[Congressional Record Volume 148, Number 109 (Tuesday, September 3, 2002)]
[Senate]
[Pages S8048-S8052]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF TERRENCE F. McVERRY, OF PENNSYLVANIA, TO BE UNITED STATES 
        DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA

  The PRESIDING OFFICER. Under the previous order, the hour of 12:30 
having arrived, the Senate will proceed to executive session to 
consider Executive Calendar No. 962, which the clerk will report.
  The assistant legislative clerk read the nomination of Terrence F.

[[Page S8049]]

McVerry, of Pennsylvania, to be United States District Judge for the 
Western District of Pennsylvania.
  The PRESIDING OFFICER. The yeas and nays have been ordered. The clerk 
will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID, I announce that the Senate from Hawaii (Mr. Akaka), the 
Senator from Delaware (Mr. Biden), the Senator from Vermont (Mr. 
Jeffords), the Senator from Vermont (Mr. Leahy), and the Senator from 
New Jersey (Mr. Torricelli) are necessarily absent.
  Mr. NICKLES. I announce that the Senator from Texas (Mr. Gramm), the 
Senator from North Carolina (Mr. Helms), the Senator from Alaska (Mr. 
Murkowski), the Senator from Pennsylvania (Mr. Santorum), the Senator 
from Pennsylvania (Mr. Specter), the Senator from New Mexico (Mr. 
Domenici), and the Senator from Texas (Mrs. Hutchison), are necessarily 
absent.
  I further announce that if present and voting the Senator from New 
Mexico (Mr. Domenici), and the Senator from North Carolina (Mr. Helms), 
would each vote ``yea''.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 88, nays 0, as follows:

                      [Rollcall Vote No. 208 Ex].

                                YEAS--88

     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchinson
     Inhofe
     Inouye
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--12

     Akaka
     Biden
     Domenici
     Gramm
     Helms
     Hutchison
     Jeffords
     Leahy
     Murkowski
     Santorum
     Specter
     Torricelli
  The Nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the President will 
be immediately notified of the Senate's action.
  Mr. LEAHY. Madam President, today the Senate is confirming Terrence 
McVerry to the United States District Court for the Western District of 
Pennsylvania. He is the 73rd judicial nominee of President George W. 
Bush to be confirmed by the Senate since July 20 last year. With 
today's vote, the Democratic-led Senate has already exceeded the number 
of circuit and district court nominees confirmed in the last 30 months 
of Republican control of the Senate, when 72 judges were confirmed in 
those 2\1/2\ years. Democrats have done more than Republicans did in 
less than half the time.
  It is revealing that Republicans, with all of their misleading 
statistics, consistently fail to compare their actual results during 
their most recent period of control of the Senate with the progress we 
have made since the shift in the Senate majority. They do not want to 
compare their own record over the prior 6\1/2\ years with our record of 
accomplishment in evaluating judicial nominees. They do not want to own 
up to their delay and inaction on scores of judicial nominees during 
the last administration. During the period of Republican control of the 
Senate, judicial vacancies rose from 63 to 110. Since the change in 
majority, the Democratic Senate has worked hard to help fill 73 of 
those vacancies.
  All too often the only claim that we hear about the Republican record 
is that President Clinton ultimately appointed 377 judges, five fewer 
than President Reagan. Our Republican critics try to obscure the fact 
that only 245 of those district and circuit court judges were confirmed 
in the 6\1/2\ years that the Republican majority controlled the pace of 
Senate hearings and consideration. That averages only 38 confirmations 
per year. Over an 8-year period that would have yielded 304 
confirmations. In fact, the Republican majority over the last 6 years 
