[Congressional Record Volume 149, Number 149 (Wednesday, October 22, 2003)]
[Senate]
[Pages S13063-S13064]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE CALENDAR

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate 
immediately proceed to executive session to consider the following 
nomination on today's Executive Calendar, calendar No. 249. I further 
ask unanimous consent that the nomination be confirmed, the motion to 
reconsider be laid upon the table, the President be immediately 
notified of the Senate's action, and the Senate then return to 
legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The nomination considered and confirmed is as follows:


                             THE JUDICIARY

       Thomas M. Hardiman, of Pennsylvania, to be United States 
     District Judge for the Western District of Pennsylvania.

  Mr. LEAHY. Mr. President, the Senate recently voted to confirm an 
outstanding district court nominee to the Western District of 
Pennsylvania named Kim Gibson. Today, the leadership has decided to 
bring up the nomination of Thomas Hardiman who happens to be nominated 
to the very same court.
  Unfortunately, this nominee's suitability for the Federal bench pales 
in comparison to Judge Gibson. Judge Gibson came to us with judicial 
experience, a unanimous ``well qualified'' rating from the ABA, and the 
highest rating from his local bar association.
  In contrast, Mr. Hardiman has no judicial experience, a relatively 
small amount of litigation experience and has been given very low peer-
review ratings by the ABA and the same local bar association that 
``highly recommended'' Judge Gibson. The Allegheny County Bar 
Association recently released its opinions about the three pending 
judicial nominees from their community. After their extensive review, 
the Bar Association determined that they could simply ``not recommend'' 
Mr. Hardiman for a lifetime appointment to their Federal trial court.
  Although neither Bar Association explained precisely why Mr. Hardiman 
received such bad reviews, his communications with the Judiciary 
Committee potentially shed some light on their concerns.
  Mr. Hardiman showed a lack of candor in describing the extent of his 
litigation experience. After reporting that he had tried 54 cases to 
judgment, he subsequently revised the number downward to 19, and then 
upon further review he explained that several of these 19 cases were 
not actually trials that resulted in a judgment.
  In addition, opposing counsel contacted the committee to raise 
concerns about Mr. Hardiman's exceedingly narrow view of fair housing 
statutes and his questionable litigation tactics. Counsel in a housing 
discrimination case entitled, Alexander v. Riga, criticized Mr. 
Hardiman's conduct when he represented landlords who repeatedly refused 
to show African-American couples an apartment that was for rent. 
Despite a jury finding of discrimination, Mr. Hardiman argued that 
there was no resulting damage and the district court adopted his 
reasoning.

[[Page S13064]]

  On appeal to the Third Circuit, Mr. Hardiman analogized the harm 
resulting from the racial discrimination at issue to running a red 
light. The Third Circuit criticized his dismissive analogy and found 
that his argument and the district court's adoption of it would 
undermine the Federal housing statutes. The Third Circuit rejected Mr. 
Hardiman's argument and reversed the trial court.
  I am also troubled by Mr. Hardiman's discovery tactics. In answers to 
written committee questions, he admitted that in the Riga case he 
repeatedly violated the Federal Rules of Civil Procedure by issuing a 
subpoena to a nonparty without noticing opposing counsel in this case. 
After answering two rounds of written questions, Mr. Hardiman 
subsequently admitted that he had not even reviewed his Riga files 
before submitting his answers to the committee.
  Even the trial judge criticized Mr. Hardiman's associate about their 
litigation strategy and tactics in this case, including the improper 
subpoenas. Significantly less troubling matters stalled many judicial 
nominees of President Clinton.
  If this were anytime between 1995 and 2000 and this were a Clinton 
nominee, the Republican majority would never have accorded this type of 
nomination a vote. Recall the fate of Clarence Sundrum, Dolly Gee, the 
8 district court nominees to vacancies in Pennsylvania and so many 
others blocked by Republicans from ever being considered.
  The Senate has already confirmed 165 of this President's judicial 
nominees. The current pace of confirmation stands in stark contrast to 
what occurred with judicial nominees during the Clinton administration. 
It was not until well into the fourth year of President Clinton's 
second term, when Republicans controlled the Senate, before this many 
judicial nominees were confirmed.
  It took President Reagan his entire first term to get this many 
judicial nominees confirmed, and that was with a Senate that was 
controlled by the same party.
  It also took President George H.W. Bush well into his fourth year to 
get this many of his judicial nominees confirmed.
  In contrast, today, with the shifts in Senate control, it has 
effectively taken a little more than 2 years of rapid Senate action to 
confirm 165 judicial nominees for this President, including 100 during 
Democratic control. This year alone the Senate has confirmed 65 
judicial nominees, including 12 circuit court nominees in 2003. This 
includes more judicial confirmations in just 10 months than Republicans 
allowed for President Clinton in 1995, 1996, 1997, 1999, or 2000. 
Overall, we have confirmed 29 circuit court nominees of President Bush 
since July of 2001, which is more than were confirmed at this time in 
the third year of President Reagan's first term, President George H.W. 
Bush's term, or either of President Clinton's terms.
  The Senate has held hearings for 13 Pennsylvania nominees of 
President Bush's to the Federal courts in Pennsylvania. While I was 
chairman, the Senate held hearings for and confirmed 10 nominees to the 
district courts in Pennsylvania, plus Judge D. Brooks Smith to the 
Third Circuit Court of Appeals. In total, we have already confirmed 13 
of this President's judicial nominees to the Federal courts in the 
State of Pennsylvania. Five of these new judges have already been 
confirmed to the Western District of Pennsylvania.

