Congressional Record, Volume 149 Issue 52 (Tuesday, April 1, 2003)

[Congressional Record Volume 149, Number 52 (Tuesday, April 1, 2003)]
[Senate]
[Pages S4598-S4607]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

NOMINATION OF TIMOTHY M. TYMKOVICH, OF COLORADO, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE TENTH CIRCUIT

The PRESIDING OFFICER. Under the previous order, the Senate will now
go into executive session and proceed to the consideration of Executive
Calendar No. 55, which the clerk will report.
The legislative clerk read as follows:

Nomination of Timothy M. Tymkovich, of Colorado, to be
United States Circuit Judge for the Tenth Circuit.

The PRESIDING OFFICER. Under the previous order, there will be 6
hours of debate, with the time equally divided in the usual form.
The Senator from Colorado is recognized.
Mr. ALLARD. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ALLARD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALLARD. Mr. President, I strongly support the confirmation of Tim
Tymkovich as a Federal judge on the Tenth Circuit Court of Appeals. The
nomination is before the Senate. I ask my colleagues to join me in
supporting his confirmation.
Two years ago, one of the most talented lawyers in the State of
Colorado faced a rather large but very exciting dilemma. Most of us
would not look at his particular situation as a dilemma at all but,
instead, view it as a welcome set of exciting career opportunities.
With the new administration filling vacancies and political
appointments, he was offered the chance to serve the people of the
United States, a chance to use his skills as a premier attorney through
the Federal Government. This lawyer had practiced both civil litigation
and appeals with an emphasis on regulatory and administrative law,
particularly in the areas of telecommunications and public utilities.
He served for 5 years as Colorado's solicitor general. He served as a
law clerk to Justice William H. Erickson of the Colorado Supreme Court.
With all this experience under his belt, he had to decide whether to
pursue a career with the Department of the Interior under the
leadership of fellow Coloradan Gale Norton or to continue working in
his successful law practice and to answer the call of his countrymen
and President and to strive to serve the Nation as a judge on the Tenth
Circuit Court of Appeals.
What choice did the attorney of whom I speak make? What path did Tim
Tymkovich choose? He chose to pursue the Federal judgeship and to
fulfill his sincere desire to lead a life of public service, a life
dedicated to upholding the law and our Constitution.
On May 25, 2001, President Bush nominated Mr. Tymkovich to the Tenth
Circuit Court of Appeals. On February 12, 2003, under the leadership of
Senator Orrin Hatch, the chairman of the Senate Judiciary Committee,
Mr. Tymkovich finally received a hearing. Today, nearly 2 years later,
the Senate has picked up his nomination for consideration by the entire
body.
Today's actions, 23 months after his nomination, move us closer to
fulfilling the Senate's duty as laid out in the Constitution through
the advise and consent clause of article II. This vote has been a long
time in the making. After several letters, several floor statements,
and almost 2 years after the original date of his nomination, Tim
Tymkovich is finally getting an up-or-down vote.
I thank Senator Hatch for moving his nomination out of the committee.
I thank the majority leader, Senator Frist, for scheduling this debate
and the vote later on today.
The nominating process is a grueling one. To be confirmed, Mr.
Tymkovich, along with his fellow nominees, put his life on hold to
await action by the Senate on his nomination. In Mr. Tymkovich's case,
he had to endure 2 years of uncertainty, not knowing whether he should
change his law firm partnership, pursue other options, or wait for the
Senate to grind forward, with each step and every decision scrutinized
by the Senate. Undoubtedly, he had other career opportunities, other
choices that would have led to remarkable successes. As you will
recall, I mentioned the Department of the Interior possibility at the
beginning of my remarks. Yet he chose to pursue the Tenth Circuit court
nomination.
As we have witnessed with the Miguel Estrada debate, the judicial
nomination process has broken down into partisan politics and
entrenchment, taking a heavy toll on the life of the nominee and on the
quality of justice delivered to the American people.

Today we have the opportunity to begin to correct this dangerous path
we have been traveling. Tim Tymkovich has my unqualified support.
Confirmation of his nomination by this body will prove to be a great
service to the people of the United States. His nomination has enjoyed
broad bipartisan support--support from judges and colleagues, both
Democrat and Republican policymakers.
I have a series of charts highlighting support for his confirmation,
charts I would like to share with you today.
The first chart quotes Roy Romer, former Governor of Colorado, and, I
might add, former Democratic National Committee chairman who served
under the tenure of President Bill Clinton and who is now
superintendent of the Los Angeles United School District. Mr. Romer is
a strong supporter of Mr. Tymkovich and has expressed his sentiment to
the Judiciary Committee.
Governor Romer, in a letter to the committee, wrote:

Mr. Tymkovich served the State of Colorado from 1991
through 1996 during the latter part of my tenure as Governor
of the State of Colorado. He served with distinction and was
a strong advocate in legal matters for Colorado. He also
demonstrated a capacity to work closely with Colorado
Democrats, as well as Republicans, as Solicitor General. . .
. He was always a straight shooter in giving legal advice to
me and my top staff.

Governor Romer believes his past legal experiences have given Mr.
Tymkovich a broad understanding of the varied legal issues that may
come before him on the Tenth Circuit. Governor Romer believes Mr.
Tymkovich will bring strong legal credentials to the court and a
judicial temperament that should garner the support of the Senate.
I ask unanimous consent that the letter from Governor Romer be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[[Page S4599]]

Los Angeles Unified School

District, Board of Education,

September 6, 2002.
Re Nomination of Timothy M. Tymkovich to the Tenth Circuit
Court of Appeals.

Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen
Senate Office Building, Washington, DC.
Dear Mr. Chairman and Members of the Committee: I write
this letter in support of the nomination of Timothy M.
Tymkovich to the Tenth Circuit Court of Appeals in Colorado.
I have both worked with Mr. Tymkovich in his capacity as
Colorado's Solicitor General or as a private practitioner in
Denver.
Mr. Tymkovich served the State of Colorado from 1991
through 1996 during the latter part of my tenure as Governor
of the State of Colorado. He served with distinction and was
a strong advocate in legal matters for Colorado. He also
demonstrated a capacity to work closely with Colorado
Democrats as well as Republicans as Solicitor General, both
in my Administration and in Colorado's General Assembly. He
was always a straight shooter in giving legal advice to me
and my top Staff. He is currently in private practice in
Denver and has represented Chris Romer's Colorado Education
Network on state taxation and public policy matters. He
recently helped craft an analysis of Colorado's
constitutional budget law that could have important positive
implications for our State in a lean economic year.
Mr. Tymkovich is a native of Colorado and I believe his
past legal experiences have given him a broad understanding
of the varied legal issues that may come before him in the
Tenth Circuit. In addition, he has served Colorado in many
ways in both the public and private sectors. He presently
serves as Chairman of the Colorado Board of Ethics (which
advises the Governor and executive branch on state ethics
matters) and he recently chaired a bipartisan task force on
civil justice reform. He currently is a member of the
American Bar Association's American Bar Foundation and the
American Law Institute, two important organizations dedicated
to the impartial administration of justice. The ABA has
already found him qualified to serve on the Tenth Circuit.
Mr. Tymkovich's nomination is currently waiting review by
the Senate Judiciary Committee. He has bipartisan support in
Colorado and both major newspapers in Colorado have praised
his nomination. I believe that he will bring strong legal
credentials and a judicial temperament that should garner the
support of the United States Senate.
I urge you to favorably review Mr. Tymkovich's nomination
and refer it to the full Senate of the United States.
Sincerely,
Roy Romer,
Superintendent of Schools.

Mr. ALLARD. Mr. President, Mr. Tymkovich is well respected for his
approach to the law and for problem solving. He manages cases and
clients with civility and understanding, setting a high example for the
legal community.
On a second chart, I highlight excerpts from an editorial written by
the Rocky Mountain News. On June 3, 2001, the paper editorialized:

If Senators give Tymkovich a serious look, they'll find
someone who combines intellectual heft and steady
temperament.

