[Congressional Record Volume 148, Number 94 (Friday, July 12, 2002)]
[Senate]
[Pages S6702-S6704]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  ANNIVERSARY OF THE REORGANIZATION OF THE SENATE JUDICIARY COMMITTEE

  Mr. LEAHY. Mr. President, this week marks the first anniversary of 
the reorganization of the Senate Judiciary Committee following the 
change in majority last year. This past year has been a busy one for 
our committee .
  Just this week the Senate adopted as an amendment to the accounting 
reform and investor protection bill the text of S. 2010, the Corporate 
and Criminal Fraud Accountability Act. That is a bill we reported in 
May after committee action in February and April. The Senate also acted 
on important amendments offered by Senator Biden, Senator Hatch, and 
Senator Edwards to that bill and many members of this committee have 
made important contributions to improve these measures over the last 
several months.
  In the days and months following the terrorist attacks on September 
11, members of this committee led the Senate in its responses leading 
to enactment of the USA PATRIOT Act, the Enhanced Border Security and 
Visa Entry Reform Act, the Terrorist Bombings Convention Implementation 
Act, and the Mychal Judge Police and Fire Chaplains Public Safety 
Officers' Benefit Act. The committee also reported a number of 
resolutions to honor the victims of those attacks with the Public 
Safety Medal of Valor and the Law Enforcement Tribute Act, S. 2431. We 
continue to work on important matters for victims of terrorism.
  We have reported a number of other law enforcement related measures 
including the Drug Abuse Education, Prevention and Treatment Act, S. 
304; the Federal Judiciary Protection Act, S. 1099; the National Child 
Protection Improvement Act, S. 1868; the Safe Explosives Act, S. 1956; 
the National Cyber Security Defense Team Authorization Act, S. 1989; a 
bill clarifying the definition of ``vehicle,'' S. 2621; and an annual 
authorization for the Department of Justice, S. 1319 and its House 
counterpart H.R. 2215. The committee reported the Local Law Enforcement 
Enhancement Act, S. 625, which is an important hate crimes bill; and 
the COPS Reauthorization Act, S. 924, which extends the highly 
successful COPS Program. We have also reported legislation on identity 
theft, such as the Social Security Number Misuse Prevention Act, S. 
848, and the Restore Your Identity Act, S. 1742.
  In addition, we have reported a number of measures to improve 
competitive business conditions and protect consumers, such as the Drug 
Competition Act, S. 754; the Motor Vehicle Franchise Contract 
Arbitration Fairness Act, S. 1140; and the Product Packaging Protection 
Act, S. 1233. We have acted on important intellectual property 
legislation, such as the Madrid Protocol Implementation Act, S. 407; 
the TEACH Act, S. 487; and the Patent and Trademark Office 
Authorization Act, S. 1754, as well as related House measures H.R. 1866 
and H.R. 1886.
  We have reported and worked on a number of immigration matters, 
including the Anti-Atrocity Alien Deportation Act, S. 864; the Child 
Status Protection Act, S. 672, and its House counterpart, H.R. 1209; a 
bill for children of Vietnamese refugees, H.R. 1840; bills to provide 
work authorization for spouses, H.R. 2277 and H.R. 2278; and others.
  Among our most important work has been our aggressive oversight 
efforts involving the Department of Justice, the FBI, the INS, and the 
Civil Rights Division. Our oversight efforts have already led to the 
