[Congressional Record Volume 148, Number 58 (Thursday, May 9, 2002)]
[Senate]
[Pages S4106-S4108]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. ALLARD. Mr. President, last week Senator Campbell and I sent a 
letter to the chairman of the Senate Judiciary Committee expressing our 
concern about the state of the judicial confirmation process. We shared 
with the chairman our thoughts on the serious injustice being served on 
the American people by the committee's failure to provide hearings for 
the President's judicial nominations.
  It is unfortunate that the citizens of the United States must bear 
the consequences of the Judiciary Committee's delaying tactics. It is 
unfortunate that the citizens must bear the burden of delayed justice. 
One year ago, President Bush forwarded his first 11 judicial circuit 
court nominees to the Judiciary Committee. Every person in this group 
of nominees received a ``qualified'' or ``well-qualified'' rating from 
the American Bar Association. Now, 365 days later, 8 of the original 11 
nominees are yet to receive a hearing. One year later, we are still 
waiting to have a hearing for 8 of those 11 nominees.
  This weekend also marks the 1-year anniversary since the President 
nominated Tim Tymkovich for the Tenth Circuit Court of Appeals. So, 
today, 1 year since he was nominated by the President, I stand before 
you still hoping Mr. Tymkovich will have a hearing, still hoping to 
fill the 3-year vacancy in the Tenth Circuit, and still hoping that the 
people of Colorado, Utah, New Mexico, Oklahoma, and Nebraska will no 
longer be victimized by a vacant bench--a bench paralyzed by a lack of 
personnel to move quickly through an overwhelming caseload.
  So now Mr. Tymkovich, the former solicitor general of Colorado, waits 
indefinitely for the opportunity to serve his country. He waits 
indefinitely for his opportunity to help administer the justice that 
our constitutional Government guarantees. And the people of the United 
States wait for the Senate to fulfill its constitutional duties.
  The events of the past year clearly demonstrate an active effort by 
the enemies of the United States to destroy the liberties and freedom 
of our great Nation. The most basic of our country's values and 
traditions are under attack. Congress has responded by enacting new 
laws and by providing financial assistance to businesses and families 
and defense. We acted swiftly to suffocate terrorists and destroy the 
hateful organizations that work to undermine our society.
  Yet the instruments through which justice is served are being denied 
their chance to serve by ugly, partisan politics. For a year, Mr. 
Tymkovich's nomination has languished in the committee without action. 
Today, once again, I urge you to move forward with his confirmation. 
Mr. Tim Tymkovich is highly qualified and will serve his country with 
the utmost of patriotism and respect for adherence to constitutional 
principles. The committee must provide a hearing for the Tenth Circuit 
seat because the seat has remained vacant entirely too long.
  A necessary component of providing justice is an efficient court 
system--a system equipped with the personnel and resources that enable 
it to fulfill its role as a pillar of our constitutional system of 
government.
  The current state of judicial nominations is simply unacceptable. It 
has evolved into a petty game of entrenchment, creating a vacancy 
crisis that prevents the service of the very justice upon which our 
great Nation depends. The simple fact remains: Justice cannot be 
delivered when one of every six judgeships on the appellate level 
remains vacant. I will repeat that: One out of every six judgeships on 
the appellate level remains vacant.
  It is unfortunate--perhaps even shameful--that the confirmation 
stalemate continues. How much longer will the American people have to 
wait? How much longer? Many people across the country are asking this 
same question and responding by urging the chairman to act quickly and 
provide hearings for qualified judges. The sentiment is being echoed 
across the pages of every major newspaper in the Nation and the State 
of Colorado. They all agree that the Senate must act to fill judicial 
vacancies and end this vacancy crisis.
  Mr. President, I wish to share with you some of the statements made 
in the editorial pages of these papers. They all recognize that the 
treatment of certain Bush nominees has established a pattern of 
political partisanship. I ask that these editorials be printed in the 
Record upon completion of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. ALLARD. The first article is by the Denver Post, dated Monday, 
May 6, 2002. The other article I ask to be

[[Page S4107]]

printed is an editorial by the Rocky Mountain News from May 8, 2002. 
Next is an editorial by the Colorado Springs Gazette, dated May 8, 
2002. Next is an editorial by the Rocky Mountain News, dated May 9, 
2002.
  Mr. President, the Denver Post editorial states:

       The U.S. Constitution grants to the president the power to 
     appoint judges with the ``advice and consent'' of the Senate. 
     There is nothing in that provision that anticipates a process 
     in which a president nominates replacements to the federal 
     bench and the Senate acts as if it has no responsibility to 
     cooperate.

