[Congressional Record Volume 148, Number 133 (Thursday, October 10, 2002)]
[Senate]
[Pages S10344-S10347]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE JUDICIARY COMMITTEE'S 100TH VOTE IN 15 MONTHS ON JUDICIAL
NOMINATIONS
Mr. LEAHY. Mr. President, today marks the 15-month anniversary of the
reorganization of the Senate Judiciary Committee following the change
in the Senate majority last summer. This week also became another
milestone as the Judiciary Committee voted on the 100th judicial
nominee of President George W. Bush. This historic demonstration of
bipartisanship toward this President's judicial nominees has been
overshadowed by partisan attacks in this very chamber and in the press.
I have worked diligently along with the other Democratic Senators on
the Judiciary Committee to hold a record number of hearings for this
President's district and circuit court nominees during the past 15
months and to bring as many as we could to a vote this year. Given all
of the competing responsibilities of the committee and the Senate in
these times of great challenges to our Nation, hearings for 103
judicial nominees, voting on 100, and favorably reporting 98 is a
record of which the Judiciary Committee and the Senate can be proud. We
have transcended the relative inaction of the prior 6\1/2\ years of
Republican control by moving forward on judicial nominees twice as
quickly as our predecessors did. Indeed, the Senate has already
confirmed more judicial nominees in 15 months than the Republican-
controlled Senate did during its last 30 months. More achieved, and in
half the time.
The raw numbers, not percentages, reveal the true workload of the
Senate on nominations and everyone knows that. Anyone who pays
attention to the federal judiciary and who does not have a partisan
agenda must know that. In addition, Democrats have moved more quickly
in voting on judicial nominees of a President of a different party than
in any time in recent history. Led by Majority Leader Daschle, the
Democratic majority in the Senate has confirmed 80 judicial nominees,
including 14 circuit court nominees, for a President of a different
party, in just 15 months since the reorganization of the Judiciary
Committee. In comparison,
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in the first two full years of President George H.W. Bush's
administration, the Democratic-led Senate confirmed 71 judicial
nominees. In fact, during the first 15 months of the first Bush
Administration, only 23 judges were confirmed, with eight to the
circuit courts. Our confirmation of 80 of President George W. Bush's
judicial nominees in just 15 months is historic progress for a
President and a Senate led by different parties.
Apparently, however, Republicans believe that there is partisan hay
to be harvested in complaining that every single judicial nominee has
not yet been confirmed. The fact is that we have proceeded with
hearings for 103 of the 110 judicial nominees eligible for hearings 94
percent, for those focused on percentages. The other 17 judicial
nominees who have not participated in a hearing either lack home-state
consent or peer reviews or both. Thus, when partisans harp on the
nominations of Terrence Boyle and Carolyn Kuhl and other nominees
without home-State Senator support, they know they are being
misleading. Senator Hatch never proceeded on a nomination without home-
State Senator support and acknowledges that this is the Senate's
tradition. At least six of the President's circuit court nominees fall
into this category and, for many if not all of them, the White House
knew about the lack of home-State Senator support before the
nominations were made.
The committee has voted on 100 of the 103 judicial nominees eligible
for votes--97 percent. Of those voted upon, 98--98 percent have been
reported favorably to the Senate. In addition to the 80 judges already
confirmed, another 18 approved by the Judiciary Committee await Senate
action on the Senate Executive Calendar.
It is disappointing that the Republican leader and others are
reported to have said that they will not be allowed Senate votes before
we adjourn. Earlier this year the majority leader had to work through a
problem caused by the administration's failure to work with Senators on
executive branch appointments. The majority leader was required by
Republican objection to invoke cloture in order to vote on President
Bush's judicial nominations. Whether there is time left in this session
to overcome Republican objections to action on the roster of President
Bush's judicial nominations currently on the calendar is problematic.
To date, and unlike the recent past, every judicial nominee who
participated in a hearing has been considered and voted upon by the
Judiciary Committee but for the three controversial circuit court
nominees we continue to consider.
I know that Senator Thurmond is very disappointed that we could not
bring his choice for the Fourth Circuit to a vote this week. I regret
that he is upset. The nomination of his former aide for a promotion to
the Court of Appeals has grown more controversial. On our committee, as
on all committees, controversy takes a toll in the time needed for
action on a bill or on a nomination. Members of the committee need time
to fully evaluate the merits of concerns about this nomination raised
by hundreds if not thousands of citizens from throughout the Fourth
Circuit and the Nation. In accordance with our responsibilities under
the Constitution to evaluate these nominations for lifetime
appointments, the members of the committee continue to work diligently
on simultaneously evaluating three controversial circuit court
nominations.
