[Congressional Record Volume 148, Number 46 (Tuesday, April 23, 2002)]
[Senate]
[Pages S3142-S3145]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



 NOMINATION OF JEFFREY R. HOWARD OF NEW HAMPSHIRE, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE FIRST CIRCUIT

  Mr. REID. Mr. President, I ask unanimous consent the Senate now 
proceed to executive session to consider the following nomination: 
Calendar No. 773; that the Senate vote immediately on confirmation of 
the nomination; that upon the disposition of the nomination, the motion 
to reconsider be laid upon

[[Page S3143]]

the table, any statements be printed in the Record, the President be 
immediately notified of the Senate's action, and the Senate return to 
legislative session without intervening action or debate; and Senator 
Gregg be recognized prior to the vote for 1 minute and Senator Smith of 
New Hampshire be recognized for 1 minute prior to the vote; and I ask 
further consent this vote time count postcloture.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I ask for the yeas and nays on the nomination.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, today, the Senate is voting on the 46th 
judicial nominee to be confirmed since last July when the Senate 
Judiciary Committee reorganized after the Senate majority changed. With 
today's vote on Jeffrey Howard to the Court of Appeals for the 1st 
Circuit, the Senate will confirm its 46th judicial nominee and its 9th 
judge to our Federal Courts of Appeals in the less than 10 months since 
I became chairman this past summer.
  This is the 18th judge confirmed since the beginning of this session 
in late January. Under Democratic leadership, in less than 4 months the 
Senate has confirmed more judges than were confirmed in all 12 months 
of 1996 under Republican leadership. The Senate has confirmed more 
judges in the last 10 months than were confirmed in 4 out of 6 full 
years under Republican leadership. The number of judicial confirmations 
over these past 10 months--46--exceeds the number confirmed during all 
12 months of 2000, 1999, 1997, and 1996.
  Mr. Howard is the 9th Court of Appeals judge confirmed in the less 
than 10 months since the Judiciary Committee was permitted to 
reorganize last July. This is more circuit judges than were confirmed 
in all 12 months of 2000, 1999, 1997, and 1996, 4 of the 6 years of 
Republican control of the Senate during the Clinton administration. It 
is triple the number of circuit judges confirmed in 1993, when a 
Democratic Senate majority was working with a President of the same 
party and received some cooperation from the administration. It exceeds 
the number of Court of Appeals judges confirmed by a Republican Senate 
majority in the first 12 months of the Reagan administration and it 
equals the number of circuit judges confirmed in the first 12 months of 
the first Bush administration.
  As our action today demonstrates, again, we are moving at a fast pace 
and confirming conservative nominees. Since the change in Senate 
majority, the Democratic majority has moved to confirm President Bush's 
nominees at a faster pace than the nominees of prior Presidents. The 
rate of confirmations in the past 10 months actually exceeds the rates 
of confirmation in the past three Presidencies. It took 15 months for 
the Senate to confirm 46 judicial nominees for the Clinton 
administration. The pace at the beginning of the Clinton administration 
amounted to 3.1 judges confirmed per month. In the first 15 months of 
the first George H.W. Bush administration, only 27 judges were 
confirmed. The pace at the beginning of the George H.W. Bush 
administration amounted to 1.8 judges confirmed per month. In President 
Reagan's first 15 months in office, 54 judges were confirmed. The pace 
at the beginning of the Reagan administration amounted to 3.6 judges 
confirmed per month. By comparison, in the less than 10 months since 
the shift to a Democratic majority in the Senate, President Bush's 
judicial nominees have been confirmed at a rate of 4.6 per month, a 
faster pace than for any of the last three Presidents.
  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 
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.
  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 
in fewer than 10 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. We have confirmed 46 judicial 
nominees in less than 10 months. This is almost twice as many 
confirmations as George W. Bush's father had over a longer period, 27 
nominees in 15 months, than the period we have been in control of the 
Senate.
  Our Republican critics like to make arguments based on false rather 
than fair comparisons. They complain that we have not done 24 months of 
work in the less than 10 months we have been in the majority. That is 
an unfair complaint. A fair examination of the rate of confirmation 
shows, however, that Democrats are working harder and faster on 
judicial nominees, confirming judges at a faster pace than the rates of 
the past 20 years.
  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 fairly to compare 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 the number of judges they confirmed per year.

