[Congressional Record Volume 148, Number 58 (Thursday, May 9, 2002)]
[Senate]
[Pages S4115-S4120]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. BROWNBACK. Mr. President, I rise to speak about the past year's 
judicial nominations, which is something on which several people have 
spoken today. I just came from a meeting with the President where he 
was talking about his frustration in getting judicial nominees 
considered. He was quite animated and discouraged that we have not been 
getting more judicial nominees through the system--particularly circuit 
court judges. That is what he was stating. That is what the meeting was 
about. He wants to see more happening and more of them occurring, and 
we need to do so. People have been pretty clear on the information of 
what technically and specifically has happened.
  Since May 9 of last year, we have had 11 judicial nominees for the 
U.S. circuit courts of appeal. Those eleven were nominated 1 year ago. 
Since that time, only 3--including 2 Democrats--have been confirmed. Of 
the remaining 8, not one has even been scheduled for a hearing. We have 
not held hearings on these individuals. We need to get this done and 
start to move them forward. It is an issue that is engaging the 
country, and I think increasingly so, as we move into the fall. We have 
a number of pieces of legislation that I think, in the post 9-11 
environment, will be considered and looked at by the courts and need to 
be reviewed. We need to have a fully staffed court. Right now we have a 
20-percent vacancy on the circuit court; and within some of the 
circuits, it is even a much larger one.
  In the Sixth Circuit there are 16 positions and only half of those 
are filled.
  What is even more troubling is that we have had a long and 
established tradition of giving the President--regardless of his 
political affiliation--a good deal of deference on his nominees who 
might be unfairly targeted as being extremists.
  However, as we found out during the Charles Pickering nomination and 
subsequent hearings, the real extremism is being employed by those 
people who are artfully using the terms ``balance'' and ``moderation'' 
to set the stage for ending deference to the President and excluding 
perfectly qualified judges. Judge Pickering was an individual nominated 
to go on the circuit court. He served on the Federal bench for over 10 
years.
  This practice does not bode well for the future of this committee 
when it may have to deal with Supreme Court nominees in the near 
future. To highlight just how bad it can be, it might be helpful to see 
how many Supreme Court Justices of the past would fare under the 
ideological litmus test that is now plainly evident and used on the 
committee.
  Would some of our great Justices of the past survive the litmus test 
being put forward by the committee now?
  John Marshall, the first Chief Justice of the Supreme Court and 
author of some of the most important legal decisions for this Nation, 
would likely be rejected today by the Judiciary Committee because his 
view on interstate commerce in the Gibbons v. Odgen would be seen as 
too pro-federalism.
  Oliver Wendell Holmes, perhaps the greatest Supreme Court justice, 
would have trouble because he affirmed a state law providing for the 
sterilization of the mentally ill in Buck v. Bell. Felix Frankfurter, 
an ACLU member and a ``liberal'' Roosevelt appointee, would be rejected 
because he did not believe that the fourth amendment required the 
exclusion of evidence seized

[[Page S4116]]

