, the numbers that really matter, I
have to say that our chairman really does have the better of the
argument. In just 5 months since taking over the committee, Senator
Leahy has already held hearings for 34 judges. That is more than the
number of judges who received hearings in the entire firs year of the
George H.W. Bush administration and the entire first year of the
Clinton administration. And so far, we have confirmed 27 judges this
year. Remember again that the Democrats have only been in control since
June I understand that probably 3 more judges will be confirmed before
this session concludes, meaning that 30 judges will be confirmed this
year. That would be more than were confirmed during the entire first
year of President Clinton's first term in office and more than double
the number confirmed during the entire first year of the elder
President Bush's administration. Think about that. Given all that we
have had to deal with on the Judiciary Committee this year, I think
Chairman Leahy has shown more than good faith in trying to move the
process along, especially since September 11.
There have been times this year when I have been concerned about
hearings being held too soon on some
[[Page S13670]]
nominees. A hearing that is held before Senators can review the records
of the nominees is really nothing more than just a formality.
Particularly given the large number of circuit court nominees, I think
our colleagues on the Republican side are asking us, in a way, to
ignore our constitutional responsibilities when they make blanket
demands such as: You should confirm all judges who were nominated
before the August recess. Those kinds of arguments are particularly
inappropriate when you think about the appointments we are being asked
to confirm with to little scrutiny. Lifetime appointments to the
circuit courts and district courts are not to be taken lightly. With
the Supreme Court taking only about 100 cases each year, the decisions
made in the lower courts are usually final, and have a huge impact on
the development of the law. They also have a huge impact on the
people's lives. In addition, there are a number of circuits in this
country that are extremely unbalanced ideologically, and the
nominations made by President Bush seem to be designed to exacerbate
that imbalance. It is entirely reasonable--indeed, our constitutional
role demands--that we examine the records of individuals chosen for the
circuit courts very carefully before we approve their nominations
It is clear to me that neither side in a fight such as this is ever
going to be satisfied. In the current situation, despite everything
that the chairman has tried to do to move quickly on judges--including
holding hearings in August, holding more hearings after September 11
when our committee was more than occupied with the so-called anti-
terrorism legislation, and even holding a hearing in October when the
Senate office buildings were closed and some of our staffs had had
nowhere to work for the previous 2 days--despite all of this, my
Republican colleagues continue to complain. At one point, they even
held up appropriations bills on the floor for over a week, something
that our side never did despite our frustration with the pace of
confirmations under President Clinton. And now we understand that the
minority leader placed a hold on every Judiciary Committee bill because
of his displeasure with the pace of the nomination of a judge he has
championed to the Fifth Circuit.
Let us recall that in the last 6 years of President Clinton's term,
the Judiciary Committee did not hold a single hearing on a Fifth
Circuit nominee. No fewer than three highly qualified nominees for
positions on that court never got a hearing, much less a vote in
committee or on the floor. The thing that has troubled me the most
about the criticism of the pace of judicial confirmations is the
complete unwillingness of those who are now criticizing Chairman Leahy
to acknowledge that they really contributed to the judge shortage that
they are complaining about today, or that they did anything in the last
6 years to deserve our criticism of them at that time.
It is particularly frustrating to hear our Republican colleagues
invoking the ABA review in support of President Bush and the Republican
leadership in the Congress broke with over 40 years of tradition,
dating back to the administration of Dwight D. Eisenhower, when they
refused to submit the names of nominees to the ABA prior to the
nominations being formally made. Now they complain about the delays in
confirming nominees and invoke the ratings of the ABA panels as
evidence that these nominees are beyond reproach. It just does not add
up.
The very act of forcing the ABA to begin its assessment after a
nomination has been made has delayed confirmation hearings for at least
a month and often longer. Chairman Leahy very sensibly has insisted
that an ABA review on a nominee be completed before scheduling a
hearing. So I suppose that if we are playing a numbers game and are
going to compare apples to apples, we should subtract 30 to 45 days of
consideration from each of President Bush's nominees.
My conclusion is that until I hear the critics of Chairman Leahy say,
``Yes, it was wrong to let Judge Helene White go 4 years without even a
hearing; yes, we now agree that Kathleen McCree Lewis should have at
least had a hearing; yes, the delays in voting on the confirmations of
Judge Berzon and Judge Paez were unconscionable; yes, it was wrong to
not confirm a single circuit court nominee in 1996; yes, it was wrong
to confirm only 44 percent of the circuit judges nominated by President
Clinton in the last Congress of his term; yes, it was wrong to have 68
of President Clinton's nominees in the 106th Congress never come up for
a vote in the Judiciary Committee; and yes, we are in large part
responsible for the fact that there are now so many vacancies to fill
on our federal courts,'' until I hear those statements, the statistics
they cite, and the argument that they make ring a little hollow. If and
when I do hear those statements accepting responsibility, I think a
bipartisan solution will emerge. Because of my Republican colleagues
acknowledge that they bear some responsibility for the situation we
find ourselves in today, they can suggest to the President that he try
to ``change the tone'' on this issue in a tangible and meaningful way.
