[Congressional Record Volume 154, Number 83 (Tuesday, May 20, 2008)]
[Senate]
[Pages S4435-S4439]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATIONS OF MICHAEL G. McGINN TO BE UNITED STATES MARSHAL FOR THE
DISTRICT OF MINNESOTA, RALPH E. MARTINEZ TO BE A MEMBER OF THE FOREIGN
CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES, AND G. STEVEN AGEE
TO BE UNITED STATES CIRCUIT JUDGE FOR THE FOURTH DISTRICT
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to executive session to consider the following
nominations, which the clerk will report.
The legislative clerk read the nominations of Michael G. McGinn, of
Minnesota, to be United States Marshal for the District of Minnesota;
Ralph E. Martinez, of Florida, to be a Member of the Foreign Claims
Settlement Commission of the United States; and G. Steven Agee, of
Virginia, to be United States Circuit Judge for the Fourth Circuit.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 12:30 shall be equally divided and controlled between the
chairman and ranking member or their designees.
The ACTING PRESIDENT pro tempore. The Senator from Vermont is
recognized.
Mr. LEAHY. Mr. President, the Senate continues to make progress by
confirming another lifetime appointment to one of our important Federal
circuit courts. The circuit court nomination we consider today is that
of Justice G. Steven Agee of Virginia.
His nomination to a long-vacant circuit court seat is the result of a
breakthrough with the White House. Even more important, it fills a
vacancy listed as a judicial emergency on the U.S. Court of Appeals for
the Fourth Circuit. I commend the Senators from Virginia, Senator
Warner and Senator Webb, for their work in bringing this forward. It
was a bipartisan exercise on their part. I thank Senator Cardin of
Maryland for taking the time to chair the hearing on this nomination.
It is interesting that Judge Agee's nomination gives us an
opportunity to be productive even in a Presidential election year,
where following normal history we tend to be far less productive.
There has been a string of controversial nominations from Virginia.
Until recently, President Bush had insisted on confrontation with the
Senate by nominating Jim Haynes, who contributed to the torture memos,
Claude Allen, and Duncan Getchell. I think he became aware they were
not going to go anywhere.
When Republicans come to the Senate to discuss the pace at which we
are considering judicial nominations, I am almost amused watching them
because something is always wrong. It is sort of like Goldilocks. It is
kind of like Goldilocks in the fairly tale--the porridge is too hot;
the porridge is too cold. When I schedule hearings and even break into
my recess where I should be in Vermont and come back because they are
so insistent that they need to have hearings on this, and I come back
and hold a hearing for nominees of President Bush, oh, golly, I am
moving too quickly. They have actually criticized me for doing that. Of
course, if we slow the pace down, well, then we are criticized for
moving too slowly. I was thinking of that situation when I was reading
``Goldilocks'' to one of my grandchildren the other night. Of course,
``Goldilocks'' is a child's story, and they should not play childish
games here.
One thing has been apparent from the outset of the year: My friends
on the Republican side hope that by ignoring their own history--pocket
filibustering more than 60 of President Clinton's judicial nominations
while they were in the majority--that somehow they can rewrite history.
Democrats, to their credit, have not retaliated. I think of pocket
filibustering 60 of President Clinton's nominees. But they say, after
voting one of
[[Page S4436]]
those 60 out of committee, they allowed him to come to a vote on this
floor. This was a very prominent African-American justice of the
Missouri Supreme Court, who later became chief justice. It is obvious
why they let this African-American justice come to a vote on the floor
of the Senate. Every single Republican, including those Republicans who
had voted for him in the Senate Judiciary Committee, came on the floor
in a humiliating gesture and voted down his confirmation. It was one of
the low marks of this body.
As I said, we have not retaliated. But also the Democratic majority
has a responsibility not to push through the confirmation process
nominations who are there simply to advance a political agenda instead
of there to maintain the impartiality of our Federal judiciary.