committee's reporting a bipartisan FBI Reform Act, S. 1974, which is 
awaiting Senate action.
  This week the committee finally began its consideration of a most 
important legislative initiative we began years ago, the Innocence 
Protection Act, S. 486.
  All in all, in our first year we reported 80 legislative matters and 
over 250 Presidential nominations to the Senate. We have held more than 
100 hearings during our first tumultuous year.
  We have had a record year in considering this President's nominees. 
Partisans have perpetuated an untrue and unfortunate myth that the 
Democratic-led Senate and Judiciary Committee have blocked the 
President's nominees. Nothing could be further from the truth.
  The Democratic-led Judiciary Committee has had a recordbreaking year 
fairly and promptly considering President Bush's nominees. In addition 
to the dozens of high-ranking Justice Department officials for whom we 
held hearings, and our work in connection with more than 180 executive 
branch nominees the committee reported, we have had a record year with 
respect to judicial nominees.
  In this, our first year, we held hearings for 78 of the President's 
nominees. That is more hearings for this President's district and 
circuit court nominees than ever held in any of the 6\1/2\ years that 
preceded the change in majority last summer.
  In particular, we held more hearings for more of President Bush's 
circuit court nominees, 16, than in any of the 6\1/2\ years in which 
the Republicans controlled the committee before the change in majority 
last summer. For that matter, we held twice as many hearings for court 
of appeals nominees than were held in the first year of the Reagan 
administration when the Senate was controlled by Republicans and five 
times more than in the first year of the Clinton administration when 
the Senate was controlled by Democrats. Those are the facts.
  Under Democratic leadership, this Committee in its first year also 
voted on more judicial nominees, 74, than in any of the 6\1/2\ years of 
Republican control that preceded the change in majority. We voted on 
almost twice as many circuit court nominees, 15, than the Republican 
majority averaged in the years they were in control. In fact, this last 
year we voted on more nominees than were voted on in 1999 and 2000 
combined and on more circuit court nominees than the Republicans 
allowed during 1996 and 1997 combined. And the committee voted on an 
additional court of appeals nominee yesterday.
  We have achieved what we said we would by treating President Bush's 
nominees more fairly and more expeditiously than President Clinton's 
nominees were treated by Republicans. By many measures the Senate 
Judiciary Committee has achieved almost twice as much this last year as 
Republicans averaged during their years in control.
  The Senate has confirmed more circuit and district court judges, 57, 
than were confirmed during 2000, 1999, 1997, 1996, and 1995, 5 of the 
prior 6 years of Republican control of the Senate. Republicans averaged 
38 confirmations a year. By contrast the Democratic Senate achieved 57 
judicial confirmations in our first 10 months, before the 
Administration's obstructionism stalled Senate floor actions on 
nominations for more than 2 months. There are another 17 judicial 
nominees on the Senate Executive Calendar. The delay in the votes on 
these nominees has been due to the delay in the administration's 
fulfilling its responsibility to work with the Senate in the naming of 
members of bipartisan boards and commissions.

