[Congressional Record Volume 148, Number 41 (Monday, April 15, 2002)]
[Senate]
[Pages S2661-S2664]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF TERRENCE L. O'BRIEN, OF WYOMING, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE TENTH CIRCUIT
The PRESIDING OFFICER. The Senate will go into Executive session and
proceed to the consideration of the nomination of Terrence L. O'Brien,
which the clerk will report.
The legislative clerk read the nomination of Terrence L. O'Brien, of
Wyoming, to be United States Circuit Judge for the Tenth Circuit.
Mr. LEAHY. Mr. President, today, the Senate is voting on the 43rd
judicial nominee to be confirmed since last July when the Senate
Judiciary Committee reorganized after the Senate majority changed. With
today's vote on Judge Terrence O'Brien to the United States Court of
Appeals for the Tenth Circuit, the Senate will confirm its eighth
circuit court judge in little more than 9 months, since I became
chairman this past summer.
The Senate is making progress on judicial confirmations. Under
Democratic leadership, the Senate has confirmed more judges in the last
9 months than were confirmed in 4 out of 6 full years under Republican
leadership. The number of judicial confirmations over these past 9
months--43 exceeds the number confirmed during all 12 months of 2000,
1999, 1997 and 1996.
During the preceding 6\1/2\ years in which a Republican majority most
recently controlled the pace of judicial confirmations in the Senate,
248 judges were confirmed.
Some like to talk about the 377 judges confirmed during the Clinton
administration, but forget to mention that more than one-third were
confirmed during the first 2 years of the
[[Page S2662]]
Clinton administration while the Senate majority was Democratic and
Senator Biden chaired the Judiciary Committee. The pace of
confirmations under a Republican majority was markedly slower,
especially in 1996, 1997, 1999, and 2000.
Thus, during the 6\1/2\ years of Republican control of the Senate,
judicial confirmations averaged 38 per year--a pace of consideration
and confirmation that we have already exceeded under Democratic
leadership over these past 9 months, in spite of all of the challenges
facing Congress and the Nation during this period, and all of the
obstacles Republicans have placed in our path.
I ask myself how Republicans can justify seeking to hold the
Democratic majority in the Senate to a different standard than the one
they met themselves during the last 6\1/2\ years. There simply is no
answer other than partisanship. This double standard is most apparent
when Republicans refuse to compare fairly the progress we are making
with the period in which they were in the Senate majority with a
President of the other party.
They do not want to talk about that because we have exceeded, in just
9 months, the average number of judges they confirmed per year.
They would rather unfairly compare the work of the Senate on
confirmations in the past 9 months to 2 years of work of previous
Senates and Presidents. They say it is unfair that the Democratic-led
Senate has not yet confirmed as many judges in 9 months as were
confirmed in 24-month-periods at other times. I would say it is quite
unfair to complain that we have not done 24 months of work on judicial
vacancies in the 9 months we have had since the Senate reorganized.
These double standards and different standards are just plain wrong
and unfair, but that does not seem to matter to Republican's intent on
criticizing and belittling every achievement of the Senate under a
Democratic majority.
Republicans have been imposing a double standard on circuit court
vacancies as well. The Republican attack is based on the unfounded
notion that the Senate has not kept up with attrition on the Courts of
Appeals. Well, the Democratic majority in the Senate has more than kept
up with attrition and we are seeking to close the vacancies gap on the
Courts of Appeals that more than doubled under the Republican majority.
The Republican majority assumed control of judicial confirmation in
January 1995 and did not allow the Judiciary Committee to be
reorganized after the shift in majority last summer until July 10,
2001. During that period from 1995 through July 2001, vacancies on the
Courts of Appeals increased from 16 to 33, more than doubling.
When I became chairman of a committee to which Members were finally
assigned on July 10, we began with 33 Court of Appeals vacancies. That
is what I inherited. Since the shift in majority last summer, five
additional vacancies have arisen on the Courts of Appeals around the
country. Prior to today's vote on Judge O'Brien, the 7 circuit judges
confirmed had reduced the number of circuit vacancies to 31. With
today's confirmation, there will be 30 vacancies.
