[Congressional Record Volume 147, Number 177 (Wednesday, December 19, 2001)]
[Senate]
[Pages S13688-S13690]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. HATCH. Mr. President, I understand some of my colleagues were on 
the floor today trying to make some points about judges, and I would 
like to set the record straight because I think they protest too much. 
There is just far too much protesting and far too much misinformation 
being given out about judges by some in this body.
  Having been intimately involved in trying to get as many judges 
through as I could over the last 7 years, I have to say I find some of 
the comments that were made were a little unctuous and perhaps to some 
people who have been involved and have worked so hard to do a good job 
a little bit irritating and maybe offensive.
  As Congress nears the end of its current session, we are beginning to 
see the end result of the systematic and calculated effort by some 
Senate Democrats to confirm the absolute minimum number of President 
Bush's judicial nominees they believe will be acceptable to the 
American public.
  Some of the Senate Democrats want us to believe they have done 
everything that can be expected because they have confirmed as many 
judges during President Bush's first year in office as were confirmed 
in President Clinton's first year 8 years ago. What they are not 
telling the public is the Senate has purposefully ignored more judicial 
nominees than in any other President's first year in office in recent 
history.
  Thirty-two of President Bush's nominees have been prohibited from 
even having a hearing, the first step in the Senate's constitutionally-
required process of advice and consent.
  Some Senate Democrats want to use an inaccurate measure of 
performance focused on the end result of 8 years ago rather than 
exposing the percentage of their work they left uncompleted this year. 
The percentage is a much more appropriate gauge for the simple reason 
our current President Bush sent many more judicial nominations to the 
Senate than the previous President did in his first year.
  So let us look at the percentages. The Senate has exercised its 
advice and consent duty on only 21 percent of President Bush's circuit 
nominees this year. The other 79 percent of our work remains 
unfinished. This is despite the fact that President Bush sent his first 
batch of 11 circuit nominations to the Senate on May 9 of this year, 
which gave the Judiciary Committee plenty of time to act on them. Even 
so, only 3 of those 11 have been confirmed. A significant number of 
those have the highest possible rating from the American Bar 
Association. Even so, only three, as I say, have been confirmed. 
President Clinton, on the other hand, did not send his first circuit 
nominations to the Senate until August 1993, but still saw 60 percent 
of his circuit court nominees confirmed before the Senate adjourned in 
November of 1993.
  The Senate's record on overall judicial nominations is not much 
better than our record on circuit nominees. Since some of my colleagues 
on the other side of the aisle are so fond of comparing their record to 
the first year of the Clinton and first Bush administrations, let us 
see how they stack up. President Clinton had nominated 32 judges by 
October 31 of his first year in office. Eighty-eight percent of those, 
or 28 nominees, were confirmed by the time Congress went out of session 
in 1993. The first President Bush had nominated 18 judges by October 
31, 1989, of which 89 percent, 16 nominees, were confirmed by the time 
Congress recessed at the end of that year. In contrast, as of today, 
the current President Bush has nominated 66 judges and only 27 have 
been confirmed, a mere 41 percent. (I hope that tomorrow we will 
confirm the five who are presently on the Senate calendar.)
  The importance of this percentage is that the Senate has done only 41 
percent of its job this year. In other words, nearly 60 percent of 
judicial nominees are somewhere in the Senate's black hole. We will 
conclude our work by leaving nearly 100 vacancies in the judicial 
branch, which means more than 11 percent of all Federal courtrooms in 
this country are presided over by an empty chair.
  Some of my Democratic colleagues recently asserted the present 
vacancy crisis is the result of Republican inaction on judicial 
nominees during the Clinton administration. Incredibly, some have 
asserted that the vacancy rate increased 60 percent under Republican 
control of the Senate. That is a wild exaggeration. The truth is that, 
during the 6 years when I was chairman of the judiciary committee, the 
vacancy rate was never above 8 percent at the end of any session of 
Congress.