[[Page S6703]]

  I congratulate the majority leader for overcoming this impediment and 
for his patience and determination in achieving some movement on these 
matters. I understand that he hopes to be able to resume voting on 
judicial nominations as soon as next Monday. Had the administration not 
caused this delay, I am confident that the Senate would have confirmed 
more than 70 judicial nominations before the end of this week and far 
outdistanced any Republican total for any preceding year. Nonetheless, 
we were able to overcome the other obstacles created by the 
administration and proceed to confirm 57 circuit and district court 
nominees in our first 10 months in the majority, a record outpacing any 
Republican total in any 10-month period in which they held the 
majority.
  We have also addressed longstanding vacancies on circuit courts 
caused by Republican obstruction of President Clinton's judicial 
nominees. We held the first hearing for a Fifth Circuit nominee in 7 
years, the first hearings for Sixth Circuit nominees in almost 5 years, 
the first hearing for a Tenth Circuit nominee in 6 years, and the first 
hearings for Fourth Circuit nominees in 3 years.
  We have reformed the process for considering judicial nominees. For 
example, we have ended the practice of anonymous holds that plagued the 
period of Republican control, when any Republican Senator could hold 
any nominee from his home State, his own circuit or any part of the 
country for any reason, or no reason, without any acknowledgment or 
accountability. We have returned to the Democratic tradition of holding 
regular hearings, every few weeks, rather than going for months without 
a single hearing.
  It would certainly have been easier and less work to retaliate for 
the unfair treatment of the last President's judicial nominees. We did 
not. We have been, and will continue to be, more fair than the 
Republican majority was to President Clinton's judicial nominees. More 
than 50 of Clinton's nominees never got a vote; many languished for 
months and years before they were returned without a hearing. Others 
waited years--not just a year, but up to more than 4 years to be 
confirmed. Some never were accorded a hearing, some were finally 
confirmed after years of delay.
  Those who now seek to pretend that the Democratic majority in the 
Senate caused a vacancy crisis in the Federal courts are ignoring the 
facts. Under Republicans, court vacancies rose from 63 in January 1995 
to 110 in July 2001, when the committee reorganized. During Republican 
control before the reorganization of the committee, vacancies on the 
courts of appeals more than doubled, increasing from 16 to 33. That is 
what we inherited. But in 1 year of Democratic control, and despite 45 
additional vacancies caused largely by the retirements of many past 
Republican appointees, we have reduced the number of district and 
circuit court vacancies.
  Vacancies continue to exist on the court of appeals, in particular, 
because a Republican Senate majority was not willing to hold hearings 
or vote on more than half--56 percent--of President Clinton's circuit 
nominees in 1999 and 2000, and was not willing to confirm a single 
circuit judge during the entire 1996 session. Republicans caused the 
circuit vacancy crisis, and it has taken a tremendous effort to 
evaluate and have hearings for 16 circuit court nominees in less than a 
year.
  We are hard at work evaluating the records of the few remaining 
nominees who have not yet had hearings. While we have moved as quickly 
as possible to evaluate all of the nominees, the Senate is not, and 
should not be, a rubber stamp. If this President is successful in 
filling all of the vacancies he inherited due to Republican obstruction 
as well as the new vacancies that have arisen on the circuits, 
Republican appointees will constitute the majority, and often a two-
thirds majority, on 11 of the 13 appellate courts below the Supreme 
Court. Such a takeover would affect the next 20 years of judicial 
decisions coming from the courts of appeal.
  The President and his advisers know this and, aside from the few 
relatively moderate nominees we have been able to confirm quickly, they 
have also chosen a number of people with records of judicial activism 
