[Congressional Record Volume 148, Number 128 (Thursday, October 3, 2002)]
[Senate]
[Pages S9863-S9865]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    CONFIRMING CIRCUIT COURT JUDGES

  Mr. McCONNELL. Mr. President, we have heard lately a lot of self-
congratulation by our Democratic friends on the Judiciary Committee 
about confirming judges. However, my friends' self-congratulation is 
arrived at not by comparing apples and apples but by cherry-picking the 
period of time that will be most advantageous to them.
  It is beyond a doubt, with respect to circuit court nominees in 
particular, that President Bush is being treated far worse--
dramatically worse--than any President in recent history in his first 
term. In both absolute and relative terms, no President of the United 
States has been treated as badly as President Bush in their first 
Congress.
  Let us take a look at the last four Presidents and their record with 
regard to circuit court nominations during the first 2 years of their 
Presidency.
  During the Reagan years, 1981-1982--President Reagan submitted 20 
nominations for the circuit court, and 19 of them were confirmed--95 
percent. President Reagan, of course, had a Republican Senate during 
those 2 years.
  President George Bush in his first 2 years, when his party did not 
control the Senate, in a session comparable to the one we are in now, 
submitted 23 circuit court nominations, and 22 of them were confirmed--
96-percent confirmation during the first President Bush's term when his 
party did not control the Senate, and exactly the situation we find 
ourselves in today.
  With regard to President Clinton in his first 2 years, a period 
during which his party did control the Senate, he submitted 22 circuit 
court nominations, and 19 were confirmed. That is an 86-percent 
confirmation rate.
  It is noteworthy, even when his own party controlled the Senate, 
President Clinton's percentage of confirmations was slightly less than 
President George H. W. Bush when his party did not control the Senate 
during the first 2 years, but still a hefty percentage, 86 percent.
  Then we look at the first 2 years of the presidency of George W. 
Bush, which is now coming to a conclusion. We are near the end now 
where the statistics actually mean something.
  President George W. Bush has submitted 32 circuit court nominations 
to