As much as I personally would have liked to resolve this nomination
by now at the request of the distinguished Senior Senator from South
Carolina, and as hard as I have worked to resolve the problems with it,
we were not able to vote on it this week. I worked hard to try to move
the nomination of his former aide forward to a vote up or down but,
with war resolutions pending before the Senate and limited time for
debate this Tuesday, I had to make a difficult decision. Seventeen
relatively noncontroversial judicial nominations were ready for
committee votes this week. I decided to try to bring some relief to 17
vacant seats in district courts across our country rather than begin
what promised to be a lengthy and inconclusive debate about Judge
Shedd's record as a Federal district court judge and whether he should
be elevated. That was a tough decision for me, personally, but the
rising tide of citizen distress over the Shedd nomination made bringing
that vote to a conclusion an impossibility this week.
Republican efforts to gain some political advantage for this
difficult situation are especially unfounded given the stark contrast
between what we have achieved in the past 15 months compared with the
most recent period of Republican control of the committee. In the 15
months before the reorganization of the Judiciary Committee after the
shift in Senate majority, the Senate confirmed only 32 judicial
nominees, including three to the circuits. Under Democratic leadership,
we have already confirmed 80, including 14 to the circuit courts, in
just 15 months. Even if we compare our record with a period of
Republican control that is twice as long--the last 30 months of
Republican control--our predecessors confirmed only 72 judges, while in
half the time, we have confirmed 80. Alternatively, if we go back and
compare the Republicans' first 15 months of Senate control in 1995 and
1996, we have accomplished far more: more hearings, 26 versus 14, for
more judicial nominees, 103 versus 67, with more committee votes, 100
versus 61, for more confirmations, 80 versus 56. We have reached the
century mark for committee votes in less than half the time, 15 months,
while it took our predecessors 33 months to vote on 100 judicial
nominees.
In another departure from the past, we have had hearings even for
several controversial judicial nominees and brought them to votes this
year. Most were voted out of committee despite their controversy. Given
the number of vacancies that we inherited--110--concentrating on the
most controversial, time-consuming nominations would have been to the
detriment of the courts. The President has made a number of divisive
choices--divisive to the American people and divisive to the Senate--
for these lifetime seats on the courts, and they take more time to
bring to hearings and votes. None of these nominees, however, have
waited as long for hearings or votes as did some of President Clinton's
judicial nominees, such as Judge Richard Paez, who waited 1,500 days to
be confirmed and 1,237 days to get a final vote by the Republican-
controlled Senate Judiciary Committee, or Judge Helene White, whose
nomination languished for more than 1,500 days without ever getting a
hearing or a committee vote.
As frustrated as Democrats were with the lengthy delays and
obstruction of scores of judicial nominees in the prior 6\1/2\ years of
Republican control, we never attacked the Chairman of the Committee in
the manner Republicans chose this week. Similarly, as disappointed as
Democrats were with the refusal of Chairman Hatch to include Allen
Snyder, Bonnie Campbell, Clarence Sundram, Fred Woocher and other
nominees on an agenda for a vote by the committee for months following
their hearings, we never resorted to the tactics and tone used by
Republicans in committee statements, in hallway discussions, in press
conferences or in Senate floor debate. We never tried to override the
chairman's prerogative to set the agenda for consideration of judicial
nominees by trying to manipulate the committee's cloture rule. We did
not try to use the committee rule to hold off consideration of an
agenda item for at least a week to force either legislation or
nominations to be voted on in one week's time. During Republican rule,
even some uncontroversial nominees like Judge Kim Wardlaw were held
over more than once. We also never sought to invoke Senate Rule 26.3 to
make an end-run around Chairman Hatch--even when weeks and months
passed without a single nominee on the agenda or when nominees who had
hearings went for months without being placed on the agenda. As
frustrated and disappointed as we were that the Republican majority
refused to proceed with hearings or votes on scores of judicial
nominees, we never sought to override Senator Hatch's judgments and
authority as chairman of the committee.
Some in the other party have spared no efforts in making judicial
nominations into a partisan, political issue, all the while refusing to
acknowledge the progress made in these past 15 months when 100 of
President Bush's judicial choices have had committee
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votes. We have perhaps moved too quickly on some, relaxing past
standards, being more expeditious and generous than Republicans were to
a Democratic President's nominees, and trying to take some of them at
their word that they will follow the law and the ethical rules for
judges.
