[Congressional Record Volume 148, Number 58 (Thursday, May 9, 2002)]
[Senate]
[Pages S4127-S4132]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. SANTORUM. Mr. President, I thank Senator Byrd. He came over to me 
a few minutes ago. He was in line to take the next slot, and I 
appreciate his willingness to give me the opportunity to speak.
  I am here on the anniversary of the President's first nominations to 
the circuit court to, once again, focus the Senate on what really is a 
great obstruction of justice that is occurring as a result of the 
actions within the Judiciary Committee.
  We have seen the first 11 nominees the President put up for the 
circuit court--which is the appellate court in this country at the 
Federal level, and then you have the Supreme Court, obviously. We have 
11 nominees the President put forward. Three were moved. But they were 
three holdovers from the prior administration. The first original, if 
you will, Bush nominees have not even had a hearing. If they were eight 
people who had very little to account for, if they were people who were 
not considered well qualified, if they were people who had clouds 
hanging over their nominations, that would be one thing. But not one of 
them has received anything but well qualified, and the vast majority 
were well qualified by Senator Leahy's and the Judiciary Committee's 
standard, which is the American Bar Association, which is not 
necessarily friendly to Republican nominees for the court.
  We have a situation where we have preeminent jurists and litigators 
who are being held in committee for a year without a hearing, and 
without explanation. That is sort of the remarkable thing throughout 
this entire discussion. There is no explanation as to why any one of 
these nominees is being held up.
  We haven't had any discussion, to my knowledge, on the floor or in 
the press as to the specific reason any one of these nominees has been 
held back. There is no cloud that I am aware of. It is simply stopping 
the President's judicial nominees, and stopping qualified jurists from 
serving.
  These are people who have been nominated, and when you are nominated 
for a position such as this--the Presiding Officer knows; he was 
Governor--in State office or Federal office, they have to begin to sort 
of unwind their affairs. They have to begin the process of setting 
themselves up, because who knows how quickly they could be considered 
and moved through the Senate?
  In the case of Nebraska, I guess there is one house in which they go 
through in the process.
  We have eight people of impeccable integrity who began that process a 
year ago. Where are they? They are hanging out there. Their lives are 
in limbo. That is not fair to them. It is not fair to the people who 
are not getting justice and not having their cases heard on appeal, or 
are having long delays in getting the resolution of their cases.
  That is not fair either. That impacts the administration of justice, 
particularly on the civil side, which tends to suffer. We are getting 
criminal cases through because they are a high priority. But you have 
people whose lives are almost in limbo because they are not getting the 
quickest administration of justice that they deserve in our court 
system.
  I want to talk about one particular nominee. He is from Pennsylvania. 
I will give you sort of the rundown of where we are in Pennsylvania.
  We had 11 openings on the district court level in Pennsylvania. We 
have two circuit nominees who are Third Circuit nominees--who are sort 
of Pennsylvanian, assigned to Pennsylvania in this informal agreement 
we have across the country. One of the nominees for the circuit court--
the only nominee so far, because the other circuit vacancy just 
occurred a few weeks ago--is Judge D. Brookes Smith. Judge Smith is the 
present judge of the Western District in Pennsylvania. He is a very 
distinguished jurist. He has been on the court for over 10 years and 
has served on the Common Pleas Court in Blair County and Altoona. But 
he is from Altoona. He is from just an impeccable law firm and 
practiced before he was judge. He has great reputation as a common 
pleas court judge in Pennsylvania, and now as a district court judge.

