[Congressional Record Volume 148, Number 58 (Thursday, May 9, 2002)]
[Senate]
[Pages S4113-S4115]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LOTT. Mr. President, I have been wanting to speak about the 
situation with regard to the President's judicial nominations. I have a 
number of points I wish to make.
  I know there were some discussions about the nominations earlier this 
morning and even this afternoon. The major point we are trying to make 
today is that today is the 1-year anniversary of eight of the 
President's nominations to serve on circuit courts. These minorities, 
men and women, have not even had the courtesy of a hearing, let alone a 
vote in the Judiciary Committee.
  I have learned over the years that when you are talking about judges 
and judicial nominations each side will have their statistics about 
what happened in the Clinton years, what happened in the Reagan years, 
and what happens right now. But the fact is, these eight nominees have 
not even had a hearing; they have been pending for a full year.
  There are actually 11 nominees who were sent forward in a group--the 
first nominations of President Bush. Three of those have been 
confirmed. Two of those, I might add, were recycled, in effect, because 
they were Democrats, or were selected by Democrats, and they were 
qualified. The President resubmitted their names. They got through the 
process. But these eight have not had any further consideration for a 
full year.
  You can argue statistics. But usually Presidents get their circuit 
nominations confirmed within a year of having them sent forward.
  The President sought men and women of great experience and who meet 
the highest standards of legal training, temperament, and judgment--for 
all of his nominations, but particularly for this first group of 
circuit court nominees.
  He sought out nominees who respect the powers given to them by the 
Constitution and who will interpret the law--not make the law. He 
sought out nominees who have reputations as lawyers of skill, 
discernment, and high character. He even sought out nominees who had a 
great deal of experience in arguing cases before the Supreme Court. In 
this group of eight nominees, they have collectively appeared before 
the Supreme Court over 60 times. One of the nominees has alone argued 
before the Supreme Court 30 times. In terms of their education, their 
experience, and their integrity, this group is unimpeachable and quite 
remarkable.
  Here are these individuals' pictures. I think a picture helps inform 
our debate, because it takes the debate away from the realm of just 
statistics or mere names.
  Mr. President, when we are talking about judges who have been 
delayed, we are talking about Miguel Estrada, who was born in Honduras, 
and has lived the American dream. He has tremendous experience in his 
profession, including serving as Assistant U.S. Solicitor General under 
President Clinton, a Supreme Court law clerk, arguing 15 cases before 
the Supreme Court, and working as a Federal prosecutor. He also 
graduated magna cum laude from Harvard Law School--not an institution 
known for turning out conservative lawyers, or judges--but certainly 
an eminently respected institution as far as quality, high standards, 
and academic rigor are concerned. Yet Estrada has been denied a fair 
hearing.

  Why? Noone has suggested he is not qualified by education, by 
experience, or by professional or personal integrity.
  Does he have a conservative philosophy? Does he believe in strict 
construction of the Founder's intent in interpreting the Constitution? 
Yes. Does that disqualify him? It should not.
  I voted for Justice Ginsburg when she came before the Senate. I did 
not agree with her judicial or legal philosophy. I knew she would rule 
quite often in ways with which I would not agree. While most justices 
exercise discretion, you can't always count on how they may rule. But 
she was qualified by experience, by education, and by personal 
integrity and demeanor and I voted for her regardless of the fact that 
her philosophy was contrary to my own.
  Unfortunately, I cannot think of any other reason than ideological 
prejudice for why Miguel Estrada has not had a hearing and an 
opportunity to be voted on--despite the fact that he was unanimously 
given the ABA's highest rating, ``well qualified'' by the American Bar 
Association which is supposed to be the Democrat's Gold Standard for 
evaluating nominees judicial qualifications. Yet, Miguel Estrada has 
not even had a hearing.
  Another example, which is clearly one that is hard to understand, is 
the delay in considering Justice Priscilla Owen, a nominee to the Fifth 
Circuit Court of Appeals. I have a special feeling in my heart about 
this circuit because it does include my State of Mississippi. Judge 
Owen has served on the Texas Supreme Court since 1994. She has been 
involved in business in the private sector. She is an outstanding 
graduate of Baylor Law School in Texas.
  Again, by education, by experience, and by personal integrity, this 
is a lady who should have been accorded a hearing and a vote by now in 
the Judiciary Committee and on the floor of the Senate.
  Mr. President, why do we need another pound of flesh concerning the 
Fifth Circuit Court of Appeals? Is Judge Charles Pickering who has 
already been voted down in the Judiciary Committee not enough. If we 
are looking for tit for tat, how about just saying: OK, good, take 
that, Mr. President, Trent Lott, Republicans, we repaid you what you 
deserved from the past? But how does all of that apply to Priscilla 
Owen? Why has this lady not been accorded a hearing? Remember,

[[Page S4114]]

once again, that she has been pending for a full year.
  One interesting thing of note, Mr. President, is that two of these 
nominees, were actually nominated by the first President Bush. So they 
in a sense have been waiting over 10 years to get a fair hearing and be 
confirmed to the circuit courts.
  John Roberts is one of those two, and has again been nominated to the 
DC Circuit Court of Appeals. He is one of the Nation's leading 
appellate lawyers, having argued 36 cases before the U.S. Supreme 
Court, and serving as a Deputy Solicitor General for our Nation. He 
also graduated magna cum laude from Harvard. So again, by education, by 
incredible experience, and by personal integrity, he has stellar 
qualifications to serve as a circuit court judge. Yet, he too has been 
denied a fair hearing and an opportunity to be considered by the Senate 
by the majority of Democrats on the Judiciary Committee.
  Mr. President, our Nation's fourth President, James Madison, was 
certainly correct when he said that the courts exist to ``exercise not 
the will of men, but the judgment of law.'' This President has gone to 
great lengths to nominate the kind of men and women who will do that 
once they are confirmed.

