[Congressional Record Volume 148, Number 150 (Tuesday, November 19, 2002)]
[Senate]
[Pages S11522-S11524]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ON 100 JUDICIAL CONFIRMATIONS BY THE DEMOCRATIC-LED SENATE
Mr. LEAHY. Mr. President, as the 107th Congress concludes, it is time
to reflect on the important work we have performed for the American
people. In the past few days, the full Senate voted on 20 of the
nominees reported favorably by the Judiciary Committee in addition to
the 80 judicial nominations previously confirmed. Since the change in
majority 16 months ago, the Senate Judiciary Committee has voted on 102
of President George W. Bush's judicial nominees and has held hearings
on 103 judicial nominations, some of whom have proven to be quite
controversial and divisive. We voted on 102 of them, reported 100 of
them favorably and this week the full Senate took the final step of
confirming the last of these 100 nominees. This remarkable record
compares most favorably to the 38 judicial confirmations averaged per
year during the 6\1/2\ years when the Republican majority was in
control of the Senate.
Last week, on the Senate floor, the Democratic-led Senate confirmed
more judges in just 1 day than the Republican majority allowed to be
confirmed in the entire 1996 session. In that year, the Republican
majority allowed only 17 district court judges to be confirmed all year
and would not confirm any circuit court nominees, not one. In contrast,
last Thursday the Senate acted to confirm 17 district court nominations
and, in addition, another circuit court nominee. In all, the Senate has
confirmed 17 circuit court nominees and 83 district court nominees in
just 16 months. That should put our historic demonstration of
bipartisanship toward this President's judicial nominees in
perspective.
[[Page S11523]]
The hard, thankless, but steady work of the Democratic members of the
Judiciary Committee have served to reduce judicial vacancies
substantially during these last 16 months. We inherited 110 vacancies.
Today, after 100 district and circuit court confirmations, those
vacancies number only 58 and that takes into account the additional 47
vacancies that have arisen since the shift in majority. Without those
additional vacancies, we would have reduced our inherited judicial
vacancies to 10.
When Senator Hatch was chairman of the committee and a Democratic
President occupied the White House, Senator Hatch denied that even 100
vacancies was a vacancies crisis, according to a column he wrote for
the September 5, 1997, edition of USA Today. When a Democrat was in the
White House, Senator Hatch repeatedly stated that 67 vacancies was the
equivalent of ``full employment'' in the Federal judiciary. As of
today, there are only 58 district and circuit vacancies total. By
Senator Hatch's standards, we have reached well beyond ``full
employment'' on the Federal bench in just 16 months.
Since the summer of 2001, when they allowed the Judiciary Committee
to reorganize following the change in majority, we have moved more
quickly and more fairly. Democrats have worked hard to confirm on
average six district and circuit court nominees per month. The
Republican rate of confirmation was half that during their prior years
of control of the Senate, 3.2 confirmed per month in the 104th
Congress, 4.25 in the 105th, and 3.04 per month in the 106th Congress.
We have moved nearly twice as fast as they did.
Partisans on the other side of aisle interested in trying to create
campaign issues have proclaimed their disappointment that a few
nominees have not yet received votes in committee, despite our votes on
102 judicial nominees and our having attained results in 16 months that
they did not come close to in twice the time during their last 30
months in the majority. I am concerned that the tone and language of
hurtful remarks against the Democrats have been destructive. In truth,
only 11 of the remaining nominees who have not yet had hearings have
home State consent and peer review ratings, and some of those peer
review ratings have come in only in the last few weeks. We have thus
given hearings to 90 percent of the nominees eligible for a hearing.
The vitriolic rhetoric regarding committee consideration of the most
controversial and ideologically chosen judicial nominees is troubling
to me as a Senator and as chairman of the Judiciary Committee. I have
worked diligently to hold a record number of 26 hearings for 103 of
this President's circuit and district court nominees in the past 16
months and to bring as many as we could to a vote, given all of the
competing responsibilities of the committee and the Senate in these
times of great challenges to our Nation. We have transcended the
inaction of the prior 6\1/2\ years of Republican control. For example,
during the 6\1/2\ years the Republicans chaired the Judiciary
Committee, in 34 of those months there were no confirmation hearings
for judicial nominations at all. In the past 16 months, the Senate
Judiciary Committee has held 26 hearings for 103 judicial nominees, in
addition to a second hearing for one of the more controversial
nominees. I think Democrats deserve some credit for our diligence,
fairness, and bipartisanship especially in contrast to the prior period
of Republican control of the Senate.
