[Congressional Record Volume 148, Number 44 (Thursday, April 18, 2002)]
[Senate]
[Pages S2936-S2938]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    STATUS OF JUDICIAL CONFIRMATIONS

  Mr. HATCH. Madam President, I would like to respond to some comments 
made yesterday on the topic of judicial confirmations. I had no 
intention of bringing up this topic today, but now I find myself with 
no choice but to again set the record straight with respect to the 
comments my colleague made earlier yesterday.
  First, I would like to put my remarks in context. I began this 
Session of the 107th Congress by praising the way that Chairman Leahy 
and the Senate's Democratic leader had begun to handle judicial 
nominations. One of the reasons I did so was that I had detected the 
possibility that the Judiciary Committee may be headed in a new 
direction as we began a new Session. I sensed a chance that, after more 
than eight months of Democratic control, the leaders might stop 
steering their course by staring at the rear-view mirror, and would 
begin to look forward through the windshield at the work ahead. I 
thought that they might begin to sense the American people's 
frustration at the Senate's stonewalling of President Bush's 
priorities--especially his selections for the judiciary. Obviously, now 
that we are in the eleventh month of Democratic control, my optimism 
has become tarnished not only by the continuing extremely slow pace of 
confirmations and the blatant mistreatment of Judge Pickering, but also 
by the kind of comments we heard this morning that actually attempt to 
persuade the American people that the Senate's record is acceptable.
  I want to correct a couple distortions of the record and explain what 
is really going on in the Judiciary Committee.
  My colleague began his comments with the assertion that the Democrats 
have only been in charge of the Judiciary Committee since the end of 
July rather than the beginning of June--

[[Page S2937]]

which somehow adds up to 9 months. This particular exercise in make 
believe is apparently very important for some of my colleagues to 
repeat over and over. But the fact is--as everyone in the Senate 
knows--that Democrats took charge of the Senate on June 5, not at the 
end of July. Considering that it is now the middle of April, we are now 
in the eleventh month of Democratic control.
  Why is this important? Playing make-believe that the month of June 
didn't exist last year helps some of my colleagues explain away the 
fact that they failed to hold any confirmation hearings during that 
entire month. There is no basis for the underlying assertion that the 
lack of an organizational resolution prevented the Judiciary Committee 
from doing so. It certainly didn't stop 9 other Senate Committees from 
holding 16 confirmation hearings for 44 nominees during that same 
month. And it did not prevent the Judiciary Committee from holding five 
hearings in three weeks on a variety of issues other than pending 
nominations.
  Of course, the month-of-June distortion is simply part of the larger 
charade of pretending that the current judicial vacancy crisis has less 
to do with the last 11 months of foot dragging than with the 
Committee's work between the years 1994 and 2000. The fact 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 last year, that number shot up to nearly 100, 
where it remains today. The broader picture shows that the Senate 
confirmed essentially the same number of judges for President Clinton 
(377) as it did for President Reagan (382), which proves bipartisan 
fairness--especially when you consider that both Presidents has six 
years of Republican control in the Senate.
  So, how did we go from 67 vacancies at the end of the Clinton 
Administration to nearly 100 today? There can be only one answer: The 
current pace of hearings and confirmations is simply not keeping up 
with the increase in vacancies. We are moving so slowly that we are 
making no forward progress. President Bush nominated 66 highly 
qualified individuals to fill judicial vacancies last year. But in the 
first four 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%, 
leaving 23 of them without any action at all. In fact, eight of the 
first eleven judges that President Bush nominated on May 9 of last year 
still have not had a hearing--despite being pending for 344 days as of 
today.
  It is time for this Senate to examine the real situation in the 
Judiciary Committee, rather than listen to more inventive ways of 
distorting it. We have lots of work to do. There are 96 vacancies in 
the Federal judiciary--a vacancy rate of more than 11.2 percent--and we 
have 53 nominees pending--plus 4 nominees for the Court of Federal 
Claims. Twenty of the pending nominees are for circuit court positions, 
yet the Senate has confirmed only 2 circuit judges this session. This 
is despite a crisis of 30 vacancies pending in the circuit courts 
nationwide--virtually the same number of vacancies pending when the 
Democrats took control of the Senate in June of last year.
  These numbers beg the question: If the Judiciary Committee is not 
making any progress on the judicial vacancy crisis, What is happening 
in the Judiciary Committee? What is the Committee doing in lieu of 
confirming President Bush's nominees?
  Well, the judicial confirmation process appears to be falling into 
the hands of some extreme-left special-interest groups whose political 
purposes are served by launching invidious attacks on the good people 
President Bush has nominated to serve as judges.
  We all know too well what happened to Judge Pickering, who was a 
decent, honorable man who is clearly qualified to be a judge on the 
Fifth Circuit Court of Appeals. So I won't recount that very 
unfortunate situation. But I would like to warn everyone that the 
stoves of the special interest groups are readying to boil up an attack 
on Judge Brooks Smith of Pennsylvania who had a hearing nearly two 
months ago but still has had no vote in the Judiciary Committee.
  If you are waiting to hear that some profound issue has been raised 
about a complicated or important legal issue, I am sorry to disappoint 
you. The fact is that Judge Smith has a very distinguished record as a 
Federal judge for nearly 14 years, and no one has questioned his 
ability or competence. So what is the great issue that may well be 
endangering his nomination--you might ask? Well, believe it or not, 
some are trying to make hay out of the fact that Judge Smith used to be 
a member of a small family-oriented fishing club--like hundreds that 
exist from Vermont to Wisconsin to North Carolina to Utah, that happens 
to limit membership to men.
  Let me note at the outset that Judge Smith's nomination is supported 
by the Women's Bar Association of Western Pennsylvania and the local 
Domestic Violence Board in Pennsylvania. The people who know him best 
are the ones who support him the most.
  It is also important to recognize that the Judiciary Committee, in 
1990, and the Judicial Conference, in 1992, each made clear that Judges 
or nominees can belong to single-gender clubs so long as the club 
exhibits certain attributes of privacy first articulated by Justice 
William Brennan for the Supreme Court in Roberts v. Jaycees.
  In Roberts, Justice Brennan--the great liberal patriarch of American 
jurisprudence--first articulated the right of intimate association in 
furtherance of the Freedom of Association recognized by the Supreme 
Court in NAACP v. Alabama as an extension of First Amendment speech. 
Such intimate association, Justice Brennan said, must be protected ``as 
a fundamental element of personal liberty,'' and ``choices to enter 
into and maintain certain intimate human relationships must be secured 
against undue intrusion . . . because of the role of such relationships 
in safeguarding the individual freedom central to our constitutional 
scheme.'' The Court went on to describe the attributes of such intimate 
associations as ``relative smallness . . . a high degree of selectivity 
in decisions to begin and maintain the affiliation, and seclusion from 
others in critical aspects of the relationship.''
  I should note that the club that Judge Smith belonged to has only 115 
members.
  I for one, stand by the American people's Freedom of Association as 
defined by the Supreme Court. As Justice Thurgood Marshall pointed out, 
the ability to associate as we see fit is part of what makes this 
country great, and a freedom we honor. And I hope we can all recognize 
that Judges, or people who might want to be Judges someday, should be 
just as free as anyone else to exercise that right. There is no point 
to turning the nomination of Judge Smith into a referendum on the 
Freedom of Association. And there is certainly no sympathy among the 
American electorate to turn yet another of President Bush's judicial 
nominees into a mere single-issue caricature when Judge Smith has an 
outstanding record of service to our country.
  I am very concerned that any further delay of Judge Smith's 
confirmation will lead to even more cynicism about the Senate in the 
minds of the American people. The voters who have watched the Judiciary 
Committee during the past eleven months already know that the vacancy 
crisis is not tit for tat or mere payback for anything that happened in 
the past. The voters know that the Democratic leadership has plunged 
into truly uncharted territory, holding up an absolutely unprecedented 
percentage of President Bush's nominees and, in the process, allowing 
leftist special interest groups to smear decent and accomplished public 
servants in order to serve highly partisan political aims.
  There is no better way to understand the extreme partisanship of 
these powerful leftist groups than to look at the irony in their call 
for ``diversity'' on the circuit courts of appeal. I of course agree 
with having a diverse judiciary, but I do not believe that these groups 
mean what they say.
  Let's look at judicial diversity. Right now, over 50 percent of the 
active federal judges in America were appointed by President Clinton. 
The best way to ensure diversity on the bench is for the Senate to 
confirm more Bush nominees who will enforce existing law and leave