of the Clinton administration produced on average only 58 percent of 
the confirmations achieved during the first 2 years of that 
administration.
  As of today, the Democratic majority in the Senate has acted to 
confirm 73 judges, including 13 nominees to the circuit courts. We have 
proceeded to almost double the confirmation rates of the former 
Republican majority. We have done more in less than 15 months then they 
achieved in their last 30 months in the majority.
  The reason Republicans do not want to talk about their record and 
compare apples to apples is because this truth does not fit comfortably 
with the myth of obstruction by Democrats that they have been working 
so hard to disseminate for their own partisan purposes. This situation 
reminds me of a quote by Adlai Stevenson, who said ``I have been 
thinking that I would make a proposition to my Republican friends . . . 
that if they will stop telling lies about the Democrats, we will stop 
telling the truth about them.'' Unfortunately, the persistence of the 
myth of inaction in the face of such a clear record of progress on 
judicial vacancies by Democrats makes me worry that Republicans are 
following the cynical observation that a lie told often enough becomes 
viewed as the truth. I am confident that Americans understand that 
Democrats have been fairer to this President's judicial nominees than 
Republicans were to his predecessor's nominees.
  Today's vote is another example. The Senate has acted quickly on this 
nomination to the District Court in Pennsylvania. Mr. McVerry was 
nominated in January, received his ABA peer review in March, 
participated in a hearing in June, and he was reported out of the 
Senate Judiciary Committee in July. The Judiciary Committee has held 
hearings for 10 district court nominees from Pennsylvania and the 
Senate has confirmed nine of them in just five months. There is no 
State in the Union that has had more Federal judicial nominees 
confirmed by this Senate than Pennsylvania. I think that the Senate 
Judiciary Committee and the Senate as a whole have done well by 
Pennsylvania.
  This is in sharp contrast to the way vacancies in Pennsylvania were 
left unfilled during Republican control of the Senate, particularly 
regarding nominees in the western half of the State. Despite the best 
efforts and diligence of my good friend from Pennsylvania, Senator 
Specter, to secure confirmation of all of the judicial nominees from 
every part of his home State, there were seven nominees by President 
Clinton to Pennsylvania vacancies who never got a hearing or a vote.
  A good example of the contrast between the way the Democrats and 
Republicans have treated judicial nominees is the case of Judge Legrome 
Davis, a well qualified and uncontroversial judicial nominee. He was 
first nominated to the Eastern District of Pennsylvania by President 
Clinton on July 30, 1998. The Republican-controlled Senate took no 
action on his nomination and it was returned to the President at the 
end of 1998. On January 26, 1999, President Clinton renominated Judge 
Davis for the same vacancy. The Senate again failed to hold a hearing 
for Judge Davis and his nomination was returned after two more years.
  Under Republican leadership, Judge Davis' nomination languished 
before the Committee for 868 days without a hearing. Unfortunately, 
Judge Davis was subjected to the kind of inappropriate partisan rancor 
that befell so many other nominees to the district courts in 
Pennsylvania during the Republican control of the Senate. This year, 
the Democratic-led Senate moved expeditiously to consider Judge Davis, 
and he was confirmed promptly, five weeks after receiving his ABA peer 
review, without a single negative vote. The saga of Judge Davis recalls 
for us so many nominees from the period of January 1995 through July 
10, 2001, who never received a hearing or a vote and who were the 
subject of secret, anonymous holds by Republicans for reasons that were 
never explained.
  The hearing we had earlier this year for Judge Joy Conti was the very 
first

