Congressional Record, Volume 148 Issue 58 (Thursday, May 9, 2002)

[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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