Just last week, on October 2, 2002, we confirmed Ron Clark to an
emergency vacancy in the United States District Court for the Eastern
District of Texas. Two other judicial nominees, Larry Block and Judge
James Gardner, were confirmed the very same day. The commissions for
Judge Block and Judge Gardner were signed by the President on October
3, but the judge for the emergency vacancy in the President's home
state was not. Just this week we learned that Mr. Clark was quoted as
saying that he asked the White House to delay signing his commission
while he runs as a Republican candidate for re-election to a seat in
the Texas legislature. The White House apparently has been complicit in
these unseemly political actions by a person confirmed to the federal
bench. Mr. Clark, who the Senate has confirmed to a seat on the Federal
district court in Texas, has been actively campaigning for election
despite his confirmation.
These actions call into question Mr. Clark's ability to put aside his
partisan roots and be an impartial adjudicator of cases. In his answers
under oath to the committee, he swore that if he were ``confirmed'' he
would follow the ethical rules. Canon 1 of the Code of Conduct for
United States Judges explicitly provides that the Code applies to
``judges and nominees for judicial office,'' and Canon 7 provides quite
clearly that partisan political activity is contrary to ethical rules.
In his answers to me, Mr. Clark promised: ``[s]hould I be confirmed as
a judge, my role will be different than that of a legislator.'' Yet now
that he is confirmed, he has been flaunting his written statements to
me personally and to the Senate Judiciary Committee and, by proxy, to
the Senate as a whole. That the White House would go along with these
partisan ploys reveals much about the political way this administration
approaches judicial nominations.
Senators Kennedy and Schumer have written a letter of complaint to
the Fifth Circuit Judicial Council, which has jurisdiction over ethical
complaints arising in that jurisdiction. I ask unanimous consent that
the letter and a newspaper report of the Clark scandal be included in
the Record. Tonight, only after this scandal came to the Nation's
attention in today's news account in the New York Times, the President
has apparently signed Mr. Clark's commission.
With a White House that is politicizing the Federal courts and making
so many nominations, especially to the circuit courts, to appease the
far-right wing of the Republican Party, it would be irresponsible for
us to simply rubber-stamp these nominations for lifetime appointments
to our independent Federal judiciary. Advice and consent does not mean
giving any President carte blanche to pack the courts with ideologues
from the right or the left.
I have worked hard to bring to a vote an overwhelming majority of
this President's judicial nominees, but we cannot afford to make errors
in these lifetime appointments out of haste or sentimental
considerations, however well intentioned. To help smooth the
confirmation process, I have gone out of my way to encourage the White
House to work in a bipartisan way with the Senate, as past Presidents
have, but, in all too many instances, the White House has chosen to
bypass bipartisan cooperation in favor of partisanship.
The American people expect the federal courts to be fair forums and
not bastions of favoritism on the right or the left. These are the only
lifetime appointments in our whole system of government, and they
matter a great deal to the future of each and every American. I will
continue to work hard to ensure the independence of our Federal
judiciary.
U.S. Senate,
Washington, DC, October 9, 2002.
The Hon. Carolyn Dineen King,
Chief Judge, U.S. Court of Appeals for the Fifth Circuit, New
Orleans, LA.
Dear Chief Judge King: We write to raise an ethics issue
regarding Ronald W. Clark, who was nominated by President
Bush on January 24 and confirmed by the Senate on October 2,
to be a judge on the U.S. District court for the Eastern
District of Texas, but whose commission has not yet been
signed by the President.
It has come to our attention Mr. Clark continues to hold
his seat in the Texas state legislature and continues to
campaign for re-election to that seat. Although Mr. Clark
does not officially become a federal judge until he takes the
oath of office, his continuing campaign activities appear to
be in clear violation of Code of Conduct for Untied States
Judges. The commentary to Code of Conduct makes clear that
the Canons of Ethics define judicial nominees as judges and
bind them to the same ethical rules. Canon 7 of the Code
states that ``a judge should refrain from political
activity'' and should not ``act as a leader or hold any
office in a political organization; make speeches for a
political organization, or candidate or publicly endorse or
oppose a candidate for public office; [or] solicit funds.''
Canon 7 goes on to state that a judge ``should not engage in
any other political activity.''
Traditionally, this provision has been construed to have
limited application to nominees. Because of the contingent
nature of the Senate confirmation process, it would be unfair
to require nominees to resign from elective office merely
upon being nominated. But once the President's nominees are
confirmed by the Senate, the process loses its uncertainty.
The only step between nominee and judge is a ministerial act
that should be completed promptly, and not delayed for
partisan or political reasons.
Despite the clear applicability of the Code of Conduct, Mr.
Clark continues to be a candidate for re-election to the
Texas House of Representatives. This matter is of grave
concern to us. As Members of the United States Senate
Judiciary Committee, we take our Constitutional confirmation
responsibilities seriously. Mr. Clark's continued candidacy
appears to be a flagrant violation of the judicial code of
conduct, which is deeply troubling. Judges should be paragons
of ethics, and Mr. Clark's actions do not set a sterling
standard at the outset of his judicial career.