  In December 1995, there were 63 vacancies in the Federal courts, 
which is a vacancy rate of 7.4 percent. In December 1996, after 
Congress had been out of session for nearly 2 months during which it 
could not immediately fill any vacancies, there were 75 openings in the 
Federal judiciary. December 1997, 81 vacancies; December 1998, only 54 
vacancies; December 1999, 68 vacancies, and last year, only 67 
vacancies. All tolled, the average number of vacancies under my 
chairmanship in the month of December is 68--a vacancy rate of 8 
percent.
  Contrast this to 2001: We are about to adjourn with nearly 100 
vacancies, a rate of over 11 percent. This year will indeed go down in 
history as a black hole--and a black mark--for the failure to confirm 
judicial nominees.
  Of course, trying to shift the blame for this present vacancy crisis 
ignores the end result of how Republicans treated President Clinton's 
judicial nominees. During the Clinton Administration, the Senate 
confirmed 377 judicial nominees. This number is only 5 short of the 
all-time record of 382 judges confirmed during the Reagan 
administration. And keep in mind, for 6 years of the Reagan 
administration the Senate was controlled by the President's party. But 
for 6 of President Clinton's 8 years, the Senate was controlled by 
Republicans. So the Republican--controlled Senate confirmed essentially 
the same number of judges for Clinton as it did for Reagan. We have not 
heard a single Democratic Senator acknowledge this fact because it 
proves that the Republicans treated Democratic nominees fairly. The 
fact is, contrary to the assertion that Republicans held up President 
Clinton's judicial nominees, the Republicans who controlled the Senate 
during 6 years of the Clinton administration put a near record number 
of judges on the bench. What is more, those 377 confirmed judges 
represent nearly 80 percent of all of President Clinton's judicial 
nominees.
  As for the pace of moving nominees, it is worth noting that 20 
Clinton judicial nominees received a hearing within 2 weeks of their 
nomination. Thirty-four Clinton judicial nominees received a hearing 
within 3 weeks of their nomination, and 66 received a hearing within a 
month of their nomination.
  In contrast to the Republican Senate, the present Democratic-
controlled Senate has only contributed to the vacancy crisis. In the 
first 4 months of

[[Page S13689]]