[[Page S8050]]

hearing on a nominee to the United States District Court for the 
Western District of Pennsylvania since 1994, despite President 
Clinton's qualified nominees to that court. It is shocking to me that 
this was the first hearing on a nominee to that court in eight full 
years. No nominee to the Western District of Pennsylvania received a 
hearing during the entire period that Republicans controlled the Senate 
during the Clinton Administration. One of the nominees to the Western 
District, Lynette Norton, waited for almost 1,000 days, and she was 
never given a hearing. Unfortunately, Ms. Norton died earlier this 
year, having never fulfilled her dream of serving on the Federal bench. 
With the confirmation of Judge Conti, we confirmed the first nominee to 
the Western District of Pennsylvania since October of 1994. Despite 
this history of poor treatment of President Clinton's nominees, the 
Democratic-led Senate continues to move forward fairly and 
expeditiously. Terry McVerry is the most recent example of our 
willingness to proceed in spite of recent Republican obstructionism.

  Democrats have reformed the process for considering judicial 
nominees. For example, we have ended the practice of secretive, 
anonymous holds that plagued the period of Republican control, when any 
Republican Senator could hold any nominee from his or her home State, 
his or her own circuit or any part of the country for any reason, or no 
reason, without any accountability.
  We have returned to the Democratic tradition of regularly holding 
hearings, every few weeks, rather than going for months without a 
single hearing. In fact, we have held 23 judicial nominations hearings 
in our first 12 and one-half months, an average of almost two per 
month. In contrast, during the 6\1/2\ years of Republican control, 
during each of 30 months they did not hold a nominations hearing on a 
single judicial nominee. By holding 23 hearings for 84 of this 
President's judicial nominees, we have held hearings for more circuit 
and district court nominees than in 20 of the last 22 years during the 
Reagan, first Bush, and Clinton administrations. The opposition party 
would rather not refer to these facts, which debunk Republican myths 
about who caused the vacancy crisis and delayed judicial appointments.
  When the Senate Judiciary Committee reorganized after the change in 
Senate majority, there were 110 judicial vacancies. That included 33 
circuit court vacancies, twice the number that existed when Republicans 
took over the Judiciary Committee in 1995. During the past 13 and one-
half months, another 43 vacancies have arisen, largely due to 
retirements of past Republican appointees to the courts. If Democrats 
had, in fact, obstructed judicial nominees, as Republicans so often 
claim, there would now be 153 vacancies in our Federal courts, not the 
80 that currently remain.
  We have tried to do our best to address the judicial vacancies 
problem. We have been able to consider district court nominees more 
quickly because they have been generally less controversial and 
ideological than this President's choices for the circuit courts. Not 
all of the district court nominees we have considered, however, have 
been without controversy. One of the nominees on whom we have proceeded 
received a majority ``Not Qualified'' peer review rating from the ABA 
due to his relative inexperience. Five other district court nominees 
have received some ``Not Qualified'' votes during the ABA peer reviews. 
This is despite the fact that the ABA's rating now come after the 
President has given his imprimatur to the candidate and peers may be 
chilled from candidly sharing their concerns.
  A number of President Bush's district court nominees to lifetime 
seats on the Federal bench have also been unusually young and have been 
practicing law for a little more than a decade. Some of them have views 
with which we strongly disagree. Several of this President's judicial 
nominees seem to have earned their nominations as members of the 
Federalist Society. Others have records demonstrating that they are 
pro-life and will actively undercut women's right to choose. Some have 
already gone on to issue decisions against the privacy rights of women. 
Many of this President's district court nominees have been very active 
in Republican and conservative politics or causes. Still other nominees 
have been intimately involved in partisan politics or played key roles 
in Republican fundraising. Today, the Senate is confirming a person 
whose spouse is employed as the treasurer of Senator Santorum's 
election campaign.
  The Federal district courts matter. They are the courts of first 
resort, the trial courts where individuals' claims are tried or 
dismissed. Not everyone can afford the costs of appealing a trial court 
ruling. Additionally, circuit courts traditionally give great deference 
to the findings of the lower court that examined the claims and 
observed witnesses first hand, rather than making new factual findings 
based on a cold record. Of course, matters of law are reviewed by the 
circuit courts, and their rulings can have a substantial impact on the 
development of the law, especially with a Supreme Court that hears 
fewer than 100 cases per year.
  Because we have moved quickly and responsibly on consensus nominees, 
the number of vacancies is not at the 153 mark it would be at with no 
action, but is down to 80. On July 10, 2001, with the reorganization of 
the Senate, we began with 110 vacancies, 77 of which were on the 
district courts. Despite the large number of additional vacancies that 
have arisen in the past year, with the 60 district court confirmations 
we have had as of today, we have reduced district court vacancies to 
51. That is almost to the level it was at when Republicans took over 
the Senate in 1995.
  The opposition party dismisses this achievement in a backhanded way, 
but it is one of the most significant things we have accomplished for 
the sake of the Federal courts and for litigants in the Federal courts. 
It has not been easy to process that many district court nominees in 
little more than one year. We have confirmed more of this President's 
district court nominees over the past year than in any of the prior 
6\1/2\ years of Republican control. Indeed, we have achieved more 
district court confirmations in the last 13 months than Republicans 
accomplished in all of 1999 and 2000 combined and more than were 
confirmed during the last 30 months of Republican majority control of 
the Senate.
  We have had hearings for more of this President's district court 
nominees than in any year of the Reagan Administration, and he had 6 
years of a Senate majority of his own party. Indeed, we have confirmed 
more of President George W. Bush's district court nominees in these 
past 13 plus months than were confirmed in any year of his father's 
presidency and more than were confirmed during his father's first two 
full years combined.
  In contrast to how fairly we have treated this President's Federal 
court nominees, consider how poorly nominees were treated during the 
prior 6\1/2\ years of Republican control of the Senate. Some district 
court nominees waited years and never received a hearing. For example, 
nine district court nominees from Pennsylvania alone never got 
hearings, including then Pennsylvania Common Pleas Court Judge Legrome 
Davis, who was subsequently re-nominated by President Bush and 
confirmed earlier this year. Four district court nominees from 
California were never given a hearing by Republicans despite the full 
support of their home-State Senators. These are just a few examples of 
Republican obstruction of judicial nominees. In all, more than three 
dozen of President Clinton's district court nominees never received 
hearings or votes by Republicans.