  Again, he has a flawless reputation. He is a man of highest 
integrity. He is rated well qualified unanimously by the ABA. 
Thankfully, we had a hearing on Judge Smith. But that hearing was 
roughly 3 months ago. Judge Smith continues to be held in committee. 
Again, if you look at what I said before about your life being held in 
limbo,

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here is someone who has already had a hearing and is being held for 
months without being moved through the process.
  Are there serious allegations about any actions Judge Smith has taken 
while he has been a member of the Western District of Pennsylvania? Are 
there any decisions out there that have been seriously attacked? The 
answer is no. There is no ``gotcha'' case, or line of cases, or 
opinions Judge Smith has offered that has caused any problems.
  The only issue I am aware of with respect to Judge Smith is that he 
belonged to a rod and gun club in Pennsylvania. We are very proud of 
our sportsmen activities in Pennsylvania. We are a great hunting and 
fishing State. He belonged to the Spruce Creek Rod and Gun Club.
  Some of you who can think 20-odd years ago and of Spruce Creek, you 
think of Jimmy Carter. That is where Jimmy Carter used to go. You may 
remember the incident about the rabbit on the boat. That was in Spruce 
Creek.
  Judge Smith was an avid fisherman and someone who belonged to this 
club for years, and belonged to it when he was confirmed as a judge in 
the first Bush administration.
  Comments were made that this club did not allow women members. They 
allow women to go to the club and participate in activities, but they 
don't allow them to be voting members of the club. When asked about 
that, Judge Smith said he would try to change that policy.
  There is a woman who is a county commissioner who served with him 
when he was a common pleas judge in Blair County who is a member of 
NOW, a Democrat, who came out and said she knew of nobody who had done 
more to help women and to promote women in the legal profession than 
Judge Smith--he has an impeccable record on women's issues--and the 
promotion of women within the legal system and the court system.
  We had five litigators come to Washington, DC, most of whom were 
Democrats, and all of them practiced in front of Judge Smith. They went 
through story after story about how he, unlike, unfortunately, some 
other members of the bench, treated women with particular dignity and 
respect and was very accommodating to some of their concerns. One of 
them happened to be pregnant during the trial. He was very 
accommodating to her particular needs.
  So he has a great record.
  What is NOW saying? They opposed Judge Smith because he belonged to a 
gun club that didn't permit women members. It permitted women on the 
premises. It permitted women to participate in their activities. But it 
did not permit them to be members.
  Judge Smith during his initial confirmation said he would go back and 
try to change that. He did. Every time there was a meeting and the 
bylaws were reviewed, Judge Smith attempted to change it. He tried I 
think four or five times. When he felt that he could no longer stay in 
the club because he didn't see any hope that in fact they would change 
that policy, he left.
  I will make the argument against NOW's position--that he stayed there 
after he had been made aware of that and he should have left right 
away. Had he left right away, there would have been no chance that the 
club would have changed. Judge Smith did stay in there to fight to 
change it.
  If you wanted to argue anything, you could argue that Judge Smith 
should be faulted for not still being in the club trying to change it. 
By walking away from the club, you could make the argument that he 
walked away from a fight he shouldn't have walked away from. That is 
not their argument. The argument is he shouldn't have fought in the 
first place, he should have just gotten up and left.
  That is not how we change things in America. We change things by 
standing up for principles and fighting for them. And Judge Smith 
fought for women membership. And now, because he did, he is not 
qualified to be a Federal appeals court judge?
  He has been a judge for over 15 years. They have looked at all his 
cases. There are no complaints about any of the cases. The reason they 
oppose him is because he stayed in a gun club too long, fighting for 
allowing women to become members. That is the great sin. That is the 
reason why. Although we will have no admission of this, so far, 
publicly, I am told the reason Judge Smith is still in committee is 
because of that--a man who has incredible credentials, a man who has 
been a fighter for women in the legal profession, a man who has fought 
in the ``Old Boys Club'' to admit women as members.
  We are saying now that he should not be elevated to the third circuit 
because he fought for women. How remarkable a place this can be 
sometimes. How remarkable a place this can be. I would suspect that 
maybe had he quit, they would have come back and argued: See, he quit. 
He should have stayed and fought. And they would oppose him for that 
reason.
  This is wrong. This is a man of incredible integrity, terrific 
credentials, great judicial temperament, who is scholarly, gentlemanly, 
and he is being subjected to being called anti-women. Even though he 
has staked out, in his judgeship in the Common Pleas in Blair County, 
in his judgeship in the Western District, and now as one of the 
President's nominees, that one of his highest priorities has always 
been the promotion of women in the court, he has been targeted as anti-
women.
  This is wrong. This is wrong. This is what is going on here. These 
are the attacks that are leveled at people who want to serve.
  His nomination is being held in committee, and has been for months. 
It is wrong. This is a man who has worked diligently for women. We had 
lawyer after lawyer after lawyer from the Western District come here, 
the Women's Bar Association, supporting Judge Smith. We have not heard 
anybody from the Western District, who has appeared before Judge Smith, 
who is a woman saying anything negative. It is just the opposite. I 
received letter after letter in support of Judge Smith.
  So you say: Well, that seems unfair. Yes, it is. If you were Judge 
Smith, imagine how you would be dealing with this. This is a human 
being. I know we all put these charts up in the Chamber, and we show 
the numbers--such and such percent get through, and such and such do 
not--but we are talking about a human being who has dedicated his life 
to serve, with a particular emphasis on the inclusion of women in the 
legal profession.
  I have to tell you, I come from western Pennsylvania. At times, I 
have to say that our area of the country has not always been the most 
progressive when it comes to promoting women to the bench. He has 
bucked a lot of the ``Old Boy'' network in doing what he's done for 
women. And this is what he gets rewarded with, these kinds of 
outrageous charges which are not based on fact. It is based on the fact 
that Judge Smith happens to be moderate to conservative.
  You see, if you are anywhere right of center here, and if you are 
looking at the third circuit or you are looking at the sixth circuit or 
you are looking at any other circuit, you need not apply because we 
will find some reason--some outrageous, silly reason--that has nothing 
to do with the incredible track record that you put together through 
your career; we will find some bogus reason to hold you up and tar 
you--the politics of personal destruction on decent people who are 
working hard to make this country better, all for this agenda that no 
one will talk about. No excuse will be given.