  The Post continues in its editorial:

       . . . it is difficult to think of a single reason why [Mr. 
     Tim Tymkovich] has been denied a confirmation hearing and an 
     up-or-down vote in the full Senate. Such a vote is the 
     prescribed solution for cases where there is disagreement 
     between the Senate and the president.
  The Post also expresses the frustration that the American people are 
feeling:

       Unless the Democrat leadership abandons its delay tactics, 
     we think the treatment of judicial nominees ought to be a 
     front-and-center issue in the upcoming elections.
       If the Senate won't vote to end the judicial logjam, maybe 
     the citizens should.

  The Rocky Mountain News notes that Mr. Tim Tymkovich is not the only 
Tenth Circuit nominee awaiting a hearing, there are two vacancies, both 
of whom were appointed 1 year ago. This means the committee is 
depriving the court of two qualified judges. Unfortunately, it is the 
people of the United States who suffer, the people who turn to the 
courts to address their grievances. The committee does not face the 
daily injustice served on the people, nor does it face the costly court 
delays caused by an overwhelming docket. The committee does not face 
the frustration of citizens as they pursue justice in front of an empty 
bench.
  The Rocky Mountain News reveals that the chairman is blaming the 
President for the delay. According to the chairman, ``Controversial 
nominations take longer.'' But as the paper points out, there is little 
controversy regarding the nomination of Tim Tymkovich. Yet he still has 
not received a hearing.
  Outside the city of Denver, newspaper headlines herald the same 
message, citing the stalemate as ``justice delayed'' and calling for 
action. The Colorado Springs Gazette states:

       There is a slate of looming vacancies on the federal bench 
     across the country thanks in large part to backlogged 
     nominations, and its risks paralyzing the courts.

  The Gazette concludes by adding that swift justice is supposed to be 
a hallmark of our system; its prospects do not look good while 
policymakers are making it harder to get before a judge at all.
  Mr. Tymkovich is an outstanding choice for the Tenth Circuit Court of 
Appeals, and he will serve this Nation well, but he must be given the 
opportunity to do so. In Colorado, his nomination enjoys broad 
bipartisan support and the support of our State's legal community.
  He has also passed the litmus test of the chairman of the Judiciary 
Committee, Senator Leahy, and is deemed qualified by the American Bar 
Association. The committee must move to end the confirmation stalemate 
and restore the people's faith that our judicial system is, indeed, 
built to provide all the judicial resources that are needed to provide 
access to the courts of law.
  It must diligently perform its duty to provide hearings so that the 
vacancies that plague our courts may be filled. The President has asked 
for the forging of a bipartisan consensus in favor of fair and 
efficient consideration of all judicial nominations--I do not think 
that is an unreasonable request--regardless of the pattern of party 
control of the political branches of Government. I urge the committee 
to answer this call and move forward with the judicial nomination 
process and prove to the American people that the committee is, indeed, 
interested in serving justice.
  I thank the Chair. I yield the floor.

                               Exhibit 1

                  [From the Denver Post, May 6, 2002]

                         Politics and the Bench

       There is a fresh reminder of how political the judicial 
     selection process has become. Colorado's two senators, Ben 
     Nighthorse Campbell and Wayne Allard, both Republicans, have 
     written a letter to Senate Judiciary Committee Chairman 
     Patrick Leahy, D-Vermont, pointing out that it was a full 
     year ago that President Bush nominated Denver attorney 
     Timothy Tymkovich to a seat on the 10th Circuit Court of 
     Appeals.
       The two senators complained, and we agree, that ``the 
     current state of judicial nominations . . . devolved into a 
     petty game of entrenchment'' that has created a vacancy 
     crisis.
       The recent treatment of a Charles Pickering, a Bush nominee 
     to the Fifth Circuit Court of Appeals, consumed a great deal 
     of the committee's time and established a pattern of 
     political partisanship.
       The issue for the committee and the nation is whether such 
     treatment--and ultimate rejection on a straight party-line 
     vote in committee--is a pattern the Democratic leaders of the 
     Senate want to repeat. It will be no bargain for the country 
     if the Senate committee adopts a strategy of simply delaying 
     all Bush judicial nominations.
       The U.S. Constitution grants to the president the power to 
     appoint judges with the ``advice and consent'' of the Senate. 
     There is nothing in that provision that anticipates a process 
     in which a president nominates replacements to the federal 
     bench and the Senate acts as if it has no responsibility to 
     cooperate.
       Because Tymkovich is well-known in Colorado, having served 
     as the state's solicitor general, it is difficult to think of 
     a single reason why he has been denied a confirmation hearing 
     and an up-or down vote in the full Senate. Such a vote is the 
     prescribed solution for cases where there is disagreement 
     between the Senate and the president.
       Unless the Democratic leadership abandons its delay 
     tactics, we think the treatment of judicial nominees ought to 
     be a front-and-center issue in the upcoming elections.
       If the Senate won't vote to end the judicial logjam, maybe 
     the citizens should.
                                  ____