  Several others received hearings but never were given votes by the 
Republican-controlled Judiciary Committee. These included six district 
court nominees, such as Fred Woocher, a California district court 
nominee and Clarence Sundram from New York. Still others waited 
hundreds and hundreds of days to be confirmed, such as Judge Susan Oki 
Mollway of the District Court in Hawaii, whose nomination languished 
for 913 days before she was confirmed, and Judge Margaret Morrow of the 
District Court for the Central District of California who waited almost 
2 years, 643 days, to be confirmed. Let us not forget Missouri Supreme 
Court Justice Ronnie White who was delayed twice only to be defeated on 
the Senate floor, in a sneak attack.

[[Page S8051]]

Judge White had waited 801 days only to be defeated through character 
assassination on the floor of the Senate. In all, nearly 60 of 
President Clinton's judicial nominees were blocked, many in the dark of 
night through secretive, anonymous holds.
  When confronted with their record Republicans often refer to all 
nominees not getting hearings in 1992. That year, the Senate confirmed 
more of President George H.W. Bush's judicial nominees than in any year 
of his presidency and confirmed more judges than in any year in which 
the Republican majority controlled consideration of President Clinton's 
nominees. In 1992, 66 judges were confirmed. So, even though some 
nominations were returned, the Senate in 1992 worked hard to confirm a 
substantial number, 66, of new judges in the 10 months they were in 
session during that presidential election year. By contrast, in 1996 
when the Republicans were in the Senate majority only 17 judges were 
confirmed all year and none for the vacancies on the courts of appeals. 
In 2000, the Republican majority in the Senate confirmed only 39 
judges.
  When the Senate is working hard to confirm judges, as it was in 1992 
and since last summer, it may be understandable that not all nominees 
can be considered. When, as was the case during the Republican 
majority, the Senate is averaging only 38 confirmations a year and 
going months and months without a single hearing, the circumstances are 
quite different. The Republican majority in their 6\1/2\ years of 
control of the Senate ensured that they never treated President 
Clinton's judicial nominees better than the best year of former 
President Bush's Administration--just as they made sure that President 
Clinton's total number of judges appointed never reached that of 
President Reagan. By contrast, the Democratic majority has reversed the 
downward spiral and has treated this President's nominees more fairly 
than the Republican majority treated those of the last President.
  We have also been confirming this President's judicial nominees at a 
record pace. Rather than continue the Republican pace of 38 
confirmations a year, we have worked hard to do better. We have been so 
fair to President George W. Bush, despite the past unfairness of 
Republicans, that if we continue at the current pace of confirmations, 
President Bush will appoint 227 judges by the end of his term. If this 
President were to serve two terms like Presidents Reagan and Clinton, 
he would amass 454 judicial appointments, dramatically shattering 
President Reagan's all-time record of 382. Some may say we have been 
foolishly fair, given how Republican treated the nominees of the last 
Democratic President. But this, too, demonstrates how fair the 
Democratic Senate majority has been these last 13\1/2\ months.
  When we adjourned for the August recess we had given hearings to 91 
percent of this President's judicial nominees who had completed their 
paperwork and who had the support of both of their home-State Senators. 
That is, 84 of the 92 judicial nominees with completed files had 
received hearings. Indeed, when we held our last nomination hearing on 
August 1, we had given hearings to 66 district court nominees and we 
had run out of district court nominees with completed paperwork and 
home-State support. Only two district court nominees were eligible for 
that hearing. This is because the White House changed the process of 
allowing the ABA to begin its work prior to formal nomination. This 
unilateral change by the White House has already cost the federal 
judiciary the chance to have 12 to 15 more district court nominees on 
the bench and hearing cases these past 13 months. Many more of the two 
dozen pending nominees may not receive an ABA evaluation in time to be 
considered by the Senate this year.
  On average, the ABA reviews of district court nominees have been 
received 59 days from the date of nomination. With the recent delays 
that we have experienced in the time nominees are taking to complete 
the Committee questionnaire and the changeover in personnel at the ABA, 
that time may continue to expand in the few weeks remaining to us 
before the recess in October this year. Thus, even as the White House 
professes to blame the Senate for not making progress on even more 
nominees, it continues to do all it can to delay the process due to its 
unilateral approach.
  In January I had proposed a simple procedural fix to allow the ABA 
evaluation to begin at the same time as the FBI investigation, as was 
the practice in past Republican and Democratic administrations for 50 
years. Then the ABA could be in position to submit its evaluation 
immediately following the nomination. Had this proposal been accepted, 
I am confident there would be more than a dozen fewer vacancies in the 
Federal courts. Instead our efforts to increase cooperation with the 
White House have been rebuffed. We continue to get the least 
cooperation from any White House I can recall during my nearly three 
decades in the Senate.
  In spite of the obstacles they have put in the way of their own 
nominees through their lack of consultation and cooperation, we have 
been able to have a record-breaking year restoring fairness to the 
judicial confirmation process. We have been rewarded with nearly 
constant criticism from the administration and its allies.
  White House Counsel Alberto Gonzales dismisses our accomplishments 
with a terse, one-sentence acknowledgement that Democrats have ``made 
progress in holding hearings and votes on district court nominees.'' 
With today's vote, we have already confirmed 60 new Federal trial court 
judges. That is more than were confirmed in 21 of the past 23 years. We 
have confirmed more district court nominees in these past 13\1/2\ 
months than were ever confirmed by the Republican majority during their 
prior 6\1/2\ years of control of the Senate.