In fact, in contrast with the Republican Senate majority that more
than doubled circuit court vacancies during the Clinton administration,
we have reduced vacancies by nearly two-thirds. We have reduced them in
nearly every circuit during the Bush administration. With the
confirmation of Steven Agee today, the Fourth Circuit will have fewer
vacancies than at the end of the Clinton administration, and that, of
course, was when the Senate Republican majority pocket filibustered
five Fourth Circuit nominees. In fact, they refused to consider any
Fourth Circuit nominees during the last 2 years of President Clinton's
Presidency.
Today, we will reduce vacancies among the 13 Federal circuit courts
throughout the country to 11. That, incidentally, is the lowest number
of vacancies in more than a decade. When Republican Senators are ready
to allow us to consider and confirm the President's nominations to fill
the last two remaining vacancies on the Sixth Circuit, if Republicans
will allow us to go forward with President Bush's nominees there, we
can reduce the total number of circuit court vacancies to single digits
for the first time in decades. So for all the smoke and mirrors on the
other side, the fact remains that we have succeeded in lowering circuit
court vacancies to a historically low level.
Let's take a moment and go to the charts. These are circuit court
vacancies. For most of the time when President Clinton was President,
the Republicans were in charge. Look what they did. By their use of
pocket filibusters, they pushed the number of vacancies in the circuit
courts from 16 up to 32. Were there nominees for those seats? Of course
there were, but they were pocket filibustered.
I use one example, one nomination that was pocket filibustered: Well,
we don't know if she is really qualified. She is now the dean of the
Harvard Law School, the most prestigious law school in this country.
When we came in halfway through the first year of President Bush's
term, people thought that maybe the Democrats might retaliate and do
the same thing to him. We did just the opposite. We started bringing
down the number of circuit court vacancies, and we continued. When I
became chairman for the first time, in the summer of 2001, we quickly
and dramatically lowered vacancies. We confirmed 100 nominations in
only 17 months. We set an all-time record for the Senate being
controlled by one party and the Presidency by another. We confirmed 100
nominations in only 17 months. That was with an uncooperative White
House. And we reduced vacancies by 45 percent.
Look at the numbers. Look how the vacancies went up when the
Republicans were in charge with a Democratic President, and when
Democrats were in charge with a Republican President, they came down.
It is the Democratic Senate majority that has worked hard to lower them
in this Congress. We have gone from more than 110 vacancies to less
than 50. We have reversed course from the days when the Republican
Senate majority more than doubled circuit vacancies. We have lowered
the circuit court vacancies that existed when I became chairman of the
Judiciary Committee in the summer of 2001--32 vacancies--we lowered
them to 12. Today, we lower it to 11. Of the 178 authorized circuit
court judgeships, after today's confirmation, only 11 will remain
vacant. We took the vacancy rate Republicans gave us of 18 percent and
brought it down to 6 percent. With 166 active appellate judges and 104
senior status judges serving on the Federal courts of appeals, there
are 270 circuit court judges. I think that is the most in our history.
In fact, our work has led to a reduction in vacancies in nearly every
circuit. Both the Second and Fifth Circuits had circuit-wide
emergencies due to the multiple simultaneous vacancies during the
Clinton years with Republicans in control of the Senate. Both the
Second Circuit and the Fifth Circuit now are without a single vacancy.
We have already succeeded in lowering vacancies in the Second Circuit,
the Fifth Circuit, the Sixth Circuit, the Eighth Circuit, the Ninth
Circuit, the Tenth Circuit, the Eleventh Circuit, the DC Circuit and
the Federal Circuit. With the confirmation of Justice Agee, the Fourth
Circuit will join that list. Circuits with no current vacancies include
the Seventh Circuit, the Eighth Circuit, the Tenth Circuit, the
Eleventh Circuit and the Federal Circuit. When we are allowed to
proceed with President Bush's nominations of Judge White and Ray
Kethledge to the Sixth Circuit, it will join that list of Federal
circuits without a single vacancy.
