[Congressional Record Volume 148, Number 58 (Thursday, May 9, 2002)]
[Senate]
[Pages S4108-S4111]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. HUTCHINSON. Mr. President, I wish to speak about the tragic hold 
up of our circuit court nominees to the Federal bench. It takes only a 
few numbers to show the dramatic vacancy crisis we are facing in the 
Federal court system: 10 percent of Federal judgeships are vacant right 
now, 85; 20 percent of judicial seats at the Federal courts of appeals 
are vacant. With eight openings, half of the entire Sixth Circuit is 
now vacant. It is operating at half strength.
  The Judiciary Committee has held a hearing on only one of President 
Bush's seven nominees for the Sixth Circuit, and that hearing was held 
just a week and a half ago after pending for over 6 months. Two of the 
Sixth Circuit nominees, Jeffrey Sutton and Deborah Cook, were nominated 
a year ago today but have not yet had a hearing.
  Do they question their ability? The ABA rated both nominees as 
unanimously qualified, but they have languished for a year.

[[Page S4109]]

  The numbers simply do not lie: 44 nominations are currently pending 
before the Judiciary Committee. Unfortunately, 22 of those unconfirmed 
nominees are for circuit courts, the court of last resort for most 
cases.
  In 1996, the current Judiciary Committee chairman called a vacancy 
rate of only two-thirds as high as the one we face today a judicial 
emergency. It is even more so today, and we are doing even less about 
it.
  Of the current 85 vacancies, 37 are considered judicial emergencies 
by the Administrative Office of the U.S. Courts. This is calculated 
based on the number of years the judgeship has been open and the size 
of the court's caseload.
  Perhaps the most staggering fact is this: Of the President's first 11 
circuit court nominees submitted to the Senate on May 9, 2001, only 3--
Mr. President, only 3--have even received hearings by the Senate 
Judiciary Committee.
  This is a crisis by any definition, by any measure, and it is 
inexcusable.
  One of the nominees who has been waiting almost a year is from my 
home State of Arkansas.
  He is a very distinguished, very qualified jurist named Lavenski 
Smith. This is my friend Lavenski Smith.
  It is very easy to talk numbers. Numbers come and go. People come to 
the Chamber and argue numbers and statistics, but I want to put a face 
on what we are really talking about.
  Judge Smith was nominated for the Eighth Circuit Court of Appeals 
almost a year ago, on May 22, 2001. I brought this picture of Lavenski 
Smith in the hopes this might put a human face on at least one of the 
people we are hurting by these unjust and inexcusable delays. Judge 
Smith has received broad support from both of his home State Senators, 
from colleagues on the bench in Arkansas, from colleagues from his days 
of practicing law. He has received the support of the American Bar 
Association. He has received the support of the president of the 
Arkansas NAACP. He has received the support of editorial boards of both 
the left and the right ends of the political spectrum in the State of 
Arkansas.
  That is broad support. That is support from the left and the right. 
There is support from every colleague who has ever worked for him. 
There is support from his colleagues on the Arkansas Supreme Court. 
There is support from the American Bar Association. There is support 
across the board.
  The NAACP president has written asking for a hearing. Yet Judge 
Smith's nomination languishes. Why? If he is confirmed, Judge Smith 
will be the first African-American Arkansan on the Eighth Circuit. I 
wonder what the ladies and gentlemen of the press would be saying about 
this nomination were the tables reversed, were Republicans in control 
and a Democrat nominee, an African American, who would be the first on 
the Eighth Circuit Court of Appeals, had languished for almost a year 
without even a hearing.
  Ever since this nomination, I have looked forward to the day when I 
could sit next to Judge Smith in the Senate Judiciary Committee and I 
could give a glowing introduction of my friend at that hearing. I have 
been waiting, I have been waiting, and I have been waiting. I have 
written Senator Leahy over and over, and I have talked to Senator 
Leahy. Others have written and pleaded for a hearing, and yet nothing 
has happened.
  I would like to tell my colleagues about my friend. Lavenski Smith 
earned both his bachelor's degree and his law degree from the 
University of Arkansas. Following law school and 3 years working in 
private practice, Judge Smith served the poorest and the neediest 
citizens of Arkansas as the staff attorney for Ozark Legal Services. At 
Ozark Legal Services, he represented abused and neglected children. 
These were children whose own parents were unwilling or unable to act 
in their best interest, putting the children in danger. So Judge Smith 
stepped in.
  Judge Smith helped these children. He represented them in our complex 
legal system and navigated the foster care system for them. He helped 
find the safest place for these children to grow and to thrive. So he 
is committed to the needy. He is committed to the poorest, and he has 
demonstrated that with his life, not just with his rhetoric.
  In addition to this public service, Lavenski Smith has volunteered 
his spare time to charitable endeavors such as raising funds for the 
School of Hope, a school for handicapped children in his hometown of 
Hope, Arkansas. After Judge Smith spent years working at Ozark Legal 
Services, Judge Smith opened the first minority-owned law firm in 
Springdale, AR, handling primarily civil cases. He then taught business 
law at John Brown University and took several positions in public 
service, including working as the regulatory liaison for Governor Mike 
Huckabee in the Governor's office. He currently serves as a 
commissioner on our Public Service Commission.
  Now I mentioned he has this very broad support, and indeed he has. So 
let me share some of the statements of support for Judge Lavenski 
Smith, former Arkansas Supreme Court Justice, who was nominated almost 
a year ago to the Eighth Circuit Court of Appeals and has not been 
granted even the courtesy of a hearing before our Judiciary Committee.
  Dale Charles, the president of the Arkansas NAACP, President Charles 
wrote:

       He's a fine person individually and in his time on the 
     Supreme Court he represented himself and the court well. I 
     encourage them to question him and let his record speak for 
     itself. I do not foresee his confirmation being in jeopardy.

  This is Dale Charles, president of the Arkansas NAACP. Dale Charles 
wrote this letter some time back. He wrote more recently on April 8 a 
specific letter to Chairman Leahy, and I ask unanimous consent that 
this letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                      National Association for the


                                Advancement of Colored People,

                                   Little Rock, AR, April 8, 2002.
     Senator Patrick Leahy,
     U.S. Senate, Chairman, Judiciary Committee, Russell Senate 
         Office Building, Washington, DC.
       Dear Chairman Leahy: As the President of the Arkansas State 
     Conference of Branches NAACP, I am writing to express our 
     concern that Attorney Lavenski Smith, who is from Arkansas, 
     has not been given a confirmation hearing. President Bush 
     nominated Mr. Smith approximately a year ago for the Eighth 
     Circuit Court, however, he has not been given a hearing 
     before the Judiciary Committee.
       While I understand there are some partisan issues involved, 
     I am asking you as Chairman of the Judiciary Committee to, 
     immediately, schedule a hearing on behalf of the confirmation 
     of Mr. Smith for the Eighth Circuit Court. It is my opinion 
     that Mr. Smith is a fine individual and has served the people 
     of Arkansas well in his capacity as a public official.
       For additional information, you may contact me at (501) 
     227-7231 or by e-mail at [email protected].
           Sincerely,
                                                     Dale Charles,
                                                        President.

  Mr. HUTCHINSON. I would like to share with my colleagues what the 
President of the Arkansas chapter of the NAACP wrote concerning my 
friend Lavenski Smith:

       Dear Chairman Leahy, as the President of the Arkansas State 
     Conference Branch of the NAACP, I am writing to express our 
     concern that attorney Lavenski Smith, who is from Arkansas, 
     has not been given a confirmation hearing. President Bush 
     nominated Mr. Smith approximately a year ago for the Eighth 
     Circuit Court of Appeals. However, he has not been given a 
     hearing before the Judiciary Committee. While I understand 
     there are some partisan issues involved--

  That is the greatest understatement ever made--

       I am asking you, as chairman of the Judiciary Committee, to 
     immediately schedule a hearing on behalf of the confirmation 
     of Mr. Smith for the Eighth Circuit Court of Appeals. It is 
     my opinion that Mr. Smith is a fine individual and has served 
     the people of Arkansas well in his capacity as a public 
     official. Sincerely, Dale Charles, NAACP.

