[Congressional Record Volume 149, Number 171 (Saturday, November 22, 2003)]
[Extensions of Remarks]
[Pages E2411-E2412]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE POLITICIZATION OF THE JUDICIAL NOMINATION PROCESS
______
HON. MARK E. SOUDER
of indiana
in the house of representatives
Friday, November 21, 2003
Mr. SOUDER. Mr. Speaker, I rise to address a matter of deep concern
to every Member of Congress and to every American citizen--the judicial
nomination process. I am chairman of the Government Reform Committee's
Subcommittee on Criminal Justice, Drug Policy and Human Resources,
which has responsibility for oversight of, among other things, our
federal judicial system. I am deeply concerned by the growing
politicization of the judicial nomination process by a handful of left-
wing groups and their advocates in Congress.
Last week, the Wall Street Journal reported on a number of memos
written by Congressional staff between 2001 and 2003. They illustrate
the extreme political prejudice, crass maneuvering, and pandering to
special interest groups that are bringing the judicial nomination
process to a standstill. One memo actually claims that ``most of
[President] Bush's nominees are nazis''. Another shows that action on
nominees was delayed to allow ``the groups''--i.e., left-wing special
interest groups--``time to complete their research,'' i.e., to dig up
as much dirt as they could on the President's nominees. And shockingly,
a third memo shows that action was delayed on a nominee in order to
affect the outcome of a case before the Sixth Circuit.
At present, no one can say for sure how the newspaper obtained the
memos. Certainly illegal theft of any confidential materials should not
be tolerated. I note, however, that given the large number of the
memos, the fact that the source blacked out the names of the staff
members who wrote and received the memos (presumably to save them from
embarrassment), and the date of the documents (most are from 2001 and
2002) strongly suggest that the source was a member of the Democratic
staff, and not someone illegally stealing the memos. In any case, now
that these memos have been distributed to the press, I believe that it
is important for the Members of Congress and the public to see them and
judge their contents for themselves. I am therefore submitting the
first installment of these memos for the Record, and intend to submit
more of them in the days to come. I hope that a full and vigorous
debate of this important issue will help the process to move forward,
so that the President's nominees can quickly receive the yes or no vote
that they deserve.
* * * * *
Big fight early next year. Three benefits: (1) Sends
message on Supreme Court; (2) Forces WH to bargain; (3)
encourages more moderate nominees.
To work, need all 10 Dems on board and need commitment not
to go to the floor. Query: will it be possible to get all 10
Dems to commit before a hearing? Doubtful. There is a big
risk. We must choose a nominee tailored to our weakest link.
E.g., Pickering is bad but is he had enough? Probably not--
finish him AFTER.
Who to fight? Not Estrada--hard to beat, and don't want him
on the Supremes.
Groups have 3 names: Kuhl, Sutton, and Owens. Kuhl seems
like a bad idea, b/c Boxer will never return the BS. Why
waste that power, freeing up another nominee to go through?
Similar with Sutton--he is being held up right now. Sutton
will be hard to beat--very strong paper record, impressive
credentials. GOP will carp about how only criteria should be
excellence (``Should Ideology Matter?'' retread.) (Same
problem with Estrada.) Sutton is personification of the
threat the New Federalism poses to Civil Rights, but his
defenders will muddle debate. Why not use someone else, show
WH we mean business, then bargain to ``release'' hold on
Sixth Circuit.
I say Owens. She is from Texas and appointed to SCT by
Bush, so she will appear parochial and out of mainstream. She
is definitively anti-abortion, in ways that make her look
disingenuous. Pro-business. Questionable ethics. Plus can
craft the message: concerted campaign to pack the Courts.
Phase I: GOP blocks many well-qualified people--Johnson,
Moreno, etc. Phase II: GOP picks extremists like Owen, and
pushes hard. Court gets way out of wack. Focus not only on
numbers, but tangible outcomes--rulings striking down VAWA,
civil rights laws, environmental laws, etc.
No more hearings this year. Lay the foundations for next
January/February. Schumer hearing on federalism, and the
threat it poses. Coordinate media strategy, Drop hints.
Schedule the hearing well in advance in January, so we don't
face accusations of sandbagging,
Stress that we have cut the BS: no more anonymous holds, no
more years without a hearing, no more ridiculous document
requests, no more shutting down the Committee. Rather than
hold a nominee up endlessly, and ruin their career, we will
vote. There's a reason why they did that--most of Clinton's
nominees were impeachable. There's a reason why we do what we
do--most of Bush's nominees are Nazis. That doesn't mean we
will roll over and play dead. Mainstream nominees will get
quick turn around time. Controversial ones demand more
careful scrutiny.
____
Why Have a Hearing at All?
Memorandum: June 21, 2002
To: Senators Kennedy, Schumer, Durbin, and Cantwell
From:------
Subject: Strategy on Judges
In advance of the Judiciary Democrats' meeting on Tuesday
at 2:15, below is the strategy regarding judges that we
recommend that you suggest to Senator Leahy.