or out-of-mainstream ideology, including several young men in their 
thirties and early forties, for many of these lifetime appointments to 
the federal bench. What the President and his advisers acknowledge they 
are doing is nominating ideologically conservative judicial nominees to 
stack the fifth, sixth, and DC Circuits with judicial activists of 
their choice. That is part two of the Republican strategy.
  In part one, several Republicans in the Senate prevented many of 
these vacancies from being filled in the first place, so that whatever 
balance there might be, or might have been, on those courts is missing. 
They kept off well qualified moderate nominees, not chosen because of 
any litmus test or ideology. They did so to provide a Republican 
President with the opportunity to load the bench, especially the 
appellate court bench, with right wingers.
  Advice and consent does not mean giving the President carte blanche 
to pack the courts. The ingenious system of checks and balances in our 
Constitution does not give the power to make lifetime appointments to 
one person alone, to remake the courts along narrow ideological lines, 
to pack the courts with judges whose views are outside of the 
mainstream, and whose decisions would further divide our Nation.
  We have worked hard to balance these competing concerns over the past 
year: how to address the vacancy crisis we inherited, while also not 
being a rubberstamp and abdicating our responsibilities to provide a 
democratic check on the President's choices for lifetime appointment to 
the Federal courts. These are the only lifetime appointments in our 
system of government, and they matter a great deal to our future.
  In 1801, when Thomas Jefferson, the first President who was not a 
member of the Federalist Party was elected, he faced a similar 
situation. The Federalists in Congress had passed, and the lame duck 
President Adams had signed, a bill creating a number of new seats on 
the Federal courts. President Adams then appointed a number of 
Federalists who have been called ``midnight judges.'' One of the first 
things President Jefferson did was to get that law repealed and to 
refuse to sign the appointment papers of some of those judges. That is 
part of the story of the famous Supreme Court case, Marbury v. Madison.
  Thus, it took only 12 years of our new Nation for an effort to pack 
the courts to occur. It took the first transition in political parties 
for one to give in to the temptation to try to stack the deck and 
affect the outcome of cases through the appointment of judges.
  The best-known attempt to pack the courts occurred during the 
administration of President Franklin Roosevelt. President Roosevelt's 
attempt to pack the Supreme Court with justices of his choosing, to get 
more votes on the side of cases he wanted to win, was rejected by 
Congress and the American people.
  If one thoroughly examines the types of nominees this President is 
sending us, one might conclude that we are facing another attempt to 
pack the courts. The Senate Judiciary Committee is working very hard to 
analyze all of President Bush's judicial nominees fairly, one by one. 
In our first year, we have already had 21 hearings on 78 judicial 
nominees, including 16 circuit court nominees. We are planning another 
hearing for next week.
  In the meantime, Republicans have been unfairly critical that not 
every nominee has yet had a hearing or been confirmed. Some have 
asserted that there is some sort of ``honeymoon'' period for Presidents 
in getting confirmation of their first choices for the courts. Of 
course, the Constitution provides for no such abdication of 
responsibility for a President's first few lifetime appointees or his 
last. To support this extra-constitutional theory, Republicans assert 
that the last three Presidents had a 100-percent confirmation rate of 
their first several circuit court nominees. When they say this, they 
conveniently leave a few details out. First, it took previous Senates 
more than a year to confirm 11 circuit court nominees of past 
Presidents. We have only had a year and the Senate has already 
confirmed nine of this President's circuit court nominees and five more 
are awaiting a vote by the full Senate.
  President George W. Bush has said previously that he would choose 
judges