In particular, we have held hearings for 20 circuit court nominees,
confirmed 17 of them in this period, and reduced the circuit court
vacancies from those we inherited. By contrast, circuit court vacancies
more than doubled during Republican control, from 16 in January 1995 to
33 by the summer of 2001 when they allowed the Judiciary Committee to
reorganize following the change in majority.
While the opposition party continues to inflame the public with
skewed statistics, the reality is that we have approved far more
judicial nominees for this President than past Senates did for other
Presidents. This Democratic-led Senate has confirmed 100 district court
and circuit court judges, including 17 circuit court nominees. In
President George H.W. Bush's first 2 years in office, 71 judicial
nominees were confirmed by the Democratic-led Senate. When a Republican
majority was considering Senator Clinton's nominees in their first 2
years working together, 75 judicial nominees were confirmed. Even when
a Republican majority was considering President Reagan's judicial
nominations in his first 2 years, only 89 judicial nominees were
confirmed. Thus, we have not only exceeded the confirmation achieved
when the Senate and White House were divided by political party but the
number of confirmations when Republicans controlled both branches. In
less than 2 years, just 16 months, we have evaluated, held hearings
for, reported out, and confirmed 100 judicial nominees of President
George W. bush.
While Republicans continue to play base politics and inflame certain
quarters of the public with their skewed statistics, the reality is
that the Democratic-led Senate has acted far more fairly toward this
President's judicial nominees than Republicans acted toward President
Clinton's.
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. Democrats have moved more quickly in voting on
judicial nominees of a President of a different party than in any time
in recent history. This should be beyond dispute, but I believe that
partisan advisers told this President and the Republicans that it is a
great election issue for them to complain that not every nominee has
been confirmed. We have given hearings to 103 of the 114 judicial
nominees now eligible for a hearing 90 percent, as of today, for those
focused on percentages. The remaining 16 without a hearing either lack
home State consent or peer reviews or both. Many of those were
nominated only recently and are being used by Republicans to skew the
percentages further because they know that the ABA is taking about 60
days to submit ratings from the date of nomination and some would not
receive ratings in time for hearings this session. The committee has
voted on 102 of the 103 judicial nominees eligible for a vote, 99
percent. And with the vote on Judge Dennis Sheed, we have cleared the
Senate calendar of all judicial nominations rather than adopt the
recent Republican practice of holding nominees over without a final
vote and forcing them to be renominated and have second hearings in a
succeeding Congress.
I ask fair-minded people to contrast what we have achieved in the
past 16 months with the most recent period of Republican control of the
committee. In all of 2000 and the first several months of 2001 before
the change in Senate majority, the Senate confirmed only 39 judicial
nominees, including eight to the circuits. Even if you look at the last
30 months of Republican control, they confirmed only 72 judges. In much
less time, we have confirmed 100.
If you consider the first 24-months of Republican control instead of
their last 30 months we have accomplished far more: more hearings, 26
versus 18, far more judicial nominees, 103 versus 87, and had more
confirmations, 100, including 17 to the circuit courts, versus 73 with
11 to the circuit courts. We have reached the 100 mark for committee
votes in less than half the time it took Republicans to vote on 100 of
President Clinton's judicial nominees. It took them 33 months to reach
that mark, while we reached that mark in just 15 months.
With these confirmations, the Democratic-led Senate has addressed a
number of long standing vacancies. For example, we held the first
hearing for a nominee to the Fifth Circuit in 7 years and confirmed
her, even though Republicans refused to allow hearings for 3 of
President Clinton's nominees to this court. We held the first hearing
for a nominee to the Tenth Circuit in 6 years, and confirmed 3 nominees
to that circuit in less than 1 year, even though two of President
Clinton's nominees to that circuit were never allowed hearings by
Republicans. We confirmed the first nominee to the Sixth Circuit in
almost 5 years and have now confirmed two judges to that court, even
though three of President Clinton's nominees to that court were never
allowed hearings or votes. We held the first hearing for a nominee to
[[Page S11524]]
the fourth Circuit in 3 years, and confirmed the first African American
appointed to that court in American history, even though that nominee
and 6 other nominees of President Clinton to the Fourth Circuit, for a
total of 7 in that circuit alone, never received hearings during
Republican control of the Senate. Today, another of President Bush's
nominees was confirmed to that circuit. These are just a few of the
firsts we have achieved in just 16 months.