  What kind of support does one have to have to get a hearing? How long 
does one have to wait to get a hearing?
  In June of 2001, the American Bar Association, which has been called 
the gold standard of qualifications, agreed and made a unanimous 
qualified determination. Chief Justice of the Arkansas Supreme Court, 
W.H. ``Dub'' Arnold, well-respected jurist in the State of Arkansas, 
wrote on behalf of Lavenski Smith:

       He is a great man. He is very intelligent. He did a great 
     job for us on the Arkansas Supreme Court. I think he'll make 
     a great Federal judge. I think President Bush made the best 
     possible nomination he could have made.


[[Page S4110]]


  Now, Justice Arnold is a Democrat, but he is a fair-minded Democrat 
and he is a distinguished jurist and he weighs in and says President 
Bush made the best possible nomination he could have made.
  We put in a call to Judge Smith to let him know I would be making 
these remarks on his behalf in this Chamber. Judge Smith said: Well, go 
ahead. I do not think it will make much difference, but go ahead.
  I was so crushed that he is so cynical about the process that has 
already delayed this nomination for a year and not even given him a 
hearing, that his attitude about pushing hard for it really will not 
accrue to any results.
  Mike Huckabee, Governor of the State of Arkansas stated:

       He just has all the equipment to be an outstanding jurist. 
     I'll be the first to predict that his next stop will be the 
     United States Supreme Court.

  Governor Huckabee is a Republican. So we have Dub Arnold, a Democrat, 
and we have Mike Huckabee, a Republican. We have the NAACP. We have the 
American Bar Association in June of 2001 saying that a unanimous 
qualified determination has been made regarding Judge Smith's 
nomination. Yet he waits. It has now been almost 1 year since he was 
nominated.
  I have thought and thought, why? I understand a nomination that is 
controversial, a nomination that has severe opposition within the State 
of Arkansas--perhaps if the letter from the president of the NAACP had 
been a critical letter or perhaps if his colleagues on the Arkansas 
Supreme Court had come out publicly and said they question his 
qualifications, perhaps then there would be some way to understand why 
there has not even been a hearing for Judge Smith.
  So I have thought about why, and the only opposition I can find, I 
say to my distinguished colleagues and to our Presiding Officer today, 
to Judge Smith's nomination is found on two Web sites. One is NOW, the 
National Organization for Women, and the other is NARAL.
  Judge Smith, for all of his qualifications, all of his distinguished 
service, all of his commitment to the poor, needy, and handicapped in 
our society, has one grave shortcoming: He is pro-life. There are those 
on the Judiciary Committee who have said: Don't send us a pro-life 
nominee. They are dead on arrival. That is tragic.
  To those who for years have denounced the idea of a litmus test to 
the Federal bench, that we only look at whether one is qualified or 
not, no one raised the issue of whether Judge Smith is qualified. Yet 
the only opposition has been NARAL and the National Organization of 
Women, and they say he is pro-life; he has a record of being pro-life. 
How can we possibly consider him for the Eighth Circuit Court of 
Appeals? That is a litmus test if there ever was one, and they are 
blatant about it. So we wait. And Judge Smith waits.
  Holding up judicial nominees is not just a political game. The 
confirmation process is not a payback opportunity for perceived wrongs 
of the past, nor should it be viewed as a chance to throw a roadblock 
before a new President's administration. The American people are 
watching the Senate's failure to fulfill its constitutional duty, and 
they are wondering if we understand what our role is.
  Last week, I received a call from a constituent in Arkansas. She had 
previously written to me asking me why the President's very well-
qualified nominee to the Eighth Circuit Court of Appeals, Lavenski 
Smith, has been waiting for close to a year without the courtesy of a 
hearing. I responded the way I am sure many Members do, by pointing out 
the letters I have written supporting Judge Smith's nomination, urging 
quick attention by the Judiciary Committee. I told her I was working 
hard to convince the committee to examine his qualifications, as I knew 
they would find his stellar record more than adequate for the job. I 
wrote to this lady, my constituent, that Senate procedure required the 
nominations to be reported out of the Judiciary Committee.
  She received my letter and called me last week. She said she had 
looked through her Constitution and wanted to read to me article II, 
section 2.2, which states that the President shall appoint justices 
with the advice and consent of the Senate--not the Judiciary Committee. 
She wanted to know why the Senate was allowing a partisan hijacking of 
Senate procedure to prevent fulfillment of our constitutional duty.
  I tell this story to illustrate that the vacancy crisis in the 
judiciary is having affects beyond the administration of justice. Our 
failure does not just create backlogs that allow dangerous criminals on 
the street longer, leaves the innocent waiting longer for vindication 
and slow victims access to justice. When we leave half of the bench of 
a court of appeals empty and another one only two-thirds full, the 
American people start to doubt our ability and our will to carry out 
our constitutional duties.
  I know my colleagues on both sides of the aisle share my reverence 
and respect for the Constitution. I hope we will move forward and 
confirm, or at a very minimum, have hearings and votes on the 44 
nominees still pending, including my very qualified and very dear 
friend, Lavenski Smith, who would be a very able jurist and judge on 
the Eighth Circuit Court of Appeals. This will set an important 
precedent for this circuit court of appeals by serving as the first 
African American on the Eighth Circuit Court of Appeals.
  I ask once again, after nearly a year, for a hearing for my friend 
and for movement on these very important judicial nominations.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, there have been a couple of speeches on 
judges. I will say a few things pertinent to the discussion regarding 
judges.
  There is no better place to start than a few statements made by the 
Republicans in recent days. In 1999, the Republican leader, Senator 
Lott, said:

       I am saying to you, I am trying to help move this thing 
     along, but getting more Federal judges is not what I came 
     here to do.

  That is the Republican leader.
  The Senator from Pennsylvania, Senator Santorum, said on November 11 
of 2001:

       The delays are a result of ``rank partisanship by Tom 
     Daschle.''

  But this is what he said on the 18th day of August the year 2000:

       A number of my Republican colleagues are not likely to rush 
     President Clinton's lifetime judicial nominees through the 
     confirmation process when they think there is a chance 
     another party could occupy the White House in January.

  My friend, Senator Craig of Idaho, said in June of 1996:

       There is a general feeling . . . that no more nominations 
     should move. I think you'll see a progressive shutdown.

  Now what he is saying:

       There seems to be a concerted effort to operate very slowly 
     around here.

  My friend, Orrin Hatch, the chairman of the committee, talked about 
his ideology. He said, when chairman of the committee a couple years 
ago:

       I led the fight to oppose the confirmation of these two 
     judges because their judicial records indicated they would be 
     activists who would legislate from the bench.

  A couple of months ago he said:
       I would like to address some recent attempt to reinvent 
     history by repeating this convenient myth that I, as 
     chairman, blocked President Clinton's nominations on the 
     basis of political ideology.

  That is what he said.
  Again, my friend, the Republican leader said:

       The reason for the lack of action on the backlog of Clinton 
     nominations was his steadily ringing office phone saying ``no 
     more Clinton Federal judges.''

  Senator Lott said he received a lot of phone calls saying ``No more 
Clinton judges.'' So that is what he did.
  He said to the Bulletin's Frontrunner, a newspaper:

       Until we get 12 appropriations bills done, there is no way 
     any judge, of any kind, or any stripe, will be confirmed.

  Senator Hatch said:

       The claim that there is a vacancy crisis in the Federal 
     courts is simply wrong. Using the Clinton administration's 
     own standard, the Federal Judiciary currently has virtual 
     full employment.

  We have established the vacancies in the Federal judiciary created by 
Republicans. Senator Hatch said don't worry.
  Although just a short time ago he said:

       If we don't have the third branch of government staffed, 
     we're all in trouble.

  The Republicans say they want hearings. I heard my friend from 
Arkansas say they want hearings.