Democratic control this year, only six Federal judges were confirmed. 
At several hearings, the Judiciary Committee considered only one or two 
judges at a time. The Senate has been behind the curve ever since, and 
the Federal judiciary continues to suffer for it. The number of 
judicial emergencies has increased by 17 in the last year.
  Now I must pause a moment to talk about the Tenth Circuit since it 
encompasses my home state of Utah. Several of my Democratic colleagues 
remarked that the present leadership held the first hearing for a Tenth 
Circuit nominee since 1995. The implication, of course, is that the 
Republican-controlled Senate failed to approve Clinton nominees for the 
Tenth Circuit.
  A closer examination of the facts reveals that there were no Tenth 
Circuit nominees for most of the 6 years the Democrats cite. After the 
confirmation of three Tenth Circuit Clinton nominees in 1995, there was 
not another Tenth Circuit nominee until 1999, and that nomination was 
subsequently withdrawn. The next Clinton Tenth Circuit nominee was not 
nominated until just before August recess in 2000, which left the 
Senate little time to act on the nomination given the dynamics of last 
year's election.
  So the suggestion that the Republicans deliberately failed to act on 
Clinton nominees for the Tenth Circuit for 6 years is inaccurate at 
best and downright misleading at worst.
  Unfortunately, the same cannot be said of the Judiciary Committee's 
present leadership. We have an eminently well qualified candidate from 
Utah for the 10th Circuit, Michael McConnell, who has been awaiting a 
hearing for more than 7 months. He received the highest rating given by 
the American Bar Association and is considered one of the true legal 
intellects in the country today.
  Not long ago, I talked with one of the leading law deans in the 
country. He is a very liberal Democrat. I asked him about Michael 
McConnell. He knows him intimately. He said: I have met two absolute 
legal geniuses in my lifetime and Michael McConnell is one of them.
  In addition, both Timothy Tymkovich of Colorado and Terrence O'Brien 
of Wyoming are awaiting hearings on their nominations to the Tenth 
Circuit. So, despite the recent confirmation of one Tenth Circuit 
nominee, there is still substantial work left undone in the Tenth 
Circuit.
  The Senate's constitutional obligation to provide President Bush 
advice and consent on his judicial nominations is not a game, as some 
of my Democratic colleagues seem to believe. This is not football, or 
baseball, or basketball, where the whole point is to beat the other 
team. Neither the Senate nor the American public scores a victory when 
some Senate Democrats execute a deliberate strategy of ignoring more 
than half of President Bush's picks for the Federal Judiciary.
  Any excuse for not moving a nominee that hinges on his or her 
supposed ideology is just that--an excuse. If we start imposing an 
ideological litmus test, then we will not get people of substance to 
sit on the Federal benches in this country. If we start denying 
hearings to nominees simply because they are personally pro-abortion or 
pro-life, it would be a tremendous mistake.
  We should confirm the President's nominees where we can. Sometimes 
there are reasons why we cannot. I understand that. I have been there. 
I have had people on both sides of this floor mad at me, and I was 
doing everything I could to support President Clinton's nominees 
through the Senate process. I don't expect the current Judiciary 
Committee chairman to have an easy time, either. He is a friend. But 
the fact of the matter is, I don't think the job is getting done.
  There are myriad reasons why political ideology has not been, and is 
not, an appropriate measure of judicial qualifications. A nominee's 
personal opinions are largely irrelevant so long as a nominee can set 
those opinions aside and follow the law fairly and impartially as a 
judge. I am very concerned that the statements made today by some of my 
Democratic colleagues indicate a renewed intention to subject judicial 
nominees to a political litmus test, instead of focusing on their 
intellectual capacity, integrity, temperament, health, and willingness 
to follow precedent.
  Despite the unfortunate decisions made this year, I believe there is 
some room for hope in 2002. The same results-oriented strategy that led 
the Judiciary Committee this year to match President Clinton's first 
year, should lead the committee to equal his second year, as well. 
During President Clinton's second year in office, the Senate confirmed 
100 of his judicial nominees. The American people should join me in 
expecting Senate Democrats to do the same for President Bush. In fact, 
I think we should take this year's systematic and calculated 
performance as a pledge that the Senate will confirm at least 100 of 
President Bush's judicial nominees in 2002.
  Mr. President, there is another fact that I think ought to be brought 
up. That is, when the first President Bush left office, there were 
around 67 vacancies and 54 nominations pending that were never acted 
upon. But on election day of 2000, only about 42 Clinton nominees were 
left pending, several of whom were sent here so late in the year that 
there was no way the Judiciary Committee could have processed them.

  I tried to do my best as Judiciary Committee chairman, and I don't 
think anybody on the other side has a right to complain. Admittedly, 
there were a few judges that we just couldn't get through, but it 
wasn't for lack of trying. There are some Senators in each party who 
may not want to see many of the other party's judges get through, and 
they make it tough. But those Members are very much in the minority. I 
think most Members in both parties would like to see a better job done.
  Now, I have great hope we will do a better job next year. It is an 
absolute disgrace to allow 79 percent of President Bush's circuit court 
nominees to languish. In particular, I will mention three of them.
  Michael McConnell is one of the greatest minds in the field of law 
today. He has all kinds of Democrat support, but one or more single-
issue special interest groups are mouthing off against him. He has wide 
bipartisan support and everybody that knows him knows he would make a 
great circuit court of appeals judge. I would like to see him on the 
Tenth Circuit Court of Appeals because I think he would help that court 
a great deal.
  Another one is Miguel Estrada. Here is one of the leading minorities 
in the country today, an immigrant who graduated from Columbia 
University and Harvard Law School. But the Senate leadership has been 
sitting on his nomination for 7 months, preventing him from having a 
hearing. He received the American Bar Association's highest rating, 
which some Democrats have touted as the gold standard for nominees, but 
still cannot get the time of day from the Judiciary Committee.
  John Roberts is another excellent nominee. He is considered one of 
the greatest appellate lawyers in the country today. My friends on the 
other side left him languishing as a nominee of the first President 
Bush, back in 1992. Here he is, languishing for another 7 months, not 
even being given a chance to have a vote up or down.
  Now let me just say a few words about two executive branch nominees 
who also have been mistreated. One is Eugene Scalia, the nominee for 
Solicitor of Labor. Listening to his critics, you might think the plan 
is to turn OSHA over to Eugene Scalia, who disagrees with the efficacy 
of some of the rules on ergonomics. But he will have nothing to do with 
that. And besides, both Houses rejected those rules by a majority vote. 
The Solicitor of Labor basically has no power other than to issue legal 
opinions, and Scalia is one of the brightest young legal minds in the 
country today.