On February 16, 2003, the News restated their endorsement of Mr.
Tymkovich, writing:

We wish him prompt confirmation.

Mr. President, I ask unanimous consent that the two editorials from
the Rocky Mountain News be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Rocky Mountain News, June 3, 2001]

Good Choice for Court

It remains to be seen whether Tim Tymkovich's nomination
for the 10th Circuit Court of Appeals will founder on U.S.
Senate partisanship. He once was, after all, state solicitor
general under Gale Norton, now one of President Bush's most
controversial Cabinet members.
But if senators give Tymkovitch a serious look, they'll
find someone who combines the intellectual heft and steady
temperament that most senators profess to seek in a
prospective Federal judge.
Previously, Tymkovitch's most visible moment involved the
state's defense of voter-passed Amendment 2, which the courts
overturned. But however unsuccessful his defense of that
amendment may have been, his arguments were measured and
well-crafted--just as they have been on many other legal
topics.
____

[From the Rocky Mountain News, Feb. 16, 2003]

Tymkovich's Hearing

Tim Tymkovich, former Colorado Solicitor General, waited
nearly 21 months for a hearing before the Senate Judiciary
Committee on his nomination for the 10th Circuit U.S. Court
of Appeals.
Why, that's just about long enough for an elephant to give
birth, which is no accident, because the intolerable delays
in judicial confirmations is very much a matter of
elephants--and donkeys.
When Sen. Jim Jeffords of Vermont defected from the
Republican party and turned over control of the Senate to the
Democrats, they made a determined effort to prevent President
Bush from naming philosophically compatible judges, as
presidents of both parties have long done.
Tymkovich, nominated just days after Jeffords' switch, was
caught in the political gridlock.
He finally had his hearing Wednesday. We wish him prompt
confirmation.

Mr. ALLARD. Mr. President, the Denver Post, a paper that endorsed Al
Gore over George Bush, stated on May 30, 2001, that Tim Tymkovich:

has gained a local reputation as a thoughtful, insightful
attorney who knows the law and works hard to uphold it. . .
.We urge the Senate to confirm Tymkovich to fill a seat that
has sat vacant since 1999. . . .

I ask unanimous consent that the Denver Post article be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Denver Post, May 30, 2001]

Tymkovich Should Serve Well

We hope the new Democratic majority on the U.S. Senate will
set aside partisan politics when it considers Denver attorney
Tim Tymkovich's nomination to serve on the 10th U.S. Circuit
Court of Appeals.
But we also hope the American Bar Association will continue
to voluntarily scrutinize all nominees headed to the Senate,
even though the Bush administration stripped the ABA of its
official role in screening judicial candidates prior to their
nomination.
Tymkovich should be no exception, though he has gained a
local reputation as a thoughtful, insightful attorney who
knows the law and works hard to uphold it.
He first gained real notice when, as state solicitor
general, he was assigned to defend amendment 2, a Colorado
initiative that would have banned laws to protect gays.
Then-Attorney General Gale Norton was legally obliged to
defend the amendment. The fact that the U.S. Supreme Court
rejected this sloppily worded and unconstitutional amendment
doesn't reflect on Tymkovich's legal skills or politics.
Indeed, Jean Dubofsky, a former Colorado Supreme Court
justice who successfully led the legal challenge against
Amendment 2, supports Tymkovich's nomination.
Tymkovich is only 44, but he has been practicing law in the
public and private arenas since 1982 and is a long-time
member of the American Bar Association, the American Law
Institute and the International Society of Barristers.
He also is a member of the Federalist Society, which comes
as no surprise considering how that group's conservative,
Libertarian orientation dovetails with the conservative slant
of the Bush administration.
Still, we don't expect Bush to be nominating liberal
Democrats to lifelong positions on the federal bench anytime
soon. And Tymkovich is far less conservative than his fellow
nominee to the 10th U.S. Circuit Court. Michael McConnell, a
law professor at the University of Utah, has defended
vouchers for religious schools and argued to reinterpret the
Constitution's division between church and state.
The conservative Christian's experience in pubic law is far
deeper than Tymkovich's, but his reputation as an ideologue
likely will stymie his chances with the Senate.
While we cannot support McConnell, we urge the Senate to
confirm Tymkovich to fill a seat that has sat vacant since
1999, when Judge John Porfilio took senior status.
We also encourage the Senate to carefully defend the
Judiciary from any Bush efforts at `court packing,' whereby
nominees are selected for their political philosophy rather
than their legal expertise.
Federal judges and justices are obligated to carefully
apply the law of the land, not the politics of the president
in power.

Mr. ALLARD. Mr. Tymkovich understands the West, its community, and
its past. He has traveled extensively throughout the States of the
Tenth Circuit with his wife Suzanne, a western historian and novelist,
as well as an accomplished attorney in her own right. Together they
traveled near and far, covering the old stomping grounds of legendary
western figures such as Butch Cassidy and others.
Undoubtedly, this deep knowledge of western heritage will aid in his
duties and his understanding of the law, as well as the rich judicial
history of the Tenth Circuit.
Tim Tymkovich's commitment to public service is unparalleled. I have
had many conversations with him, and know him to be a man of keen
intellect and integrity. Through our many conversations, I have
developed a strong understanding of Tim's deep commitment to public
service and his strong personal respect for the rule of law in
protecting people and the interests of the State.
Tim Tymkovich's legal credentials reveal a man who values
independence

[[Page S4600]]

and fairness in the judicial process. A man who understands the
implication of a lifetime appointment to our Nation's courts, a man who
truly believes that there is no higher professional calling than to
serve the American people through the impartial administration of the
law. He will serve our Nation with the utmost of respect to our country
and our Constitution, and for this reason, I urge my colleagues to vote
favorably to confirm his nomination.
No one has a better understanding of the character and intellectual
prowess of an attorney than his or her co-workers and peers. The legal
profession is filled with practicing attorneys, lawyers who work in
private firms, in the public sector, and who serve the public from the
bench. The impression left on other attorneys by encounters with them
at various stages of litigation and negotiation is obviously an
important factor in determining whether a nominee is well suited for
the bench. They work day-in and day-out with the nominee and have first
hand knowledge about the type of judge a particular attorney will make.
At this time, I would like to share some of the comments made by Mr.
Tymkovich's colleagues.
In the third chart, I have reprinted a statement from William H.
Erickson, former Chief Justice to the Colorado Supreme Court, and to
whom Mr. Tymkovich served as a law clerk. Justice Erickson stated:

I served on the Colorado Supreme Court for twenty-five
years and had the privilege of working with a number of
outstanding law clerks. Tim was one of the finest clerks that
served in my chambers. He has an outstanding legal background
that qualifies him for service on the Tenth Circuit.

Justice Erickson has maintained a close relationship with Tim, his
wife, and their two sons, and has expressed over and over again his
strong belief that he would--and will--make a significant addition to
the Tenth Circuit.
In a letter to the Senate Judiciary Committee, Justice Erickson wrote
that,

As counsel to the Columbine Review Commission that
investigated the Columbine High School shooting, Tymkovich
served with great distinction and materially assisted the
Commission's preparation of a report that hopefully will
prevent other school shootings.

In a letter to Senator Hatch dated January 23, 2003, five former
justices of the Colorado Supreme Court urged the Senate's timely
consideration of his nomination. The justices, including Justice Jean
Dubofsky, wrote:

Over the past nearly twenty years, each of us has had the
opportunity to observe Timothy M. Tymkovich as a practitioner
employed by or appearing before the Colorado Supreme Court.
During that time, Mr. Tymkovich served as a law clerk
employed by one of the justices of our court and later as
counsel representing the State of Colorado before the Court.
We have also had the opportunity to observe Mr. Tymkovich as
an attorney serving in bar organizations such as the American
Law Institute, the American Bar Foundation and as a staff
attorney of public commissions. Based on our professional
experiences, we are of the unanimous judgment that he is well
qualified and most able to serve as an appellate judge of the
United States Court of Appeals.