[[Page S6704]]

in the mold of two ideologically conservative activists, Justice Scalia 
and Justice Thomas. No judicial nominees should be rubber-stamped by 
the Senate, not even a President's first few choices. All nominees for 
these lifetime positions merit careful review by the Senate. When a 
President is using ideological criterion to select nominees, it is fair 
for the Senate to consider it as well. Federalist Society credentials 
are not a substitute for fairness, moderation or judicial temperament. 
When a President is intent on packing the courts and stacking the deck 
on outcomes, consideration of balance and how ideological and activist 
nominees will affect a court are valid considerations for Senators 
entrusted by the Constitution to evaluate these lifetime appointees.
  The high dudgeon expressed by Republicans about the order in which we 
have been considering this President's circuit court nominees is 
especially unwarranted in light of the objectively unfair way they 
treated President Clinton's circuit court nominees. Some of the 
vacancies we inherited date back to 1990, 1994 and 1996.
  Partisans conveniently ignore the Republicans' terrible record of 
obstruction when they complain that a few of President Bush's nominees 
have not yet had a hearing. Those nominees chosen without consultation 
with both parties in the Senate and, in particular, those who do not 
have home-State Senator support do not get hearings, according to 
longstanding Senate tradition. Republicans have tried to measure our 
achievements by standards they never met but surely even they are not 
now suggesting overriding the longstanding Senate tradition of consent 
or blue slips from both home-State Senators on which they themselves 
insisted. Republicans averaged only seven confirmations a year for 
President Clinton's circuit court nominees. We confirmed nine in our 
first 10 months.
  I have tried to work with the White House on judicial nominations. I 
have gone out of my way to encourage them to work in a bipartisan way 
with the Senate, like past Presidents, but in all too many instances 
they have chosen to bypass bipartisanship. I have encouraged them to 
include the ABA in the process earlier, like past Presidents, but they 
have refused to do so even though their decision adds to the length of 
time nominations must be pending before the Senate before they can be 
considered.
  This past January, I again called on the President to stop playing 
politics with judicial nominations and act in a bipartisan manner. Just 
last month I sent a detailed letter to the President on these issues. 
My efforts to help the White House improve the judicial nominations 
process have been rejected. My most recent effort met with a 
perfunctory acknowledgment or receipt, which I will ask unanimous 
consent to have printed in the Record at the end of my remarks. 
Unfortunately, this letter is about the most constructive response that 
I have received from the White House to my many efforts to improve the 
process and speed up the filling of judicial vacancies with qualified, 
fair-minded judges.
  Republican statements on judicial nominees regularly rely on 
superficially appealing but misleading statistics to gloss over the 
types of nominees they are choosing for our Federal courts. For 
example, they complain that Presidents Reagan, Bush and Clinton got 97, 
95 and 97 percent, respectively, of their first 100 judicial 
nominations confirmed. What they conveniently fail to mention is that 
it took 2 full years for President Reagan to have 89 of his judicial 
nominees confirmed, and well into year 3 to reach the 100 mark. 
Similarly, the first President Bush had only 71 judicial nominees 
confirmed after 2 full years, and it took well into year 3 to reach 100 
confirmations.
  We are moving quickly, but responsibly, to fill judicial vacancies 
with qualified nominees we hope will not be activists. In our first 
year we confirmed 57 judges and reported 74 judicial nominees. 
Partisans ignore these facts. The facts are that we are reporting 
President Bush's nominees at a faster pace than the nominees of prior 
Presidents, including those who worked closely with a Senate majority 
of the same political party. We have accomplished all this during a 
period of tremendous tumult and crisis.
  The Judiciary Committee noticed the first hearing on judicial 
nominations within 10 minutes of the reorganization of the Senate, and 
held that hearing on the day after the committee was assigned new 
members. Yesterday was the 1-year anniversary of that first hearing for 
Judge Roger Gregory, who was initially nominated by President Clinton, 
but like so many other judicial candidates, including other African-
American nominees to the Fourth Circuit, his nomination languished 
without a hearing by the Republican-controlled Senate. Because of this 
history of inaction on such nominees to that court, President Clinton 
made a recess appointment to make Roger Gregory the first African-
American judge in history to sit on the Fourth Circuit, and he sent his 
nomination for a permanent position on that court back to the Senate at 
the beginning of the 107th Congress. Unfortunately, President Bush 
withdrew Judge Gregory's nomination in March of 2001, but he finally 
sent it back to us later that year. When the Senate Judiciary Committee 
held the hearing on the nomination of Judge Roger Gregory to the Fourth 
Circuit last year, it was the first hearing on a Fourth Circuit nominee 
in 3 years, although five nominees to that court during that period 
were never given hearings by Republicans.
  Subsequent to that hearing, we held unprecedented hearings during the 
August recess last year and proceeded with a hearing 2 days after the 9 
11 attacks and shortly after the anthrax attack. We will hold our 22nd 
hearing for judicial nominees next week. We are doing our best to 
address the vacancy crisis we inherited.
  The Senate Judiciary Committee and the Democratic-led Senate has a 
record of achievement and of fairness to be proud of on this 
anniversary. I thank the Members who have worked cooperatively with me 
to make progress in so many areas over the last year.
  Mr. President, I ask unanimous consent that the letter previously 
referred to be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                              The White House,

                                        Washington, June 27, 2002.
     Hon. Patrick Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: This is to acknowledge the receipt of 
     your letter to the President expressing the need for 
     bipartisan cooperation while the Senate considers judicial 
     nominations.
       I hope you will understand that in light of the tragic 
     events of September 11th, enhanced screening of all incoming 
     White House mail prevented our office from receiving your 
     correspondence and providing you with a prompt reply to your 
     letter.
       I have shared your letter with the President's advisors and 
     the appropriate agencies who have been formulating policy 
     recommendations in this area. Your letter is receiving their 
     close and careful attention.
       Thank you for your patience.
           Sincerely,

                                            Nicholas E. Calio,

                                    Assistant to the President and
     Director of Legislative Affairs.

                          ____________________