[[Page S2938]]

lawmaking to the people's elected representatives, including the 
President's nominees from Minority groups.
  But I fear that nominees like Miguel Estrada, whom the President has 
nominated to be the first Hispanic to sit on the second most 
prestigious court in the land, are not getting a fair shake because 
out-of-the-mainstream liberal groups show increasing intolerance to 
Hispanics and African-Americans who don't subscribe to the left-of-
mainstream ideology. The intolerance is not because of race, but 
because many liberals will not give the time of day to any minority or 
woman who have become accomplished in any field other than liberal 
activism. I fear that the Liberals are seriously thinking about 
shutting the door to our Courts of Appeal to any Hispanic, African-
American or woman who does not toe the line of the radical, left-of 
center special interest groups. That would be a great tragedy for our 
country. I would be an end to the very diversity that is the strength 
of America and its judicial system.
  We cannot allow outside groups to impede progress. In fact, what we 
need is to approve more circuit judges at a faster pace to address the 
vacancy crisis in the federal appellate courts. The Sixth Circuit is 
presently functioning at a 50 percent capacity. Eight of that court's 
16 seats are vacant. President Bush has nominated 7 well qualified 
individuals to fill the vacancies on that court. Two of those nominees, 
Deborah Cook and Jeffrey Sutton, have been pending since May 9 of last 
year--344 days of inaction. They have languished in Committee without 
so much as a hearing while the Sixth Circuit functions at 50 percent 
capacity. Another appellate court that is in trouble is the D.C. 
Circuit, which is missing one-third of its judges: It has only 8 of its 
12 seats filled. President Bush nominated two exceedingly well 
qualified individuals to fill seats on the D.C. Circuit on May 9 of 
last year. Those individuals, Miguel Estrada and John Roberts, are 
among the most well respected appellate lawyers in the country. Yet the 
Judiciary Committee has not granted them a hearing, much less a vote.
  Part of the problem is a decision by the Committee not to consider 
more than one circuit judge per hearing. In fact, the Committee has not 
moved more that one circuit judge per hearing during the entire time 
the Democrats have had control of the Senate. When I was Chairman, I 
had 10 hearings with more than one circuit nominee on the agenda. If we 
are going to get serious about filling circuit vacancies, then I 
encourage my Democratic colleagues to move more than one circuit 
nominee per hearing.
  The bottom line of all this is that America is facing a real crisis 
facing its federal judiciary, especially the circuit courts of appeals, 
due to the nearly 100 vacancies that plague it. The Judiciary Committee 
has decided not to make any progress toward remedying this situation. 
Instead, it is pouring its energy into creative accounting and make 
believe. But the American people are sick of the charades and are 
disgusted by the personal destruction for partisan purposes. They want 
the Senate to help--not hinder--President Bush. I urge my friends 
across the aisle to focus on this situation, to step up the pace of 
hearings and votes, to resist the powerful leftists who are the enemies 
of the independent judiciary, and to do what's right for the country.

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