Rather than the 38 vacancies that would exist if we were making no
progress, as some have asserted, there are now 30 vacancies, that is
more than keeping up with the attrition on the circuit courts. Since
our Republican critics are so fond of using percentages, I will say
that we will have now reduced the vacancies on the Courts of Appeals by
almost 10 percent in the last 9 months.
While the Republicans' Senate majority increased vacancies on the
Courts of Appeals by over 100 percent, it has taken the Democratic
majority 9 months to reverse that trend, keep up with extraordinary
turnover and, in addition, reduce circuit court vacancies by almost 10
percent.
Alternatively, Republicans should note that since the shift in
majority away from them, the Senate has filled more than 20 percent of
the vacancies on the Courts of Appeals in a little over 9 months. This
is progress.
Rather than having the circuit court vacancy numbers skyrocketing, as
they did overall during the prior 6\1/2\ years more than doubling from
16 to 33--the Democratic-led Senate has reversed that trend and the
vacancy rate is moving in the right direction, down.
It is not possible to repair the damage caused by longstanding
vacancies in several circuits overnight, but we are improving the
conditions in the 5th, 10th and 8th Circuit, in particular. Judge
O'Brien will be the second judge confirmed to the 10th Circuit in the
last 4 months.
With today's vote on Judge O'Brien, in a little more than 9 months
since the change in majority, the Senate has confirmed eight judges to
the Courts of Appeals and held hearings on three others. In contrast,
the Republican-controlled majority averaged only seven confirmations to
the Courts of Appeal per year. Seven.
In the last 9 months, the Senate has now confirmed as many Court of
Appeals judges as were confirmed in all of 2000 and more than were
confirmed in all of 1997 or 1999. It is eight more than the zero
confirmed in all of 1996.
We have confirmed eight circuit court judges and there are almost 3
months left until the 1-year anniversary of the reorganization of the
Senate and the Judiciary Committee and we have already exceeded the
annual number of Court of Appeals judges confirmed by our predecessors.
Overall, in little more than 9 months, the Senate Judiciary Committee
has held 16 hearings involving 55 judicial nominations. That is more
hearings on judges than the Republican majority held in any year of its
control of the Senate. In contrast, one-sixth of President Clinton's
judicial nominees--more than 50--never got a committee hearing and
committee vote from the Republican majority, which perpetuated
longstanding vacancies into this year.
Vacancies continue to exist on the Courts of Appeals in part because
a Republican majority was not willing to hold hearings or vote on more
than half--56 percent--of President Clinton's Court of Appeals nominees
in 1999 and 2000 and was not willing to confirm a single judge to the
Courts of Appeals during the entire 1996 session.
Despite the newfound concern from across the aisle about the number
of vacancies on the circuit courts, no nominations hearings were held
while the Republicans controlled the Senate in the 107th Congress last
year. No judges were confirmed during that time from among the many
qualified circuit court nominees received by the Senate on January 3,
2001, or from among the nominations received by the Senate on May 9,
2001.
The Democratic leadership acted promptly to address the number of
circuit and district vacancies that had been allowed to grow when the
Senate was in Republican control. The Judiciary Committee noticed the
first hearing on judicial nominations within 10 minutes of the
reorganization of the Senate and held that hearing on the day after the
committee was assigned new members.
That initial hearing included a Court of Appeals nominee on whom the
Republican majority had refused to hold a hearing the year before. We
held unprecedented hearings for judicial nominees during the August
recess. Those hearings included a Court of Appeals nominee who had been
a Republican staff member of the Senate. We proceeded with a hearing
the day after the first anthrax letter arrived at the Senate. That
hearing included a Court of Appeals nominee.
In a little more than 9 tumultuous months, the Senate Judiciary
Committee has held 16 hearings involving 55 judicial nominations
including 11 circuit court nominees and we are hoping to hold another
hearing soon for half a dozen more nominees, including another Court of
Appeals nominee. That is more hearings on judges than the Republican
majority held in any year of its control of the Senate. The Republican
majority never held 16 judicial confirmation hearings in 12 months.