by State police officers without a warrant in the 1961 Mapp v. Ohio 
case. Nor would his argument in West Virginia Board of Education v. 
Barnette that the first amendment prohibited schools from requiring 
students to salute the American flag pass muster with the committee 
today.
  Even Earl Warren, the most liberal chief justice ever and author of 
Brown v. Board of Education, would have a tough confirmation battle 
under the committee's new standard. After all, he took the reactionary 
position of not supporting extension of the first amendment protection 
to flag burning.
  Louis Brandeis, the great liberal craftsman, would no doubt be 
rejected because he supported federalism against New Deal legislation 
and voted to strike down legislation in the Schecter case as being 
beyond the power of Congress.
  Byron White, President Kennedy's nominee, whose recent passing was 
mourned and elegantly eulogized around the Nation, would of course be 
rejected today because he committed the unpardonable sin of disagreeing 
with Roe v. Wade.
  The question facing the President on this anniversary date is what he 
can do to move judges to the floor for swift confirmation. Given the 
extremist tactics of outside interest groups and their influence over 
committee members, the President could consider compromising on his 
philosophy of nominating judges, men and women of experience who meet 
the highest standards of legal training, temperament, and judgement. As 
history has shown, however, it would mean overlooking the kind of 
judges who have made our judiciary a model for the world. Unlike some 
issues, the integrity of the law and the qualifications of judges who 
will interpret and uphold them cannot be compromised.
  I join my colleagues in urging Chairman Leahy of the Judiciary 
Committee and Majority Leader Daschle in scheduling hearings and floor 
votes as soon as possible. I believe we have had ample time to make our 
points. It's now time to act.
  I think if we do not act, this is going to continue to fester across 
the country, and that will embroil us even greater this fall, with the 
President leading the charge on this issue of why the Senate isn't 
acting. Why isn't the Senate moving these judges through--particularly 
circuit court judges? It will be a much more engaged and animated issue 
this fall, with the President leading the charge.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, I rise to speak in morning business on the 
topic that has been the issue du jour--the question of Federal judges. 
It is my great honor to serve on the Senate Judiciary Committee. I have 
witnessed and experienced personally the Clinton administration and 
their efforts to fill vacancies on the Federal bench, and the first 
Bush administration--President George W. Bush--and his efforts to fill 
vacancies on the Federal bench.
  I find it extremely interesting that today appears to be the national 
day for members of the Republican Party to complain about the pace of 
approval of President Bush's judicial nominees. What I find interesting 
about that complaint is that, just on its face, it makes no sense 
because we just approved four more Federal nominees who were brought to 
us by President Bush, bringing the total to 56.
  Now, 56 Federal judges--to put it into historic context--is more than 
the Republicans, in any similar period of time, approved while 
President Clinton was in the White House during his entire tenure. In 
any given year, the Republicans failed to approve as many judges for 
President Clinton as the Democrats have already approved for President 
Bush. Today, the total number came to 56.
  Now, I understand where the Republicans are coming from on this. They 
want them all. They want to fill every vacancy with a proposed nominee 
from President Bush, and they want this to happen immediately. It is 
more than just rewarding their friends and giving them lifetime 
appointments to the Federal bench. What is at issue here, even more 
importantly, is putting people with a certain philosophy on these 
Federal courts. Of course, their decisions as Federal judges are going 
to be meaningful to the Nation for generations to come--whether we are 
talking about rights of privacy or the environment, all of these things 
decided by judges.
  Historically, we think, when we talk about courts and their impact, 
that we should focus on the Supreme Court. Of course, we should. It is 
the highest court in the land. But just consider for a moment this 
statistic: Last year, the Supreme Court of the United States decided 
approximately 80 cases. The courts of appeal, circuit courts, decided 
over 57,000 cases.
  For most people looking for justice through the Federal court system, 
the court of appeals for their region is the last stop, the final word. 
These courts make binding decisions relative to statutes that have been 
passed by Congress and issues that are important to the American people 
on a regular basis, on a daily basis.
  So when we consider nominees by the Bush White House for lifetime 
appointments to these important appellate level courts, I hope you can 
understand that those of us on the Democratic side feel a 
responsibility to know something about the nominees, and, more 
importantly, to make certain those nominees come close to meeting 
several basic standards. One of those standards, of course, is legal 
skill. We insist on that. I hope that is something that is not 
debatable. Second is integrity, which is certainly not debatable. 
Third, and most important, we are looking for people who take a 
moderate point of view.

  There are lawyers who I have met that have extreme positions on the 
right and the left. The Republicans on the Senate Judiciary Committee 
sent word to the Clinton White House: Do not send us any left-wing 
judges because they are going nowhere. True to their word, anyone who 
looked like they were liberal did not have a chance when it came to the 
Senate Judiciary Committee in the Clinton years.
  Interestingly enough, it appears the Bush White House believes they 
are not burdened by the same restriction. They are sending nominees for 
the Senate Judiciary Committee to consider who, frankly, are out of the 
mainstream, much more extreme in their points of view on the right than 
anyone ever nominated by President Clinton on the left.
  When they send these controversial nominees to us, then we run into a 
position where it takes longer. We have to delve into their 
backgrounds, we have to establish their record, we have to answer the 
criticisms that have been raised within and without the committee about 
whether this person should be given a lifetime appointment to a 
critical Federal position.
  This morning my colleague on the Senate Judiciary Committee, Senator 
Schumer of New York, held an interesting subcommittee hearing. His 
hearing related to what he calls the ghost of the nomination process 
from the Clinton years. I was glad Senator Schumer did that because on 
this day of national complaint by the Republicans, we brought to 
Washington four Clinton nominees who were not approved by that same 
Senate Judiciary Committee when Republicans controlled it. We did this 
so people who are following this debate could get an idea of the 
nominees rejected by the Republican Senate Judiciary Committee when 
President Clinton nominated them.
  Frankly, as I look at the people who were brought before us, they are 
amazing in terms of their records and their backgrounds and what they 
brought to the job.
  Let me speak for a moment about the Fifth Circuit which has become a 
focal point of discussion. Senator Lott a few minutes ago was talking 
about the Fifth Circuit which, if I remember, includes the States of 
Texas, Louisiana, and Mississippi. This circuit has the highest 
minority population of any Federal circuit in America. The population 
of African Americans, Hispanics, and Asian Americans is larger in that 
circuit than any other circuit.
  Naturally, when President Clinton was in office, he tried to address 
this by appointing people to the circuit court who represented the 
diversity of the circuit in which they would serve. Two of his nominees 
came before us today.
  Jorge Rangel, 54 years of age, is currently an attorney in private 
practice in Corpus Christi, TX. He was nominated to the U.S. Court of 
Appeals for