[[Page S4111]]

  These are people President Clinton nominated who never ever got a 
hearing--not 2 days later, 2 weeks later, 2 months later, 2 years 
later. They never got a hearing. Fine people. In Illinois, Wenona 
Whitfield; in Missouri, Leland Shurin; in Pennsylvania, John Bingler; 
in South Dakota, Bruce Greer; in California, Sue Ellen Myerscough; 
Texas, Cheryl Wattley; in Texas, Michael Schaffman.
  Circuit judges in the Fourth Circuit, James Beaty; Richard Leonard, 
never got hearings; Annabelle Rodriquez. In the 105th Congress, Helene 
White, Ohio; Jorge Rangel in Texas; Jeffrey Coleman, North Dakota; 
James Klein, District of Columbia; Robert Freedberg, Pennsylvania; 
Cheryl Wattley, Texas; Lynette Norton, Pennsylvania; Robert Raymar, 
Third Circuit; Legrome Davis, Pennsylvania; Lynne Lasry, California; 
Barry Goode, California. No hearings.
  In the 106th Congress, 33 never get a hearing: H. Alston Johnson, 
Louisiana; James Duffy, Hawaii; Elana Kagan, District of Columbia; 
James Wynn, North Carolina; Kathleen McCree-Lewis, Ohio; Enrique 
Moreno, Texas; James Lyons, Colorado; Kent Markus, Ohio; Robert 
Cindeich, Pennsylvania; Stephen Orlofsky, New Jersey; Roger Gregory, 
Virginia; Christine Arguello, Colorado; Elizabeth Gibson, North 
Carolina; J. Rich Leonard, District of Columbia; Patricia Coan, 
Colorado; Dolly Gee, California; Steve Bell, Ohio; Rhonda Fields, 
District of Columbia; S. David Fineman, Pennsylvania; Linda Riegle, 
Nevada; Ricardo Morado, Texas; Gary Sebelius, Kansas; Ken Simon, 
Hawaii; David Cercone, Pennsylvania; Harry Litman, Oklahoma; Valerie 
Couch, Oklahoma; Marion Johnston, California; Steve Achelphol, 
Nebraska; Richard Anderson, Montana; Stephen Liberman, Pennsylvania; 
Melvin Hall, Oklahoma.

  Before I sit down, they talk about Hispanic nominees. There is a 
Hispanic nominee they say has not moved quickly enough.
  Jorge Rangel, who was nominated in July of 1997, never got anything. 
Enrique Moreno, Fifth Circuit, nominated in 1999, didn't get anything. 
Christine Arguello, July of 2000--nothing happened. Ricardo Morado, 
south Texas--nothing happened. Anabelle Rodriguez--these are just some 
of the names.
  I suggest before the tears run too heavily down the cheeks of my 
Republican friends, they should go back and read their own statements 
given by their own Senators, and find out the States where people who 
were nominated by President Clinton never got a hearing.
  The PRESIDING OFFICER (Mr. Carper). The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, how much time do we have 
remaining on this side?
  The PRESIDING OFFICER. The Senator has 14 minutes.
  Mr. LOTT. Mr. President, parliamentary inquiry, if the Senator will 
yield: How much time is remaining on this side of the aisle?
  The PRESIDING OFFICER. Fourteen minutes.
  Mr. LOTT. On each side?
  The PRESIDING OFFICER. Yes.
  Mr. LOTT. Mr. President, the majority leader took some time at the 
beginning of this debate. Was that out of leader time?
  Mr. REID. It was not out of leader time.
  Mr. LOTT. It was not out of leader time?
  The PRESIDING OFFICER. It came out of morning business time.
  The Senator from Florida.
  Mr. NELSON of Florida. I ask, of the remaining 14 minutes, that I 
have consent to have 5 minutes and the remaining time for my colleague 
from Minnesota, to be followed by me.
  Mr. LOTT. I reserve the right to object, Mr. President. I believe the 
agreement was we would have it equally divided; we could go back and 
forth. So after 5 minutes I would like to then have an opportunity to 
speak out of our time on this side.
  Mr. NELSON of Florida. Then, Mr. President, I will yield to the 
Senator from Minnesota. He has a time problem.
  Mr. WELLSTONE. Mr. President, that is very gracious. The Senator from 
Florida will go now followed by the minority leader and then I will 
follow the minority leader.
  The PRESIDING OFFICER. The Senator from Florida.

                          ____________________