  This is one example. I am sure you heard earlier today about others. 
We have eight people nominated for the circuits that have been sitting 
out here for a year and, unlike Judge Smith, have not even been given a 
hearing, have not even been given the decency of presenting their 
credentials to the committee and saying: Evaluate me based on me, my 
merits, my record, my temperament, and my ability. The committee has 
said: No, we are not going to give you the opportunity. The President 
has selected you, we understand. But we don't even believe you deserve 
the opportunity to convince us.
  Why? That is the question I keep asking. Why? Don't we have to ask 
ourselves why the chairman of the Judiciary Committee and the committee 
have decided not to even give these people the opportunity to present 
themselves to the committee? What are they afraid of?
  Let's be very honest about this. If these eight people are that bad, 
if they are that ``out there,'' if they are that dangerous, if they are 
that destructive

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to the judicial system, then it would be in your favor to bring them up 
here and show how bad they are, how subversive they would be to the 
laws of the country, how dangerous they would be to the litigants who 
would come to their court--but nothing.
  What are you afraid of? Are you afraid if you put Miguel Estrada up 
there, and you listen to this articulate, brilliant, competent, well-
tempered man, that this charade that you have been putting on will come 
collapsing down upon you? Is that what you are afraid of? That is a 
legitimate fear.
  But what you are doing to these people, what you are doing to the 
litigants in this country, what you are doing to the President is 
wrong, it is unfair, it is unjust. If you have a case against them, 
present the case. Bring them before the committee. Present the case. If 
you don't have a case against them, then treat them justly.
  These are outstanding men and women who deserve their day in court, 
who deserve the opportunity to present themselves to the committee and 
the Senate. They have earned it because they have earned the trust of 
the President of the United States, who has nominated them for these 
positions.
  What are you afraid of? Or is it something even more sinister than 
that? I hope not.
  It has been a year. It has been a year in the lives of these people 
that I am sure they will never forget. It has not been a year that has 
reflected particularly well on the Judiciary Committee or this Senate.
  We have an opportunity, on this anniversary, to begin to start anew. 
We saw, just a few minutes ago, the two leaders have a little bump in 
the road. When we have bumps in the road here in the Senate--we often 
do--we always sort of step back and say: OK, for the good of the 
Senate, for the long-term health of the Senate, can't we put some of 
these partisan one-upmanships aside and do what is right for the 
Senate? Because this place will be here, God willing, much longer than 
we will be. What we do here does set precedent. And the precedent the 
Senate Judiciary Committee is setting right now is dangerous to this 
country, because now there will always be this precedent that we will 
be able to look back to and say: See, they did it. The precedent has 
been set. When you set a precedent, particularly a precedent that is 
damaging to the rights of Presidential nominees to be considered, you 
lower that bar, you harm the entire judicial system in the future.
  We have a chance yet, before the end of this session, to fix this.
  We have a chance to get a proper, a sufficient number of circuit 
court nominees approved by the Senate that comports with the historical 
precedent. It is still possible to do that. It is also possible that we 
won't do that. That will set a precedent here, a precedent that, 
unfortunately, once set will be revisited by somebody somewhere down 
the road. I don't know which party it will be. It may be our party; it 
may be your party. The point is, it is not good for this institution, 
and it is horrible for the country.
  I understand the partisan advantage. I understand you don't like the 
philosophy of some of these people the President nominated. I have 
voted for judges whose philosophy I hated. But the President won the 
election. He has the right to nominate good, decent people with whom 
you disagree on philosophy. He has that right. If they were good, 
decent people who were qualified and had the proper temperament, I 
approved them, whether I agreed with their philosophy or not.
  That is the role of the Senate. What is going on here may 
fundamentally change the role of the Senate for the worse. You can't 
think about the next election or the partisan advantage or even the set 
of issues we are dealing with today in America. Those sets of issues 40 
years from now will be different. The precedent you set now will have a 
huge impact on those issues. Don't do it. Don't do it. Don't open up a 
hole in the precedents of the Senate that somewhere down the road will 
drive a truck over something you may care very deeply about. It is not 
the right thing to do.
  You still have a chance to change it. I pray that you do.
  The PRESIDING OFFICER (Ms. Cantwell). The Senator from Arizona.
  Mr. KYL. Madam President, I compliment the Senator from Pennsylvania 
for the remarks he has just made, especially in relationship to a judge 
that means a lot to him, Brooks Smith, who has been nominated by the 
President to serve on one of our Nation's highest courts. There is no 
reason, as Senator Santorum has said, for this fine individual to be 
held up. It may be that for purely partisan reasons, someone will try 
to find a pretext such as the business about the club. I have heard 
that, too. But I can't believe at the end of the day anybody would 
actually use that, at least publicly, as a reason to oppose the 
nomination. There is nothing to it.
  When people get so caught up in the politics of it, as the Senator 
from Pennsylvania has said, they begin to do things that in cool, 
collected thought maybe they would not ordinarily do. They get carried 
away and even refuse to consider a judge based upon a pretext such as 
this. When that kind of precedent is set, it does begin to not only 
demean this institution but degrade the court system and fundamentally 
alter the relationship between the Senate and the President and our 
responsibility of advise and consent to the nominees.
  The Senator has made a very good general point; unfortunately, a 
point well taken with respect to a nominee pending before the 
committee, Judge Smith.
  I want to make the clarifying point that it is not just the Judiciary 
Committee involved here. The Republican members of the Judiciary 
Committee, of which I am one, would very much like to move forward on 
Judge Smith and other nominees.
  We were called by the President today to join him at the White House 
because today is an anniversary of sorts. There are three anniversaries 
today that mean something to me personally. It is my father's birthday; 
he is 83 years old today. It is the Attorney General's birthday, John 
Ashcroft, who is 60 years old today. And, unfortunately, the other 
reason it has meaning is, as the President reminded us, it has been 
exactly 1 year since he nominated some very fine individuals to serve 
on the circuit courts of appeals--1 year and not a single hearing on 
eight of these nominees, all very fine individuals.