[[Page S4117]]

the Fifth Circuit by President Clinton in 1997. Mr. Rangel was never 
granted a hearing by the Republican-controlled Judiciary Committee. 
Never. He graduated from the University of Houston and Harvard Law 
School. He went on to a distinguished career of 20 years in private 
practice with a Corpus Christi law firm where he had a mix of Federal 
and State work.
  In 1983, he was appointed to a judgeship on the Texas State district 
court, and then was elected to serve for 2 years before returning to 
private practice. Jorge Rangel has also been very active in legal and 
community organizations, including time as an officer of the board of 
governors of the bar association of the Fifth Circuit and the American 
Board of Trial Advocates. He volunteered for many legal organizations, 
community organizations, and charitable organizations. He has written 
no controversial opinions or writings. He was affiliated with no 
liberal groups and gave no one any reason whatsoever to question his 
credentials and fitness for the Federal bench.

  The American Bar Association took a look at Jorge Rangel and 
concluded he was ``well qualified'' to serve as a Federal appellate 
court judge. Yet, for purely political reasons, Jorge Rangel's 
nomination was held up more than a year from July 1997 until the end of 
1998, a total of 15 months, with no explanation or hint of opposition 
to him.
  Consider that for a minute. When you listen to this man's background, 
his rating of ``well qualified'' from the American Bar Association, why 
in the world would he be held up? It turns out that the two Senators 
from his home State opposed him, and because they were of opposite 
political faith with the President of the United States, they made 
certain he did not get a chance for even a hearing before the 
committee.
  When you watch that happening, and when you listen to his testimony, 
you have to wonder: Where is the fairness? When you listen to the 
complaints today, even though the Senate Judiciary Committee under 
Democrat control has approved 56 nominees, many of whom are Hispanic 
and racial minorities, and rejected only 1, when you look at this you 
wonder: Why would we apply a different standard when it comes to 
Clinton nominees than we do to Bush nominees? That really has created 
the problem we face.
  The simple fact is this: The nominees President Clinton sent to the 
Senate Judiciary Committee were held to a higher professional, 
political, and personal standard than the nominees being sent by the 
Bush White House, and many of them, even when they met those standards, 
were never given the courtesy of a hearing.
  In that same Fifth Circuit was Enrique Moreno, 47 years old, an 
attorney in private practice in El Paso, a native of Mexico. Mr. Moreno 
graduated from Harvard University and Harvard Law School. He was 
nominated by President Clinton in September of 1999 to serve on the 
Fifth Circuit Court of Appeals. He was give the highest rating by the 
American Bar Association--``well qualified.'' He received significant 
support from community groups. He waited 15 months and, as had Mr. 
Rangel, he was never even given the courtesy of a hearing before the 
Senate Judiciary Committee.
  Excuse me. When I hear my colleagues on the other side come to this 
Chamber and complain that we are not moving fast enough in approving 
the Bush nominees, consider what happened to Mr. Rangel and Mr. Moreno. 
What happened to them was sad, it was wrong, and it is unforgivable.
  I could go through the long list of accomplishments of Mr. Moreno. 
Trust me, it is a long page of extraordinary accomplishments, and yet, 
when it came right down to it, Republicans on the Senate Judiciary 
Committee were determined he would never even receive a hearing, and he 
did not.
  Let me refer to Kent Markus. Kent Markus was before our subcommittee 
today. He is 46 years old. He was nominated by President Clinton in 
February 2000 to serve on the U.S. Court of Appeals for the Sixth 
Circuit. The interesting thing about Mr. Markus is he had the approval 
of both his home State Senators, two Republicans: Senator Mike DeWine 
and Senator George Voinovich. Despite bipartisan support, despite being 
qualified by the American Bar Association and his excellent record of 
achievement and service, he was never, ever given the courtesy of a 
hearing before the Republican-controlled Senate Judiciary Committee. 
Finally, at the end of the 106th Congress, his nomination was returned 
to the White House.

