[Congressional Record Volume 148, Number 7 (Tuesday, February 5, 2002)]
[Senate]
[Pages S341-S342]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         JUDICIAL CONFIRMATIONS

  Mr. HATCH. Madam President, earlier today I spoke with praise for the 
way in which the Chairman of the Judiciary Committee and the Democratic 
Leader have been handling judicial nominations in the past few weeks. 
One of the reasons I did so was that I detected, in a speech 11 days 
ago, the possibility that the Judiciary Committee may be headed in a 
new direction as we begin a new Session of Congress. I sensed a chance 
that, after eight months of Democratic control, the leaders were 
growing beyond their previous role of critics focused on the past. I 
perceived that the leaders might now understand the value of looking 
forward through the windshield rather than steering a course with their 
eyes glued to the rear-view mirror.
  I have not given up this hope; it is still early enough to start this 
Session out on the right foot. But I now have some reason to question 
my optimism. Comments were made here on the floor earlier today that 
have put me in the position, once again, of having to set the record 
straight on a number of events that occurred between 84 and 14 months 
ago. I do not regard this recurring debate over the past as germane to 
the present or important to our course for the future. Nevertheless, I 
am compelled to make sure that the historical record is correct.
  One comment that particularly surprised me was the attempt to blame 
the previous, Republican-controlled Senate for the creation of the 
current number of judicial vacancies. The fact is that the Republican 
Senate confirmed essentially the same number of judges for President 
Clinton, 377, as the Republican Senate did for President Reagan, 382, 
so there is simply no basis for the Democrat's allegations. 
Interestingly, the Democrats who controlled the Senate during the first 
President Bush's Administration left more judicial vacancies and 
allowed more nominees to go without Senate action when the first 
President Bush left office than the Republicans did when President 
Clinton left office. The bottom line is that, at the close of the 106th 
Congress, there were only 67 vacancies in the Federal judiciary. In the 
space of one Democratic-controlled congressional session, that number 
had shot up to nearly 100.
  How did this happen? The answer is simple: The pace of hearings and 
confirmations under the Democratic-controlled Senate last year did not 
keep up with the pace of vacancies. We were moving so slowly that we 
were actually falling behind. When our friends across the aisle took 
control of the Senate on June 5 of last year, President Bush had 
already sent 18 judicial nominees to the Senate. All told for the year, 
President Bush nominated 66 highly qualified individuals to fill 
vacancies in the federal judiciary. But rather than focusing on the 
work ahead, our Democratic colleagues looked back at the year 1993 to 
mimic the old route taken then. After delaying their first nominations 
hearing by over a month, during which time they held numerous hearings 
on other matters, our Democratic colleagues confirmed precisely 28 
judges, exactly one more federal judge than President Clinton saw 
confirmed during his first year in office. This transparent tit-for-tat 
exchange of confirmations is rear-view-mirror driving at its worst.
  In the first 4 months of Democratic control of the Senate last year, 
only 6 federal judges were confirmed. At several hearings, the 
Judiciary Committee considered only one or two judges at a time. The 
Committee voted on only 6 of 29 Circuit Court nominees in 2001, a rate 
of 21 percent, leaving 23 of them without any action at all. Eight of 
the first eleven judges that President Bush nominated on May 9 of last 
year have still not even had a hearing. In contrast, there were only 2 
Circuit Court nominees at the end of President Clinton's first year 
left in Committee.
  If the Democratic leaders can take their eyes off the rear-view-
mirror and take a look at what is ahead, they will see the rather 
obvious need to speed up the pace of hearings and votes on judicial 
nominees. We have lots of work to do. There are 98 vacancies in the 
federal judiciary, a vacancy rate of nearly 12 percent. We have 58 
nominees pending in the Senate. Twenty-three of those nominees are 
slated to fill positions which have been declared judicial emergencies 
by the Administrative Office of the Courts. Of those, 13 are court of 
appeals nominees. Particularly important are those areas with a high 
concentration of judicial emergencies, such as the 4th Circuit Court of 
Appeals with 2 nominees; 5th Circuit Court of Appeals, where 2 nominees 
are pending; the 6th Circuit Court of Appeals with 7 nominees pending; 
and the District of Arizona, where 2 nominees are pending. Let's roll 
up our sleeves and get to work on these.