This group of justices, coming from varied political backgrounds and
differing professional experiences and diverse legal careers and
different racial, gender and ethnic backgrounds, unanimously support
the confirmation of Tim Tymkovich by the entire Senate. An endorsement
of this kind cannot, and must not, be taken lightly. These justices,
Jean Dubofsky, Joseph Quinn, William Neighbors, Gregory Scott, and Luis
Rovira, consider Mr. Tymkovich to possess the necessary attributes of a
Federal judge, and that Colorado and the Nation should no longer be
subjected to undue delay on his nomination.
The justices' letter ends with this powerful statement:

. . . [W]e speak as one voice, resolute in our belief that
the people are entitled to and that Mr. Tymkovich is most
deserving of consideration . . . Mr. Tymkovich's experience,
practice, public service, temperament and skills will serve
the people of the United States well.

Their unqualified support speaks volumes about Tymkovich's
credentials. This powerful and unequivocal endorsement deserves
repeating:

This statement deserves our attention and our respect.
I ask for unanimous consent that the letter from these five justices
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

January 23, 2003
Re Senate consideration of the nomination of Timothy M.
Tymkovich as a Judge of the United States Court of
Appeals for the Tenth Circuit.

Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen
Senate Office Building,
Washington, DC.
Dear Mr. Chairman Hatch: We are all former justices of the
Colorado Supreme Court. We write to express our personal and
professional concern and seek the timely consideration of the
nomination of Timothy M. Tymkovich as a Judge of the United
States Court of Appeals for the Tenth Circuit. Ever mindful
of the Separation of Powers Doctrine as well as the Supremacy
Clause of the United States Constitution, we do not write to
impose or suggest our will should prevail over that of the
United States Senate. Instead, as private citizens with a
unique perspective concerning the attibutes and abilities of
Mr. Tymkovich, we write to petition your attention to our
concern to urge that a hearing be scheduled for Mr.
Tymkovich.
Over the past nearly twenty years, each of us has had the
opportunity to observe Timothy M. Tymkovich as a practitioner
employed by or appearing before the Colorado Supreme Court.
During that time, Mr. Tymkovich served as a law clerk
employed by one of the justices of our court and later as
counsel representing the State of Colorado before the Court.
We have also had the opportunity to observe Mr. Tymkovich as
an attorney serving in bar organizations such as the American
Law Institute, the American Bar Foundation and as a staff
attorney of public commissions.
Based on our professional experiences, we are of the
unanimous judgment that he is well qualified and most able to
serve as an appellate judge of the United States Court of
Appeals.
Consistent with our professional assessments, the President
of the United States has seen fit to nominate Mr. Tymkovich
to serve as a judge on the Tenth Circuit Court of Appeals.
However, while nominated more than a year ago, we understand
that his nomination is currently awaiting consideration by
the Senate Judiciary Committee that you chair. We do not
propose to instruct the Chair in the conduct of the Senate's
business, for we are not able nor do we intend to assume such
a role or purpose. Nonetheless, we do ask that the
President's nomination of Mr. Tymkovich be considered
expeditiously.
Mr. Chairman, despite coming from varied political
backgrounds and differing professional experiences as diverse
legal careers and different racial, gender and ethnic
backgrounds, we are of the unanimous opinion that Mr.
Tymkovich should be considered by your Committee and
confirmed by the entire Senate. We also conclude and share
the opinion that he not only possesses the attributes we
appreciate in judges, both federal and state, but that he is
entitled to fair and civil treatment by the Senate Judiciary
Committee. The citizens of Colorado and indeed our Nation
should no longer be subjected to undue delay confronted by
anything other than a full and fair review of his nomination
in accordance with the rules of the United States Senate.
Without listing his considerable accomplishments as an
attorney engaged in public service and private practice, we
speak as one vote, resolute in our belief that the people are
entitled to and that Mr. Tymkovich is most deserving of
consideration by your Committee. The President's nomination
is a considerate one and Mr. Tymkovich's experience,
practice, public service, temperament and skills will serve
the people of the United States well.
Together, therefore, we respectfully urge you to place his
nomination before the Senate Judiciary Committee so that a
fair and prompt review of Mr. Tymkovich's credentials can be
made without much further delay.
Moreover, we most strongly recommend and heartily urge the
Senate Judiciary Committee refer his nomination to the full
Senate of the United States for a definitive vote as soon as
practicable.
Very truly yours,
Jean E. Dubofsky,
Justice.
Joseph O. Quinn,
Chief Justice.
William D. Neighbors,
Justice.
Gregory Kellan Scott,
Justice.
Luis D. Rovira,
Chief Justice.

As the end of the second year of his nomination approaches, I
sincerely hope that my colleagues will act today to fill the 4-year
vacancy on the Tenth Circuit, so that the people of Colorado, Utah, New
Mexico, Oklahoma and Nebraska, and indeed the Nation, will no

[[Page S4601]]

longer be short-changed by a vacant bench. While this seat has remained
empty for nearly 4 years, the States that comprise the Tenth Circuit
have experienced unprecedented population growth, and causing a docket
overload at the Federal level. The vacancy must be filled, and
Tymkovich is the proper person to fill the seat.
The events of September 11 clearly demonstrate an active effort by
the enemies of the United States to destroy the liberties and freedom
of our Nation. The most basic of our country's values and traditions
came under attack, and now we are taking action against those
perpetrators. In the wake of tragedy, Congress has enacted new laws
that provide financial assistance to businesses, families and defense,
and we are currently taking strong military measures to suffocate
terrorists and destroy the hateful organizations that work to undermine
our society and destroy our liberty.
I am sure that my colleagues will agree that a necessary component of
providing justice and protecting liberty and freedom is an efficient
court system, a court equipped with the personnel and resources that
enable it to fulfill its constitutional role. Today, this body has
another opportunity to restore the faith of the citizenry and to fill a
4-year vacancy. I urge the Senate to show the American people that the
Senate is indeed interested in serving justice, in protecting our laws
and our people, and to support the nomination of Tim Tymkovich. He is
highly qualified and will serve his country with the utmost of
patriotism, and respect for adherence to constitutional principles. He
respects our laws. I strongly urge my colleagues to vote for the
nomination of Tim Tymkovich to the Tenth Circuit Court of Appeals.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ALLARD. I ask unanimous consent the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALLARD. I ask unanimous consent the time used during the quorum
call time be charged equally to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALLARD. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Enzi). Without objection, it is so
ordered.
Mr. FEINGOLD. Mr. President, I voted against the nomination of
Timothy Tymkovich to be a judge on the U.S. Court of Appeals for the
Tenth Circuit in the Judiciary Committee, and I will do so again today.
I would like to take a few minutes to explain my decision.
I cannot support the nomination of Mr. Tymkovich because I am not
convinced that he will give all those who appear before him a fair and
impartial hearing. I am concerned that he lacks a commitment to apply
and uphold our Constitution's equal protection guarantees, especially
in protecting gay Americans from discrimination.
In 1996, in a case called Romer v. Evans, the Supreme Court ruled
unconstitutional a Colorado ballot initiative that sought to overturn
city ordinances prohibiting discrimination based on sexual orientation.
As solicitor general of Colorado, Mr. Tymkovich defended the ballot
initiative on behalf of the State. Obviously, I know it was his job to
do that. But I am concerned that it is his personal belief--his
personal belief--that gay Americans do not have a right to equal
protection and equal justice under the laws, and he did not convince me
he would put aside those personal beliefs when he becomes a judge.
Mr. Tymkovich wrote a law review article that was published in 1997
by the University of Colorado about the Romer decision. In this
article, which, I might add, he wrote and published after he left his
job as Colorado's solicitor general, he, in my view, went beyond
representing his client and actually presented his personal views. He
forcefully promoted the view that laws against discrimination based on
sexual orientation in activities like employment, housing, and
education in places like Denver, Aspen, and Boulder somehow conferred
``special rights or protections'' on gays and lesbians. Let me quote a
bit from his article. He wrote:

A number of governmental entities in Colorado had granted
special rights or protections to homosexuals and bisexuals:
the cities of Denver, Boulder, and Aspen enacted ordinances
prohibiting discrimination based on sexual orientation in
jobs, housing, and public accommodations; the Colorado Civil
Rights Commission had moved to extend the state's civil
rights act to ban discrimination based upon sexual
orientation; the governor of Colorado issued an order
prohibiting job discrimination for state employees based on
sexual orientation and began to fashion ``sensitivity''
training for the state's executive branch; and public
educational institutions had begun adopting policies
prohibiting discrimination based on sexual orientation.