  Again, I will make it a matter of my official record in my statement, 
but trust me, his biography, his resume, are impeccable.
  A final nominee I will mention today who testified before us is 
Bonnie Campbell. She was nominated by President Clinton in 2000 to 
serve on the U.S. Court of Appeals for the Eighth Circuit. She was 
supported by both of her Senators, Democrat Tom Harkin of Iowa and 
Republican Chuck Grassley of Iowa. She was given a qualified rating by 
the American Bar Association. She was given a hearing before the 
Judiciary Committee a few months after she was nominated and given a 
chance at her hearing to answer any questions about her work. There 
were no objections voiced at all during her hearing before the Senate 
Judiciary Committee. No opposition surfaced in any quarter.
  However, despite a noncontroversial, really unremarkable hearing, Ms. 
Campbell was never scheduled for a committee vote. No explanation was 
ever given to her. Her nomination languished until the end of the 106th 
Congress, and despite President Clinton's attempt to renominate her, 
President Bush did not do the same. Her nomination died.
  Consider those four people and what they went through at the hands of 
the Republican Senate Judiciary Committee and then put that in context 
of the Republican complaints which we hear today, when we have already, 
under Democratic control, approved 56 nominees. I think it really makes 
the case.
  Judicial nominees have a right, whether the Judiciary Committee is 
controlled by Democrats or Republicans, to expect fair and impartial 
treatment. But, equally, the American people have a right to expect 
fair and impartial judges.
  Now let us get down to the bottom line. The President will find that 
this Senate Judiciary Committee, under the control of Democrats, will 
provide more approvals of his judicial nominees than Republican 
Judiciary Committees have done for Democrat Presidents in the past. I 
think that is a standard we can live up to. We have already lived up to 
it.
  We are going to treat people fairly. We are going to give them a 
chance. Does that mean President Bush will get every name he sends 
before the Judiciary Committee approved? No. That is not going to 
happen because if the President sends people who, frankly, do not meet 
the test of moderation, legal skill and integrity, there is going to 
be, of course, an investigation, as there is with every nominee. There 
will be hearings in many cases, and some will not survive that.
  The message to the President is very clear: As long as he will send 
us people who are moderate and not too extreme, he will be very 
successful. He already has 56 judicial nominees approved.
  I think the single best thing this White House could take from this 
all-day debate about judicial nominees is this: If the President 
decided and said, We are going to take these four nominees--Bonnie 
Campbell, Jorge Rangel, Enrique Moreno, and Kent Markus--all nominees 
under the Clinton White House, and we are going to send them to Capitol 
Hill in a show of bipartisan good faith, I think we could start to make 
progress. I think we could start having some balance in terms of the 
people who will be appointed to these critical positions. But if this 
is going to be confrontation after confrontation, then I am sorry to 
say it is going to continue almost indefinitely. I hope it does not.

  Let me give a list of those who never received a hearing before 
Congress during the Clinton years, judicial nominees sent to Capitol 
Hill by President Clinton while there were Republicans in charge of the 
Senate Judiciary Committee: Wenona Whitfield of Illinois, Leland Shurin 
of Missouri, Bruce Greer of Florida--none of these received a hearing 
before the Republican-controlled Senate Judiciary Committee.
  Sue Ellen Myerscough of Illinois; Cheryl Wattley of Texas; Michael

[[Page S4118]]

Schattman of Texas; James Beaty and Rich Leonard of the Fourth Circuit, 
North Carolina; Annabelle Rodriguez of Texas--none of those received a 
hearing. Their names were sent to Capitol Hill, to the Republican-
controlled Senate Judiciary Committee; no hearings.
  Then in the next Congress, there were 10: Helene White of Michigan; 
Jorge Rangel I mentioned earlier, of Texas; Jeffrey Coleman of 
Illinois; James Klein of the District of Columbia; Robert Freedberg of 
Pennsylvania; Cheryl Wattley of Texas; Lynette Norton of Pennsylvania; 
Robert Raymar for the Third Circuit; Legrome Davis, Pennsylvania; Lynne 
Lasry of California; Barry Goode of the Ninth Circuit, California--all 
of those names, judicial nominees, sent to Capitol Hill by President 
Clinton never even received the courtesy of a hearing before the 
Republican-controlled Senate Judiciary Committee.
  In the 106th Congress, 33 names sent by the President who were not 
given the courtesy of a hearing: Alston Johnson of Louisiana; James 
Duffy of Hawaii; Elana Kagan of the D.C. Circuit; James Wynn of North 
Carolina; Kathleen McCree-Lewis of Michigan; Enrique Moreno of Texas; 
James Lyons of Colorado; Kent Markus of Ohio; Robert Cindrich of 
Pennsylvania; Stephen Orlofsky of New Jersey; Robert Gregory of 
Virginia; Christine Arguello of Colorado; Elizabeth Gibson, North 
Carolina; Rich Leonard of North Carolina; Patricia Coan of Colorado; 
Dolly Gee, California; Steve Bell, Ohio; Rhonda Fields, District of 
Columbia; 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 of Nebraska; Richard Anderson of 
Montana; Stephen Liberman of Pennsylvania; and Melvin Hall of Oklahoma.
  These 52 names of judicial nominees I have read were sent to the 
Republican-controlled Senate Judiciary Committee under President 
Clinton and they were never even given the opportunity for a public 
hearing, never given a chance for a vote. I knew some of them 
personally, and I can say it is a great hardship on a professional like 
an attorney, where their name is pending before a committee and there 
is uncertainty about their future.
  Some of these went on for literally years. Some of them were never 
given a hearing, and during that period of uncertainty their family 
suffered, their law practice suffered, their efforts to be part of 
public service were never realized. I think that is unfortunate.
  That is why we are back to the point I made earlier. President Bush 
and those working for him and with him in the White House want to break 
through this situation and want to see more cooperation and want to 
find more balance, as we do, in terms of the judiciary.