Less than 2 weeks ago, President Bush nominated Judge Glen E. Conrad
to the second and final Virginia vacancy on the Fourth Circuit. With
the support of Senator Warner and Senator Webb, we may still have time
this year to proceed to that nomination and resolve another
longstanding vacancy, further reducing vacancies on the Fourth Circuit
and on Federal circuit courts in general.
I remain determined to prioritize progress and focus the Judiciary
Committee on those nominations on which we can make progress and, in
particular, on those in which the White House has finally begun to work
with the Senate.
However, when I tried to expedite consideration of two Sixth Circuit
nominations of President Bush's this month, all I got was criticism
from the Republican side of the aisle. In fact, at the hearing on May
7, Republican Senators all but attacked one of the President's
nominees. Senator Brownback publicly apologized for his actions at the
hearing, and I commend him for doing so. His apology was in the best
tradition of the Senate.
Of course, last Wednesday, the same Republicans who were saying hurry
up with these nominees sent scores of time-consuming questions to the
nominees, all but ensuring the nominees cannot be considered this
month. We will not hear them until they answer the questions. We will
get the ABA reports.
Disputes over a handful of controversial judicial nominations have
wasted valuable time that could be spent on the real priorities of
every American. I have sought, instead, to make progress where we can.
The result is the significant reduction in judicial vacancies. By
turning today to the Agee nomination, we can make additional progress.
The alternative is to risk becoming embroiled in contentious debates
for months and thereby foreclose the opportunity to make progress where
we can. The most recent controversial Bush judicial nomination took
5\1/2\ months of debate after a hearing before Senate action was
possible. We also saw what happened during the last several months of
the last Congress, which was not even a Presidential election year.
There were many hearings on many controversial nominations. That
resulted in a great deal of effort and conflict but not in as many
confirmations as might have been achieved. I prefer to make progress
where we can and to work together to do so.
I am sure there are some who prefer partisan fights designed to
energize a political base during an election year, but I do not. I am
determined to prioritize progress, not politics, and focus the
committee on those nominations on which we can make progress. The
Republican Senate majority during the last 5 years of the Clinton
administration more than doubled vacancies on our Nation's circuit
courts, as they rose from 12 to 26. Those circuit vacancies grew to 32
during the transition to the Bush administration. The statistics are
worth repeating: we have been able to reverse that trend and reduce
circuit vacancies by almost two-thirds. Today there are fewer circuit
court vacancies than at any time since
[[Page S4437]]
the 1996 session. In fact, our work has led to a reduction in vacancies
in nearly every circuit. We are heading toward reducing circuit court
vacancies to single digits for the first time in decades.
I have been speaking during the last several weeks about the progress
we are making in repairing the terrible damage done to the confirmation
process and about our progress in reducing judicial vacancies.
We can do a number of things. We can work as the White House finally
did after three strikes; they finally worked with the Senators from
Virginia, and we have a circuit court of appeals judge going through.
There are other circuits where they could do the same thing, work with
Republican Senators, work with Democratic Senators, and they could get
them through. If they want to simply continue and have judges who are
obviously nominated to carry out a political agenda, obviously
nominated to politicize the Federal court, these people are not going
to go through. What a waste of time. Why not realize that the American
people do not want judicial nominations rooted in partisan politics?
They want Federal judges who understand the importance of an
independent judiciary. Our independent courts are a source of America's
strength, endurance, and stability. Our judicial system has been the
envy of the world. The American people expect the Federal courts to be
impartial forums where justice is dispensed without favor to the right
or the left or to any political party or faction. The only lifetime
appointments in our government, these nominations matter a great deal.
The Federal judiciary is the one arm of our government that should
never be political or politicized, regardless of who sits in the White
House.