1. Cancel or Reschedule Deborah Cook, 6th Circuit nominee.
Senator Leahy is suggesting that a hearing for Deborah Cook
be scheduled for August 1st, and, Senator Leahy may have
promised Senator DeWine that he will hold a hearing for Cook
this year. Cook is extremely controversial on labor, employee
rights, and right to jury issues and should not have a
hearing this year. If Senator Leahy has indeed promised
DeWine a Cook hearing, we suggest that he schedule Cook for
after the November elections. Given our schedule of
controversial nominees (see below), it will be difficult to
mount any effective challenge to Cook if she is scheduled for
early August. We recommend that Reena Raggi (2nd Circuit) be
scheduled for early August instead of Deborah Cook.
2. Limit the Number of Hearings. Senator Leahy has promised
hearings for Priscilla Owen, Miguel Estrada, and Michael
McConnell. Other than these nominees, and the two remaining
noncontroversial nominees Reena Raggi (2nd Circuit) and Jay
Bybee (9th Circuit), no additional judges should be
scheduled.
3. Timing of Hearings:
Owen. The consensus is to make Priscilla Owen the big fight
for July 18th, as Senator Leahy has suggested, with the hope
that we will succeed in defeating her.
Estrada. Miguel Estrada will be more difficult to defeat
given the sparseness of his record. We agree with Senator
Leahy that Estrada should be scheduled for September 19th.
This will give the groups time to complete their research and
the Committee time to collect additional information,
including Estrada's Solicitor General memos (see below).
McConnell. McConnell will also be difficult to defeat.
While he has a clear anti-choice record, he has the strong
support of some Democrats and progressives. McConnell's clear
anti-choice record, however, makes him a good nominee to
bring up before the November elections. While Senator Leahy
has suggested that a hearing for McConnell be scheduled on
October 3rd, we would suggest October 10th, to provide enough
time for preparation after the difficult Estrada hearing.
Suggested Schedule, July 18th: Priscilla Owen--5th Circuit;
August 1st: Reena Raggi--2nd Circuit (non-controversial)--
instead of Cook; September 5th: Jay Bybee--9th Circuit
(supported by Reid); September 19th: Miguel Estrada--D.C.
Circuit; October 10th: Michael McConnell--10th Circuit.
4. Obtaining Estrada's Solicitor General's Memos. Senator
Leahy took the important first step of asking for Memoranda
that Estrada produced while working at the Solicitor
General's Office. Unfortunately, the Department of Justice
has refused to turn over the memos, and Senator Leahy has
been harshly criticized for this in the Press (two pieces in
the Washington Post alone). We expect the Administration will
continue to fight any attempt to turn these over, but there
is precedent for getting these Memos--it was done for the
Bork nomination and three other lower court nominations. We
suggest that you encourage Senator Leahy to continue fighting
the Administration for these Memos and, if possible, that one
of you help him in this fight.
____
U. Michigan Scandal
Memorandum: April 17, 2002
To: Senator (Kennedy)
From: ------
Subject: Call from Elaine Jones re Scheduling of 6th Circuit
Nominees
Elaine Jones of the NAACP Legal Defense Fund (LDF) tried to
call you today to ask that the Judiciary Committee consider
scheduling Julia Scott Gibbons, the uncontroversial nominee
to the 6th Circuit at a later date, rather than at a hearing
next Thursday, April 25th. As you know, Chairman Leahy would
like to schedule a hearing next Thursday on a 6th Circuit
nominee because the Circuit has only 9 active judges, rather
than the authorized 16. (These vacancies are, as you know,
the result of Republican inaction on Clinton nominees).
Senator Leahy would also like to move a Southern nominee, and
wants to do a favor for Senator Thompson.
Elaine would like the Committee to hold off on any 6th
Circuit nominees until the
[[Page E2412]]
University of Michigan case regarding the constitutionality
of affirmative action in higher education is decided by the
en banc 6th Circuit. This case is considered the affirmative
action case most likely to go to the Supreme Court. Rumors
have been circulating that the case will be decided in the
next few weeks. The thinking is that the current 6th Circuit
will sustain the affirmative action program, but if a new
judge with conservative views is confirmed before the case is
decided, that new judge will be able, under 6th Circuit
rules, to review the case and vote on it.
LDF asked Senator Leahy's staff yesterday to schedule
Richard Clifton, an uncontroversial nominee to the 9th
Circuit, before moving Gibbons, but they apparently refused.
The decision has to be made today (or by early Thursday
morning) since the hearing will be noticed on Thursday.
------ and I are a little concerned about the propriety of
scheduling hearings based on the resolution of a particular
case. We are also aware that the 6th Circuit is in dire need
of additional judges. Nevertheless we recommend that Gibbons
be scheduled for a later hearing: the Michigan case is
important, and there is little damage that we can foresee in
moving Clifton first. (It should be noted that Clifton was
nominated three months before Gibbons and that Clifton's
seat, and not Gibbons', has been designated a judicial
emergency.) Elaine will ask that no 6th Circuit nominee be
scheduled until after the Michigan case is decided. This may
be too much to promise: we only have three uncontroversial
circuit court nominees left and two of these are from the 6th
Circuit.
Recommendation: Let Elaine know that we will ask Senator
Leahy to schedule Gibbons after Clifton. Given the dearth of
uncontroversial nominees, however, the Committee will
probably have to hold a hearing for Gibbons on May 9th even
if there's yet no decision in the Michigan case.
____________________