The Senate Judiciary Committee is holding regular hearings on
judicial nominees and giving nominees a vote in committee, in contrast
to the practice of anonymous holds and other obstructionist tactics
employed by some during the period of Republican control. The
Democratic majority has reformed the process and practices used in the
past to deny committee consideration of judicial nominees.
We have moved away from the anonymous holds that so dominated the
[[Page S2663]]
process from 1996 through 2000. We have made home state Senators' blue
slips public for the first time.
I do not mean by my comments to appear critical of Senator Hatch.
Many times during the 6\1/2\ years he chaired the Judiciary Committee,
I observed that, were the matter left up to us, we would have made more
progress on more judicial nominees.
I thanked him during those years for his efforts. I know that he
would have liked to have been able to do more and not have to leave so
many vacancies and so many nominees without action.
I hope and intend to continue to hold hearings and make progress on
judicial nominees in order to further the administration of justice. In
our efforts to address the number of vacancies on the circuit and
district courts we inherited from the Republicans, the committee has
focused on consensus nominees for all Senators. In order to respond to
what Vice President Cheney and Senator Hatch now call a vacancy crisis,
the committee has focused on consensus nominees.
This will help end the crisis caused by Republican delay and
obstruction by confirming as many of the President's judicial nominees
as quickly as possible.
Most Senators understand that the more controversial nominees require
greater review. This process of careful review is part of our
democratic process.
It is a critical part of the checks and balances of our system of
government that does not give the power to make lifetime appointments
to one person alone to remake the courts along narrow ideological
lines, to pack the courts with judges whose views are outside of the
mainstream of legal thought, whose decisions would further divide our
Nation.
The committee continues to try to accommodate Senators from both
sides of the aisle. The Court of Appeals nominees included at hearings
so far this year have been at the request of Senators Grassley, Lott,
Specter, Enzi and Smith of New Hampshire five Republican Senators who
each sought a prompt hearing on a Court of Appeals nominee who was not
among those initially sent to the Senate in May, 2001.
In contrast to past practices, we are moving expeditiously to
consider and confirm Judge O'Brien, who was nominated in September,
2001. The committee did not receive his ABA peer review until the end
of October. He participated in a hearing in March, was reported by the
committee on April 11th and is today being confirmed.
Judge O'Brien comes to the Senate highly recommended by friends and
colleagues. I was pleased to have him participate in a confirmation
hearing at the request of Senator Enzi. Judge O'Brien has more than 20
years of experience as a State court judge, has served on his home
state's judicial ethics commission, and has a record of community
service with organizations such as the United Way and the Rotary Club.
I congratulate his family on his confirmation to the Circuit Court.
I am extremely proud of the work this committee has done since the
change in the majority. I am proud of the way we have considered
nominees fairly and expeditiously and the way we have been able to
report to the Senate so many qualified, non-ideological, consensus
nominees to the Senate.
Mr. HATCH. Mr. President, I rise today to speak in favor of the
Senate's confirmation of Terrence O'Brien to serve on the United States
Court of Appeals for the Tenth Circuit.
I am glad that today we have voted on Terrence O'Brien to serve the
people of the West in the United States Court of Appeals for the Tenth
Circuit. I am proud to say that Judge O'Brien began his career of
public service in the United States Army, rising to the rank of
Captain.
I might also point out that Judge O'Brien was first appointed to the
Wyoming State bench by a Democrat Governor, once again showing that,
despite what Senator Democrats and their special interest groups would
have the American people think, President Bush is nominating diverse
and non-partisan men and women who reflect all the American people, not
just some.
I am proud of this nomination. The President has done right by the
states that make up the Tenth Circuit, including my state of Utah.
Terrence O'Brien comes to this nomination after a distinguished 20
years of public service as a State district judge in Wyoming. In that
capacity, he has heard approximately 13,000 cases and has also managed
to find time to serve on task forces and commissions to help develop
the practices and laws of Wyoming in areas which are of great interest
to me, including the use of drug courts, child support, judicial
ethics, and split sentencing.