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the Senate, and only 14 have been confirmed, which is 44 percent. 
Forty-four percent. This is the worst record in anybody's memory of 
confirming circuit court nominations of a President in his first 2 
years.
  When you look at comparable situations, as I have just indicated, the 
first President Bush, confronted with a Democratic Senate--just like 
the current President Bush--got 96 percent of his circuit court judges 
confirmed. This President Bush, with a Democratic Senate, has only 
gotten 44 percent of his circuit court judges confirmed--dramatically 
worse.
  Now, let me say, our friends on the other side are trumpeting how 
well they are doing on judicial nominations and do not want us to look 
behind the curtain of their statistics that have been put out.
  In relative terms, President Bush has only half as many of his 
circuit court nominations confirmed as President Clinton did--44 
percent as opposed to 86 percent. In absolute terms, President Bush has 
five fewer circuit court nominees confirmed than President Clinton did.
  It is impossible at this stage for the Senate to catch up, to treat 
President Bush as fairly as it treated his predecessors, including 
President Clinton. So there is no chance this statistic can be 
dramatically improved this late in the game. But there is still time to 
improve upon this sorry record and at least have the Senate look as 
though it tried to treat President Bush with some elementary basic 
fairness.
  For example, John Rogers, who happens to be from my State of 
Kentucky, a nominee to the U.S. Sixth Circuit Court of Appeals, which 
until August was 50 percent vacant--it has been 50 percent vacant not 
because there were not nominations made by the President, but because 
we have not approved them. We finally approved one from Tennessee right 
before the August recess--John Rogers has been languishing in the 
Senate for 285 days.
  This was not even one of those controversial nominations. He cleared 
the Judiciary Committee unanimously, and he has been stuck on the 
executive calendar for 3 months. The sixth circuit, which is supposed 
to have 16 judges, currently has 9. But one of those nine was only 
confirmed last July, right at the end before the August recess. So it 
is still almost 50 percent vacant, not because the President has not 
sent up nominations, but because we simply will not act on them. It is 
hard to understand what the problem is.
  The ABA unanimously rated Professor Rogers--the person I was just 
mentioning--as ``qualified,'' and his services are in dire need. The 
sixth circuit is in the worst shape of any circuit and is almost half 
vacant, as I just said.
  Shifting to the fourth circuit, Dennis Shedd, a nominee in the fourth 
circuit, has been before the Senate for over 500 days; in fact, to be 
specific, 511 days. The ABA rated him ``well-qualified.'' That is the 
highest rating one can get, and it is about as common as teeth on a 
chicken--not very common.
  Our friends on the other side used to call the ABA the ``Gold 
Standard''--the ``Gold Standard.'' Judge Shedd was in President Bush's 
first batch of nominees. Until this Congress, it was Senate precedent 
for all nominees in a President's first submission to be confirmed, the 
first batch. Until this year, they were all confirmed, and to be 
confirmed within a year of those submissions.
  Unfortunately, Judge Shedd, like many of his colleagues, not only 
will not meet the 1-year rule, he is in jeopardy of not getting 
confirmed at all.
  Michael McConnell--no relation, but an outstanding nominee by the 
President to the tenth circuit--has also been pending for over 500 
days; in fact, the 511 days that Judge Shedd has been pending. The ABA 
has rated Professor McConnell--now listen to this--unanimously ``well-
qualified''--unanimously ``well-qualified.''
  Like Judge Shedd, Professor McConnell was in the President's very 
first submission, yet, he, too, is in danger of not getting confirmed 
at all.
  Miguel Estrada, a nominee to the D.C. Circuit, is yet another nominee 
who has been pending for 511 days. Like Professor McConnell, Mr. 
Estrada received one of those extremely rare, unanimously ``well-
qualified'' ratings from the ABA. This is really hard to get. That 
means nobody on the ABA committee found the nominee anything other than 
``well-qualified,'' the highest rating the ABA can give a nominee.
  Like Judge Shedd and Professor McConnell, Mr. Estrada is one of those 
superlative nominees whom the President sent up in May of 2001. Now he 
will not beat the 1-year rule, and he may not get confirmed at all.
  Even if all four of these nominees I just referred to were confirmed, 
the Senate would still not be treating President Bush as well as his 
predecessors, either in absolute or in relative terms.
  As shown on the chart, even if all four of these nominees were 
confirmed, President Bush would only have 18 circuit court nominees 
confirmed. President Clinton got 19 confirmed. That would still only be 
56 percent versus 83 percent.
  Further, President Clinton got his nominees to the Senate much later 
in the first Congress than President Bush did, and President Clinton 
sent up a lot fewer. He nominated fewer people. He sent up fewer 
circuit court nominees than President Bush did. There were 22 Clinton 
circuit court nominees sent up versus 32 Bush nominees. So there were a 
larger number of nominations made by President Bush. That means the 
Senate has had more time, since President Bush sent them up sooner. The 
Senate has had more time, has had more options, but has done less. More 
time, more options, and done less--far less, far less--for President 
Bush than the Senate did for President Clinton.
  You would think we would be trying to redouble our efforts to solve 
this sad situation, but it seems we are determined to squander what few 
opportunities we have left.
  We had a markup originally scheduled for this morning in the 
Judiciary Committee, in which we could have gotten Judge Shedd, 
Professor McConnell, and Mr. Estrada to the floor of the Senate, but, 
inexplicably, the committee session was cancelled. We will not have a 
hearing until next week, if then. If the markup is delayed any more, we 
will delay it right out of this Congress.
  A lot of us are very upset about this situation. I know there has 
been some discussion of legislative remedies. I know the conference 
report to the DOJ reauthorization, for example, is popular among some 
of my Republican colleagues. But it only takes one Senator--one 
person--to file a point of order to it, and that point would probably 
succeed.
  If we see a good-faith effort by our Democratic colleagues, I am 
hopeful we can avert a legislative crisis on the DOJ authorization 
conference report. But it depends on having some level of cooperation.
  Even if we were to confirm these four fine nominees, President Bush 
still would have been treated dramatically worse--dramatically worse--
than any of the Presidents in recent time.
  I think it is good not to be distracted by this sort of Enron-style 
accounting, where folks cobble together a few months from here and 
there to manipulate statistics with regard to what our sorry record is 
with regard to judicial confirmations. Facts are stubborn things. The 
bottom line is, President Bush is being treated far worse than his 
predecessors on circuit court nominees.
  So let's just look at it one more time.
  President Reagan, who had benefited from having a Senate of his own 
party: 95 percent of his circuit court nominees confirmed in the first 
2 years of his term.
  The first President Bush, not benefiting from Senate control by his 
own party--a situation directly analogous to the one we have today--got 
96 percent of his circuit court nominees confirmed in the first 2 
years.
  President Clinton, benefiting from having a Senate controlled by his 
party, had 86 percent of his circuit court nominees confirmed in the 
first 2 years. The second President Bush, in a situation analogous to 
his father, who got 96 percent during the first 2 years, has to date 
only 44 percent. And even if we process the four nominees that could be 
handled--Professor Rogers who has been on the calendar for 3 months, 
and Professor McConnell, Judge Shedd, and Miguel Estrada--he

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would still have a pretty sorry record. But we could improve somewhat 
this dismal performance on the current President's nominations for 
circuit court.
  I hope we will have some action at the end of the session on at least 
one of the four nominees who could be acted upon by the full Senate. It 
is not too late to at least partially fix and improve a very sad 
situation.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Stabenow). The Senator from Minnesota.
  Mr. WELLSTONE. Madam President, I want to give the rest of what time 
we have left to the Senator from Oregon, Mr. Wyden.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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