  There has been no hearing scheduled, no hearing held, let alone 
moving the process forward so that they could be confirmed.
  I don't know of any reason any of these judges or lawyers nominated 
to the circuit courts should be held up. As a matter of fact, they have 
all been rated by the American Bar Association as ``qualified'' or 
``well qualified'' to serve on the circuit court. That was, according 
to our Democratic colleagues, the so-called gold standard by which 
these candidates would be judged. So if it is to apply in these cases, 
then all of these individuals should be confirmed, and at a minimum, of 
course, the committee should begin to hold hearings on them.
  Why aren't the hearings being held? It could be one of two different 
reasons. The first has to do with an attempt to change the standard by 
which we historically have judged judicial nominees.
  This morning, the Senator from New York, who chairs a subcommittee of 
the Judiciary Committee, held a hearing in which he was very clear 
about his belief that ideology should play a role in the Senate's 
confirmation of the President's nominees. He expressed a view that 
nominees of President Clinton were all mainstream or mostly mainstream; 
whereas President Bush keeps on nominating ideological conservatives, 
people who, in his view, are out of the mainstream.
  The Senator from New York is certainly entitled to his views. He 
noted, and I agreed, that he and I probably would disagree 
philosophically on a lot of things. He probably would call himself a 
liberal Democrat. I would proudly call myself a conservative 
Republican. We respect each other's rights to believe in what we 
believe and to pursue those positions. But I don't think either one of 
us should therefore suggest that we are the best ones to judge what a 
balance on the court would be. We probably would both want to shade it 
a little bit toward our particular point of view.
  The Senator from New York says he believes it is our job as the 
Senate to

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restore balance to the courts. I pointed out that, of course, balance 
is all in the eye of the beholder; that probably the President of the 
United States, elected by all of the people of the country, was a 
better judge of the mood of the country, especially a President who, by 
the way, has an approval rating of well over 70 percent.
  When he ran for President, it was clear that if he won, he would be 
the person nominating the judges. As a matter of fact, Vice President 
Gore made a point during his campaign to warn voters that if they 
elected President Bush, then-Governor Bush, he would be making the 
nominees to the court. He was right about that. When President Bush was 
declared the winner, he had every right to make these nominations.
  If the people are not well qualified, then the Senate should vote 
them down. On occasion that has happened, but it is quite rare. As the 
Senator from Pennsylvania pointed out, the test has been, for most of 
us over the years, even if you don't like the person ideologically, if 
that is the President's choice and the individual is otherwise well 
qualified, then you really ought to vote to confirm.
  All of us have done that. I have swallowed hard and voted for people 
I didn't particularly care for and whose ideology I very definitely 
didn't care for. I voted for them nonetheless because I couldn't find 
anything wrong with them. They graduated high from their law schools. 
They had done a good job in a law practice or on some other bench. Even 
though I figured they would probably be quite ideologically liberal--
and by the way, some have turned out to be ideologically liberal--I 
felt it was my obligation, since that was the President's choice, and 
there was no question about qualification, that we should approve them. 
That I did.
  That has been the tradition in this body for a very long time. I 
don't think it is appropriate for us to try to define what a proper 
balance of ideology is and to turn down the President's nominee because 