Mr. Tymkovich's view is that employers and landlords have the
``liberty,'' or right, to discriminate against individuals based on
their sexual orientation. He wrote:

Eliminating the liberty of landlords and employers to take
account of homosexuality send the unmistakable message that
homosexual behavior, like race, is a characteristic which
only an irrational bigot would consider. By restoring
government neutrality of this difficult and divisive moral
issue, Amendment 2 promotes freedom and diversity by allowing
different groups in the community to hold, and act on,
different views on this question.

I sought to question Mr. Tymkovich about this. And when I attempted
to probe Mr. Tymkovich at his confirmation hearing about his view that
civil rights laws like the city ordinances at issue in Romer somehow
confer ``special rights'' on gay Americans, he was suddenly and, to me,
almost inexplicably evasive. I was frustrated with Mr. Tymkovich's
reluctance to answer questions that would reveal his thought process. I
was interested in his views on an important issue for our Nation--civil
rights and the distinction he saw between rights for African Americans
and rights for gay Americans. Even though he had already shared his
personal views on the question of gay rights in a law review article--a
public forum--he suddenly seemed reluctant to discuss those views with
the committee.
I asked Mr. Tymkovich a question as follows:

As you discussed in your article, you believe that the
Supreme Court was wrong to be hostile to the political
decision of a majority of Colorado voters who supported
adoption of the Colorado amendment. You state that Colorado
voters made ``a seemingly good-faith policy choice.''
If I understand you correctly, you agree with Justice
Scalia's dissent in Romer and that the court improperly
injected itself into a political debate. Is that your view?

That was the conclusion of my question. Here was Mr. Tymkovich's
initial response:

Senator, that's an excellent question, and I appreciate the
opportunity to clarify and reflect on the issue below.
As you know from your participation in this body, there are
important issues of public policy debate that cross party
lines or are bipartisan and very difficult issues. In
Colorado, the question of whether or not to add sexual
orientation to State and local anti-discrimination laws has
been a very important and ongoing political debate in our
State. And certainly, Amendment 2 was in part within that
context and dialogue. And certainly many people respectfully
disagreed with the legislative pronouncement there, and I
think the point I was trying to make in those remarks and
certainly in the case is that the courts were not a good
forum for airing sort of political or legislative policy-type
arguments, and that the courts are best able to address a
constitutional principle when they have the concrete facts
and law before them and not sort of rhetorical or
legislative-type pronouncements.
The Amendment 2 case had a strong mix of sort of a policy
debate in that sense, and I think my comment was that the
policy debate and certainly the arguments we made to the
courts is that that would be better left to the political
process.

I then followed up by saying:

I am taking that as a yes, that you agree with Justice
Scalia that the Court improperly injected itself into a
political debate. Do you believe that the Court should have--
is that fair?

Mr. Tymkovich responded:

Senator, I think Justice Scalia accepted some of the
presentation of the State, but then rejected others. So I
don't wholly agree or disagree with the dissent in the case,
but it does reflect some of the arguments that were made.

I then asked:

[[Page S4602]]

Do you agree with that point?

Mr. Tymkovich responded:

I agree--the presentation that the state made to the
Supreme Court was that it was a policy debate and not subject
to the Supremacy Clause of the equal protections. But, again,
as I testified earlier, that argument, that presentation was
not accepted by the Court, and regardless of my personal
views, I am perfectly capable and willing to impartially
apply that precedent.