  I submit to them the four names of the nominees from the Clinton 
White House which we considered today, people who came before the 
Judiciary Committee today. Earlier, the minority leader spoke of a 
nominee for the D.C. Circuit Court of Appeals who is Hispanic, and I 
certainly think we need more Hispanic Americans on the bench.
  President Bush should have a chance. Jorge Rangel is prepared to 
serve on the Fifth Circuit. Enrique Moreno is also prepared to serve on 
the Fifth Circuit. These are Hispanic Americans who should be 
renominated and given a chance to serve.
  At the current time, we have looked at Hispanic nominees and 
President Bush has sent us five nominees of Hispanic origin. Of those, 
three have already been confirmed by the Senate under Democratic 
control. Two are pending: Miguel Estrada in D.C. and Jose Martinez in 
Florida.
  Under President Clinton, Hispanic nominees who were not confirmed by 
the Republican-controlled Senate Judiciary Committee include: Jorge 
Rangel of the Fifth Circuit; Enrique Moreno of the Fifth Circuit; 
Christine Arguello of the Tenth Circuit; Ricardo Morado of Texas; 
Anabelle Rodriguez, Puerto Rico.
  I think that takes us to the point where we have to ask ourselves if 
our friends on the Republican side really do want to see balance and 
want to see fair treatment, whether they will give that same fair 
treatment to people who were summarily rejected when the Republicans 
controlled the Senate Judiciary Committee. I think we have a chance to 
be very careful in our selection, but also to meet our national needs 
and obligations.
  Today, incidentally, during the course of a press conference on this 
subject, we brought in a number of people who have had bad experiences 
in court to dramatize what is at stake. This debate is not a matter of 
rewarding an attorney, who has skills, with a new title and an 
opportunity to serve on the bench. It is also to create an opportunity 
for public service where people can make decisions that really have an 
impact on families' lives across America.
  Today, Denise Mercado came to see us. She is the mother of three from 
Fayetteville, NC. She is the legal guardian of her son, Danny, who has 
cerebral palsy and severe mental retardation. Due to his disabilities, 
Danny is eligible for Medicaid funding. Jane Perkins is an attorney at 
the National Health Law Program in Chapel Hill, NC. Jane has 
represented Denise and many other clients in efforts to compel States 
to fulfill their legal obligations under Medicaid, to cover children 
like Danny. Currently, four Federal courts of appeals are considering 
whether States have sovereign immunity from such lawsuits, as at least 
one district court has ruled.
  So the men and women appointed to these court positions will make 
decisions which have an impact on families with children with 
disabilities. That is just part of their responsibility, but it tells 
us about the gravity and seriousness of this decisionmaking process.
  Rose Townsend and Bonnie Sanders are residents of South Camden, NJ. 
They live in a small neighborhood called Waterfront South. It contains 
20 percent of the city's contaminated waste sites. The residents of 
this neighborhood suffer from a disproportionately high rate of asthma 
and other respiratory ailments. Last year, these two people joined with 
other residents to block the placement of a cement processing facility 
in their neighborhood. In December, the Third Circuit Court of Appeals 
ruled they could not compel the State to comply with Federal 
environmental regulations that implement the 1964 Civil Rights Act.
  Whether it is a matter of public health, or environmental safety, 
these judges make critical decisions. These are just some of the people 
who were impacted by judges put on the Federal courts. These are 
important decisions. They should be handed out fairly and evenly, with 
some balance. The Judiciary Committee has met that standard.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Stabenow). The Senator from Kentucky.
  Mr. McCONNELL. Madam President, I listened with interest to comments 
of the Senator from Illinois, looking at the whole 8 years of the 
Clinton administration. It is important to reiterate the only clear way 
to look at the 8 years of the Clinton administration is to compare them 
to the 8 years of the Reagan administration. President Reagan got more 
judges confirmed than any other President, 382. He had a distinct 
advantage because 6 of the 8 years he was President his party 
controlled the Senate. President Clinton came in a close second, 377 
judges confirmed, 5 fewer, but he was in a disadvantage because his 
party only controlled the Senate for 2 of his 8 years. It is hard to 
make the case that President Clinton was treated unfairly by the 
Republican Congress.
  What we want to talk about today is the first 2 years of any 
President's term--how were they treated at the beginning of their 8 
years. Particularly, we focus on the circuit judge nominations.
  During the first 2 years of President Clinton's term, when his party 
controlled the Senate, he got 86 percent of his nominees confirmed for 
the circuit courts. During the first President Bush's first 2 years, 
when his party did not control the Senate, he got 95 percent of his 
circuit court nominees confirmed in his first 2 years. President 
Reagan, in his first 2 years, got 95 percent, as well, 19 out of 20.
  Let's focus on the first 2 years, the beginning of what I certainly 
hope will be an 8-year period of the Presidency of George W. Bush. 
George W. Bush has gotten a mere 30 percent of his circuit