of that.
  I especially think it is wrong not to give them a hearing and find 
out. These eight nominees to the circuit court the President made 
exactly a year ago have never had an opportunity to come before the 
committee and answer any questions about their ideology.
  There is a presumption that has not necessarily been backed up by 
reality or by facts.
  I would think that, as the Senator from Pennsylvania said, if there 
is no reason to be afraid of these judges, then we ought to have a 
hearing. And if there is, I would think people would want to bring 
those reasons out to demonstrate why they are not qualified to sit on 
the bench. But, in fact, there has been no suggestion that there is a 
reason why any of these eight candidates are not qualified.
  In fact, I don't think even most of them could be fairly 
characterized as somehow ideologically way out of the American 
mainstream. The other thing that might be offered as an excuse not to 
hold hearings is--and I have heard this often from my Democratic 
colleagues--they believe that some of the Clinton nominees for courts 
were not treated fairly because they were not given hearings. It is 
true there were a few that, for one reason or another, did not get a 
hearing. Of course, in the case of those nominated at the end of the 
last year of the Presidency, there is good reason for that because 
there is no time to do it. But there were still probably some who could 
have had a hearing and did not.
  A hearing was held this morning by the Senator from New York in which 
four of those individuals were called to testify. And each one of them 
made the point that they were disappointed--actually, one had gotten a 
hearing but had not been confirmed. They all made the point they were 
disappointed and they didn't think it was fair. Two of them, 
particularly, I thought, made a very good point that when you get right 
down to it, it is very unfair for a nominee not to have a hearing. They 
believe that all nominees should have a hearing. That, of course, 
applies today as much as it applied to them. If it was wrong for them 
to be denied a hearing, it is just as wrong for President Bush's 
nominees to be denied a hearing.
  The second reason that sometimes is offered up to me why President 
Bush's nominees are not being given a hearing or moved forward through 
the process for confirmation, it seems to me, is based upon a false 
premise; that is, in effect, saying two wrongs make a right. It is 
wrong not to give somebody a hearing. Some of President Clinton's 
nominees were not given a hearing, so we are not going to give 
President Bush's nominees a hearing. If it is wrong, it is wrong. If it 
is wrong, it should stop.
  I heard one colleague say, but we need to go back and fix the wrong. 
To my knowledge, there is only one President who has gone back and 
nominated people his predecessor of another party had nominated who 
were not confirmed. President Bush has actually gone the extra step and 
renominated two of the Clinton nominees who have been confirmed already 
by this body. To my knowledge, President Clinton didn't renominate any 
of the 40-some--I believe that is the correct number--nominees pending 
at the end of the Bush 41 administration. President Bush 43 has done 
that.
  So I think it is wrong to say we are not going to have a hearing on 
these individuals because some other candidates didn't get a hearing 
and that was wrong. Again, two wrongs don't make a right.
  Today, President Bush told us that he called upon the Senate, and 
specifically the Senate Judiciary Committee, to move forward with these 
nominees. He told us he thought it was very unfair to the fine people 
he had nominated that their lives, in effect, are in limbo at the 
moment because they don't know whether they are going to get a hearing, 
whether they are going to be confirmed. In the meantime, their law 
practices are suffering, if they are still in the practice of law. 
Their reputations are hanging in the balance.

