[Congressional Record Volume 148, Number 129 (Friday, October 4, 2002)]
[Senate]
[Pages S9975-S9977]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     THE CONFIRMATION OF THE 80TH JUDICIAL NOMINEE OF THIS CONGRESS

  Mr. LEAHY. Mr. President, this week Republican critics, for whom we 
expedited hearings and committee votes on a number of judicial nominees 
in their home States, spoke on the floor about their frustration that 
not all the President's judicial nominees have yet been confirmed. They 
complain about a handful of judicial nominees. The fact is that the 
hearing I will chair next week will include the 100th judicial nominee 
to receive a hearing since the Democrats became the majority party in 
the Senate less than 15 months ago. Had the Senate been more productive 
in 1999 and 2000 and the first months of 2001, when a Republican 
majority was not holding hearings and votes on judicial nominees, we 
would be farther along. Since the shift in majority, we have been 
proceeding dramatically faster than the Republicans. It took 
Republicans 33 months, almost 3 full years, to hold hearings for 100 of 
President Clinton's judicial nominees when they were in the majority, 
we will exceed that mark next week, in less than 15 months.
  Republican critics who now come to the floor of the Senate expressing 
outrage that a handful of judicial nominees have not had a hearing in 
the past year, were deafeningly silent when scores of President 
Clinton's judicial nominees never received hearings after many months 
and years. For example, Judge Helene White of Michigan, nominated to 
the Sixth Circuit, waited in vain for over 4 years, 1,454 days, for a 
hearing and never had a hearing or a vote. James Beaty of North 
Carolina, nominated to the Fourth Circuit, waited in vain for almost 3 
years, 1,033 days, and never got a hearing. H. Alston Johnson of 
Louisiana, nominated to the Fifth Circuit, waited in vain for over 600 
days and never got a hearing. Others, such as Allen Snyder and Bonnie 
Campbell who were nominated to the D.C. Circuit and Eighth Circuit, 
received hearings but no committee vote. Likewise, Clarence Sundram, 
nominated to the Northern District of New York, waited 19 months for a 
hearing and then languished in committee without the committee vote for 
18 months before his nomination was returned, after pending before the 
Senate for 1,119 days. There were others, too many others, who waited 
in vain for a hearing or after a hearing for committee consideration.
  In addition, it often took months and sometimes years for those who 
were ultimately confirmed to be acted upon by the Republican-controlled 
Senate. For example, Judge Richard Paez, nominated to the 9th Circuit, 
was finally confirmed after four years, 1,520 days; Judge William 
Fletcher, also nominated to the 9th Circuit, was finally confirmed 
after 1,264 days; Judge Hilda Tagle, nominated to the District Court in 
Texas, waited 943 days to be confirmed; Judge Susan Molloway, nominated 
to the District Court in Hawaii, waited 913 days to be confirmed, Judge 
Ann Aiken, nominated to the District Court in Oregon, waited 791 days 
to be confirmed; Judge Timothy Dyk, nominated to the Federal Circuit, 
waited 785 days to be confirmed; Judge Marsha Berzon, nominated to the 
9th Circuit, waited 772 days to be confirmed; Ronald Gould, nominated 
to the 9th Circuit, waited 739 days to be confirmed; Margaret McKeown, 
nominated to the 9th Circuit, waited 728 days to be confirmed; and 
Margaret Morrow, nominated to the California District Court, waited 
almost 2 years to be confirmed. Many others took more than 1 year.
  I understand how difficult the confirmation process can be. During 
the 6\1/2\ years Republicans controlled the Senate only 39 judicial 
nominees, including seven circuit court nominees, were confirmed per 
year on average. In contrast, in less than 15 months, the Democratic 
majority has already confirmed 80 judicial nominees.
  The confirmation process can be frustrating at times, but it is also 
important work by which we implement our constitutionally-mandated 
advise and consent role for these lifetime appointments. It is a role 
that I do not take lightly and the other Members of the Senate 
Judiciary Committee do not take lightly. Accordingly, it is distressing 
to hear unintentionally inaccurate portrayals of the progress we have 
made in the less 15 months of Democratic control of the Senate. It is 
true that we have not been able to confirm every single judicial 
nominee proposed by this President, but we have worked at a 
historically fast pace to address the vacancy crisis by moving 
consensus nominees first and working our way through the more 
controversial and divisive nominees.
  Since the summer of 2001, we have held more hearings for more 
judicial nominees and more hearings for circuit court nominees than in 
any comparable 15-month period of the 6\1/2\ years in which Republicans 
last controlled the committee. With our hearing last week, the 
Democratic-led Judiciary Committee has now held 25 hearings for 96 
district and circuit court nominees. This is twice the pace at which 
the Republican majority considered President Clinton's judicial 
nominees. The Judiciary Committee has likewise voted on more judicial 
nominees, 83, and on more circuit court nominees, 17, than in any 
comparable 15-month period of prior Republican