[[Page S4119]]

court nominees confirmed, compared to 86 percent for President Clinton, 
95 percent for the first President Bush, and 95 percent for President 
Reagan.
  I call attention, since this is the 1-year anniversary of the first 
11 nominations of President George W. Bush to the circuit courts. Only 
three have been confirmed, eight languish 1 year later without so much 
as a hearing to get a chance to explain their credentials to the Senate 
Judiciary Committee and to the larger Senate as well. Eleven 
distinguished and diverse men and women were nominated by President 
George W. Bush a year ago today. Only three have been confirmed. Of the 
remaining eight, none, not a single one, has even been afforded the 
courtesy of a hearing, not to mention a vote--a hearing by the 
Judiciary Committee.
  Everyone in America is entitled to have their day in court. Even a 
judge is entitled to have their day in court. Our colleagues on the 
other side continually assure this side they are pushing fast to 
consider the President's judicial nominees, but my Republican 
colleagues and I have seen neither hide nor hair of these nominations 
in the Judiciary Committee. Frankly, some in the committee are worried 
about what might have happened to them. Where could they possibly be? A 
few people may recognize these individuals by sight. After all, none of 
them have even had a hearing. All most people know is a name attached 
to the nomination. No one knows what they look like; their whereabouts 
are a mystery. It is my hope citizens around the world would notify the 
Judiciary Committee if they spot these missing nominees somewhere out 
in America so maybe a hearing can be quickly scheduled on their behalf.
  We have become accustomed to seeing missing children's pictures on 
milk cartons around America. We thought it might be appropriate to put 
the names of some of the nominees on milk cartons, so if any of our 
people across the country have seen any of them, maybe they could 
report them to the Judiciary Committee and the missing people could 
actually be given an opportunity to be heard.

  A good first person to put on the milk carton is Miguel Estrada, 
nominated 365 days ago, this very day last year, to the D.C. Circuit 
Court. The ABA gave Miguel Estrada a unanimous well qualified. That is 
very hard to do. It is very tough to even get a partial well-qualified 
rating from the ABA but to get a unanimous rating of well qualified is 
truly extraordinary.
  Miguel Estrada's life and his career is a great American success 
story. I am married to one of those immigrants who came to this country 
and didn't speak a word of English at 8, so I am very familiar with 
these wonderful stories of coming to America, particularly those who 
have been thrown into our public schools at an early age, not speaking 
English and coming to grips with that.
  That is exactly what happened to Miguel Estrada. He came from 
Honduras, emigrated to the United States as a teenager, speaking 
virtually no English. Yet he graduated phi beta kappa from Columbia in 
New York and was editor of the Harvard Law Review. Miguel Estrada came 
to this country, not speaking a word of English, an honor student at 
Columbia, elected to the Law Review at Harvard, unanimously ``well 
qualified'' by the American Bar Association, an inspiration to 
immigrants all across America and particularly to Hispanic immigrants. 
He has argued 15 civil and criminal cases before the U.S. Supreme 
Court. But Americans do not know what he looks like. He has never had a 
hearing. He has never been able to show up in public and make his case 
that maybe this immigrant success story, an example to look up to by 
everyone in America, but particularly our immigrant population who came 
here and had to deal not only with learning the language but learning a 
new culture, this hero of the immigrant community has been languishing 
in the Judiciary Committee for 365 days. There is no indication in 
sight that he will be given a hearing.
  To anyone who may be looking, if you have seen this man, you might 
want to report it to the Judiciary Committee so he can get a hearing.
  Another nominee from a year ago, arguably pending for a decade, John 