  For example, in 1995, the year the Republicans took over the Senate, 
President Clinton nominated 68 district court candidates, but the 
Republican controlled Senate held hearings for and confirmed only 45 of 
those nominees. Republicans would call that 66 percent. In 1996, 
Republicans confirmed only 17 of the district court nominations pending 
and, of course no nominees to the circuit courts. That was 50 percent 
of the district court nominees. In 1997, Republicans allowed only 50 
percent of the pending district court nominees to be confirmed. In 
1998, they hit their high mark in considering district court nominees 
and allowed 77 percent to be confirmed. In 1999, they were back down to 
allowing the confirmation of slightly over half, 58 percent, of the 
district court nominees to be confirmed. Finally, in 2000, again 
Republicans allowed only little more than half, or 56 percent, of the 
pending district court nominees to be confirmed.
  In contrast, we have already had hearings for 100 percent of those 
district court nominees who were eligible for a hearing. We have had 
hearings for 66 district court nominees, voted 64 of them out of 
committee and, as of today, 60 of them have been confirmed by the 
Democratic-led Senate.
  I would like to thank the members of the Judiciary Committee who have 
labored long and hard to evaluate the records of the individuals chosen 
by this President for lifetime appointments to the Federal courts. The 
decisions we make after reviewing their records will last well beyond 
the term of this President and will affect the lives of the individuals 
whose cases will be heard by these judges and maybe millions of others 
affected by the precedents of the decisions of these judges.
  While the opposition party seeks to attribute the vacancy crisis in 
the Federal courts to the Democrats, who only recently became the 
majority party in the Senate, I remain hopeful that the American people 
will discover the truth behind such partisan accusations. Republicans 
are trying to take advantage of the vacancies they hoarded while 
waiting for a Republican President with an ideological approach to 
judicial nominations. Democrats are trying to clean up the vacancies 
mess that the Republican majority created. I am proud of the efforts of 
the Senate to restore fairness to the judicial confirmation process.
  The Senate Judiciary Committee is working hard to schedule hearings 
and votes on the few remaining judicial nominees, but it takes time to 
deal with a mess of the magnitude we inherited. I think we have done 
well by the Federal courts and the American people, and we will 
continue to do our best to ensure that all Americans have access to 
federal judges who are unbiased,

[[Page S8052]]

fair-minded individuals with appropriate judicial temperament and who 
are committed to upholding the Constitution and following precedent. 
When the President sends judicial candidates who embody these 
principles, we have tried to move quickly. When he sends controversial 
nominees whose records demonstrate that they lack these qualities and 
whose records are lacking, we will necessarily take more time to 
evaluate their merits.
  Mr. HATCH. Madam President, I rise today in support of the 
confirmation of Terrence McVerry, who has been nominated to serve as a 
U.S. District Judge for the Western District of Pennsylvania.
  Terrence McVerry has the breadth of experience and accomplishment we 
look for in a Federal judge. After graduating from law school, Mr. 
McVerry served in the U.S. Army Reserves and the Pennsylvania Air 
National Guard. He then went to work as an assistant district attorney 
for Allegheny County, prosecuting hundreds of trials with an emphasis 
in major felonies and homicides.
  Mr. McVerry also has 17 years of civil litigation experience 
representing individuals in a variety of matters including personal 
injury, real estate, contracts, family matters, estate planning, and 
small businesses and corporations.
  Mr. McVerry has been an able legislator, winning election to the 
Pennsylvania House of Representatives in 1979 and serving there for 21 
years. In 1998 Governor Tom Ridge appointed him to fill a judicial 
vacancy on the Court of Common Pleas of Allegheny County in the Family 
Division. Currently Mr. McVerry is the solicitor of Allegheny County, 
acting as the chief legal officer and director of a governmental law 
department comprised of 36 attorneys.
  I thank my colleagues for joining me in my unqualified support for 
Mr. McVerry.

                          ____________________