He can do that by renominating some of those highly qualified
candidates who never got a hearing or a vote in the Judiciary Committee
when it was chaired by my friend, the Senator from Utah. The President
did that with Roger Gregory, and I applauded him for it. We can wipe
the slate clean with some courageous work, and there are enough
vacancies to do this in many circuits. That is the challenge. Are we
gong to continue the numbers game? Are we going to continue the
recriminations? Or are we going to move forward in a bipartisan way and
get on with our business on this committee and in the Senate. I think
the chairman of the Judiciary Committee is doing an admirable job under
the circumstances. I urge him and the majority leader not to submit to
pressure tactics. The ball is in the President's and the minority's
court. They can decide if they want to ``change the tone in
Washington.'' We simply cannot do it alone.
I yield the floor.
Mr. KOHL. Mr. President, I rise today to discuss judicial nominations
and the pace being set by the Judiciary Committee. It is the Senate's
responsibility to confirm judges and fill the vacancies in the Federal
judiciary. Unfortunately, this constitutional responsibility has become
increasingly politicized in the last few years. It seems that the
people accused of slowing the process last year are the same ones that
are pushing for faster confirmations today. And those who wanted more
judges confirmed last Congress are now defending the pace of current
confirmations. While we all expected that dynamic once the party in
control of the White House and the Senate changed, it is still
disappointing.
It would be a good idea to agree upon a set of rules that governed
the pace of the confirmation process regardless of the party in control
of the White House or the Senate. Since that is unlikely, we are now
required to defend our rate of confirmations. The only way to do that
is to compare the pace this year with that of past years. When we do
that, we find that there is little to criticize in the performance of
this year's Judiciary Committee.
By the end of this session of Congress, we will have confirmed at
least 27 district court judges and 6 circuit judges. The Judiciary
Committee has held 11 nominations hearings for judges since control of
the chamber changed.
To put that in context, by the end of the year, the Senate will have
confirmed more judges in the first year of the Bush Presidency than in
either the first year of the first President Bush or President Clinton.
It is also far more than the 17 judicial confirmations in 1996 and
almost the exact number confirmed in 1999 and 2000 when 34 and 39 were
confirmed respectively.
The record also shows that close to 70 percent of the vacancies have
existed long before President Bush took office. The Senate chose not to
act, in some cases for years, on President Clinton's nominees to fill
the positions. The cries of judicial emergencies and demands for
immediate action now ring a bit hollow when the judgeships could have
been filled years ago.
Nonetheless, it is our responsibility to take action on the judicial
nominees in a timely manner. We have been doing just that. As we go
forward, I want to work with my colleagues on both sides of the aisle
to confirm more judges. The Judiciary Committee has a noble tradition
of cooperation in approving judges who are qualified, respectful of the
law, and moderate in their approach. It is our responsibility
[[Page S13671]]
to return to that tradition and confirm judges who represent the
ideological middle ground.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Madam President, I thank my friend from Kansas. I know
he has some things to say. I will try to be brief. I was in the line to
try to talk about this very subject. I will make it brief so we can get
on and we can get an explanation of the lovely pictures he has behind
his podium.
I, too, rise to say a few words about judicial nominations and in
particular to defend the chairman of our Judiciary Committee, Senator
Leahy of Vermont. Our friends on the other side of the aisle have made
a lot of hay about our record on judicial nominations, but the facts
simply don't bear out the allegation.
Patrick Leahy has conducted the Judiciary Committee, both when we had
the hearings on Senator Ashcroft's nomination to be Attorney General,
when he was chairman for 17 days, and now as chairman for 5 months, in
the most gracious, fair, bipartisan way that I have seen a chairman
conduct him or herself. It is sort of unfair to demonize. That seems to
be a new technique used by some. They are doing it to our majority
leader, Senator Daschle, another gracious and fairminded man, because
he doesn't agree with them. That seems to be the thing that has
happened. Maybe it started a few years back with the contract on
America and all the cohorts there. But it is not a nice way to do
politics, to demonize an opponent.