  Another nominee who has been delayed for over a year without cause or 
justification, is Justice Deborah Cook, nominated to the Sixth Circuit 
Court of Appeals. She has served as a justice on the Ohio Supreme Court 
since 1994. Before becoming a judge, she was the first woman partner at 
Akron's oldest law firm. She is a graduate of the University of Akron 
Law School.
  This is the circuit where half of the judicial seats are vacant. 
There is a long history on why that is, but the fact is that again the 
nominee is an eminently qualified nominee. And she has been waiting 52 
weeks for a hearing even though the ABA voted unanimously that she was 
qualified.
  So what is the problem, Mr. President? There are no allegations of 
improper conduct. There are no allegations that she is not qualified by 
experience, by education, or by demeanor, yet she is still waiting on a 
hearing.
  Yet another nominee unjustifiably delayed is Judge Terrence Boyle, a 
nominee to the Fourth Circuit Court of Appeals. He was unanimously 
confirmed to be a Federal district judge in 1984.
  Mr. President, one of the things that struck me as very interesting 
about Judge Pickering's treatment by the Democrats was that he has been 
a sitting federal district court judge since 1990, over 12 years. And 
now we have a nominee who has been a Federal district judge for almost 
two decades, who was unanimously confirmed in 1984. The former chairman 
of the State Democratic Party in North Carolina even supports his 
nomination. He is a graduate of American University's Law School. This 
is one of the two nominees, the other being John Roberts, who was first 
nominated to be a circuit court judge back during the first President 
Bush's administration. He was younger and well experienced then, and he 
now has another decade of experience as a Federal district court judge 
to his credit. And here he is back again, only to be denied a fair 
hearing by the Democrats.
  So, in each and every one of these cases, there is no explanation for 
the year-long delay in giving President Bush's first group of nominees 
prompt and fair treatment.
  Michael McConnell has been nominated to the Tenth Circuit Court of 
Appeals and again he is an eminently qualified legal scholar. He is one 
of the Nation's leading constitutional scholars, the author of legal 
books, and a prolific contributor to law journals. He has argued 11 
cases before the Supreme Court. His reputation for fairness and 
integrity has generated support from numerous law professors. He is a 
graduate of the University of Chicago Law School. Again, on what 
possible grounds is such an extraordinarily qualified individual denied 
a hearing for over a year?
  Judge Dennis Shedd, a nominee to the Fourth Circuit Court of Appeals, 
was another nominee unanimously confirmed to be a Federal district 
judge in 1990--yet another sitting Federal district judge, Mr. 
President. He is strongly supported in his home State by both 
Senators--Senator Fritz Hollings and Senator Strom Thurmond--and served 
in the past as chief counsel to the Senate Judiciary Committee. He is 
one of ours no less. Yet, he has been waiting unjustifiably for over a 
year for a fair hearing and a vote.
  Mr. President, I believe I have talked about each one of the 
nominee's personal qualifications to serve on the circuit courts of 
America. I should note that, back in January, the chairman of the 
Judiciary Committee indicated there would be a hearing for Justice 
Priscilla Owen, Michael McConnell, and Miguel Estrada--and that they 
would have hearings this year. Now, I guess we have 4 more months that 
have expired, another 4 months in which they have not been given a 
hearing much less a vote.
  I hope they will given more than the courtesy of a hearing, which 
seems the minimum they should have. They should have a vote in the 
Judiciary Committee and then a vote here in the full Senate.
  Mr. President, the delay in confirming such well qualified nominees 
to be judges has had an adverse impact on the judicial system itself. 
The number of vacancies has gone up over the past year--there are now 
almost 100 judgeships vacant--while 44 nominations languish in the 
Senate. As a result, justice is being delayed as the caseload burden 
increases for almost every current judge in the nation.
  I would take a moment to note one curious thing about today's efforts 
regarding judges. We had six judges on the calendar ready to be voted 
on; but only four were moved, the other two were not. One of the two 
nominees has a very close association with Senator Hatch. The other one 
is the lone circuit judge on the calendar. So, once again, it appears 
circuit judges are receiving worse treatment by the Judiciary Committee 
than are the Federal district court nominees.
  I realize around here we get to thinking: Well, wait a minute, 
circuit courts are more involved in the interpretation of the law. 
Maybe they are more important. But I will tell you what, if you ever 
practiced a day of law, the ones you see who really are dealing with 
the law every day are the Federal district judges. I do not understand 
the big dichotomy here and why the circuit judges are being delayed and 
treated so unfairly.
  I want to point out what is happening in terms of these circuit 
judges nominated by President Bush as compared to the treatment that 
was afforded circuit court nominees during President Clinton's first 
two years in office.
  First off, I should note that while President Bush sent his first 
nominations up on May 9, 2001, a year ago, President Clinton did not 
send up his first batch of nominations to the Senate until August of 
his first year in office.
  So, there was actually less time to actually get President Clinton's 
nominees confirmed than there has been to get George Bush's out.
  Yet you can see from the chart what is actually happening with Bush's 
nominees, particularly with respect to the circuit judges. President 
Clinton, in the 14 months after his first nominee was sent up, got 86 
percent of them confirmed by the time Congress adjourned. Ultimately, 
over the course of the following Congress, Clinton ended up getting 
almost all of the judges he nominated during his first Congressional 
term. Again, I am not going to get into great arguments over the exact 
percentages or numbers, but there is clearly a problem here. While 
Clinton got 86 percent of his circuit judges by the time his first 
Congress adjourned, President Bush only has 30 percent so far. And at 
the current pace the judiciary is considering Bush's nominees, it looks 
like Bush is not going to break 50% by the end of this Congress.
  It looks as if we might get two or three more circuit judges by the 
end of the year, but it surely is moving deliberately slowly. The 
American people recognize this is a problem for the country. When you 
have a circuit like the 6th circuit that has a 50-percent vacancy rate, 
then you begin to wonder, do we have enough judges to cover all the 
cases, even the truly important ones?
  This is a question of law and order, Mr. President, drug cases, 
terrorist cases.
  Justice Rehnquist, the Chief Justice, has decried the vacancy crisis 
as