With the Agee confirmation today, the sixth so far this year and the
second circuit court confirmation, the Senate is ahead of the pace the
Republican Senate majority established during the 1996 session, a
Presidential election year, in which no judicial nominations were
considered or confirmed by the Senate before July. That is right--today
we stand six confirmations, including two circuit court confirmations,
ahead of the pace Republicans set in the 1996 session. In fact, with
the Agee confirmation we are already two circuit court confirmations
beyond the total the Republican Senate majority allowed for that entire
session, when they refused to proceed on any circuit court nominations.
So today we demonstrate progress about which I have been speaking and
on which I have been working. I continue in this Congress and I will
continue with the new President in the next Congress to work with
Senators from both sides of the aisle to guarantee we have nonpartisan
judges.
Justice Agee has 7 years of judicial experience on the State bench as
a Justice on the Supreme Court of Virginia and a former judge on the
Court of Appeals of Virginia. For more than 20 years prior to his
judicial service, Justice Agee worked in private practice in the
Commonwealth of Virginia. He was elected by the people of Virginia as a
Delegate to the Virginia General Assembly where he served for over a
decade. Justice Agee graduated from Bridgewater College with a B.A. and
he received his J.D. from the University of Virginia School of Law. He
received an L.L.M. degree in taxation from New York University School
of Law.
I congratulate Justice Agee and his family on his confirmation today,
and I look forward to making further progress by working together on
judicial nominations.
The Virginia and Michigan vacancies on the Fourth and Sixth Circuits,
respectively, have proven a great challenge. I want to commend Senator
Warner and Senator Webb, and Senator Levin and Senator Stabenow for
working to end these impasses. I have urged the President to work with
the Virginia and Michigan Senators and, after several years, he finally
has. During the last 3 months, our extensive efforts culminated in
significant developments that can lead to filling two Virginia
vacancies on the Fourth Circuit and two Michigan vacancies on the Sixth
Circuit, three of which have been classified as judicial emergencies.
This accomplishment stands in sharp contrast to the actions of Senate
Republicans who refused to consider any of the highly qualified
nominations to the Fourth Circuit Court of Appeals during the last 3
years of the Clinton administration or to consider any of the highly
qualified nominations to the Sixth Circuit Court of Appeals during the
last 2 years of the Clinton administration. The Republican Senate
majority left open five vacancies on the Fourth Circuit and four on the
Sixth Circuit at the end of the Clinton administration.
The Fourth Circuit is a good example of how much time and effort we
have wasted on controversial nominations by President Bush. For
example, there was the highly controversial and failed nomination of
William ``Jim'' Haynes II to the Fourth Circuit. As General Counsel at
the Department of Defense, he was the architect of many discredited
policies on detainee treatment, military tribunals, and torture. Mr.
Haynes never fulfilled the pledge he made to me under oath at his
hearing to supply the materials he discussed in an extended opening
statement regarding his role in developing these policies and their
legal justifications.
The Haynes nomination led the Richmond Times-Dispatch to write an
editorial in late 2006 entitled ``No Vacancies,'' about the President's
counterproductive approach to nominations in the Fourth Circuit. The
editorial criticized the administration for pursuing political fights
at the expense of filling vacancies. According to the Times-Dispatch,
``The president erred by renominating . . . and may be squandering his
opportunity to fill numerous other vacancies with judges of right
reason.''
The Times-Dispatch editorial focused on the renomination of Mr.
Haynes, but could just as easily have been written about other
controversial Fourth Circuit nominees.
The President insisted on nominating and renominating Terrence Boyle
over the course of 6 years to a North Carolina vacancy on the Fourth
Circuit. This despite the fact that as a sitting U.S. district judge
and while a circuit court nominee, Judge Boyle ruled on multiple cases
involving corporations in which he held investments.
