[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.

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