  Let me tell you a little bit about a couple of them. Of these eight 
nominees who have languished before the committee and have not had a 
hearing, one is John Roberts, a nominee to the DC Circuit Court of 
Appeals. He is one of the country's leading appellate lawyers. He has 
argued 36 cases before the Supreme Court. He served as Deputy Solicitor 
General. He has a great track record. There is nothing wrong with this 
nominee. He is one of the smartest people and one of the most 
experienced people we could put on the DC Circuit Court. Nobody denies 
that. So why hasn't he had a hearing? Why?
  You can cite all kinds of statistics about how many Clinton nominees 
were approved and this and that. But when you get right down to it, 
there is absolutely no reason this fine man hasn't had a hearing now in 
a year.
  Miguel Estrada has been nominated to the DC Circuit and he has a 
great story to tell. He would be the first Hispanic ever to serve on 
the DC Circuit. He has argued 15 cases before the U.S. Supreme Court. 
By the way, this is a big deal for a lawyer to argue before the Supreme 
Court. I have had three cases there in my law career, and it is a great 
honor for a lawyer. When you can say you have argued 15 cases--and I 
argued 1--and when you can say you argued 36 cases, that is something 
very few lawyers have ever had the opportunity to do. It shows that you 
are an extraordinary lawyer. So why isn't Miguel Estrada even getting a 
hearing? He would be the first Hispanic to serve on this court. He was 
an Assistant U.S. Solicitor General. He was a Supreme Court law clerk. 
He has been a Federal prosecutor. No one can say he is not qualified.
  In fact, the Bar Association unanimously recognized both of these 
individuals are well qualified, with their highest rating.
  Justice Pricilla Owen, a nominee to the Fifth Circuit, has served on 
the Texas Supreme Court since 1994. Every newspaper in Texas endorsed 
her in her last run for reelection. So why isn't Justice Pricilla Owen 
even receiving a hearing? There is no reason she should not receive a 
hearing--or at least no fair reason.
  I am told Michael McConnell is one of the most intelligent people 
ever to be nominated to a circuit court. He is nominated to the Tenth 
Circuit, and he is one of the country's leading constitutional scholars 
and lawyers. He has an incredible reputation for fairness, as has been 
illustrated by the support he has received from literally