The reason I am going through this is that it is important to make a
record for this point. Mr. Tymkovich and I then had a dialog that
lasted quite a few pages of the transcript where I repeatedly asked him
to discuss his personal views on this issue, not simply the position he
had argued on behalf of the State, given that he had discussed them in
the law review article. He essentially refused to answer the question.
I ask unanimous consent that the full transcript of my questioning of
Mr. Tymkovich be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Senator Feingold. I will go back to the issue of gay rights
and your involvement as Solicitor General of Colorado in the
case that led to the U.S. Supreme Court's Romer v. Evans
decision. As has been discussed by Senator Schumer and
Senator Sessions, you defended the ballot initiative on
behalf of the State of Colorado. It was, I agree, your job to
do that and I accept that. But I do want to ask you a bit
about what perhaps goes beyond the zealous advocacy for your
client, and this is the article that we are discussing, the
1997 University of Colorado Law Review, that forcefully
presents your view that laws against discrimination based on
sexual orientation in activities like employment, housing,
and education in places like Denver, Aspen, and Boulder
somehow conferred special rights or protections on gays and
lesbians.
Let me ask you this: Do you believe that title VII of the
Civil Rights Act of 1964, the landmark legislation
prohibiting employment discrimination based on race, confers
special rights on African Americans?
Mr. Tymkovich. Senator, the anti-discrimination laws in
Colorado and at the Federal level are important protections
to minorities and others that have faced discrimination. So
to the extent that the baseline was no, you know, Federal or
State protections based on ethnicity or race, the addition of
those laws to the legislative pronouncement provides a
protection, an additional protection that would not be
available under the common law. So in that sense, certainly
under Colorado law, additional protections are provided
through the discrimination laws, and I might add that's an
important part of the legislative process to identify and
protect injustices out there.
Senator Feingold. But what about my question? Does Title
VII of the Civil Rights Act of 1964 confer special rights on
African Americans?
Mr. Tymkovich. I'm not sure exactly what you mean by
``special rights,'' Senator, but I would say----
Senator Feingold. Well, I am referring to the fact that
your article seemed to say that the Colorado law conferred
special rights or protections on gays and lesbians. I am
asking you whether or not Title VII of the Civil Rights Act
of 1964 in that same spirit in your view confers special
rights on African Americans?
Mr. Tymkovich. No, Senator. I think it provides a civil
remedy, some laws provide a criminal remedy, on behalf of
discrimination, and certainly that's the intent and purpose
of those laws.
Senator Feingold. In that same spirit, do you think that
Title VII wrongly protects Americans from employment
discrimination based on race, ethnicity, national origin,
religion, age, disability, or gender? Do you believe that an
American who brings a claim of job discrimination based on
any one or more of these categories is somehow enjoying
special rights or protections?
Mr. Tymkovich. No, Senator. They're simply enjoying the
protections that this body has provided to those particular
groups.
Senator Feingold. As you discussed in your article, you
believe that the Supreme Court was wrong to be hostile to the
political decision of a majority of Colorado voters who
supported adoption of the Colorado amendment. You state that
Colorado voters made ``a seemingly good-faith policy
choice.''
If I understand you correctly, you agree with Justice
Scalia's dissent in Romer and believe that the Court
improperly injected itself into a political debate. Is that
your view?
Mr. Tymkovich. Senator, that's an excellent question, and I
appreciate the opportunity to clarify and reflect on the
issue below.
As you know from your participation in this body, there are
important issues of public policy debate that cross party
lines or are bipartisan and very difficult issues. In
Colorado, the question of whether or not to add sexual
orientation to State and local anti-discrimination laws has
been a very important and ongoing political debate in our
State. And certainly Amendment 2 was in part within that
context and dialogue. And certainly many people respectfully
disagreed with the legislative pronouncement there, and I
think the point I was trying to make in those remarks and
certainly in the case is that the courts were not a good
forum for airing sort of political or legislative policy-type
arguments, and that the courts are best able to address a
constitutional principle when they have the concrete facts
and law before them and not sort of rhetorical or
legislative-type pronouncements.
The Amendment 2 case had a strong mix of sort of a policy
debate in that sense, and I think my comment was that the
policy debate and certainly the arguments we made to the
courts is that that would be better left to the political
process.
Senator Feingold. I am taking that as a yes, that you agree
with Justice Scalia that the Court improperly injected itself
into a political debate. Do you believe that the Court should
have--is that fair?
Mr. Tymkovich. Senator, I think Justice Scalia accepted
some of the presentation of the State, but they rejected
others. So I don't wholly agree or disagree with the dissent
in the case, but it does----
Senator Feingold. Do you agree with that point?
Mr. Tymkovich [continuing]. Reflect some of the arguments
that were made.
Senator Feingold. Do you agree with that point?
Mr. Tymkovich. I agree--the presentation that the State
made to the Supreme Court was that it was a policy debate and
not subject to the Supremacy Clause of the equal protections.
But, again, as I testified earlier, that argument, that
presentation was not accepted by the Court, and regardless of
my personal views, I am perfectly capable and willing to
impartially apply that precedent.
Senator Feingold. That isn't what I am asking. I have asked
your personal view, and I take it that your personal view is
that the Court did the wrong thing here and improperly
injected itself into the political debate. I understand that
you would follow the law based on the Court's decision.
Mr. Tymkovich. I would follow the law.
Senator Feingold. Do you believe that the Court should have
given more consideration to the privacy, associational, and
religious rights of persons who do not condone homosexual
behavior?
Mr. Tymkovich. Senator, the lower courts in Colorado had
identified that there were religious and associational
factors that would be implicated by the laws that were
preempted by Amendment 2. I think, again, that that, as I've
tried to explain in my previous testimony, is part of the
political give-and-take, the public policy give-and-take in
crafting a gay rights law that would accommodate certain
interests, and certainly that's part of the policy debate
that we've seen in our State. Certainly the Amendment 2
provision would have required that debate to go at the
statewide level, and as I recall, even during the
judicial proceedings on Amendment 2, there was a move to
enact a statewide initiative that would----
Senator Feingold. Okay. I accept that, but I am asking you
your personal view. You are an expert on this. Do you think
the Court should have given more consideration--you, do you
think the Court should have given more consideration to the
privacy, associational, and religious rights of persons who
do not condone homosexual behavior?
Mr. Tymkovich. Senator, I think that in that case, as
others, as an advocate, as a representative of my client, we
were presenting what we thought were the best arguments based
on the applicable case law----
Senator Feingold. I am asking your view right now.
Mr. Tymkovich [continuing]. To the Supreme Court.
Senator Feingold. I am not asking in your role as an
advocate. I am asking in your view should the Court have
taken that more into account?
Mr. Tymkovich. I think, as I've testified earlier,
indicated in my article, that I believe that we had strong
arguments based on the existing precedent at the time and
asked that the Court accept that.
Senator Feingold. Well, you seem to be refusing to give
your own view on this, and I don't know why. This isn't a
pending case. This is a case that was resolved by the Supreme
Court. You have strong opinions indicated I here, and I don't
understand why you can't give me your personal view.
Mr. Tymkovich. I think I've reflected the views that we
presented to the Court, and as I've testified----
Senator Feingold. You did do that and that is all you have
done, and you are not answering my question.
Throughout our Nation's history, proponents of racial
discrimination have used the argument that they should be
free to discriminate based on their privacy, associational,
or religious rights. In Brown v. Board of Education of
Topeka, Kansas, the Supreme Court injected itself into a
contentious political debate where in some parts of the
country separate but equal schools were defended to the point
of literally spilling blood over the issue.
Do you believe that Brown v. Board of Eduation was wrongly
decided and that the Supreme Court should not have injected
itself into the policy question of maintaining school
segregation?
Mr. tymkovich. Senator, it's an important question because
certainly the history of discrimination in this country has
had a very mixed and very sorry record at times, and the
Brown decision is certainly a reflection of part of that
history.

[[Page S4603]]

One of the reasons I went to law school was the influence
of a book I read about the Brown case called ``Simple
Justice'' that traced the history of the legal development
from Plessy v. Ferguson to the Brown decision, and a very
powerful historical book about the legal and social and
ideological aspects of discrimination in this country.
So certainly Brown is one of the cornerstones of American
jurisprudence, and certainly its foundation is a very
important part----
Senator Feingold. So you obviously don't disagree with that
decision, and that is why I want to ask you: What is the
difference in your mind between African Americans and gay
people in terms of whether laws protecting them from
discrimination are permissible?
Mr. Tymkovich. Senator, I think that it's a very important
part of the public policy debate to analyze the rationale and
the reasons for a particular legislative judgment. I don't
sit here today as having a legislative agenda. I do not. My
goal as a Tenth Circuit judge, if confirmed, would be to
impartially and fairly and open-mindedly apply the law.
You're asking me for a legislative judgment, and I
certainly----
Senator Feingold. No. I am asking you your personal
opinion, having studied this in law school, having the
question of discrimination having been one of the
inspirations for your going to law school, and
doing extremely well, I might add, and being a very
distinguished lawyer. I am asking you what your thought
process is here. I am asking you what your thought process
is here. What is the difference between discrimination
against African Americans and gay people?
Mr. Tymkovich. Senator, I think that, you know, again, to
answer your question from a public policy standpoint, I
believe that this body, Congress, which has debated whether
or not to add sexual orientation to Title VII or to Federal
law, and certainly the debate at the State level would be to
take the testimony and the experiences of gay and lesbian
Americans and apply that to the particular circumstances at
work.
In Colorado, that's an important dialogue that is ongoing
about to what extent the laws ought to be modified and
changed to prevent discrimination and violence and harassment
against gay and lesbian people. I support that legislative
debate in our State. I don't think it's appropriate for me to
take a personal view to the Federal bench, and I can commit
to the body that I'd be able to apply the discrimination laws
faithfully and carefully as a Tenth Circuit judge----
Senator Feingold.--Well, Mr. Chairman, my time is up, but
let me just say that I certainly respect Mr. Tymkovich and
wish him well. But this process where we can't even get at
sort of the thought process of a nominee on something as
simple and important as how you relate discrimination against
African Americans to the issue of discrimination against gay
people, to me, Mr. Chairman, this is the problem we are
having, that we are really not being given a chance to
examine how these individuals will simply go through their
thought process as judges, not whether there is a right
answer or a wrong answer, but how will they go through the
judicial process and how will they go through that thought
process.
I think that is legitimate, and, again, I respect you and
certainly you have tried to respond to me. But it makes it
very, very difficult to analyze, especially in light of the
fact that this nominee wrote an article, an extensive article
about this very important subject, and all I am trying to do
is to get his thought process as it compared to another body
of law that he obviously thinks is valid.
So, with that, Mr. Chairman, I conclude and thank you and
thank Senator Kennedy.
Mr. FEINGOLD. Mr. President, this kind of evasive testimony only
makes it more difficult to analyze whether or not a nominee is well
suited for a position on a Federal appeals court.
I was also troubled by Mr. Tymkovich's insistence that the Romer case
presented a political question and should not have been decided by the
courts.
The courts have played an important role in ensuring civil rights for
all Americans. If our Nation left all questions of civil rights to the
legislatures, school segregation might still be practiced in parts of
the country today. In Brown v. Board of Education of Topeka, KS, the
Supreme Court did its job by injecting itself in a contentious
political debate and protecting the right of African Americans to equal
education.
I understand that these are President Bush's nominees and that he has
the right to nominate whomever he wants to the bench. But as much as it
is our duty to fill vacancies in the Federal judiciary, it is also our
duty to give great scrutiny to those nominees who have a record that
calls into question their ability to give all those litigants who would
appear before them a fair and impartial hearing.
I am more than pleased to vote to confirm judicial nominees that are
fair-minded and supported by a consensus of Senators and the legal
community, and, once again, I urge the President to send such nominees
to the Senate. I have voted in favor of three previous Bush nominees to
the Tenth Circuit, but I do not believe that Mr. Tymkovich is the right
person for this seat.
I yield the floor and suggest the absence of a quorum.
Mr. CRAIG. Mr. President, I ask unanimous consent that time under the
quorum call be divided equally.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The bill clerk proceeded to call the roll.
Mr. CAMPBELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CAMPBELL. Mr. President, I am pleased that Timothy Tymkovich's
nomination to serve on the Tenth Circuit Court of Appeals has come
before the full Senate for consideration here today.
Almost 7 weeks ago today, on February 12, 2003, along with my friend
and colleague, Senator Allard, I was pleased to introduce Tim Tymkovich
to the Judiciary Committee for his confirmation hearing.
Today, I am once again pleased to be able to speak in strong support
of Tim Tymkovich's nomination to serve on the Tenth Circuit Court of
Appeals.
Tim Tymkovich is well qualified to serve on the Tenth Circuit. He is
a native Coloradan, an excellent jurist and an all-around outstanding
person. I believe he will be a terrific addition to the Tenth Circuit
Court of Appeals.
Since he earned his juris doctor at the University of Colorado's
School of Law back in 1982, Tim has had an outstanding career,
including a well-balanced combination of service in both the public
sector and in private practice.
Tim's public service experience includes his service as a clerk to
the former Colorado Supreme Court Chief Justice William Erickson from
1982 to 1983.
From 1991 to 1996, Tim Tymkovich skillfully served as Colorado's
solicitor general.
In between these years of public service, Tim earned an excellent
reputation in private practice with several leading law firms.
For the past 2 years, Tim has served as counsel to Colorado Governor
Owen's Columbine Review Commission, which reviewed the public agency
and law enforcement response to the tragic Columbine High School
shootings of 1999.
At the same time, he co-chaired the Governor's Task Force on Civil
Justice Reform, which has led to significant improvements in Colorado's
civil justice and practice.
Tim currently serves as a partner in the prestigious Denver-based law
firm, Hale, Hackstaff, & Tymkovich.
Two of Colorado's leading newspapers have positively endorsed Tim,
saying among other things, that he has gained a local reputation as a
thoughtful, insightful attorney who knows the law and works hard to
uphold it. That was the Denver Post, May, 2002.
They have also commented that if the Senate gave Tim Tymkovich a
serious look, we would find someone who combines intellectual heft and
steady temperament.
I have taken a good look at Tim Tymkovich, and I fully agree with
these insightful assessments.
Tim's nomination enjoys substantial bipartisan support, including the
support of Colorado Attorney General Ken Salazar and Colorado's well-
known former Governor, Roy Romer.
Tim Tymkovich's nomination for the Tenth Circuit Court of Appeals has
been pending since he was first nominated for this position back on May
25, 2001.
it is now approaching 2 years since he was first nominated. Despite
Tim Tymkovich's outstanding qualifications, it has not been an easy
task for the Judiciary Committee to get this nomination to the floor of
the Senate today.
I want to take a moment to say a special word of heartfelt
appreciation for my good friend and Judiciary Committee Chairman Orrin
Hatch for his remarkably fair, evenhanded and steadfast stewardship of
judicial nominees, including Tim Tymkovich's nomination. Senator Hatch
deserves all of our appreciation.

