[Congressional Record Volume 149, Number 158 (Tuesday, November 4, 2003)]
[Senate]
[Pages S13902-S13903]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S13902]]
                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, available for brief debate and confirmation 
votes by the United States Senate are several of the President's 
judicial nominees. Roger W. Titus of Maryland was unanimously reported 
by the Judiciary Committee to the Senate more than a month ago. This 
nomination was greeted with universal acclaim. He is an outstanding 
Maryland lawyer and leader of the bar, an active litigator in Maryland 
for over 37 years, a partner at the Venable law firm, a former 
President of the Maryland Bar Association. He has also served as an 
Adjunct Professor at the Georgetown University Law Center. Mr. Titus 
earned a unanimous ``Well-Qualified'' rating from the ABA, and an AV 
rating from Martindale-Hubbell.
  In 2001, Mr. Titus was honored with The Baltimore Daily Record's 
first Leadership in the Law Award, which recognizes members of the 
legal community for their devotion to the betterment of the profession 
and their communities. In 1999, Mr. Titus received the Century of 
Service Award from the Montgomery County Bar Association for his 
outstanding contributions to the legal profession and community during 
the twentieth century.
  According to an article in The Baltimore Sun, Mr. Titus was 
apparently in the running to be nominated for a seat on the U.S. Court 
of Appeals for the Fourth Circuit. In light of his stellar 
qualifications, deep roots in his legal community and ability to garner 
the bipartisan support of his elected officials he would have been a 
consensus choice for this important appellate seat. This White House 
was not interested in appointing a consensus nominee to the Fourth 
Circuit. It wanted to pick a fight. So it did. It nominated someone 
from Virginia to the Maryland vacancy on the Fourth Circuit and 
precipitated a controversy. There are reportedly 30,000 practicing 
attorneys in the State of Maryland. Instead of nominating a well 
qualified Marylander like Mr. Titus to Judge Murnahan's vacant seat on 
the Fourth Circuit, the President selected a controversial nominee with 
very little litigation experience from another jurisdiction. That 
nominee, Claude Allen, received a partial ``not qualified'' rating by 
the American Bar Association and his selection has engendered 
significant opposition from concerned citizens groups and 
understandably from the Maryland Senators.
  It is regrettable that this President has again chosen the course of 
confrontation and conflict for his appellate court nominations. Mr. 
Titus, with his many years of litigation experience and his well-
deserved reputation as a leader among lawyers in Maryland is the type 
of person who should have been chosen for Judge Murnahan's vacant seat 
on the Fourth Circuit. His nomination stands in sharp contrast to the 
inexperienced and divisive candidates chosen by the White House for too 
many appellate judgeships in what appear to be an effort to pack the 
court with ideological nominees and tilt these courts.
  There is no doubt that Mr. Titus is a Republican, yet he has the 
support of both of his home-state Senators, both Democrats, and has 
earned the unanimous support of the Members of the Judiciary Committee. 
I would have supported his nomination to the Fourth Circuit vacancy. I 
continue to support his nomination to the District Court. The month-
long delay the Republican leadership has already caused in his 
consideration for the District Court position reminds me of their delay 
in scheduling a vote on the Fifth Circuit nomination of Judge Edward 
Prado earlier this year. Then they did not want to allow Democratic 
Senators to vote for a conservative Hispanic nominee when they were 
trying desperately to mischaracterize Senate Democrats as anti-
Hispanic. Now it seems we are making too much progress on too many 
judicial nominees to suit their partisan interests in mischaracterizing 
Senate Democrats as blockading Bush nominee's to the courts.
  The truth is that in less than three years' time, President George W. 
Bush exceeded the number of judicial nominees confirmed for President 
Reagan in all four years of his first term in office. Senate Democrats 
have cooperated so that this President already surpassed the record of 
the President Republicans acknowledge to be the ``all time champ'' at 
appointing Federal judges. Since July, 2001, despite the fact that the 
Senate majority has shifted twice, a total of 167 judicial nominations 
have already been confirmed, including 29 circuit court appointments. 
One hundred judges were confirmed in the 17 months of the Democratic 
Senate majority and the Senate has proceeded to confirm another 67 
judges during the comparative time of the Republican majority for a 
total of 167 judges.
  One would think that the White House and the Republicans in the 
Senate would be heralding this landmark. One would think they would be 
congratulating themselves for putting more lifetime appointed judges on 
the federal bench than President Reagan did in his entire first term 
and doing it in three-quarters the time. One would think that they 
would be building upon that success by scheduling prompt votes on 
noncontroversial nominees like Roger Titus. But Republicans have a 
different partisan message and this truth is not consistent with their 
efforts to mislead the American people into thinking that Democrats 
have obstructed judicial nominations. That is why the President chose 
to criticize the Senate from the Rose Garden again last week and in 
campaign appearances around the country last weekend and earlier this 
week rather than work with us and recognize what we can accomplish 
together.
  Not only has this President been accorded more Senate confirmations 
than President Reagan achieved during his entire first term, but he has 
also achieved more confirmations this year than in any of the six years 
that Republicans controlled the Senate when President Clinton was in 
office. Not once was President Clinton allowed 67 confirmations in a 
year when Republicans controlled the pace of confirmations. Despite the 
high numbers of vacancies and availability of highly qualified 
nominees, Republicans never cooperated with President Clinton to the 
extent Senate Democrats have. President Bush has appointed 
more lifetime circuit and district court judges in 10 months this year 
than President Clinton was allowed in 1995, 1996, 1997, 1998, 1999, or 
2000.