  Another issue that was raised today was the role of the White House 
in this process. The fact is that the Bush administration has worked 
more closely with home State senators than any other administration 
since I have been in the Senate. Now, I know there were a couple of 
instances very early last year where communication could have been 
better, but that is bound to happen with a brand new administration. 
Since that time, the Bush White House has been making unusually great 
efforts to consult with home State senators prior to making 
nominations. I do not know exactly from where the complaints, if any, 
are coming, but I have a suspicion that some of my colleagues are 
forgetting the difference between the President's power to make 
nominations, and the Senate's role to provide advice and consent. Some 
Senators may wish they could exercise the President's constitutional 
role instead of their own, but there is no reason to blame the White 
House for sticking with the allocation of power established by the 
Framers. If there are any real problems, I invite my colleagues to let 
me know about them, and I pledge to do my utmost to assist in working 
through them.
  Today's comments concerning the need for more ``consensus nominees'' 
from the White House are ironic in light of my colleague's discussion 
of several specific Clinton nominees for the districts in Texas. My 
colleague rhetorically asked why those nominees did not get a hearing, 
but he knows full well that at least a couple of the situations he 
mentioned were caused by serious problems created by the Clinton 
Administration's lack of consultation with, and failure to obtain the 
support of, home State senators.

[[Page S342]]

  In contrast, President Bush's nominees, with only a couple of early 
exceptions, as I noted, enjoy the full support of both home State 
senators. We should hold hearings and votes on those without delay. Let 
me mention one in particular that means a great deal to me: Michael 
McConnell, a nominee for the Tenth Circuit Court of Appeals.
  Professor McConnell is a consensus pick not only between his home 
State Senators but also among many others who know his scholarship, his 
temperament, and his commitment to the rule of law. His nomination has 
been applauded by legal scholars and lawyers from across the political 
spectrum. Professors Laurence Tribe, Charles Fried, Cass Sunstein, 
Akhil Amar, Larry Lessig, Sanford Levinson, Douglas Laycock, and Dean 
John Sexton are among those who have praised McConnell's integrity, 
ability, and fairminded approach to legal issues. He enjoys broad 
support among the bar and the academy in his home State of Utah.
  On a broader level, McConnell is regarded as fairminded and 
nonpartisan. He publicly opposed the impeachment of President Clinton, 
and wrote in support of the position taken by Justices Souter and 
Breyer in Bush v. Gore. He was part of the volunteer legal team that 
successfully defended Chicago Mayor Harold Washington, the city's first 
African American mayor, in a dispute with the Board of Aldermen. 
McConnell wrote an article in the Wall Street Journal suggesting the 
nomination of Stephen Breyer to the Supreme Court, and supported a 
number of Clinton judicial nominations. These facts are among the 
reasons that McConnell's appointment has been praised by a number of 
former Clinton administration officials, including Acting Solicitor 
General Walter Dellinger, Deputy White House Counsel William Marshall, 
Domestic Policy Advisors Bill Galston and Elena Kagan, and Associate 
Attorney General John Schmidt.
  Professor McConnell is best known in academic circles for his 
scholarship in the area of Free Exercise. He has generally sided with 
the ``liberal'' wing of the Supreme Court on this issue, arguing for a 
vigorous protection for the rights of religious minorities. In one 
opinion, Supreme Court Justice Antonin Scalia described McConnell as 
``the most prominent scholarly critic'' of Scalia's more limited view 
of Free Exercise rights. In the related area of Establishment of 
Religion, McConnell has argued that religious perspectives should be 
given equal--but not favored--treatment in the public sphere. Thus, he 
has testified against a School Prayer amendment, while supporting the 
rights of religious citizens and groups to receive access to public 
resources on an equal basis. This record indicates a thoughtful and 
principled approach that is worthy of great respect from all sides. 
Professor McConnell will be a careful, thoughtful and unquestionably 
fair judge when he is confirmed to the Tenth Circuit. We should have 
voted to confirm him last summer. There is certainly no reason to put 
off his hearing any further.
  As I said at the beginning of my remarks, I am optimistic that the 
committee will continue the good start we have made in the past 2 
weeks. There is no reason not to. We have plenty of work ahead of us. 
For those who look to the past for guidance, note that in 1994, the 
second year of President Clinton's first term, the Senate confirmed 100 
judicial nominees. I am confident that Republicans and Democrats can 
work together to achieve, or even hopefully exceed, 100 confirmations 
in 2002--President Bush's second year in office. I look forward to 
working together with Chairman Leahy and my colleagues on both sides of 
the aisle to accomplish this goal.

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