[[Page S4604]]

It is time for the full Senate to complete our work and hold a
straight up-or-down rollcall vote on Tim Tymkovich's worthy nomination.
I strongly urge my colleagues to vote in favor of Tim Tymkovich's
nomination to serve on the Tenth Circuit Court.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. CAMPBELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CAMPBELL. Mr. President, I ask unanimous consent that the time be
charged equally to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CAMPBELL. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BUNNING. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BUNNING. Mr. President, I ask unanimous consent to speak as in
morning business for approximately 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Bunning are printed in today's Record under
``Morning Business.'')
Mr. BUNNING. Mr. President, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Sessions). Without objection, it is so
ordered.
Mr. LEAHY. Mr. President, I understand we are on the nomination of
Timothy Tymkovich to the U.S. Circuit Court of Appeals for the Tenth
Circuit.
The PRESIDING OFFICER. The Senator is correct.
Mr. LEAHY. I thank the distinguished Presiding Officer. As he knows,
being a member of the Judiciary Committee, while the debate time was
scheduled by the committee, at the same time they scheduled hearings on
various judicial nominees, including a very controversial nominee to
another circuit court. As have others, including the distinguished
Chair, I have tried to balance my time from place to place and attend
to both matters ongoing simultaneously. I am sorry that I could not be
here to open the debate but was at the hearing helping to open those
proceedings.
Today we consider Mr. Tymkovich as the fourth of President Bush's
nominees to this circuit to be considered by the Senate. Three of the
nominees to the Tenth Circuit were given hearings and confirmed during
the time I was chairman of the Judiciary Committee.
President Bush sent up Harris Hartz of New Mexico to the Tenth
Circuit. I arranged to get him a hearing and vote on the floor. In
fact, I voted for him. President Bush sent up Terrence O'Brien of
Wyoming. I arranged to get him a hearing and a vote on the floor. I
voted for him. President Bush sent up Michael McConnell of Utah, a
highly controversial, extraordinarily conservative nominee, heavily
backed by the Federalist Society and others. I arranged to get a
hearing for him, and I voted for him.
I mention that because it is in stark contrast to the treatment of
President Clinton's nominees to vacancies on the Tenth Circuit. We were
fair and took action on three of President Bush's nominees to the Tenth
Circuit last year. Today the Senate is debating and voting on his last
remaining nominee to that circuit.
Let us recall what happened when Republicans were in charge and there
was a Democratic President. President Clinton nominated two outstanding
lawyers to this vacancy, the one about which we talk today. James
Lyons, whom I have known it seems forever, is a brilliant lawyer. He
would have been an outstanding federal judge, one who in that position
would be totally impartial, would fit the qualifications necessary for
a judge--that is, when you walked in the court, you would know, whether
you are Republican or Democrat, rich, poor, plaintiff, defendant,
black, white or anything else, that you would be treated fairly. Mr.
Lyons was not treated fairly. He was not even allowed to have a hearing
let alone consideration by the Judiciary Committee or a vote by the
Senate.
Then President Clinton nominated Christine Arguello, an outstanding
Hispanic woman. She was not allowed to have a hearing either. It was
not that she was not qualified. In fact, speaking of these two, Mr.
Lyons was among the many Clinton nominees given the highest
qualification by the American Bar Association. Like so many others who
fit in that category, he was never allowed even to have a hearing. It
was not a question of voting up or down. Republicans were in the
majority. They could have voted him down. But both these well qualified
nominees were not even allowed to have a hearing.
Ms. Arguello is a talented Hispanic attorney. Her nomination had
widespread support from her community and State. Both Republicans and
Democrats called and wrote to me on her behalf. But as with so many
circuit court vacancies on the Tenth Circuit, the Fourth Circuit, the
Fifth Circuit, the Sixth Circuit, the Eighth Circuit, the Ninth
Circuit, the District of Columbia Circuit, and around the country,
these qualified nominees, whose only sin was that they were nominated
by a Democratic President, were not allowed to have hearings or votes.
The Republican-controlled Senate made it very clear: We will not hold
hearings or vote on them. Someday there will be a Republican President,
and then we will fill these seats in a campaign to stack the courts.
This was very clear. This happened during President Clinton's first
term in the Senate--the Republican Senate blocking his nominations from
even having a hearing because Republicans thought he would never get
reelected and then they could put in Republicans to fill those judicial
vacancies. It is very clear. Everybody here heard the comments in the
cloakroom and in the Senators' dining room. Look at the record, in the
1996 session, the Republican Senate majority would not consider or
confirm a single nominee to a circuit court anywhere in the country,
not one. During that entire year only 17 judges were confirmed and all
were to the district courts.
President Clinton then had a landslide reelection victory. We naively
assumed that the Senate Republicans would work with us to help fill the
many judicial vacancies that had been perpetuated. Not so. They thought
maybe 4 years later they might have another chance and there might be a
Republican administration and they could get the courts to do what we
wanted. Despite vacancies that reached over 100, Republicans denied
there was a vacancies crisis and insisted on slow and searching
inquiries on those lucky nominees who were considered at all. Of
course, more than 50 of President Clinton's judicial nominees were
never given a hearing and a vote. Others, the lucky ones, were delayed
for years and years before Senate Republicans would allow a vote.
Then in the most recent presidential election, as we know, Al Gore
got half a million more votes but did not become President. I respect
the electoral system. President Bush won the electoral vote, and there
was a 1-vote margin in the Supreme Court determining that. All of a
sudden, all these seats that have been kept open year after year
because Republicans would not allow anybody to come forward, were
valuable opportunities.
When Democrats were the Senate majority, we tried to help, to work
with the administration and with Senate Republicans. Take, the Tenth
Circuit. Even though President Clinton's nominees had been unfairly
held up, we did not do the same thing to President Bush's nominees. We
proceeded to confirm 100 of his judicial nominees in 17 months. We
proceeded on three of his nominees to the Tenth Circuit and filled
three of the four vacancies on that circuit by adjournment last year.
With respect to this remaining nomination, that of Timothy Tymkovich,
I