  A look at the Federal judiciary in Pennsylvania indicates that 
President Bush's nominees have been treated far better than President 
Clinton's. This treatment is in sharp contrast to the way vacancies in 
Pennsylvania were kept vacant during Republican control of the Senate 
when President Clinton was in the White House, particularly regarding 
nominees in the western half of the State.
  Just a few months ago, on May 16, 2003, Jon Delano wrote in the 
Pittsburgh Business Times, an article titled ``Despite Bush Protests, 
Court Vacancies are Down,'' about how this President's nominees in the 
western part of Pennsylvania have been treated more fairly than 
President Clinton's nominees.
  He wrote:

       Take the Western District of Pennsylvania, for example. 
     During the years of the Santorum filibuster, that court of 10 
     judges had as many as five vacancies. Today, the Senate has 
     confirmed four Bush appointees--Judges Joy Conti, David 
     Cercone, Terry McVerry, and Art Schwab--and the fifth 
     nomination, attorney Tom Hardiman, has just been sent to the 
     Senate.
       With the elevation and confirmation of Judge Brooks Smith 
     to the U.S. Court of Appeals, the president still needs to 
     name one more judge to the local court, but once completed, 
     Mr. Bush, with less than three years in office, will have 
     named--and the Senate will have confirmed--six of the 10 
     judges on the local Federal court. That hardly sounds like 
     obstructionism.

  Despite the best efforts and diligence of the senior Senator from 
Pennsylvania, Senator Specter, to secure the confirmation of all of the 
judicial nominees from every part of his home State, there were 10 
nominees by President Clinton to Pennsylvania vacancies who never got a 
vote: Patrick Toole, John Bingler, Robert Freedberg, Lynette Norton, 
Legrome Davis, David Fineman, David Cercone, Harry Litman, Stephen 
Lieberman, and Robert Cindrich to the Third Circuit.
  Despite how well-qualified these nominees were, they were never 
considered by the Senate, many waited more than a year for action.
  Unfortunately, Mr. Hardiman's record is similar to the record of far 
too many of President Bush's judicial nominees. Far too many of this 
President's judicial nominees have less courtroom experience than 
partisan experience.
  In fact, 25 of this President's judicial nominees have earned partial 
or majority ``Not Qualified'' ratings from the ABA. In addition to the 
ABA's review, Mr. Hardiman was also ``not recommended'' by his county 
bar association.
  Certainly, the citizens of Western Pennsylvania deserve a well-
qualified judiciary to hear their important legal claims in Federal 
court.
  I have great respect for the senior Senator from Pennsylvania. I 
appreciate his efforts to help shepherd the White House's nomination 
through the Senate.
  After considering the negative impression Mr. Hardiman has made on 
his fellow Pennsylvanians regarding his suitability for this lifetime 
appointment and his conduct before the Judiciary Committee, I believe 
that this is among the weakest nominees we have considered.

                          ____________________