Roberts has been waiting over 10 years for a hearing. He was nominated 
by the first President Bush over a decade ago to the D.C. Circuit Court 
and back then was pending for over a year without ever receiving a 
hearing. The current President Bush renominated Mr. Roberts 365 days 
ago, a year ago today, to the same court, the D.C. Circuit Court. 
Again, he has not had a hearing. This outstanding lawyer, again, 
unanimously rated ``well qualified'' by the ABA--and it is very tough 
to get a rating such as that--has actually been waiting for 2 years, 2 
years just to get a hearing, an opportunity to tell his story. So we 
thought maybe he ought to be on the milk carton, too.
  This unanimously well-qualified nominee has a long and distinguished 
career in public service, including serving as principal deputy to the 
Solicitor General from 1989 to 1993, and associate counsel to President 
Reagan from 1982 to 1986. The previous nominees had 15 arguments before 
the U.S. Supreme Court; this nominee has argued 36 cases before the 
U.S. Supreme Court and 20 cases in the U.S. appeals court across the 
country.
  Has anyone seen John Roberts? Does anyone even know what he looks 
like? Has he been dropped into a black hole? Another great nominee of a 
year ago missing in action, not even given a hearing.
  Also nominated a year ago today was Jeffrey Sutton. The ABA gave 
him--a majority--``qualified,'' and the rest gave him ``well 
qualified.'' So it was a split rating. The minority gave him ``well 
qualified''; the majority gave him ``qualified''--a very good rating.
  Mr. Sutton graduated first in his class from Ohio State University 
College of Law. He has argued nine cases before the U.S. Supreme Court, 
both as a private attorney and as solicitor for the State of Ohio. He 
has taught constitutional law at Ohio State for the last 8 years.
  Has anyone seen Jeffrey Sutton? Does anybody know what he looks like? 
He hasn't had an opportunity to be seen in public. Maybe he, too, 
should be put on a milk carton so somebody could recognize this guy and 
maybe report to the Senate Judiciary Committee that they have seen him. 
He really does exist. Maybe he ought to get an opportunity to be heard.
  Jeffrey is a nominee for the Sixth Circuit, and I want to dwell on 
that for just a moment. Kentucky happens to be one of the States in the 
Sixth Circuit: Michigan, Ohio, Kentucky, and Tennessee. It is 50 
percent vacant. That is not because the President has not sent up 
nominations. There are seven nominations up here. But not a single 
nominee from the Sixth Circuit has been confirmed. We have a judicial 
emergency. The Sixth Circuit is dysfunctional, not because the 
President has not made nominations.
  I mentioned Miguel Estrada's success story. Here is a nominee from 
Michigan who, if confirmed, would become the first Arab American on a 
circuit court in American history, a nominee from the State of Michigan 
who, if confirmed, would become the first Arab American on a circuit 
court in the Nation's history. He has not yet had a hearing.
  Jeffrey Sutton has been sitting there for 365 days, also for the 
Sixth Circuit. He is from the State of Ohio. If anybody sees Jeffrey 
Sutton, I want you know what he looks like. This is what he looks like. 
Send his picture in to the Judiciary Committee. Maybe he could at least 
get a hearing and an opportunity to state his qualifications for the 
court.
  Deborah Cook: She has been a justice on the Ohio Supreme Court for 
the last 8 years--again, a Sixth Circuit nominee. This is the circuit 
that is 50 percent vacant--not because the President has not sent up 
nominations but because they have not been acted upon. Deborah Cook has 
been sitting there for 365 days. She was nominated a year ago today in 
the first batch sent up by President Bush.
  Prior to her service on the Ohio Supreme Court, she was an appellate 
court judge for 4 years. She has been unanimously rated ``qualified'' 
by the American Bar Association. Has anybody seen Justice Cook? I 
wanted to make sure we could get a sense of what she looked like. This 
is a picture of Deborah Cook. If anyone wants to call her 
qualifications to the attention of the Judiciary Committee, they might 
take this opportunity to do that.