[[Page S4605]]

must say--not just because of the shameful, inexcusable way James Lyons
and Christine Arguello were treated by the Republicans--I have serious
misgivings about this nomination. Mr. Tymkovich has worked to undermine
environmental protections and other Federal programs in the name of
States rights. He has a particular view of States rights, one that I
believe will color his decision making and result in hostility to
Federal legislation designed to protect all Americans' civil rights and
all Americans' environmental rights.
In 1996, Mr. Tymkovich testified before the Senate Governmental
Affairs Committee, where he made strident comments about his
perceptions of States' rights. His testimony indicated that his support
for ``States' rights'' was conveniently focused on rolling back Federal
regulation in areas where he had substantive disagreements with Federal
policy. He testified in favor of the so-called Tenth Amendment
Enforcement Act, which called on Congress to eliminate implied
preemption, a form of preemption that has been consistently recognized
by the United States Supreme Court.
He claimed that the Federal Government had interfered in Colorado's
State's rights. Mr. Tymkovich complained that the Federal Government
had been ``especially intrusive into State affairs in the area of the
environment.'' He cited as examples of such interference and
``overreaching'' the EPA's opposition to a State ``self-audit''
program. That State program would have granted enforcement immunity to
polluters that voluntarily came forward and agreed to address problems
in the future. Immunity would have applied no matter how damaging the
polluters' actions had been. The State legislation was opposed by the
EPA because it violated State obligations under several Federal
statutes--the Clean Air Act and Clean Water Act, among others. Mr.
Tymkovich chided the EPA for refusing to give the same immunity to
polluters. In addition to his statements about the self-audit program,
Mr. Tymkovich protested the EPA's rejection of State programs in water
and air quality programs that did not meet Federal standards.

Mr. Tymkovich also complained in his hearing testimony that the
Federal Government violated States' rights by requiring Colorado to
follow Federal Medicaid law if the State chose to accept Federal
Medicaid funding. He argued that States should be allowed to accept
Federal Medicaid funding and then refuse to use those funds as
prescribed by Federal law; that is, to deny the termination of
pregnancies in the limited situation where a Medicaid-qualified woman
has been the victim of rape or incest. He argued that States should be
allowed to accept Federal Medicaid funding, but absolutely refuse to
use these funds--funds that come from all of us from the State of
Vermont, the State of Alabama, and every place else as prescribed by
Federal law. He argued: We will use your money, but you have no say in
how we use it.
Finally, Mr. Tymkovich claimed that the Federal ``motor voter'' law
was an ``intrusion'' that ``impose[d] special burdens.'' He called the
law an ``unfunded mandate'' that ``unquestionably interferes with the
States' internal affairs.'' In summary, he argued that ``Congress has
long ignored State interests.''
I am also concerned about Mr. Tymkovich's involvement in attempts to
weaken Title IX. As State solicitor general, Mr. Tymkovich appealed a
decision by a Federal District Court finding that Colorado State
University had violated Title IX of the Education Amendments of 1972.
The suit, Roberts v. Colorado State Board of Agriculture, was
originally brought by members of the women's fast-pitch softball team,
which had been cut by the university. The plaintiffs argued that the
termination of support for the team was a violation of Title IX. The
District Court issued a permanent injunction that required the
university to reinstate funding for the program and to provide the team
with equal benefits to other sports programs at the college.
Mr. Tymkovich appealed the case to the Tenth Circuit, arguing that
additional evidentiary requirements should be placed upon Title IX
plaintiffs. The Tenth Circuit affirmed the lower court's ruling,
finding that the university had not shown that it had fully and
effectively accommodated the interests and abilities of women athletes.
Title IX has been vital to the inclusion of women and girls in all
facets of education, especially athletics. You do not have to be a
parent or grandparent to know that now, if you go into any schoolyard
and you look at those playing sports at the grade school and high
school level, you see boys and girls playing. At the college level, you
see both young men and young women playing sports. This has been
important to all of us.
I am also concerned about the personal hostility Mr. Tymkovich has
shown to Americans based on their sexual orientation, and about his
failure to accept the importance of civil rights laws. As Colorado
solicitor general, he argued a case before the Colorado and U.S.
Supreme Courts, in which he unsuccessfully defended Colorado's 1992
ballot initiative that added a broadly-worded provision in the Colorado
Constitution prohibiting any legal protections based upon sexual
orientation. Ultimately, the Supreme Court of the United States found
that the Colorado law was motivated by prejudice, not rationality, and
thus ran afoul to the most basic premise of the equal protection
clause.
So after he litigated the Romer case, and after a conservative
Supreme Court ruled against him, he authored a bitter law review
article both defending his position and chastising the decisions of the
Supreme Court of the United States and of the Supreme Court of
Colorado. He criticized Justice Kennedy's decision in Romer as ``an
important case study of the Supreme Court's willingness to block a
disfavored political result--even to the point of ignoring or
disfiguring established precedent.'' He also referred to the U.S.
Supreme Court's oral argument process as ``judicial histrionics.'' He
concluded by saying this was ``another example of ad hoc, activist
jurisprudence, without constitutional mooring.''
Mr. President, I say this because this is a man who claims he would
be perfectly willing to follow the decisions of the Supreme Court. In
fact, the most revealing aspect of his law review is his failure to
acknowledge and respect the decision of the Supreme Court and the views
and integrity of those on the other side of the argument from him.