  I suggested last week that Mr. Scalia's nomination is being stopped 
for two reasons--at least these are the ones that keep cropping up. And 
I hope these are not the true reasons why any Senator would stop an 
executive branch nominee. I would be tremendously disappointed at our 
Senate if they were the true reasons.
  The first is that he is a pro-life Catholic. This is not a persuasive 
argument for voting against Eugene Scalia's nomination. It is offensive 
to me if anyone in this body would actually vote against someone for 
that reason. The fact that he is a pro-life Catholic has nothing to do 
with whether or not he can do a good job as Solicitor of Labor. 
Everybody knows he is

[[Page S13690]]

an excellent lawyer. He has said he will abide by the law, whatever it 
is. Whether he agrees or disagrees with it, he will enforce the law. 
What more can you ask of a nominee? And he is the President's choice 
for this position. He deserves to have a vote.
  If people feel so strongly against him that they want to vote him 
down, let them vote against him. But at least let this man, and the 
President, have a vote on this nomination.
  The second reason that Eugene Scalia's nomination is being stopped, 
is that some may hold it against him that his father happens to be 
Justice Antonin Scalia on the U.S. Supreme Court. I hope nobody in this 
body would hold it against a son, the fact that they might disagree 
with the father. I do not have to speak in favor of Antonin Scalia. He 
is one of the greatest men in this country. He is a strong, morally 
upright, decent, honorable, intellectually sound, brilliant jurist--
just the type we ought to have in the Federal courts. The fact that he 
may be more conservative than some in this body is irrelevant.
  But even if there were some good reason to criticize Justice Scalia, 
there is no basis at all for using such a criticism against his son, 
who is a decent, honorable, intelligent, intellectual, brilliant young 
attorney who deserves the opportunity to serve his Government, and who 
has already said that as Solicitor of Labor he will abide by the law 
whether he agrees with it or not. Knowing how honorable he is, I know 
he will do exactly that.
  The second executive branch nomination I want to mention is Joseph 
Schmitz for Inspector General of the Department of Defense. I happen to 
know a lot about him; he is one of the brightest people I have ever 
met. He is not even getting a committee vote. At least Mr. Scalia got a 
vote in committee--he received a majority vote in his favor in the HELP 
Committee. But Mr. Schmitz isn't even getting a vote in committee. That 
is no way to treat a nominee, or the President who nominated him.
  Frankly, these jobs--solicitor and inspector general--are not 
politically sensitive positions. And both of these men I know 
personally to be honest, decent, honorable men. They deserve votes in 
this body. If they lose, then I can live with that result. I do not 
believe they will lose.
  The purposeful delay on all of these nominations bother me a great 
deal, and I hope we do something about it. If we can't do anything 
before the end of the current session, then I hope we will do it 
shortly after we get back.
  I will continue to do my very best to work as closely as I can with 
Senator Leahy. We are friends, and I respect him. I want to support him 
in every way. But some of the comments I have heard in this Chamber 
today are nothing more than a distortion of the facts, a distortion of 
the numbers, and a distortion of the record. I personally resent it.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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