There were many other firsts in courts across the Nation. For
example, we held hearings for and confirmed the first judges appointed
to the Federal courts in the Western District of Pennsylvania in almost
7 years, even though several of President Clinton's nominees to the
courts in that district were blocked by Republicans. They allowed none
of President Clinton's nominees to be confirmed to that court during
the entire period of Republican control. They also blocked the
confirmation of a Pennsylvania nominee to the Third Circuit, among
others. Democrats confirmed the first nominees to the Third Circuit and
Ninth Circuit in 2 years, even though the last nominees to those seats
never received hearings during Republican control of the Senate.
We have had hearings for a number of controversial judicial nominees
and brought many of them to votes this year just as I said we would
when I spoke to the Senate at the beginning of the year. Of course, it
would have been irresponsible to ignore the number of vacancies we
inherited and concentrate solely on the most controversial, time
consuming nominees to the detriment of our Federal courts. The
President has made a number of divisive choices for lifetime seats on
the courts and they take time to bring to a hearing and a vote. None of
his nominees, however, have waited as long for a hearing or a vote as
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
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 as was done in recent weeks. 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 following their
hearings, we never resorted to the tactics and tone used by Republican
members of this committee in committee statements, in hallway
discussions, in press conferences, or in Senate floor statements. 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.
The President and partisan Republicans have spared no efforts in
making judicial nominations a political issue, without acknowledging
the progress made in these past months when 102 of this President's
judicial choices have been given committee votes. One indication of the
fairness with which we have proceeded is my willingness to proceed on
nominations that I do not support. We have perhaps moved too quickly on
some, relaxing the standards for personal behavior and lifestyle for
Republican nominees, being more expeditious and generous than
Republicans were to our nominees, and trying to take some of them at
their word that they will follow the law and the ethical rules for
judges.
For example, as I noted on October 2, 2002, we confirmed a personal
friend of the President's, Ron Clark, to an emergency vacancy in the
United States District Court for the Eastern District of Texas. Clark's
commission was not signed and issued promptly. We learned later that
Clark was quoted as saying that he asked the White House, and the White
House agreed, to delay signing his commission while he ran as a
Republican for reelection to a seat in the Texas legislature so that he
could help Republicans keep a majority in the Texas State House until
the end of the session in mid-2003. The White House was apparently
complicit in these unethical partisan actions by a person confirmed to
a lifetime appointment to the Federal bench. Clark, who was confirmed
to a seat on the Federal district court in Texas, was actively
campaigning for election despite his confirmation.
These actions bring discredit to the court to which Judge Clark was
nominated by the President and confirmed by the Senate, and calls into
question Judge Clark's ability to put aside his partisan roots and be
an impartial adjudicator of cases. Even in his answers under oath to
this committee, he swore that if he were ``confirmed'' he would follow
the ethnical 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, the chairman of this committee, Clark promised
``[s]hould I be confirmed as a judge, my role will be different than
that of a legislator.'' As the Commentary to the Code of Conduct for
United States Judges, (which applies to judges and nominees), states,
``Deference to the judgments and rulings of courts depends upon public
confidence in the integrity and independence of judges [which] depend
in turn upon their acting without fear or favor. Although judges should
be independent, they should comply with the law as well as the
provisions of this Code.'' The code sets standards intended to help
ensure that the public has access to Federal courts staffed with judges
who not only appear to be fair but are actually so.
Yet he was flouting the standards set by the code and the promises he
made to me personally and to the Senate Judiciary Committee and, by
proxy, to the Senate as a whole. That the White House was prepared to
go along with these shenanigans reveals quite clearly the political way
they approach judicial nominations. Only after the New York Times
reported these unseemly actions, did the President sign Judge Clark's
appointment papers. As Judge Clark hoped, he ``won'' the election and
so the Republican Governor of Texas may be able to name a Republican to
replace him in the state legislature.
With a White House that is politicizing the Federal courts and making
so many divisive nominations, especially to the circuit courts, to
appease the far-right wing of the Republican party, it would be
irresponsible for us to turn a blind eye to this and simply rubber-
stamp such appointees to lifetime seats. Advice and consent does not
mean giving the President carte blanche to pack the courts with
ideologues from the right or left. The system of checks and balances in
our Constitution does not give the power to make lifetime appointments
to one person alone to pack the courts with judges whose views are
outside of the mainstream and whose decisions would further divide our
nation.
I have worked hard to bring to a vote the 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, like past
Presidents, but, in all too many instances, they have chosen to bypass
bipartisanship cooperation in favor of partisanship and a campaign
issue. Arbitrary deadlines will not ensure that nominees will be
fairminded judges who are not activists or ideologues. The American
people have a right to 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 government, and they matter a great
deal to our future. I will continue to work hard to ensure the
independence of our Federal judiciary.
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