The President should have heeded the call of North Carolina Police
Benevolent Association, the North Carolina Troopers' Association, the
Police Benevolent Associations from South Carolina and Virginia, the
National Association of Police Organizations, the Professional Fire
Fighters and Paramedics of North Carolina, as well as the advice of
Senator John Edwards. Law enforcement officers from North Carolina and
across the country opposed the nomination. Civil rights groups opposed
the nomination. Those knowledgeable and respectful of judicial ethics
opposed the nomination. This President persisted for 6 years before
withdrawing the Boyle nomination.
I mention these ill-advised nominations because so many Republican
partisans seem to have forgotten this recent history and why there are
continuing vacancies on the Fourth Circuit. The efforts and years
wasted on President Bush's controversial nominations followed in the
wake of the Republican Senate majority's refusal to consider any of
President Clinton's Fourth Circuit nominees. All four nominees from
North Carolina to the Fourth Circuit were blocked from consideration by
the Republican Senate majority. These outstanding nominees included
U.S. District Court Judge James Beaty, Jr., U.S. Bankruptcy Judge J.
Richard Leonard, North Carolina Court of Appeals Judge James Wynn, and
Professor Elizabeth Gibson. The failure to proceed on these nominations
has yet to be explained. Had either Judge Beaty or Judge Wynn been
considered and confirmed, he would have been the first African-American
judge appointed to the Fourth Circuit.
In contrast, I worked with Senator Edwards to break through the
impasse and to confirm Judge Allyson Duncan of North Carolina to the
Fourth Circuit when President Bush nominated her. I worked to reduce
Federal judicial vacancies in North Carolina by confirming three judges
last year Judge Schroeder, Judge Reidinger and Judge Osteen. Previously
during the Bush administration, I cooperated in the confirmation of
Judge Whitney, Judge Conrad, Judge Dever, Judge McKnight, and Judge
Flanagan. That totals nine Federal judges in North Carolina, including
a Fourth Circuit judge, during
[[Page S4438]]
the Bush Presidency. By contrast, during the entire eight years of the
Clinton administration, only one district court judge was allowed to be
confirmed in North Carolina.
We have also made progress in South Carolina. Senator Graham follows
Senator Thurmond as South Carolina's representative on the Judiciary
Committee. Despite the controversy that accompanied the nomination of
Judge Dennis Shedd, and my own opposition to it, I presided as chairman
when we considered that nomination and when the Senate granted its
consent. I also presided over consideration of the nomination of Terry
Wooten. More recently, we acted favorably on the nominations of Harvey
Floyd and Robert Bryan Harwell.
While I chaired the Senate Judiciary Committee from the summer of
2001 to the end of 2002, I presided over the consideration and
confirmation of three Fourth Circuit judges nominated by President
Bush. All together, President Bush has already appointed five judges to
the Fourth Circuit. By contrast, President Clinton was allowed by
Senate Republicans to appoint three and left office with five vacancies
existing on that court.
Of course, during the Clinton administration, Republican Senators
argued that the Fourth Circuit vacancies did not need to be filled
because the Fourth Circuit had the fastest docket time to disposition
in the country. If the Agee nomination is confirmed, as I expect it
will be, the Fourth Circuit will have fewer vacancies than it did when
Republicans claimed no more judges were needed.
Judge Agee will succeed Judge Michael Luttig, who retired a few years
ago to take a more lucrative position in the private sector. Judge
Luttig was known as a very conservative judge on the Fourth Circuit. He
was involved in the Padilla case a few years ago and condemned the
shifting legal positions of the Bush administration in that case
involving an American citizen. He noted that the Bush administration's
maneuvering had consequences ``not only for the public perception of
the war on terror but also for the government's credibility before the
courts in litigation ancillary to that war.'' Judge Luttig went on to
note that the administration's behavior in ``yield[ing] to expediency''
left an impression that ``may ultimately prove to be [at] substantial
cost to the government's credibility.'' In those independent
observations, Judge Luttig performed a public service.