  They would rather unfairly compare the work of the Senate on 
confirmations in the less than 10 months since the shift in majority to 
full, 2-year Congresses. I say that it is quite unfair to complain that 
we have not done 24 months of work on judicial vacancies in the less 
than 10 months since the Senate reorganized. These double standards 
asserted by the Republicans are wrong and unfair, but that does not 
seem to matter to Republicans 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.
  In less than 10 months since the change in majority and 
reorganization, the Senate has confirmed 9 judges to the Courts of 
Appeals and held hearings on two others, with another circuit judge 
hearing scheduled for this week. In contrast, the Republican-controlled 
majority averaged only seven confirmations to the Courts of Appeals per 
year. Seven. In the less than 10 months the Democrats have been in the 
majority, we have already exceeded the annual number of Court of 
Appeals judges confirmed by our predecessors. The Senate in the last 10 
months has confirmed more Court of Appeals judges than were confirmed 
in 2000, 1999, or 1997, and nine more than the zero from 1996. In an 
entire session of the 105th Congress, the Republican majority did not 
confirm a single judge to fill vacancies on the Courts of Appeals. That 
year has greatly contributed to the doubling of vacancies on the Courts 
of Appeals during the time in which the Republican majority controlled 
the Senate.
  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 the period in which the Republican majority controlled the 
Senate and in which they delayed reorganization, the period from 
January 1995 through July 2001, vacancies on the Courts of Appeals 
increased from 16 to 33, more than doubling.
  When Members were finally assigned to the Judiciary Committee on July 
10, we began with 33 Courts of Appeals vacancies. That is what I 
inherited. Since the shift in majority last summer, five additional 
vacancies have arisen on the

[[Page S3144]]

Courts of Appeals around the country. With this week's confirmation of 
Jeffrey Howard, we have reduced the number of circuit court vacancies 
to 29. Rather than the 38 vacancies that would exist if we were making 
no progress, as some have asserted, there now remain 29 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 filled almost a quarter--29 of 38, or 23.8 
percent--of the vacancies on the Courts of Appeals in the last 10 
months. In other words, by confirming four more nominees than the five 
required to keep up with the pace of attrition, we have not just 
matched the rate of attrition but surpassed it by 80 percent.
  While the Republican Senate majority increased vacancies on the 
Courts of Appeals by over 100 percent, it has taken the Democratic 
majority less than 10-months to reverse that trend, keep up with 
extraordinary turnover and, in addition, reduce circuit court vacancies 
by more than 10 percent overall--from 33 down to 29, or 12.1 percent. 
This is progress. Rather than having the circuit 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. The vacancy rate is moving in the right direction--down.
  Despite claims to the contrary, under Democratic leadership, the 
Senate is confirming President Bush's Circuit Court nominees more 
quickly than the nominees of other Presidents were confirmed by 
Senates, even some with majorities from the President's own party. The 
number of confirmations to the Circuit Courts has exceeded those who 
were confirmed over 10 month time frames at the beginning of past 
administrations. With the confirmation of Jeffrey Howard, 9 Circuit 
Court nominees will have been confirmed in less than 10-months. This 
number greatly exceeds the number of Court of Appeals confirmations in 
the first 10 months of the Reagan administration (three), the first 
Bush administration (three), and the Clinton administration (two). This 
is three times, or 300 percent, the number of Court of Appeals nominees 
confirmed in the comparable 10-month periods of past administrations. 
With nine circuit judges confirmed in the less than 10 months since the 
Senate reorganized under Democratic leadership, we have greatly 
exceeded the number of circuit judges confirmed at the beginning of 
prior presidencies. Our achievements also compare quite favorably to 
the 46 Court of Appeals nominees confirmed by the Republican majority 
in the 76 months during which they most recently controlled the Senate. 
Their inaction led to the number of Courts of Appeals vacancies more 
than doubling. With a Democratic Senate majority, the number of circuit 
vacancies is going down.

  Overall, in little less than 10 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. Had the Republicans not delayed and obstructed progress on Courts 
of Appeals nominees during the Clinton administration, we would not now 
have so many vacancies. Had the Republicans even reversed course just 
this past year and proceeded on the circuit court nominees sent to the 
Senate in January, the number of circuit court vacancies today could be 
in the low twenties, given the pace of confirmation of circuit nominees 
since the shift in majority last summer.
  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 hearing 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 less than 10 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 this week 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. We will hold our 17th judicial 
confirmation hearing this week.
  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 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 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, and 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. Each of the 
previous 45 nominees confirmed by the Senate

[[Page S3145]]