              [From the Rocky Mountain News, May 8, 2002]

     Bush Nominees to Denver-Based Court Still Waiting for Hearings

                           (By Robert Gehrke)

       Washington.--A year ago, it looked like smooth sailing for 
     Michael McConnell.
       President Bush had made the conservative University of Utah 
     law professor one of his first appeals court nominees, naming 
     him to the 10 Circuit Court of Appeals in Denver. Approval by 
     the Senate Judiciary Committee, then chaired by Sen. Orrin 
     Hatch, R-Utah, seemed certain.
       Bush also nominated Colorado attorney Tim Tymkovich to the 
     10th Circuit.
       A year later, Democrats control the Senate, and McConnell, 
     Tymkovich and five other judges Bush nominated last spring 
     are still awaiting a hearing.
       Hatch, McConnell's leading backer, has criticized Judiciary 
     Chairman Patrick Leahy, D-Vt., for moving too slow on 
     judicial nominees, and frequently cites McConnell's case as 
     an example.
       ``They know that Mike McConnell is one of the truly great 
     Constitutional scholars. They know he's on the fast rack to 
     the Supreme Court, so they're going to delay this as long as 
     they can,'' said Hatch.
       Keeping McConnell off the bench, Hatch said, keeps him from 
     compiling the type of judicial experience he would need 
     before moving up to the Supreme Court.
       Sens. Wayne Allard and Ben Nighthorse Campbell, both R-
     Colo., urged Leahy last month to hold a hearing for 
     Tymkovich.
       ``The current state of judicial nominations is 
     unacceptable,'' they wrote in a letter to Leahy. ``It has 
     devolved into a petty game of entrenchment, creating a 
     vacancy crisis that prevents the service of the very justice 
     upon which our great nation depends.''
       McConnell and Tymkovich would fill the only two vacancies 
     on the 10th Circuit, which handles appeals from U.S. district 
     courts in Utah, New Mexico, Colorado, Oklahoma and Nebraska. 
     Other circuits have more vacancies.
       Leahy spokesman David Carle defended the pace of 
     nominations, saying Democrats confirmed 16 more justices in 
     their first 10 months in control than the Republicans did in 
     their first 10 months in 1995.
       Women's groups, gay-rights advocates and church-state 
     separationists have all voiced concerns about McConnell and 
     Tymkovich's records.
       McConnell, 46, has represented several groups that have 
     claimed government discrimination because of their religious 
     beliefs. He has argued against a secular government in favor 
     of an arrangement that accepts all religious on an equal 
     footing.
       He opposes abortion and co-wrote a law review article 
     challenging the constitutionally of legislation that 
     prohibited protests blocking abortion clinics.
       He represented the Boy Scouts of America when they argued 
     they should not be forced to accept homosexual leaders.
       As Colorado's solicitor general, Tymkovich defended a state 
     constitutional amendment prohibiting municipalities from 
     adopting ordinances outlawing discrimination against 
     homosexuals.
       He also defended a Colorado law prohibiting state financing 
     of abortions in cases of rape or incest.
       Adam Shah of the Alliance For Justice, which helped defeat 
     the nomination of Judge Charles Pickering to the Fifth U.S. 
     Circuit of Appeals in New Orleans, said the group has not 
     worked against McConnell or Tymkovich but is examining their 
     records.

[[Page S4108]]

       ``We understand that the president has the right to name 
     nominees that he chooses,'' Shah said recently. ``We are 
     willing to look at the record and their political views and 
     see if they will make good judges . . . and not turn back the 
     clock on civil rights, women's rights and environmental 
     protections.''
                                  ____


            [From the Colorado Springs Gazette, May 8, 2002]

                            Justice Delayed


 blocking nominees is an old political game--and it's undermining our 
                                 courts

