[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the quorum call be rescinded.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:

       . . . [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.

  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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