I have likewise urged the President to work with the Michigan
Senators, and, after 7 years, he finally has. Last month, our extensive
efforts culminated in a significant development that, unless
partisanship interferes, can lead to filling the last two vacancies on
the Sixth Circuit before this year ends. This accomplishment stands in
sharp contrast to the actions of Senate Republicans who refused to
consider any nomination to the Sixth Circuit Court of Appeals during
the last 3 years of the Clinton administration. Ultimately, the
Republican-led Senate left open four vacancies on that circuit.
Mine has been a different approach and one that has led to
significant progress. I am glad to see that progress continue today
with our confirmation of the nomination of Justice G. Steven Agee of
Virginia to the U.S. Court of Appeals for the Fourth Circuit.
Mr. President, I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is
recognized.
Mr. SPECTER. Mr. President, the nomination of Justice Steven Agee is
pending for the Court of Appeals for the Fourth Circuit. Justice Agee
has an outstanding record; he has been a judge on the Court of Appeals
for Virginia for 2 years, from 2001 to 2003, and a Justice on the
Supreme Court from 2003 until the present time.
The record of Michael G. McGinn, to be a U.S. Marshal for the
district of Minnesota, is also outstanding.
The record of Ralph Eduardo Martinez, to be a Commissioner for the
Foreign Claims Settlement Commission, also exceptional, is notable in
part because his brother is Senator Mel Martinez.
I ask unanimous consent that their resumes be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Michael G. McGinn
United States Marshal, District of Minnesota
Birth: 1947; St. Paul, Minnesota.
Legal Residence: Minnesota.
Education: B.A., University of St. Thomas, 1979.
Experience: St. Paul Police Department, St. Paul,
Minnesota, 1968-1998: Police Officer, 1968-1975; Sergeant,
1975-1980; Lieutenant, 1980-1984; Captain, 1984-1992;
Commander, 1992-1998. Independent Contractor, McGinn &
Associates, 1999. State Senator, Minnesota State Senate,
2003-2006; Assistant Minority Leader, 2005-2006.
Selected Activities: Board Member, Boys & Girls Club of St.
Paul, 1997-1998. Board Member, St. Paul Police Foundation,
2006-Present. Board Member, Minnesota State Board of Public
Defense, 2007-present.
Honors & Awards: Team Achievement Award, City of St. Paul,
1995. Outstanding Legislator, Minneapolis Police Federation,
2004. Seven Department Letters of Commendation. Eight Unit
Citations.
____
Rafael (Ralph) Eduardo Martinez
Commissioner, Foreign Claims Settlement Commission
Birth: 1950; Sagua La Grande, Villa Clara, Cuba.
Legal Residence: Florida.
Education: J.D., Florida State University College of Law,
1976. B.S., University of Florida, 1973.
Employment: Attorney, Gurney, Gurney & Handley, 1976-1981.
Shareholder, McEwan, Martinez & Dukes, PA, 1981-Present.
Chairman, CNL Bank, 2003-Present.
Selected Activities: U.S. Public Delegate to the 57th UN
General Assembly, 2003. Board of Trustees, University of
Richmond, 2003-2007.
Honors & Awards: Award of Merit, Orange County Bar
Association, 1991, 1992. ``John Sterchi ``Lifetime
Achievement Award, Central Florida YMCA, 2000.
____
G. Steven Agee
United States Court of Appeals for the Fourth Circuit
Birth: 1952, Roanoke, Virginia.
Legal Residence: Virginia.
Education: B.A., Bridgewater College, 1974. J.D.,
University of Virginia School of Law, 1977. LL.M., New York
University School of Law, 1978.
Employment: Associate, Martin, Hopkins & Lemon, P.C., 1977-
1979. Associate, Rocovich & Dechow, P.C., 1979-1980.
Shareholder, Osterhoudt, Ferguson, Natt, Aheron and Agee,
P.C., 1980-2000. Member, Virginia House of Delegates, 1982-
1994. Judge, Court of Appeals of Virginia, 2001-2003.
Justice, Supreme Court of Virginia, 2003-Present.