       Let's not be naive about how presidential picks, especially 
     for the judiciary, quickly can become political pawns for 
     members of Congress. Holding up a nominee to the bench or to 
     any other office requiring the Senate's advice and consent 
     has become nothing less than a venerated tradition. And it's 
     a bipartisan affair even as each side howls with indignation 
     when the other does it.
       Sometimes it's indulged for philosophical reasons--a 
     judicial nominee's stance on abortion or capital punishment, 
     for example. Other times the stonewalling is mundanely 
     political--perhaps some senators want a president to back off 
     of a threatened veto of major legislation. A pending 
     nomination can prove a useful bargaining chip. It all makes 
     for a very old game, and it has been that way almost every 
     time the White House has changed tenants over the years.
       But that doesn't make it right. More to the point, the 
     inclination of senators to make judicial appointees cool 
     their heels interferes with the administration of justice. 
     The latest joust between the Senate and the presidency is no 
     exception.
       To their credit, Colorado Republican U.S. Sens. Ben 
     Nighthorse Campbell and Wayne Allard have written a letter to 
     the Chairman of the Senate Judiciary Committee, Patrick 
     Leahy, D-Vt., making just that point.
       ``The current state of judicial nominations is 
     unacceptable. It has devolved into a petty game of 
     entrenchment, creating a vacancy crisis that prevents the 
     service of the very justice upon which our nation depends,'' 
     they wrote.
       Of particular concern to the Colorado delegation is the 
     status of Colorado's former solicitor general, Tim Tymkovich, 
     who was nominated by President Bush in 2001 to fill the 
     Colorado vacancy on the 10th Circuit Court of Appeals. 
     Saturday will mark the one-year anniversary since Tymkovich's 
     nomination was sent to the Judiciary Committee.
       It's not as if there are some glaring blemishes on the 
     man's resume. On the contrary, his nomination enjoys the 
     broad support of our state's legal community, and he was 
     deemed qualified when rated by the American Bar Association. 
     and still he remains in limbo.
       To reiterate, we're not being naive here. This is an old 
     syndrome that conforms to no political boundaries. Indeed, a 
     couple of years ago, it was Allard who for a time helped 
     delay the nomination of a Clinton administration pick for the 
     10th Circuit bench.
       But the underlying point the Senators make in their letter 
     to Leahy is well taken. Quite simply, there's a slate of 
     looming vacancies on the federal bench across the country 
     thanks in large part to backlogged nominations, and it risks 
     paralyzing the courts.
       Whatever reservations members of either party might harbor 
     about any given nominee, and however substantive those 
     concerns may actually be on occasion, at some point they pale 
     next to the need for any judge at all to attend to the logjam 
     in federal courts.
       Swift justice is supposed to be a hallmark of our system; 
     its prospects don't look good while the likes of Leahy are 
     making it harder to get before a judge at all.
                                  ____


              [From the Rocky Mountain News, May 9, 2002]

                   GOP May Protest Delay on Hearings


               coloradan is among bush judicial nominees

                        (By M.E. Sprengelmeyer)

       Washington.--Republicans might slow action in the U.S. 
     Senate today to protest a yearlong delay in confirming 
     President Bush's judicial nominees, including one from 
     Colorado.
       Saturday will be the one-year anniversary of Bush's 
     nomination of Tim Tymkovich to the 10th Circuit Court of 
     Appeals in Denver.
       But he's still waiting for a confirmation hearing, as are 
     eight of the first 11 judicial nominees Bush made a year ago 
     today.
       Republican Senators will call attention to the issue in a 
     morning press conference, and then they are expected to 
     invoke procedural maneuvers to slow the Senate's work 
     throughout the day.
       ``It will be a slowdown in order to make their point,'' 
     said Sean Conway, spokesman for Sen. Wayne Allard, R-
     Loveland.
       Last week, President Bush called the situation a ``vacancy 
     crisis,'' especially in the 12 regional Courts of Appeals, 
     where one in six judgeships remains vacant. The Denver-based 
     10th Circuit is still waiting for nominees Tymkovich and 
     Michael McConnell of Utah to get hearings.
       In response, Senate Judiciary Committee Chairman Sen. Pat 
     Leahy, D-Vermont, pointed out that the Senate had confirmed 
     52 of Bush's nominees since Democrats took control 10 months 
     ago. He said Bush should share the blame for other delays.
       ``Controversial nominations take longer, and the President 
     can help by choosing nominees primarily for their ability 
     instead of for their ideology,'' Leahy said in a release.
       Some groups have questioned McConnell's nomination, 
     claiming that the University of Utah professor would weaken 
     the separation of church and state. They also question his 
     views because he once represented the Boy Scouts of America 
     in its bid to exclude homosexuals. McConnell backers say the 
     fears are based on misunderstandings and that he has been 
     endorsed by several Democratic academics.
       But there is little controversy over Tymkovich, Colorado's 
     former solicitor general.
       Last month, Allard and Sen. Ben Nighthorse Campbell, R-
     Ignacio, wrote Leahy, demanding that Tymkovich get a hearing.
       ``It has devolved into a petty game of entrenchment, 
     creating a vacancy crisis that prevents the service of the 
     very justice upon which our nation depends,'' they wrote.

  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. HUTCHINSON. I thank the Chair.
  I congratulate Senator Allard for an excellent statement. I have a 
similar story to tell of one of our nominees from the State of 
Arkansas.

                          ____________________