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hundreds of Democrat and Republican law professors around the country. 
He is clearly one of the outstanding jurists in the country. He hasn't 
even gotten a hearing. Why?
  Jeffrey Sutton is another of the country's leading appellate lawyers. 
He has been nominated to the Sixth Circuit. He graduated from Ohio 
State Law School and was first in his class. He has argued over 20 
cases before the U.S. Supreme Court and State supreme courts, and he 
served as solicitor of the State of Ohio.
  Justice Deborah Cook, a nominee to the Sixth Circuit, has served as a 
justice on the Ohio Supreme Court since 1994, a State supreme court 
justice. She was the first woman partner in Akron's oldest law firm. 
This is another extraordinarily qualified individual. There is no 
reason for her not to have a hearing. Why hasn't this nominee even had 
a hearing?
  Judge Dennis Shedd has been nominated to the Fourth Circuit. He was 
unanimously confirmed by the Senate as a Federal district judge in 
1990. He is strongly supported by both home State Senators--one a 
Democrat and the other a Republican. In fact, he is past chief counsel 
to the Senate Judiciary Committee. He, too, has a great number of 
friends on both sides of the aisle. He would be a great judge on the 
circuit court. Why hasn't he even received a hearing? Is there anything 
wrong with him?

  Judge Terrence Boyle, also nominated to the Fourth Circuit, was 
unanimously confirmed to be a Federal district judge in 1984. He has 
served all of this time, and I haven't seen anybody come forward with 
anything that would suggest he is not qualified. As a matter of fact, 
the State Democratic Party chairman supports Judge Boyle's nomination. 
He says that he gives everyone a fair trial.
  If the former chairman of the Democratic Party in the State can 
endorse a Republican President's nominee to the circuit court, that is 
a pretty good thing. You would think partisan consideration could be 
laid aside. Why hasn't this individual even received a hearing?
  It is not too much to ask that, after 365 days, the first step in the 
confirmation process be taken. A year ago, President Bush said: There 
are over 100 vacancies on the Federal courts causing backlogs, 
frustration, and delay of justice.
  Today, a year later, he is asking us to begin the process of clearing 
up this backlog. He has done his part. Chief Justice Rehnquist recently 
stated that the present judicial vacancy crisis is ``alarming,'' and on 
behalf of the judiciary, he implored the Senate to grant prompt 
hearings and have up-or-down votes on these individuals.
  I noted that the chairman of the Senate Judiciary Committee, Senator 
Leahy, in 1998, at a time when there were 50 vacancies, said that 
number of vacancies represented a ``judicial vacancy crisis.'' Those 
were his words. Today, there are 89 vacancies. We are getting close to 
twice as many. It is a 10-percent vacancy rate. The Judicial Conference 
of the United States classified 38 of these court vacancies as judicial 
emergencies.
  The President has 18 individuals nominated to fill a seat designated 
as a judicial emergency. What that means is that litigants cannot get 
to court. There are delays of 6 and 8 years of people not being able to 
get to court or have their cases resolved--in the case of some criminal 
cases. This is unfair to litigants, and it has been said many times 
that justice delayed is justice denied. There are many situations in 
which that is true, but that is what is happening as a result of not 
being able to fill these positions, especially with regard to those 
denominated as judicial emergencies.

  The 12 regional circuit courts of appeals are the last resort, other 
than the Supreme Court. There are 30 vacancies, which is a 19-percent 
vacancy rate. Filings in the 12 regional courts of appeals reached an 
all-time high last year. They have increased 22 percent since 1992, and 
I could quote from former presidents of the American Bar Association 
and others who have expressed grave concern about the ability to do 
justice when these kinds of vacancies exist.
  I will read one quotation from one letter:

       I urge you to heed President Bush's call and not as 
     Republicans and Democrats, but as Americans. It's time for 
     the Senate to act for the good of our judicial system.