A majority of the American Bar Association's Standing Committee has
rated Judge O'Brien ``well qualified.'' He is a distinguished former
State court judge with decades of legal experience. He sat for 20 years
on the District Court for the Sixth Judicial District in Campbell
County, WY, and on occasion by designation to the Wyoming Supreme
Court.
First appointed by merit selection to the State bench in 1980 by
Democrat Governor Edward Herschler (D), he was retained by the voters
in 1982 and every 6 years thereafter until his retirement in 2000.
Judge O'Brien is not just a distinguished jurist. He is the kind of
civic leader we like in my part of the country. He has been an active
in local civic and philanthropic affairs, having served on the Wyoming
Community College Commission, the Campbell County Corrections Board,
the Board of Directors of the United Way of Campbell County, and the
Board of Directors of the Campbell County Health Care Foundation.
This nominee is just one of the several excellent jurists nominated
by President Bush, and I am pleased that we have confirmed him today.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Terrence L. O'Brien, to be United States
Circuit Judge for the Tenth Circuit? The yeas and nays have been
ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. REID. I announce that the Senator from New Jersey (Mr.
Torricelli) is necessarily absent.
Mr. NICKLES. I announce that the Senator from Alabama (Mr. Sessions)
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 98, nays 0, as follows:
[Rollcall Vote No. 68 Ex.]
YEAS--98
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
Wellstone
Wyden
NOT VOTING--2
Sessions
Torricelli
The nomination was confirmed.
Mr. THOMAS. Mr. President, today is a very proud day for the State of
Wyoming and Terrence L. O'Brien. Just a moment ago, the full Senate
confirmed Mr. O'Brien for Wyoming's vacant seat on the U.S. Court of
Appeals for the Tenth Circuit by a vote of 98-0.
As Wyoming's senior Senator, the responsibility of forwarding
judicial nominees to the President is a job that I take very seriously.
I am honored to have had the opportunity to assist in the filling of
Wyoming's seat on the court. In May of 2001, Wyoming's previous judge
on the Tenth Circuit, Wade Brorby, announced his move to senior status.
Following that announcement, I quickly formed a selection committee
in my home State to review qualified candidates. After an extensive
process, the selection committee presented me with three candidates all
with exceptional backgrounds to serve on the Tenth Circuit. Terrence
O'Brien was
[[Page S2664]]
one of the three candidates I forwarded to President Bush.
On August 3, 2001, President Bush formally nominated Terrence O'Brien
to the Tenth Circuit and the President's decision reaffirmed what I
believed all along--that Judge O'Brien is an outstanding selection to
fill Wyoming's seat on the court.
For 20 years, 1980-2000, Mr. O'Brien served with distinction as a
State district court judge in Wyoming. During his tenure he earned
tremendous respect from those who argued cases before him. I cannot
imagine a finer individual who will join other notable Wyoming jurists
on the U.S. Court of Appeals for the Tenth Circuit, including; Wade
Brorby, James E. Barrett, John Jay Hickey, and John C. Pickett, who by
the way, was Wyoming's first judge to sit on the Court.
I also want to thank Senate Judiciary Committee Chairman Leahy and
fellow ranking Republican Senator Hatch for their work in reporting Mr.
O'Brien's nomination. While our Federal judiciary current has 95
vacancies, today's confirmation of Terrence O'Brien is a step in the
right direction. I look forward to the Senate's consideration of other
article III U.S. Circuit and U.S. District Court judges.
If the mark that Terrence O'Brien left in Wyoming as a district court
judge is any indication of his resolve and sharp judgment--our Nation
can expect great things from a man who's appreciation and respect for
the rule of law are without question. Without reservation, I know that
Mr. O'Brien will serve with honor and distinction on the Court of
Appeals for the Tenth Circuit.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is laid upon the table, and the President shall be
immediately notified of the Senate's action.
____________________