Military Service: United States Army Reserve, Judge
Advocate General's Corps, 1986-1997.
Selected Activities: Member, Virginia Criminal Sentencing
Commission, 1997-2000. Board of Trustees, Bridgewater
College, 1988-Present. Member, Salem Rotary Club, 1984-
Present; Board of Directors, 1995-1996. Board of Directors,
Bradley Free Clinic, 1988-Present. Recipient, Outstanding
Legislator Award, Virginia Chamber of Commerce, 1993.
Recipient, Outstanding Young Alumnus Award, Bridgewater
College, 1986. Member, Virginia State Bar, 1977-Present;
Member, Board of Governors, Education of Lawyers Section,
2007-Present. Member, St. Paul's Episcopal Church, 1995-
Present; Member of Vestry, 1998-2000.
ABA Rating: Unanimous ``Well Qualified''.
Mr. SPECTER. Mr. President, I will use the balance of my time on the
pending issue to discuss the agreement made between the Democratic and
Republican leaders to have three circuit judges confirmed before
Memorial Day. The concerns, which I expressed at some length yesterday,
but will summarize very briefly today, are that there simply has been
insufficient time to process the nominees the majority chose according
to standard Committee procedures. I refer specifically to the
nomination of Michigan Court of Appeals Judge, Helene White, who was
nominated on April 15, with only 22 days elapsing between the time of
her nomination and her hearing.
The average time between a circuit court nominee's nomination and
hearing has been 162 days during the Bush presidency. When a hearing
was scheduled for Peter Keisler 33 days after his nomination, there was
an objection made by all of the Democratic Senators on the Committee.
This happened in 2006. At Mr. Keisler's hearing Senator Schumer had
this to say:
Let me reiterate some of the concerns we expressed about
proceeding so hastily on this nomination. First, we barely
had time to consider the nominee's record. Mr. Keisler was
named to the seat 33 days ago, so we are having this hearing
with astonishing and inexplicable speed. The average time for
a nomination to hearing for the last seven nominees to that
court is several times that long.
Well, the nomination of Peter Keisler was much easier with respect to
the
[[Page S4439]]
pending record than the record for Judge White who has been on the
bench for many years.
First, an issue arose with Judge White because her questionnaire was
incomplete. For example, she did not provide reversed opinions that had
not been published, as required. During the course of the hearing,
there was considerable concern about what Judge White had done while
sitting on the Michigan court with respect to the soundness of her
judicial scholarship. Then, yesterday, an objection was raised by
Senator Reid that so many questions were submitted for Judge White.
However, the fact is, the number of questions is relatively modest by
comparison--73 questions for Judge White. Last year, Judge Jennifer
Elrod, nominee to the Fifth Circuit, had 108 questions submitted by the
Democrats. Last year, Judge Leslie Southwick had 80 questions submitted
by Democrats. Grace Becker, a nominee for the Department of Justice,
Civil Rights Division, had 250 questions submitted by the Democrats.
These are just a few examples. So the number Judge White received is
relatively modest in comparison to others.
Next, you have the situation that there is the absence of the report
of the American Bar Association, which is still not in on Judge White,
and is not expected until the end of the month.
It is unprecedented to have a hearing on a circuit judge without
having the ABA report in hand--absolutely unprecedented.
Yesterday, I spoke at some length about the importance of a court of
appeals judge. The courts of appeals are the last appeal before the
Supreme Court, meaning that in virtually all of their cases, their
decisions are final. If there is a 2-to-1 decision and Judge White is
one of the two in the majority, then that is the law, and it has very
profound effects. So, it is a very serious obligation of the Senate,
under our constitutional responsibility, to advise and consent, and to
be sure we take adequate time for deliberation on the matter.
