[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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