[Congressional Record Volume 148, Number 58 (Thursday, May 9, 2002)]
[Senate]
[Pages S4121-S4122]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              NOMINATIONS

  Mr. NICKLES. Madam President, I rise today to join my colleagues in 
expressing real disappointment in the fact that we have eight nominees 
to the U.S. circuit courts of appeals, who were nominated a year ago, 
who have yet to have a hearing before the Senate Judiciary Committee.
  Nineteen of 30 circuit court nominees have yet to have a hearing--19 
out of 30. I have stated to my colleagues--and I state this on the 
floor of the Senate, just as sincerely as possible--we should treat all 
judicial nominees fairly.
  Some people say: Well, we are having a little retribution because you 
didn't treat people well in President Clinton's last year.
  The tradition of the Senate has always been to give a President his 
or her nominees pretty good access to the Senate for confirmation 
purposes in the first 2 or 3 years of their Presidency. The tradition 
of the Senate, also, is to kind of slow it down in a President's last 
year.
  Certainly, if you look at what happened in the last three 
Presidencies, that is what has happened. Unfortunately, the current 
President Bush has not had fair treatment for his judicial nominees, 
especially circuit court nominees, in his first 2 years. That is just a 
fact.
  The chart I have shows that we have only confirmed 9 out of 30. That 
is 30 percent. There is another nominee who is pending on the calendar. 
Hopefully, that will be cleared fairly quickly. That would be 10 out of 
30. That is one out of three nominated judges confirmed.
  If you look at President Clinton's first 2 years, he got 19 out of 
22. If you look at President Bush I, he got 22 out of 23. President 
Reagan got 19 out of 20. So President Reagan and President Bush I got 
95 percent of their circuit court nominees confirmed in their first 2 
years. President Clinton got 19 out of 22. That is 86 percent.

  We should always be confirming those kinds of percentages unless they 
nominate people who are totally unqualified and are undeserving of the 
position. But we are not doing that.
  Also, if you look at the total numbers, President Reagan got 98 
percent of all the judges that he nominated confirmed in his first 2 
years. President Bush I got 93 percent of the judges he nominated 
confirmed in his first 2 years. And President Clinton had more judges 
confirmed than either of the two by a considerable amount; he had 129 
judges confirmed in his first 2 years, which is 90 percent.
  For the current President Bush, we have now done 56 percent. We are 
moving along, at least now, at 60-some odd percent for district court 
judges. But the big discrepancy is, we are way behind in circuit court 
appellate judges--way behind--and these individuals are not being 
treated fairly. They are eminently qualified. And to think that eight 
were nominated a year ago.
  Somebody said: Why are you making such a fuss now? Because enough is 
enough. Eight of these outstanding, qualified individuals were 
nominated a year ago today, and they have not had a hearing. Why? Are 
they not qualified? Well, let me just look at some of their 
qualifications.
  John Roberts was nominated to the DC Circuit Court of Appeals. He has 
argued 37 cases before the U.S. Supreme Court. Evidently, the private 
sector thinks he is eminently qualified. He was unanimously rated 
``well qualified'' by the ABA. He is a Harvard Law School graduate, 
magnum cum laude. He was managing editor of the Harvard Law Review. He 
was a law clerk to Supreme Court Justice Rehnquist. And he also was the 
Principal Deputy Solicitor General for the United States from 1989 to 
1993.
  You will be hard-pressed to find anybody more qualified than John 
Roberts anywhere in the country to sit on any bench. Yet, he cannot get 
a hearing, and he was nominated a year ago. I am embarrassed we have 
not been able to schedule a hearing for John Roberts.
  I hope, in the course of this dialog, Senator Leahy or Senator 
Daschle will join me. I would like to ask the question, why can't we 
get a hearing for him?
  Miguel Estrada is also nominated to the DC Circuit, a partner of the 
DC firm of Gibson, Dunn & Crutcher. He has argued 15 cases before the 
U.S. Supreme Court. He was unanimously rated ``well qualified'' by the 
ABA. He immigrated to the United States as a teenager from Honduras 
and, at the time, hardly even spoke English. Yet, he graduated from 
Harvard Law School magnum cum laude. He was an editor of their Harvard 
Law Review. He was a law clerk to Justice Kennedy. And he is a former 
Assistant Solicitor General and Assistant U.S. Attorney. He has been a 
prosecutor. He worked as a law clerk for a Supreme Court Justice. He 
argued 15 cases before the Supreme Court. He is eminently qualified. He 
is Hispanic. And we can't get a hearing?
  The District of Columbia Circuit Court of Appeals has four vacancies. 
A year ago, they were saying they really needed at least three judges. 
And we can't get a hearing for two of the most qualified people 
anywhere in the country for these two positions. This is unbelievable.
  Priscilla Owen was nominated to the Fifth Circuit Court. She has 
served on the Texas Supreme Court since 1994. She was unanimously rated 
``well qualified'' by the ABA. She is a Baylor Law School graduate, 
with honors, and a member of the Baylor Law Review. She had the highest 
score on her Texas bar exam, and 17 years of prior experience as a 
commercial litigator.