[[Page S9976]]

control. In fact, Democrats have given votes to more judicial nominees 
than in 1996 and 1997 combined as well as in 1999 and 2000 combined.
  During their 6\1/2\ years of control, Republicans allowed only 39 
judicial nominees to be confirmed per year, on average, 39, and only 
seven circuit court nominees to be confirmed per year on average. In 
contrast, in little more than a year, Democrats have already confirmed 
80 of this Republican President's judicial nominees, including 14 
circuit court nominees. We have done twice as much as their average, 
and yet they still complain.
  Rather than compare the improvements we are making over the way they 
treated the judicial nominees of the last President when they were 
recently in the Senate majority, they would pick other times when the 
Senate and executive branch were headed by those of the same party. 
This reveals how embarrassed they must be about their own record. That 
must be why they ignore their own record and refuse to acknowledge the 
improvements we have made, the hard work we have done, and all that we 
have accomplished.
  This past week, Republicans reiterated their claim that other 
Presidents had 80 or 90 percent of their circuit court nominees 
confirmed. This ignores entirely the efforts of these same Republicans 
to block President Clinton's circuit court nominees. For example, in 
1996, Republicans allowed none, zero percent and the absolute number of 
zero circuit court nominees to be confirmed. In 1997, Republicans 
allowed only 7 of President Clinton's 21 circuit court nominees to be 
confirmed, about one-third. Only 5 of President Clinton's first 11 
circuit court nominees that year were confirmed that same year. In 
1998, Republicans allowed 13 of the 23 pending circuit court nominees 
to be confirmed, which was 56 percent for the year, their best year for 
circuit court confirmations in their 6\1/2\ years of control of the 
Senate. In 1999, Republicans were back down to 28 percent, when they 
allowed only seven of the 25 circuit court nominations made to be 
confirmed, or about one of every four. Four of President Clinton's 
first 11 circuit court nominees that year were not confirmed. In 2000, 
Republicans allowed only 8 of the 26 circuit court nominees pending to 
be confirmed, or 31 percent. All but one of the circuit court 
candidates initially nominated that year, were returned to President 
Clinton without confirmation.