has received the unanimous, bipartisan backing of the committee.
  Mr. Howard was given a hearing by the Senate Judiciary Committee due 
to Senator Bob Smith's efforts. The Senator from New Hampshire is not 
someone with whom I agree on all issues. Indeed, we have had our 
disagreements on judicial nominations. He has applied a litmus test 
over the years and voted against nominees he felt were not against 
abortion. He voted against at least 20 Clinton judicial nominees. 
Nonetheless, when Senator Smith spoke to me about his support for Mr. 
Howard, I accommodated Senator Smith's request that we proceed promptly 
with a hearing on him. Mr. Howard is being confirmed by the U.S. Senate 
today, because Senator Smith worked to have this nomination considered 
favorably.
  Some on the other side of the aisle have falsely charged that if a 
nominee has a record as a conservative Republican, he will not be 
considered by the committee. That is simply untrue. Take, for example, 
the nomination of Jeffrey Howard. Just 2 years ago, he campaigned for 
the Republican nomination for Governor of New Hampshire. He has been a 
prominent figure in Republican politics in New Hampshire for many 
years. He served as the New Hampshire Attorney General, the State 
Deputy Attorney General, and the Chief Counsel in the Consumer 
Protection Division. He also served as the U.S. Attorney for the 
District of New Hampshire and the Principal Associate Deputy Attorney 
General during the first Bush administration. Thus, it would be wrong 
to claim that we will not consider President George W. Bush's nominees 
with conservative credentials. We have done so repeatedly.
  The committee voted unanimously to report Mr. Howard's nomination to 
the floor, even though a minority of the ABA committee found the 
nominee to be not qualified for appointment to the U.S. Court of 
Appeals for the First Circuit. No Senator is bound by the 
recommendations of the ABA, but we have always valued their 
contribution to the process and the willingness of the members of the 
ABA standing committee to volunteer their time, efforts and judgment to 
this important task. Based on the judgment of each individual Member 
about the qualifications of a particular nominee, the Judiciary 
Committee has reported out other Bush nominees who received mixed ABA 
peer review ratings and even some with negative recommendations. Mr. 
Howard is well-regarded by his home-State Senators. The next time 
Republican critics are bandying around charges that the Democratic 
majority has failed to consider conservative judicial nominees, I hope 
someone will ask those critics about Jeffrey Howard, as well as the 
many other conservative nominees we have proceeded to consider and 
confirm.
  Mr. HATCH. Mr. President, I rise in support of the confirmation of 
Mr. Jeffrey Howard to the First Circuit Court of Appeals. Mr. Howard's 
record is impressive. He will make a valuable contribution to an 
already prestigious First Circuit Court of Appeals.
  Mr. Howard graduated summa cum laude from Plymouth State College. 
While attending Georgetown University Law Center, he became Editor of 
that institution's American Criminal Law Review.
  After law school, Mr. Howard began an illustrious period of service 
in the New Hampshire Attorney General's Office. There he quickly moved 
through the ranks to head that office's Consumer Protection and 
Antitrust Division. Upon successful completion of this assignment, he 
was promoted to Associate Attorney General in charge of the division of 
Legal Counsel. He eventually became Deputy Attorney General, in 
essence, the second in command in this office.
  Mr. Howard was then nominated and confirmed as U.S. Attorney for the 
District of New Hampshire. During his tenure in that office, he became 
Principal Associate Deputy Attorney General at the Justice Department. 
Here his responsibilities included advising Attorney General Barr and 
supervising the Department of Justice's Executive Office for Asset 
Forfeiture.
  Mr. Howard then returned to New Hampshire and was appointed that 
State's attorney general. He wrote and implemented one of the Nation's 
first effective comprehensive statewide interdisciplinary protocols to 
combat domestic violence.
  Clearly, Mr. Howard is a leader in the areas of fighting for 
consumers that were the victims of fraud and the rights of abused 
women.
  The people of New Hampshire can be proud of this nominee; Jeffrey 
Howard has been a servant of New Hampshire's people. President Bush has 
done right by the people of New Hampshire and of New England with this 
nomination. Mr. Howard is a good example of the kind of high-quality 
judicial nominees selected by President Bush.
  Mr. President, I am proud to say that Jeffrey Howard has my support 
and I believe he will be an outstanding addition to the first circuit.
  Mr. SMITH of New Hampshire. Mr. President, I rise in very strong 
support of the nomination of Jeffrey Howard to the First Circuit Court. 
I thank the distinguished chairman of the Judiciary Committee, Senator 
Leahy, for bringing this nomination forward promptly, and also Senator 
Hatch, the ranking member. I spoke to Senator Leahy a couple of weeks 
ago, and he promised he would bring this nomination forward, and he 
did. I am deeply appreciative because Jeff Howard is very qualified for 
this position and I look forward to him having a long and distinguished 
career on the First Circuit Court. I am proud to support the 
nomination. I urge my colleagues to do likewise.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I join my colleague, Senator Smith, in 
strongly endorsing the nomination of Jeff Howard. I hope my colleagues 
will vote for him for the First Circuit Court. Jeff Howard has been an 
extraordinary public servant in New Hampshire. He has served as 
attorney general, as U.S. attorney. He continues the long tradition of 
quality individuals who bring integrity, intelligence, and ability to 
the appeals court in Boston. We are very proud of the fact he will be 
serving down there upon an affirmative vote from this body.
  I yield the floor.
  The PRESIDING OFFICER. The question is, will the Senate advise and 
consent to the nomination of Jeffrey R. Howard to be United States 
Circuit Judge for the First Circuit.
  On this question, the yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from North Carolina (Mr. 
Helms) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 99, nays 0, as follows:

                       [Rollcall Vote No. 79 Ex.]

                                YEAS--99

     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
     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
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--1

       
     Helms
       
  The nomination was confirmed.

                          ____________________