[Congressional Record Volume 149, Number 117 (Friday, August 1, 2003)]
[Senate]
[Pages S10883-S10884]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL NOMINEES

  Mr. LEAHY. Mr. President, we have had a lot of discussion about 
judicial nominees recently. One issue is on the DC Circuit Court of 
Appeals.
  I mention that because at the time when President Clinton nominated 
highly qualified people to go there, my friends on the other side said 
the workload was such that the DC Circuit Court of Appeals didn't need 
extra judges. So they were never given a hearing, never given a vote. 
One of those nominees is now the dean of the Harvard Law School. In 
fact, the chief judge, as I recall, a Reagan appointee, said they 
definitely didn't need more judges; they didn't have the workload. He 
took that position consistently throughout President Clinton's term.
  Now we have a new President. The workload has gone down in that 
court. But we have several people suddenly nominated for the seats that 
just a few months ago were unneeded, we were told, by all the 
Republican leadership. We were told by the Republican leadership on 
this very political court that we didn't need anybody. Suddenly we need 
somebody.
  The interesting thing about that is the Washington Post, which has 
been very supportive--more supportive than most newspapers in the 
country--of President Bush's judicial nominees, no matter who they are, 
took a different position. Even that paper, which has basically given 
in many ways--and it is their right--a blank check to the 
administration, wrote an editorial this morning called ``Fueling the 
Fire.'' They basically ask what I have: What is the sudden change?
  I ask unanimous consent that editorial be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, Aug. 1, 2003]

                            Fueling the Fire

       In nominating people to fill the last two seats on the U.S. 
     Court of Appeals for the

[[Page S10884]]

     D.C. Circuit, President Bush had a unique opportunity to 
     begin de-escalating the war now raging over judicial 
     nominations. The need for judges in these two slots--the 11th 
     and 12th authorized judgeships--is far from clear, as 
     Republicans argued in blocking the confirmation of qualified 
     Clinton administration nominees. Since then, the court's 
     workload has declined. Additional D.C. Circuit nominations 
     should have awaited a more comprehensive understanding of the 
     court's needs. If two more judges were needed, we had hoped 
     that Mr. Bush would have been mindful of the history and 
     nominated qualified candidates who easily could win 
     Democratic as well as Republican support. Instead, Mr. Bush 
     has nominated two people who will only inflame further 
     politics of confirmation to one of this country's highest-
     quality courts.
       Both nominees--White House counsel Brett M. Kavanaugh and 
     California Supreme Court Justice Janice Rogers Brown--are 
     people of substance, nominees whose records and 
     qualifications might well under other circumstances command 
     support. But these nominations could not be better calculated 
     to pour salt on Democratic wounds. Mr. Kavanaugh is a fine 
     lawyer who could be a fine judge. He also has spent the past 
     few years as, first, a key figure in former independent 
     counsel Kenneth W. Starr's investigation and, more recently, 
     an official in the White House counsel's office working on 
     such politically sensitive matters as judicial nominations 
     and executive privilege. Whatever the merits of his work in 
     these two roles, they are sore spots for Democrats.
       Likewise, Justice Brown possesses a serious judicial mind. 
     But she also has a long record of opinions that will provoke 
     liberal anxiety; one, for example, declares in its opening 
     section that ``private property, already an endangered 
     species in California, is now entirely extinct in San 
     Francisco.'' It takes nerve for Mr. Bush to ask Senate 
     Democrats to confirm such people to positions whose very 
     necessity Republican senators were busily questioning until 
     only two years ago.
       The White House appears to believe that any accommodation 
     of Democratic concerns would be a sign of weakness in the 
     face of the filibusters and stalling of the president's other 
     nominees. Mr. Bush's grievances are real; the Senate 
     continues to filibuster the nomination of the qualified 
     Miguel A. Estrada, for example, more than two years after his 
     nomination. But both sides in the past several years have 
     behaved badly in the fight over judicial nominations. Their 
     war may help both political parties rally their bases and 
     raise money. But it is deeply harmful, not least to the 
     public perception of judging as an apolitical task. And it 
     will not end until someone extends an olive branch. That 
     someone has to be the president, the only person with the 
     power to do it meaningfully. The D.C. Circuit would have been 
     a great place to start. Too bad Mr. Bush is too busy playing 
     politics to lead.