[[Page S4115]]

``alarming.'' More than 10 percent of Federal judgeships are currently 
vacant. So this problem for our nation that is very serious, 
particularly after the terrorist attacks in New York and here in 
Washington.
  I have talked to Senator Daschle about it. Senator Nickles and I, 
along with Senator Hatch, have talked to Senator Leahy and Senator 
Reid. I know, having been majority leader, that sometimes these 
problems are hard to resolve. The Judiciary Committee doesn't always 
follow instructions even from the elected leaders. But this creates a 
problem. We have been trying to resist slowing down or blocking 
meetings or progress on the legislative process because we want to move 
forward on these important bills. But we have to point out that there 
is a blatant unfairness here, to the country and to the nominees. I 
can't help but think of the cliche that justice delayed is justice 
denied. That is what is happening here.
  I know my time is running out. I probably will come back and talk 
more about this later. I ask for fairness, fairness for these eight 
circuit judges. We can argue about the others later, the other circuit 
nominees, other district judges, but after an entire year President 
Bush's first eight nominees should have a hearing. They should have a 
vote on the Senate floor. No criticisms have been raised against them 
other than un-attributed hints that they are conservative, and the 
current majority in the Senate is looking for some sort of a litmus 
test or conformance, I guess, based on philosophy and ideology. I don't 
think that either fair or appropriate. It is not what is called for 
under the Constitution. I hope that the Senate will ultimately find a 
way to make progress in this area and give these nominees the 
opportunity to be fairly considered based upon their temperament, 
professional and educational qualifications, and their personal 
integrity.
  As President Bush has noted in making the case for getting his 
nominees confirmed, Federal judges are key to making sure America 
functions well. Every day they uphold the rights of an individual, they 
protect the innocent, they punish the guilty. Their rulings are 
essential to the rule of law in our nation. To discharge their 
responsibilities the federal courts must have judges.''

  Because of the number of vacancies in our nation's courts, Americans 
are being forced to wait for justice, and the burden on federal judges 
is growing heavier.
  Mr. President, one newspaper, the Wichita Eagle, got it exactly right 
on the judges issue back in March in part I think because it is located 
in the heart of America when it said: ``But just as presidents have an 
obligation not to nominate the incompetent or unqualified to the 
federal bench, presidents deserve the broad authority in making their 
choices for such judicial posts. And the Senate has a responsibility to 
give those choices every possible consideration and, barring some 
glaring defect, confirm them quickly. Yet the backstabbing and stalling 
on judicial confirmations has escalated to the point of obstructing 
justice. It needs to stop.''
  This President's nominees are men and women of distinction and great 
accomplishment. They are solidly within the mainstream of American 
legal opinion, and they share a principled commitment to follow the 
law, not legislate it from the bench.
  Mr. President, President Bush' nominees should be given fair 
hearings, voted on, and confirmed by the Senate as soon as possible.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Mr. President, the people who have been discussing and 
negotiating the trade matter have asked for a little additional time. 
In order to accommodate their discussions, I ask unanimous consent that 
the period for morning business be extended until 3:45.
  Mr. LOTT. Mr. President, at this point I would have to object. I 
don't know that I would want to. I just have not had a chance to 
discuss this with Senator Daschle.
  The PRESIDING OFFICER. The Senator from Georgia.
  (The remarks of Mr. Cleland pertaining to the introduction of S. 1492 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Nevada is recognized.

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