  In the Sixth Circuit Court of Appeals, half of the court is vacant. 
Of the 16 authorized judges, 8 stand vacant today. At a time when there 
were only four vacancies on that court, Chief Judge Merritt of that 
court wrote to the Senate Judiciary Committee and said this:

       The court is hurting badly and will not be able to keep up 
     with its workload. Our court should not be treated in this 
     fashion. The public's business should not be treated this 
     way. The litigants in the Federal courts should not be 
     treated this way. The situation in our court is rapidly 
     deteriorating due to the fact that 25 percent of our 
     judgeships are vacant.

  Now it is 50 percent. The caseloads in Federal court can be expected 
to increase because of the war on terrorism and in my area because of 
the extraordinary amount of illegal contraband and illegal immigration 
coming across the border.
  It is sad that the Senate cannot bring itself to even hold hearings 
on people who have now been sitting for a year since their nomination, 
individuals who by any measure are extraordinarily well qualified, are 
among the most qualified in the country. There is nothing wrong with 
them, and yet no hearing.
  As of this date, the Senate has confirmed only 9 of the President's 
30 circuit court nominees. By contrast, President Clinton had 42 
percent of his circuit court nominees confirmed by this same date in 
his term.
  I know we can quote statistics, and that is not really the most 
important issue. I quote from the Washington Post editorial of November 
30 of last year:

       The Judiciary Committee chairman, Democratic Senator 
     Patrick Leahy, has offered no reasonable justification for 
     stalling on these nominations.

  The point is, anybody can cite statistics, and most of us are pretty 
good lawyers and can argue the case, but at the end of the day, there 
is no reasonable justification for stalling on these nominations. There 
is no reasonable justification for stalling, unless--I think the Post 
might have gone on to say--you are trying to get even because of some 
perceived slight. That is beneath the Senate of the United States of 
America, and it should not be the motive of anyone, and I cannot 
believe it would be. This is no reason why these nominees should be 
denied a hearing.
  Lloyd Cutler, who was President's Clinton's White House counsel, and 
former Congressman Mickey Edwards recently wrote an op-ed in the 
Washington Post. They said:

       Delay in confirming judges means justice delayed for 
     individuals and businesses, and combined with the bitter 
     nature of some confirmation battles, it may deter many 
     qualified candidates from seeking Federal judgeships.

  That is the unfortunate additional result of what is happening here. 
More and more good candidates are going to say: Why should I put myself 
and my family through all of this? And that is going to be a real 
shame.
  Historically, Presidents were able to get their nominees, especially 
their first nominees, confirmed. President Reagan, President Bush 1, 
and President Clinton all enjoyed a 100-percent confirmation rate on 
their first 11 circuit court nominees--100 percent. All were confirmed 
within a year of their nomination. Remember, these eight we are talking 
about have not even had a hearing within a year.
  The broader picture is no different. The history of the last three 
Presidents' first 100 nominations shows that, one, President Reagan got 
97 of his first 100 judicial nominations confirmed in an average of 36 
days; President George Herbert Walker Bush saw 95 of his first 100 
confirmed in an average of 78 days; and President Clinton saw 97 of his 
first 100 confirmed in an average of 93 days. But to date, this Senate 
has confirmed only 52 of President Bush's first 100 nominees, and the 
average number of days to confirm has exploded to 150.
  It is not possible to say that nothing is happening, that nothing is 
different, that this is no different than in previous administrations, 
that President Bush's nominees are being treated the same as any 
others. It is just not true. The statistics belie that.
  Madam President, even if you do not want to talk about the 
statistics, I just

[[Page S4132]]

ask you to focus on what President Bush focused on today. He said: I 
nominated 11 good people a year ago today, and only 3 of them have even 
had the courtesy of a hearing. Would you please go back to your 
colleagues and implore them to treat these people fairly? He said: It 
is not for me; it is for the American people. He made that point a 
couple times. And it is for justice and for the American people. I also 
think that it is going to say something about the Senate.
  The PRESIDING OFFICER. The time controlled by the minority in morning 
business has expired.
  Mr. KYL. Madam President, if we do not move on these nominations, it 
is going to cause a significant decline in the reputation of the 
Senate.
  The PRESIDING OFFICER. The Senator from Minnesota.

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