I have voted for hundreds of judges nominated by both Republican and
Democratic Presidents. My personal belief is that it is not whether
they are Democrats or Republicans, liberal or conservative, pro-life or
pro-choice, or whatever they might be; that is not the issue. The issue
is whether, when somebody comes before that court, that they know that
they are going to be treated with fairness, treated with respect, with
courtesy, no matter which side they are on or what legal position they
support in that litigation.
A Federal judge has an enormous amount of power. If somebody comes
into court and they know the case is already decided, that the judge
has already determined, based on who you are, how the case is going to
be decided, then I think you have a real problem that goes to the
integrity of the courts and certainly to the independence of the
courts, and it determines which way those courts are going to be seen.
Why is that important in Mr. Tymkovich's case? Because he shows what
type of a judicial temperament he would have. A most revealing aspect
of his law review article is his failure to acknowledge and respect the
views or integrity of those on the other side of the legal debate. His
article made me ask myself why he felt compelled to continue to
advocate for the positions he was taking once the case had been
concluded, once the Supreme Court had determined what the law was.
He obviously feels very strongly personally about these matters. That
is fine and that is his right. But that does not mean that he should be
confirmed to a lifetime appointment on a Federal circuit court. Had he
merely served as the attorney advocating a position in court, he could
have chalked his involvement in the Romer case up to professional
advocacy in support of a provision adopted in Colorado. Instead, he
went well beyond professional legal advocacy. His advocacy went to the
point of raising the question whether this

[[Page S4606]]

man will be able to be fair to all litigants. He wrote that ``our
society prohibits, and all human societies have prohibited, certain
activity not because they harm others, but because they are considered,
in the traditional phrase `contra bonos mores', i.e. immoral.''
In short, the article seems replete with heavy anti-homosexual
rhetoric. The hallmark of a good judge is his or her ability to be fair
to all who come before the court. I have very grave doubts that Mr.
Tymkovich can or will act in an unbiased or fair manner involving civil
rights. His expressions seem otherwise.
Equally disturbing about this incident is Mr. Tymkovich's apparent
unwillingness candidly to admit error either to the courts or the
Judiciary Committee. You have to wonder if he would be fair and
impartial as a judge in a court.
In a case in which Mr. Tymkovich was involved in private practice, he
represented the Republican and Libertarian parties, along with several
State legislators, in their challenge to the constitutionality of
Colorado's Fair Campaign Act. In the course of his representation,
which saw him before both the trial court and the Tenth Circuit, Mr.
Tymkovich erroneously agreed to consensual dismissal of one of his
client's claims before the district court. While each court differed
about the merits of the alleged claims, both agreed that Mr. Tymkovich
voluntarily dismissed a claim that (1) there was no other means of
challenging and (2) which he evidently still desired to litigate. In a
case of such high importance, and for a person being nominated to a
court of such significance, his actions in this case appear to include
a rather serious mistake that reflects upon his competency.
Equally disturbing about this incident is Mr. Tymkovich's apparent
unwillingness to candidly admit his error either to the courts or the
Judiciary Committee. Mr. Tymkovich continued to argue the matter and
assert that the District Court behaved improperly and without reason in
dismissing his client's first amendment claim. So, too, did he fail to
reveal his error in his Senate Questionnaire. Although he truthfully
stated that he won some of the claims he pursued, his careful wording
on his Senate Questionnaire seems particularly crafted to avoid this
aspect of the case.
I note for those who have recently trumpeted the ABA ratings as an
important indicator of professional competence--especially when a close
friend of President Bush is in charge of those ratings--Mr. Tymkovich
received a rating that was partially ``not qualified,'' indicating that
a number of evaluators did not consider him suited to the position on
the Tenth Circuit in which he was nominated.
I am concerned that Mr. Tymkovich is yet another of President Bush's
nominees to the circuit court who is going to work to undermine Federal
laws and programs designed to guarantee protection of civil rights and
the environment. I will vote against him.
I will vote against him because I do not believe that people can walk
into his court and believe they are going to be treated fairly. I fear
that people who come into his court and see that the person on the
other side fits into the judge's narrow view of who is acceptable and
what is acceptable will think that other person is going to win and I
am going to lose no matter what the merits are.
This is the last remaining vacancy on the Tenth Circuit. We had 7
years without a new judge of that circuit. Even though President
Clinton tried, Republicans refused to allow his nominees to go forward
to be considered.
When I became chairman, we moved three judges who were nominated by
President Bush through to confirmation. None of them were people I
would have ever nominated. I voted for all of them. I thought even
though we were opposed and apart philosophically that they could be
fair. I did it notwithstanding my own deep concern about the
unreasonable unfairness of the Republicans in not allowing a vote, not
even a hearing, on President Clinton's nominees. I was determined not
to do that to President Bush. I thought it was absolutely wrong when it
was done to President Clinton. So three of those four nominees went
forward and they all sit on that court today as President Bush's
lifetime appointments to the Tenth Circuit.
We have worked hard to reverse the growing number of vacancies on the
Federal courts and on the circuit courts, vacancies that were
maintained under the Republican Senate majority when President Clinton
was in the White House. Even though President Clinton nominated
qualified, moderate people, they were not allowed to have hearings. We
tried to change that. Perhaps it is a case where no good deed goes
unpunished. We tried to demonstrate to this new White House that we
could be different.
In January 1995, when the Republican majority took control of the
confirmation process, there were only 16 vacancies on the circuit
courts. When I became chairman in the summer of 2001, there were 33
circuit court vacancies. At the end of last year, these vacancies had
been cut by almost 25 percent, even though 9 new circuit vacancies
arose during that time.
We held the first hearing for a nominee to the Fourth Circuit in 3
years, and confirmed him and another most controversial nominee, even
though seven of President Clinton's nominees to that circuit never
received a hearing.
We proceeded with the first hearing for a nominee to the Fifth
Circuit in 7 years and confirmed her, even though three of President
Clinton's nominees to that circuit were never given a hearing.
We proceeded with the first hearing on a nominee to the Sixth Circuit
in almost 5 years, confirmed her, and another controversial nominee to
that circuit, even though three of President Clinton's nominees to that
circuit never received a hearing.
We proceeded with the first hearings on a nominee to the Tenth
Circuit in 6 years. We confirmed three, even though two of President
Clinton's nominees to that circuit were never allowed hearings.
There is today no current vacancy on the First Circuit to which we
confirmed a conservative nominee last year. There are no current
vacancies on the Eighth Circuit to which we confirmed 3 of President
Bush's nominees in spite of the irresponsible treatment the Republican
Senate majority had afforded Bonnie Campbell of Iowa.

I have been in the Senate with six Presidents, President Ford,
President Carter, President Reagan, former President Bush, President
Clinton, and the current President Bush. On judicial nominees, each of
the five previous Presidents had their own views of who they wanted on
the courts, and that is their prerogative whom they nominate. Each one
of those Presidents sought to unite rather than divide when it came to
the Federal judiciary. I think each understood that the integrity and
independence of the Federal courts has to be protected. Each one of
those five Presidents actually worked with Members of both parties in
the Senate for nominees to go forward. I remember sitting in many
meetings with Presidents of both parties.
This President is the first one in my experience in 29 years, who
seems to have no interest whatsoever in working with the Senate. He
seems perfectly happy with what was done in the past by members of his
party, and now with members of his party willing to change the rules--
ignore the rules and go forward and do things that have never been done
before--so long as they win.
In the short run, you win. In the long run, you hurt badly the
integrity and the independence of the Federal court. That is one thing
we should think of. These are lifetime appointments. They are not the
terms of Senators or Presidents. Presidents have 4-year terms. Senators
have 6-year terms. The Federal bench has a lifetime term.
Finally, even though his term is approximately halfway over, I urge
the President to try for a few months to be a uniter, not a divider and
work with the Senate on nominating judges. We showed we were willing to
move judges much faster for him when the Democrats were in control than
the Republicans did when they were in control and there was a
Democratic President.
Work with us. You are going to have better courts; all Americans will
have better courts. You can still appoint a lot of Republicans--that is
fine. But you could have an independent court, not courts that are
going to be seen by a growing--and it is growing--number

[[Page S4607]]

around this country as an arm of the Republican Party. Professor
Sheldon Goldman was recently quoted in an article by Stephanie B.
Goldberg in MS. Magazine as saying: ``If courts are perceived as being
governed by political ideology, they lose public support and are no
longer seen as an independent branch of government. They're just an arm
of the regime.'' Courts should not be an arm of the Democratic Party or
the Republican Party. It is one branch of Government that should be
independent. This White House seems to want to change that.
Over more than 200 years of history, Presidents occasionally have
been unable to resist the temptation of court-packing schemes, such as
in the case of John Adams or Franklin Roosevelt. Those were wisely
rejected. If the White House is unwilling to have an independent
judiciary, I hope the Senate will show enough courage to reject that.
Before observing the absence of a quorum I ask unanimous consent that
the time run equally against both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. In my capacity as the Senator from Alabama, I
ask unanimous consent that the order for the quorum call be rescinded.

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