The concern that I expressed yesterday, and will comment on very
briefly today, is that there were other nominees waiting who could have
been processed in this time without this rush to judgment and without
this unprecedented practice. For example, Peter Keisler has had a
hearing and has been waiting over 690 days for a committee vote. He
could have been processed without this rush to judgment. Judge Conrad
has been waiting for 308 days for a hearing and could have been
processed without this rush to judgment. Steven Matthews has been
waiting 257 days and could have been processed without this rush to
judgment.
There were ample nominees available. The majority did not have to
proceed with Judge White's nomination. Yesterday, the Senator from
Nevada commented that nobody presumed to tell Arlen Specter, when I was
chairman of the Judiciary Committee, what the scheduling should be or
what the order of business should be. But, as I pointed out at some
length yesterday, the White House wanted to have the hearing on Chief
Justice Roberts starting in August of 2005. I consulted with Senator
Leahy in advance. He objected to it. I thought he was right. I,
frankly, thought he was right in advance of consulting him, but I still
consulted him. The hearing didn't start until September. Similarly, the
White House wanted to have the hearing of Justice Alito concluded
before Christmas. I consulted with Senator Leahy again, and Justice
Alito's hearing started in January. Later, the President told me
personally that he thought my judgment was right.
The point I raise is--there was always consultation when I was
chairman. But, on these matters, regrettably, there has been none. It
is still my hope that we will be able to find some way through this
morass. Senator Leahy and I have had a very good record of working on a
bipartisan basis. It is my hope that we will establish a protocol for
consideration of judicial nominees that so many days after a
nomination, there will be a hearing, then so many days later, there
will be action by the Judiciary Committee, and then so many days later,
there will be floor action. That protocol would prevent this morass,
which has engulfed this Senate. I look forward to working with Senator
Leahy to accomplish that.
On the state of the record, I feel constrained to say that the facts
speak for themselves. Processing Judge White in this manner, breaking
all of the precedents and rules, is simply not the way to conduct the
business of the Senate. The deal could have been completed with the
other nominees who are waiting in the wings. That is the way the Senate
ought to function.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Maryland is
recognized.
Mr. CARDIN. Mr. President, I yield myself 3 minutes.
First, let me express my support for Judge Agee's confirmation. I had
the opportunity to chair Judge Agee's confirmation hearing. I thank
Senator Warner and Senator Webb for the manner in which they worked
with the White House to get an appointment that could go through the
confirmation process, and one which I hope my colleagues will support.
I support Judge Agee because of his experience. I am pleased he has
legislative experience. I think that will help him on the court. He
respects the rule of law and precedents, and he believes in the
independence of the judiciary. He has expressed concerns at times with
political interference within the judicial branch of Government. I
think he is well qualified to be confirmed to the circuit court.
Let me comment very briefly on the comment made by my colleague,
Senator Specter. Let me point out that Judge White was first appointed
on January 7, 1997. She then waited 4 years for action in this body and
received none because of being held up by the Republicans. So when we
say we are ``rushing to judgment,'' I think waiting 4 years without any
action is not rushing to judgment. It seems as though the majority
leadership is being criticized at times for moving too fast and also
too slow. You cannot have it both ways.
In regard to circuit court appointments, there have been three I have
opposed--two because of lack of experience, and one because of his
record. I was joined by other Members who opposed those nominations.
None of us sought to delay those confirmation votes. In fact, on one,
the Republican leadership asked that we hold the confirmation vote in
committee until they could get some more support.
So I think you should be judged by the record. Let me point out the
record very clearly. If you look at the record on vacancies in circuit
courts, starting with President Clinton, there was 17. At the end of
his term, it grew to 32. The record by the Democrats has been
consistent to reduce that so that we now have 12 vacancies. I think the
record speaks for itself.
Obviously, we want to get as many judges confirmed as possible. I
hope we can work in a bipartisan manner to make sure these vacancies
are filled. If the White House would work with the local Senators and
with us, I think we can get more confirmations to our circuit courts.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from New York is
recognized.
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