  Mr. LEAHY. Because we have discussed at great length an issue 
involving one of the judiciary nominees, I ask unanimous consent that a 
letter from the National Council of Churches addressed to President 
Bush regarding the debate on Alabama Attorney General William H. Pryor 
be printed in the Record.

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 National Council of Churches,

                                                    July 31, 2003.
     President George W. Bush,
     The White House,
     Washington, DC.
       Dear Mr. President: As religious leaders from various faith 
     traditions, we are fully committed to religious freedom and 
     separation of church and state as basic tenets of our 
     Constitution. We agree with you that, ``we (America) must 
     continue our efforts to uphold justice and tolerance and to 
     oppose prejudice; and we must be resolved to countering any 
     means that infringe on religious freedom.'' Today, we write 
     to express our grave concern about the attempt to make 
     religion an issue in the consideration of judicial nominees.
       We were deeply troubled to learn that during a Senate 
     Judiciary Committee hearing last week on the nomination of 
     Alabama Attorney General William H. Pryor, who is being 
     considered for a lifetime position in the U.S. Court of 
     Appeals for the Eleventh Circuit, the Chairman of the 
     Judiciary Committee injected religion into a debate over 
     qualifications for this position. By questioning Mr. Pryor's 
     religious faith, Chairman Hatch supported a scurrilous 
     advertising campaign designed to make those opposed to the 
     Pryor nomination seem guilty of religious bias.
       Mr. President, we urge you to immediately denounce the 
     reprehensible behavior of the Senate Judiciary Leadership. We 
     ask that you send a clear message to oppose religious 
     interrogation and restore order and dignity to the judicial 
     nomination process. Judicial nominees can be reviewed on a 
     wide range of criteria--but religion must not be one of them. 
     To allow questioning of religious faith during consideration 
     of nominations will set a dangerous precedent with profound 
     implications on future nominees.
       We urge you to protect the integrity of the judicial 
     nomination process by denouncing this behavior. As religious 
     leaders, who take seriously our charge to promote tolerance 
     and justice, we hope you will act swiftly on our request. We 
     have a lot to lose. Our shared values of religious freedom 
     are at stake.
           Sincerely,
                                                   Rev. Bob Edgar,
                                                General Secretary.

  Mr. LEAHY. I see the very distinguished senior Senator from West 
Virginia, the most senior member of this body, on the Senate floor. I 
know he wishes to speak. As soon as he is prepared, I will, of course, 
yield the floor.
  Last night we were able to move five of President Bush's judges, to 
get them confirmed in a matter of about 20 or 30 minutes. I thank those 
who worked with me to make that possible. Senator Lott from the other 
side of the aisle was very helpful in moving those forward. Senator 
McConnell was very helpful in moving those nominees forward, as well as 
a number of Senators on this side of the aisle. Senator Harry Reid, 
Senator Tom Daschle worked with me, along with Senator Lott and Senator 
McConnell, to move them. So we were able to move them, actually, in a 
matter of 20 or 30 minutes.
  I mention that because there was a consensus on these nominees. They 
were not sent up here to divide us but, rather, they were the rare ones 
who were sent to unite us.
  I mention that because we have now confirmed 145 judges for President 
Bush. We stopped three. This stands in tremendous contrast to the time 
of President Clinton, when the Republican leadership stopped 60 of 
President Clinton's nominees.
  For very good reasons, because of their ideology, their obvious 
intent to politicize the courts, we have stopped three. So we have 
confirmed 145 and stopped three. Those who are worried that we have 
politicized this, I would point out, we have stopped three. When 
President Clinton was there, they stopped 60, usually because one 
Republican, one, would object. So they were not allowed to have a 
hearing or vote.
  I see my friend from West Virginia, and I yield the floor. I thank 
the Senator from West Virginia for his usual courtesy.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. I thank the distinguished Senator from Vermont.

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