[[Page S4120]]

  Terence Boyle is another nominee who arguably has been waiting 10 
years for a hearing. He was nominated a decade ago by the first 
President Bush and waited for over a year without receiving a hearing 
at that time. He was nominated again 365 days ago, a year ago today, to 
the Fourth Circuit. The ABA unanimously rated him well qualified, just 
like Miguel Estrada--unanimously ``well qualified.'' That is as good as 
it gets. That means the committee of the ABA unanimously found this 
nomination to be of the highest order.
  This nominee currently serves as the chief judge of the U.S. District 
Court for the Eastern District of North Carolina and has been on that 
court since 1984 when his nomination to that court was unanimously 
confirmed by the Senate.
  Has anyone seen Judge Boyle? We know he exists. We have seen his name 
on paper. This is what he looks like. If anybody sees Judge Boyle, they 
might call the Judiciary Committee and say maybe this unanimously well 
qualified nominee ought at least to get an opportunity to be heard, a 
chance to be questioned by the members of the committee, so we can make 
a determination as to whether or not he deserves a chance to be voted 
upon.
  Michael McConnell--I wish this fellow were related to me, but he is 
not. In fact, I found out after he was nominated that he is from my 
hometown. I went to high school in Louisville, KY. I never knew him. I 
am not related to him or his parents, but I wish I were. What an 
outstanding nominee.
  He was nominated for the Tenth Circuit 365 days ago, a year ago 
today. Again, the ABA found him, unanimously, ``well qualified.'' Like 
Miguel Estrada, like several of the other nominees I have mentioned, 
that is as good as it gets--unanimously well qualified.
  Mr. McConnell is a distinguished law professor at the University of 
Utah College of Law and has served as an Assistant Solicitor at the 
U.S. Department of Justice. He is widely regarded as an authority on 
constitutional law, particularly issues involving the first amendment 
and religious clauses.
  Mr. McConnell has received the support of over 300 college law 
professors, including the noted liberal professors Cass Sunstein and 
Sanford Levinson. Support for Mr. McConnell is across the ideological 
spectrum from the people who know him best, law professors around 
America.
  Has anybody seen Michael McConnell? I want you to be able to 
recognize him. This is his picture. This nominee, unanimously ``well 
qualified'' by the ABA, surely could at least be given a hearing before 
the committee to have an opportunity to state his qualifications and be 
asked questions.
  Justice Priscilla Owen is on the Texas Supreme Court. She was 
nominated 365 days ago, a year ago today. She has served with 
distinction on the Texas Supreme Court for the past 8 years. Now she is 
being nominated for the Fifth Circuit. The ABA has unanimously rated 
her well qualified.
  This is a situation where we have a judicial emergency. A judicial 
emergency has been declared here. Yet we have a nominee who has been 
languishing for a year with not even so much as a hearing.
  So, this is what Justice Priscilla Owen looks like. She is an 
attractive, nice looking woman, smart lawyer.
  If anybody sees her here in the hall, they might direct her down to 
the Senate Judiciary Committee. Maybe she could ask somebody for a 
hearing.
  Dennis Shedd was nominated 365 days ago--1 year ago today--to the 
Fourth Circuit Court of Appeals. He served as a sitting Federal judge 
for the U.S. District Court for South Carolina since 1990. The ABA 
rated him ``well qualified.'' He taught at the University of South 
Carolina from 1989 to 1992 and has been chief counsel to the Senate 
Judiciary Committee right here in the Senate.
  I am sure there are people over in the Senate Judiciary Committee who 
know what Dennis Shedd looks like because he used to run that committee 
staff. Maybe we don't need to send them a picture of Dennis Shedd. 
Maybe some of them actually remember him. You would think Dennis Shedd, 
as a matter of common courtesy, having formally been staff director 
over at the Judiciary Committee, could at least get a hearing so he 
could state his qualifications and have a chance to make his case.
  The message for today is that it has been a year since the President 
sent up his first 11 nominations for the circuit courts. Eight of them 
have dropped into a black hole and have literally disappeared.
  That is why we thought it might be a good idea to have a picture of 
some of them in case it might help in recognizing them and giving them 
an opportunity for fundamental fairness. We are in the first 2 years of 
George W. Bush's Presidency--not the last 2 years, not the last year, 
not the last 6 months. I think we can all concede that toward the end 
of a President's term, nominations frequently don't move. But there is 
no precedent--none--for this kind of slow walking and stonewalling in 
the beginning of a President's term. President Clinton got 86 percent 
of his circuit court nominees in the first 2 years. His party 
controlled the Senate. I am, frankly, surprised that it wasn't 100 
percent because his party controlled the Senate in the first 4 years of 
his term. But he got 86 percent.
  The first President Bush got 95 percent of his nominees in his first 
2 years and his party did not control the Senate.
  President Reagan got 95 percent of his circuit court nominees in his 
first 2 years and his party did control the Senate.
  As you can see the pattern here, no matter who has been in the 
majority of the Senate, and no matter who has been in the White House 
in the first 2 years, these games have not been played in the past. 
This is unprecedented. You can throw the statistics around as much as 
you want, but we are talking about the first 2 years of a President's 
administration. It has never been done before.
  The good news is it is not too late. This is May 9. There is a month 
left. It is never too late for salvation.
  It is my hope that these outstanding nominees missing in action and 
who have seemingly dropped down a black hole will get an opportunity to 
be heard as a matter of fundamental fairness.
  I had an opportunity, along with others, to meet with the President 
earlier today on this issue. I heard some suggestions made on the other 
side of the aisle that this is really all about in effect telling the 
President who to send up. In other words, Mr. President, send up a 
certain kind of nominee or you won't get action. I can't speak for the 
President, but I have the clear impression that this President 
believes, as all other President's believe, that the business of 
selecting nominees to the circuit court level and to the Supreme Court 
level are Presidential prerogatives. I don't think this President is 
going to operate any differently on that issue than President Clinton 
or President Carter or President Roosevelt. We all know that Senators 
have an opportunity to make suggestions on district court nominees. 
That has not changed. But circuit court nominees and Supreme Court 
nominees have historically and will be forever the prerogative of the 
President.
  The thought that any of us are going to be able to dictate to this 
President or any other President who those nominees might be is absurd. 
It is not going to happen tomorrow. It is not going to happen a month 
from now. It is not going to happen ever. No President--Republican or 
Democrat--is going to allow the Senate, no matter which party controls 
the Senate, to in effect tell him or her who they are going to pick for 
the circuit courts.
  It is time for a fair hearing. And it is time to vote. If the members 
of the Judiciary Committee want to vote down these nominees, that is 
certainly their prerogative. They have done that already once this 
year. But it is time to quit hiding out. It is time to stand up and be 
counted. It is time to allow these missing people to be seen and heard, 
and to vote.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.




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