According to the Code of Conduct, complaints of ethical
misconduct may be lodged with the Circuit council, which we
understand you chair. We would appreciate your prompt
consideration of this inquiry, and we look forward to hearing
from you in the near future.
Sincerely,
Charles E. Schumer,
U.S. Senator.
Edward M. Kennedy,
U.S. Senator.
____
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Oct. 10, 2002]
Bush Acting To Forestall an Issue in Texas
(By Neil A. Lewis)
Washington, Oct. 9.--The White House moved quickly tonight
to quash a politically embarrassing problem with one of
President Bush's nominees to a federal court seat.
Although the nominee, Ron Clark, was confirmed by the
Senate earlier this month to be a federal district judge
based in Texas, he was out campaigning today for re-election
as a state representative from his district north of Dallas.
Mr. Clark had said he might want to delay taking his seat on
the bench to serve one more term in the State Legislature,
where his vote might be crucial to Republicans winning the
speakership.
Two Democratic Senators, Charles E. Schumer of New York and
Edward M. Kennedy of Massachusetts, complained about Mr.
Clark's actions today, saying they were a blatant violation
of judicial ethics, a view with which some legal scholars
agreed. The senators wrote to Carolyn D. King, the chief
judge of the United States Court of Appeals for the Fifth
Circuit based in New Orleans, asking her to evaluate whether
Mr. Clark had violated the judicial canons of ethics even
before he had put on his robe.
By evening, the White House intervened, saying President
Bush would soon sign the formal commission for Mr. Clark, the
last step in making him a federal judge.
In an interview earlier today, Mr. Clark said he was just
playing it safe.
``If the president signs the certificate then, I'll move
forward,'' he said before going out to a campaign appearance
in which he presented a flag to some cub scouts. He said he
had no control over Mr. Bush's actions and ``right now, I'm
running for state representative.''
Mr. Clark said he had been trapped by circumstances because
he was confirmed on Oct. 2 and the last date for withdrawing
from the ballot under Texas law was Sept. 3. ``There is no
legal way to take it off, so I'm in the race, until Election
Day,'' he said. Asked if he intended to keep campaigning for
re-election, he said: ``Oh, yes, I go to functions, go block
walking, that sort of thing.''
Mr. Clark has asserted that he did not know why Mr. Bush
had not yet acted, yet he was quoted in this week in Texas
Weekly, a political journal, as saying he had asked the White
House to delay signing his commission so he could serve
another legislative term. Ross Ramsey, the journal's editor,
who wrote the article, said Mr. Clark had told him he would
be interested in serving through May, when the 20-week
session is expected to end.
In his article, Mr. Ramsey said Mr. Clark's presence in the
Legislature when it convenes
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in January might be crucial to Republican hopes to retain the
speakership in what is expected to be a close race.
Senators Schumer and Kennedy, both of whom serve on the
Judiciary committee, said in their letter that Mr. Clark's
legislative campaign ``appears to be in clear violation of
the Code of Conduct for United States Judges.'' The canons
mandate that ``a judge refrain from political activity.''
Steven Gillers, the vice dean of the New York University
Law School and an authority on ethics, said that provisions
in both the federal and state codes of conduct mandated that
Mr. Clark resign his political office. The Texas code, he
said, makes it clear that a candidate for a judicial office
has to behave as a judge in avoiding politics. The federal
rules require a judge to resign from office when he or she
becomes a candidate for political office.
``While a person seeking a judgeship may have an argument
that he not give up a political office, this man is, for all
intents and purposes, a judge,'' Mr. Gillers said.
Erwin Chemerinsky, a visiting law professor at Duke
University, said Mr. Clark seemed to be using the formality
of Mr. Bush's signature to avoid his obligations.
``But judicial ethics is all about removing judges from
politics,'' Mr. Chemerinsky said, and given that Mr. Bush is
the president who appointed him, Mr. Clark should not run for
office.
Senate Republicans and President Bush have said that there
is an urgent need to fill federal judgeships and that action
is being blocked by the Democrats who have opposed several of
the president's nominees.
In fact, today, at a White House celebration of Hispanic
Heritage Month, Mr. Bush criticized the Senate's handling of
his nomination of Miguel Estrada to a seat on the United
States Court of Appeals for the District of Columbia.
``There are senators who are playing politics with this
good man's nomination,'' the president said. ``There are
senators who would rather not give him the benefit of the
doubt, senators looking for a reason to defeat him as opposed
to looking for a reason to herald his intelligence, his
capabilities, his talent. I strongly object to the way this
man is going to be treated in the United States Senate.''
The Judiciary Committee recently held a hearing on Mr.
Estrada's nomination but has not scheduled a vote.
____________________