  Republicans simply have no standing to complain that 100 percent of 
President George W. Bush's circuit court nominees have not been 
confirmed. Recent history makes their complaints on this point ring 
hollow. Democrats have been better by far to this President's judicial 
nominees than Republicans were to the last President's. For example, at 
the most recent judicial nominations hearing held last week, Democrats 
had already given hearings to 96 of the 105 eligible judicial nominees 
with complete files, the remaining two dozen nominees did not have 
completed files. Thus, 91 percent of judicial nominees who had 
completed files were given a hearing. This remarkable achievement is 
irrefutable evidence that we are not blocking this administration's 
judicial nominees.
  I am certain that President Clinton would have been overcome with 
gratitude if the Republicans ever gave 91 percent of his judicial 
nominees hearings in the years Republicans controlled the confirmation 
process during his administration. They never did. Instead, almost half 
the time his judicial nominees never got hearings or votes. Indeed, 
only 49 percent of President Clinton's circuit court nominations were 
confirmed, 46 out of 93 nominations during the period of Republican 
control. How dare they complain that 100 percent or 90 percent of 
President Bush's circuit court or district court nominees have not been 
confirmed in our first 14\1/2\ months of control.
  The real reason there are so many circuit vacancies is because 
Republicans blocked so many of President Clinton's judicial nominees. 
During the 6\1/2\ years of Republican control, the number of circuit 
vacancies more than doubled from 16 to 33, and the total number of 
vacancies increased from 65 to 110 by the time of the reorganization of 
the committee in the summer of 2001. If Republicans had not blocked the 
confirmation of almost two dozen, 22, circuit court nominees and many 
more district court nominees, Democrats on the Judiciary Committee 
would have begun with 11 circuit court vacancies, instead of the 33 we 
inherited. With the 10 new circuit court vacancies that arose over 
these past 14\1/2\ months, there would have been a total of 22 circuit 
court vacancies for this President to fill. At the Democratic pace of 
considering circuit court nominees, almost of all of them would have 
had hearings by now, and 14 of them would have already been confirmed, 
with our pace of confirmation. That would have left only 6 vacancies on 
the circuit courts today. That is what might have been, but for the 
determined, strategic blocking of so many circuit court nominees during 
the 6\1/2\ years of Republican control of the Senate.
  Instead, even after 14 circuit confirmations, there are 27 circuit 
court vacancies. This number is still fewer than at the start of this 
Congress and fewer than the 33 vacancies we inherited. We have 
outstripped attrition and are making progress. We cannot undo the 
damage done between 1995 and 2001 overnight, but we have held hearings 
for 96 of this President's judicial nominees, which is more circuit and 
district court nominees in less than 15 months than they held when they 
first took over the Senate or in their subsequent years. It is more in 
raw numbers and in percentages. We have made real progress to fix the 
problems that we inherited from the period of Republican control of the 
process.
  The Judiciary Committee has focused on consensus nominees. This 
prioritization will help end the crisis caused by Republican delay and 
obstruction by confirming as many of the President's judicial nominees 
as quickly as possible. Most Senators understand that the more 
controversial nominees require greater review. This process of careful 
review is part of our democratic process. It is a critical part of the 
checks and balances of our system of government that 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 of legal thought, and whose 
decisions would further divide our nation. The Senate should not and 
will not rubber stamp nominees who would undermine the independence and 
fairness of our federal courts. It is our responsibility to preserve a 
fair, impartial and independent judiciary for all Americans, of all 
races, all religions, whether rich or poor, whether Democrat or 
Republican.
  The committee continues to try to accommodate Senators from both 
sides of the aisle. Virtually all of the Court of Appeals nominees 
included at hearings so far this year have been at the request of 
Republican Senators, including Senator Grassley, Senator Lott, Senator 
Specter, Senator Enzi, Senator Smith, and Senator Thompson, Republican 
Senators who each sought a prompt hearing on a Court of Appeals nominee 
and who was accommodated.
  However, the whipsawing by Republicans has been truly remarkable. 
When we proceed on nominees that they support and on whom they seek 
action, we are criticized for not acting on others. When we direct our 
effort to trying to solve problems in one Circuit, they complain that 
we are not acting in another. Since these multiple problems arose on 
their watch while they were in the majority, it is a bit like the 
arsonist who complains that the local fire department is not responding 
fast enough to all of his destructive antics.
  This week the Senate confirmed its 79th and 80th judicial nominees 
since the change in Senate majority and reorganization of the Judiciary 
Committee less than 15 months ago. In so doing, we have confirmed more 
judicial nominees than were confirmed in the first 15 months of any of 
the past three Presidents and more judicial nominees than were 
confirmed in the last 30 months that a Republican majority controlled 
the Senate. Simply put, we have done more in half the time. 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. Partisan critics of these accomplishments ignore the 
facts. The facts are that we are confirming President Bush's nominees 
at a faster pace

[[Page S9977]]

than the nominees of prior presidents, including those who worked 
closely with a Senate majority of the same political party.
  At this important time in our Nation's history we can all appreciate 
the need for a sound judiciary. Under the Democratic majority, we will 
continue to review nominees' files expeditiously and grant hearings 
regularly to candidates with complete paperwork and home State consent. 
Our record breaking efforts in the past 14\1/2\ months have left us 
with few remaining nominees who are ready to appear before the 
Committee. Of the circuit court nominees who have not yet received a 
hearing, half of them, 6, are without home State consent. Only 3 remain 
from the initial 11 circuit court nominees who have not had a hearing 
and have home State Senator support. Of the 17 district court nominees 
who have not yet received a hearing, more than half of them 9 have 
incomplete paperwork, including six of them without home State consent. 
Moreover, 9 out of 17 district court nominees are without ABA ratings.
  Despite the partisan din about blockades and obstructionism, 
Democrats are actually achieving almost twice as much as our Republican 
counterparts did to staff the Federal courts. The Democratic Senate has 
shown its resolve to work in a bipartisan way to fill judicial 
vacancies. That is what the confirmation of 80 judges in less than 15 
months demonstrates.
  But let me be clear. Our judiciary would be in even better shape if 
so many judicial nominees of the prior administration had not been 
purposely blocked and defeated, if we received more timely reviews from 
the ABA, and even a little cooperation from this administration by 
nominating more moderate, mainstream judicial nominees. I, again, 
invite the President and all Republicans to join with us and work with 
us to fill the remaining judicial vacancies as quickly as possible with 
qualified, consensus nominees chosen from the mainstream and not for 
their ideological orientation, nominees who will be fair and impartial 
judges and will ensure that an independent judiciary is the people's 
bulwark against a loss of their freedoms and rights.

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