  Just another example. Why is she not entitled to have a hearing? I 
think when these individuals have hearings, it is going to be obvious 
they are well-qualified. There will be no reason whatsoever to attack 
them or to vote no. So people do not want to have a hearing because 
they know if they have a hearing, they are going to be confirmed.
  Terrence Boyle was nominated to the Fourth Circuit. He is presently 
the chief judge in the U.S. District Court in the Eastern District for 
North Carolina, and has been since 1997. He was unanimously rated 
``well qualified'' by the ABA. He is a graduate from American 
University, Washington College of Law. He also served as minority 
counsel for the House Subcommittee on Housing, Banking, and Currency 
from 1970 to 1973, and legislative assistant to Senator Helms.
  We usually treat former Senate staffers with a little courtesy. We 
usually give them a hearing. This is a person who has had a little 
experience in the Senate working on the Judiciary Committee, in 
addition to serving as a district court judge from 1984 to 1997. We 
can't even give him a hearing? I don't think that is right.
  Michael McConnell is nominated to the Tenth Circuit Court of Appeals. 
He is presently a Presidential professor of law at the University of 
Utah. He was unanimously rated ``well qualified'' by the ABA. He is a 
renowned constitutional law expert. He has argued 11 cases before the 
U.S. Supreme Court. He graduated at the top of his class from the 
Chicago Law School. He was a law clerk for Justice Brennan, and also 
served as a prior Assistant Solicitor General. Michael McConnell was 
nominated a year ago and has yet to even have a hearing.
  Deborah Cook is nominated to the Sixth Circuit Court of Appeals. She 
is presently serving as a justice on the Supreme Court of Ohio, and has 
since 1994. She was unanimously rated ``well qualified'' by the ABA. 
She is an Akron School of Law graduate, and practiced with Akron's 
oldest law firm. She sat on the Ohio District Court of Appeals from 
1991 to 1995. She also chaired the Commission on Public Legal 
Education, and has also been a member of the Ohio Commission on Dispute 
Resolution. She is more than qualified.
  Jeffrey Sutton is also nominated to the Sixth Circuit Court.
  On the Sixth Circuit, there are 8 vacancies out of the 16. One-half 
of the circuit court of appeals is vacant, desperately needing some 
assistance.
  Mr. Sutton a partner in the law firm of Jones, Day. He is rated well 
qualified by the ABA minority and qualified

[[Page S4122]]

by the ABA majority. He graduated first in his class from Ohio 
University College of Law. He is a former law clerk to Supreme Court 
Justices Powell and Scalia. He has argued 9 cases and over 50 merits 
and amicus briefs before the U.S. Supreme Court, and he is a prior 
State solicitor in the State of Ohio.
  Dennis Shedd, nominated to the Fourth Circuit Court, is a U.S. 
district court judge in South Carolina and has been since 1991. He is 
rated well qualified by the ABA and had 20 years of private practice 
and public service prior to becoming a district judge. His law degree 
is from the University of South Carolina, and he has a master of law 
degree from Georgetown. He is a former chief counsel and staff director 
of the Senate Judiciary Committee and counsel to the President pro 
tempore from 1978 to 1988. He is supported by both of South Carolina's 
Senators. Again, he is a former staffer.
  The Senator from Nevada knows, as I mentioned this before--we used to 
have a tradition that we would give former staffers an expeditious 
hearing. But Dennis Shedd was nominated a year ago.
  These are eight of the most qualified individuals you will find 
anywhere in the country for any such position. The fact that they have 
not had a hearing when they were nominated a year ago brings real 
disrespect and disrepute on this body. Shame on us. Shame on the 
Senate. We have only confirmed one-third of the district court of 
appeals judges nominated by President Bush. Eight people have to wait a 
year for a hearing? We are making these nominees wait around while 
their friends and associates are asking: When will you be confirmed? I 
understand you were nominated. You were nominated a year ago. You 
haven't even had a hearing.
  How disrespectful of the judicial process can we be? I am ashamed of 
this record. I will state for the record now that I believe at various 
points we may well be back in the majority. I have been in the Senate--
majority, minority, majority, minority. I think we will be back in the 
majority. I am committed to making sure that all judicial nominees are 
treated fairly regardless of who is in the White House and regardless 
of who runs the Senate. I think we owe it to the nominees. I think we 
owe it to the process. We owe it to the division of power between the 
executive branch, the judicial branch, and the legislative branch.
  The legislative branch is wrecking this balance of power by not 
staffing and not allowing judicial nominations to be heard, to be voted 
on, to be confirmed. We have checks and balances. I believe the 
forefathers would be rolling over if they realized how slowly we were 
going on certain judges, circuit court appellate judges especially.
  With all sincerity, there are ways we can go in this body to get 
people's attention to make sure these individuals get fair 
consideration. My hope and desire is to give them fair consideration 
without exhibiting a pattern of ``we will hold this up and hold this 
up; you will not be able to mark this up; not be able to get a quorum; 
you will not be able to do business.'' I hope we don't have to resort 
to that.
  Senator Reid is one of my very dear friends, Senator Daschle, Senator 
Leahy. I urge them, give these people a chance. Give these eight people 
who were nominated to the appellate level a year ago, give them a 
hearing, and let's vote. There is no question they are eminently 
qualified. We should be voting. That is our constitutional 
responsibility. Let's do it. I will commit we will do it in the future 
as well.

  I hope people will hear these comments made by myself and others and 
listen to us. Let's work together and treat judicial nominees fairly so 
we don't have to resort to various types of threats and intimidation 
and lack of cooperation to make our point to get these individuals 
consideration on the floor of the Senate.
  I yield the floor.
  Mr. REID. Madam President, 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 that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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