  Last year alone, the Democratic majority in the Senate proceeded to 
confirm 72 of President Bush's judicial nominees and was savagely 
attacked nonetheless. With a little cooperation from Senate Republicans 
we might match that record before adjournment this year, as well.
  In fact, President Bush has now already appointed more judges in his 
third year in office than in the third year of the last five 
presidential terms, including the most recent term when Republicans 
controlled the Senate and President Clinton was leading the country to 
historic economic achievements. That year, in 1999, Republicans allowed 
only 34 judicial nominees of President Clinton's to be confirmed all 
year, including only 7 circuit court nominees. Those are close to the 
average totals for the six years 1995-2000 when a Republican Senate 
majority was determining how quickly to consider the judicial nominees 
of a Democratic President. By contrast, the Senate this year has 
already confirmed 67 judicial nominees, including 12 circuit court 
nominees, almost double the totals for 1999.
  We have worked hard and bent over backwards cooperating with a very 
uncooperative White House and Senate Republican majority. In spite of 
their false charges and partisanship, Senate Democrats have continued 
working to make progress in filling judicial vacancies. According to 
the website of the Republican Chairman of the Judiciary Committee we 
have reduced the number of judicial vacancies below 40. Had the Senate 
Democratic majority not acted last year to authorize between 15 and 20 
additional judgeships, the vacancies total might well be in the low 
20's. After inheriting 110 vacancies when the Senate Judiciary 
Committee reorganized under Democratic control in 2001, I helped move 
through and confirm 100 of the President's judicial nominees in just 17 
months. Through hard work we have proceeded to reduce vacancies to the 
lowest number in 13 years and arguably the lowest level since President 
Reagan. There are more Federal judges on the bench today than at any 
time in American history. These facts stand in stark contrast to the 
false partisan rhetoric that

[[Page S13903]]

demonize the Senate for having blocked all of this President's judicial 
nominations. The reality is that the Senate is proceeding at a record 
pace and achieving record numbers.
  Also on the Senate calendar awaiting action is the nomination of Gary 
Sharpe of New York. That nomination was reported unanimously by the 
Judiciary Committee two weeks ago. He remains on the Senate Executive 
Calendar because the Senate Republican leadership has no interest in 
scheduling this noncontroversial judicial nominee for a vote.
  Also on the Senate Executive Calendar awaiting scheduling of debate 
and a final vote are the nominations of Judge Dora Irizarry of New York 
and J. Leon Holmes of Arkansas. Mr. Holmes nomination has been awaiting 
debate since May, more than six months. Let us be clear. There is no 
Democratic hold preventing debate and votes on either of these 
nominees. They merit debate. There was debate in the Judiciary 
Committee. There should be debate on the Senate floor. And then the 
Senate will vote.
  Indeed, following the debate on Judge Irizarry more than half of the 
Republican Members indicated that they opposed the President's 
nomination. I respect and understand their concern. I have had similar 
concerns about a number of this President's nominees. More than two 
dozen have received ratings or partial ratings of ``not qualified'' by 
the ABA. Some, like Timothy Hardiman of Pennsylvania and Dora Irizarry 
of New York, do not have the support of their local bar association 
either.
  Unlike the way Republicans treated the nomination of Justice Ronnie 
White of Missouri when he was ambushed on the Senate floor and defeated 
in a party line vote. I do not expect that to happen with Judge 
Irizarry. Those with concerns have been forthright in coming forward. I 
do not expect Democratic Senators to do what Republicans did in 1999 to 
Ronnie White when they switch their votes and voted lockstep in a 
partisan effort to defeat his nomination on the floor.
  With these four nominees for additional lifetime appointments to the 
federal bench, the Senate has the chance to reach a total of more than 
170 judicial confirmations for the President in less than three years. 
Maybe that is why the Republican leadership has chosen not to go 
forward. Could it be that they do not want the American people to know 
that we have cooperating in filing 170 judicial vacancies in less than 
three years? That would not be consistent with the talking points the 
Administration is peddling to friendly media outlets all over town and 
around the country.
  Over the last several days more than 200 people have been killed or 
wounded in Baghdad. The number of unemployed Americans has been at or 
near levels not seen in years, poverty is on the rise in our country, 
and the current Administration seems intent on saddling our children 
and grandchildren with trillions in deficits and debt. For the first 
time in a dozen years, charitable giving in this country is down.
  While negative indicators are spiking, the Republican leadership of 
the Congress would rather demonize Democrats, engage in name calling 
and charge obstruction where the facts are historic levels of 
cooperation. The Senate wheel-spinning exercises involving the most 
controversial judicial nominees and the Republican leadership's 
insistence on unsuccessful cloture votes are unhelpful to the Senate or 
the courts. Despite the heated rhetoric on the other side of the aisle, 
we have made progress on judicial vacancies when and where the 
Administration has been willing to work with the Senate.
  Only a handful of the President's most extreme and controversial 
nominations have been denied consent by the Senate. Up to today only 
four have failed. That record is in stark contrast to the more than 60 
judicial nominees from President Clinton who were blocked by a 
Republican-led Senate. One-hundred sixty-seven to four, but as I have 
said, that total could be 170 to four if the Republican leadership 
would work with us and schedule voted and debate on the four nominees I 
have identified.
  But despite this record of progress, made possible only through good 
faith effort by Democrats on behalf of a Republican President's 
nominees, and in the wake of the years of unfairness shown the nominees 
of a Democratic President, the Republican leadership has decided to use 
partisan plays out of its playbook as this year winds down.
  Instead of putting partisanship aside and bridging our differences 
for the sake of accomplishing what we can for the American people, we 
are asked to participate in a transparently political exercise 
initiated by a President. With respect to his extreme judicial 
nominations, President George W. Bush is the most divisive President in 
modern times. Through his extreme judicial nominations, he is dividing 
the American people and he is dividing the Senate. Far from a uniter, 
on judicial nominations he has chosen to be a divider.

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