I know there are certain newspapers and TV shows and radio shows that
try to spread the word. I just want to say, first, I don't think the
American people appreciate it. Second, it is not going to cower Senator
Daschle or Chairman Leahy. I know them both. They are very estimable
people. They are very nice people. They are very strong people. To say
that taking personal shots and demonizing somebody is going to make
them back off is a silly policy. Put yourself in their shoes.
When we are all under the gun and personally attacked, that doesn't
make us back off. It makes us maybe review what we have done, and then
if we think we are right--and I know Senator Daschle and Chairman Leahy
have--we are all the much stronger. Let's go over the facts instead of
talking about just kind of rhetoric.
First, under Chairman Leahy's leadership in the first 5 months since
the Senate reorganization, despite the disruptions caused by the
September 11 tragedy in my city and the anthrax in our offices, we have
held 11 hearings on nominations. That is more than two per month. There
was an unprecedented August recess nomination hearing that Chairman
Leahy held. I chaired a hearing 2 days after the closure of all three
Senate office buildings due to anthrax. We had to meet in the Capitol,
in a cramped and crowded room. I believe it was on a Friday afternoon.
In 1999 and 2000, by contrast, when the committee was controlled by
the people of the other side, there were only seven hearings per year,
and that was the entire year, not just the 5 months we had.
Second, my friends from the other side of the aisle complain that we
are confirming too few judges. We have put 27 on the bench up to now;
that is in 5 months of being in the majority. We should get up to 32 by
the time we leave this week. Let me underscore 32. That is 5 more than
were confirmed in the entire first year of the Clinton administration,
when Democrats controlled the Judiciary Committee. They argue we are
stalling, but we are putting in more judges nominated by a Republican
President, George Bush, in the first year or first 5 months, than we
put in when there was a President of our own party, President Clinton,
who was nominating. Claims ring hollow when you look at the facts.
Again, the idea of taking a 2 by 4 and trying to hit the chairman or
the members of our committee over the head without the facts is not
going to bear fruit. You can give as many speeches as you want.
Third, when we point to raw numbers, our colleagues change their
arguments, and then they point to the percentage of seats that remain
vacant. You can't create a problem and then complain that someone else
isn't solving it fast enough.
Why are there vacant seats? There are vacant seats because when
people from the other side controlled the Judiciary Committee during
the last 6 years of the Clinton administration, vacancies on the
Federal bench increased 60 percent--a 60-percent increase during the
time they were in control. Now they are complaining there are record
vacancies and we have to fill them all in 1 year. Give me a break.
We are not going to play games and say what is good for the goose is
good for the gander. We are not suggesting two wrongs make a right. We
are not going to increase the percentage of vacancies. Instead, we are
going to decrease it, and we have gotten a good start to the task. But
the proof is in the pudding or, in this case, in the numbers. We are
going to fill these open seats as quickly as possible, but we are going
to do it right. No one is going to cower us in the time-honored,
constitutional way in which we select judges, which has been always in
the history of this country, at least during our better moments, when
we do it with care.
That leads to my fourth point. Because so many Clinton nominees never
got a hearing and never were voted on by the Senate when it was
controlled by the folks from the other side, the courts now more than
ever hang in the balance. Some of the nominees have records that
suggest extreme viewpoints. We need to examine their records closely
before we act.
Again, one of the most awesome powers we as Senators hold is the
power to approve judges. We can't just blindly confirm judges who
threaten to roll back rights and protections won through the courts
over the last 50 years: Reproductive freedom, civil rights, the right
to privacy, environmental protection, worker and consumer safety.
In my State of New York, the administration has so far worked with us
in good faith to select nominees who have met what I told them are my
three criteria for nominating people to the bench: Excellence,
moderation, and diversity.
Nominees who meet those three criteria will win my swift support. But
for those nominees whose records raise a red flag, whose records
suggest a commitment to extreme ideological agendas, we have to look
more closely.
These days, the Supreme Court is taking fewer than a hundred cases a
year. That means these trial and, particularly, appellate court
nominees will have, for most Americans, the last word on cases that are
oftentimes the most important matters in their lives.
We need to be sure the people to whom we give such power--for life--
are fairminded, moderate, and worthy of such a deep, powerful, and
awesome privilege.
We have worked well together with our Republican colleagues on
several matters since September 11. By and large, we have done well to
keep things bipartisan. On judicial nominees, both sides must work
together to correct the imbalance on the courts and keep the judiciary
within the mainstream--not too far left and not too far right.
We need nominees who are fair and openminded, not candidates who
stick to a narrow ideological agenda.
I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas is recognized.
____________________