[Congressional Record Volume 154, Number 85 (Thursday, May 22, 2008)]
[Senate]
[Pages S4766-S4767]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           JUDICIAL NOMINEES

  Mr. HATCH. Now, Madam President, I want to change the subject for a 
minute. I need to make a few remarks on the ongoing effort to conduct 
something that resembles a fair and productive judicial confirmation 
process, which is something that is bothering me here today as well. As 
you can see, I am not in a good mood.
  It looks obvious that the commitment by leaders on the other side of 
the aisle to confirm three more appeals court nominees by the Memorial 
Day recess is not going to be met. Failure was not inevitable. There 
was a clear path to keep that commitment with nominees who had long ago 
been fully vetted, nominees who have been pending for up to 2 years, 
highly qualified nominees with the highest ratings from the American 
Bar Association and who have the support of their home State Senators.
  My friends on the other side of the aisle knew how to keep their 
commitment, but instead they chose the path of greatest resistance, the 
path with the greatest chance of failure. And failure is exactly what 
is happening. These days, we often make comparisons between how 
President Bush's nominees are being treated today and how President 
Clinton's nominees were treated. Now here is one more comparison to 
consider.
  In November 1999, Majority Leader Trent Lott promised to hold a vote 
by May 15, 2000 on two of President Clinton's most controversial 
judicial nominees, with my consent as the Judiciary Committee chairman, 
Richard Paez and Marsha Berzon to the Ninth Circuit, two very liberal 
nominees. These nominees were opposed by hundreds of grassroots groups. 
Their records caused a great deal of angst among many Senators on this 
side of the aisle. The majority leader did not make his commitment in 
vague, fuzzy terms. He named names, picked dates, and stated 
objectives. He made a commitment and he kept it, and they both sit on 
the Ninth Circuit Court of Appeals to this day.
  They were both competent. Would I have nominated them? No. Would a 
Republican President have nominated them? No. But they were competent, 
they did have the approval of the ABA, and they deserved a vote up or 
down and they got it.

  We took a cloture vote to ensure there would be no filibuster, and 
confirmed those controversial nominees on March 8, 2000, a week earlier 
than promised. It is a very different situation today.
  I wish to address some other issues that highlight the current state 
of the judicial confirmation process. Talking about numbers, 
percentages, and comparisons makes some people's eyes glaze over, while 
others have trouble sorting out the dueling figures. If enough 
confusion exists, the American people might not fully appreciate what 
is going on. But as our former colleague from New York, the late 
Senator Daniel Patrick Moynihan once said--a friend of mine--``You are 
entitled to your own opinion but not to your own set of facts.''
  I believe facts matter. I believe the truth matters. Some have 
claimed the Senate has confirmed 86 percent of President Bush's 
judicial nominees compared to only 75 percent of President Clinton's. 
This claim is either true or false. If you believe, as I do, that the 
truth matters, then it is important to know the answer. What is true? 
The most recent figures from the Congressional Research Service show 
the Senate has confirmed 85 percent of President Bush's appeals court 
nominees compared to 84 percent of President Clinton's nominees. That 
is about as nonpartisan and objective a source as you can find. It 
turns out the Senate confirmed, not 75 percent of President Clinton's 
judicial nominees but 84 percent. No matter how you slice, dice or spin 
it, this claim is not true.
  Another claim often repeated on the Senate floor by Democrats is that 
when I chaired the Judiciary Committee, I blocked more than 60 of 
President Clinton's judicial nominees by denying them a hearing. Some 
claims, apparently, need not be true as long as they are useful. In 
this one, the judicial confirmation version of the urban myth seems 
useful indeed, based on the number of times it is repeated in various 
versions and permutations. This claim is no more true than the first 
one I mentioned. Some Clinton nominees were not confirmed. Some 
nominees of every President are not confirmed.
  In 1992, George Herbert Walker Bush left office, the Senate was 
controlled by the same party as today, the Democratic Party, and 
returned more than 50 unconfirmed judicial nominees to President Bush. 
I don't recall that we stood and moaned and groaned like is going on 
today, at this time. We didn't. The fact is, that is what happens at 
the end of a Presidential term. The claim being made today, however, is 
all those unconfirmed Clinton nominees could have been confirmed but 
were not, solely because I, as chairman, refused to give them hearings.
  This is one of those claims that some apparently hope no one will 
bother to unpack and sort out. But consider this. A dozen of those 
nominees were not confirmed because President Clinton withdrew them. He 
actually withdrew them. That was not my prerogative as chairman. That 
was his prerogative as President. It continues to baffle me how the 
Judiciary Committee chairman can be blamed because nominees who no 
longer exist were not confirmed. Many of those unconfirmed nominees did 
not have the support of their home State Senators. Judiciary Committee 
chairmen of both parties, before me and after me, including the current 
chairman, do not give hearings to nominees without the support of their 
home State Senators. That is a matter of fact.
  We also hear the claim that in Presidential election years, the 
judicial confirmation process is, to quote the current Judiciary 
Committee chairman, ``far less productive.''
  Once again, this claim is not true. The average number of appeals 
court nominees given hearings and the number of judicial nominees 
confirmed goes up, not down, in Presidential election years.
  Finally, we hear the astounding claim that Republicans are supposedly 
obstructing the nomination of Judge Helene White to the Sixth Circuit 
because we have asked her questions about her record, her 
qualifications, and her judicial philosophy. Judge White was nominated 
less than 2 months ago, and the Judiciary Committee was given just 22 
days from her nomination until her hearing--a period far shorter, even, 
than noncontroversial nominees over the years.
  We had 70 days before Seventh Circuit Court nominee John Tinder's 
hearing, for example, and 120 days before Second Circuit nominee Debra 
Livingston received a hearing. We had only 22

[[Page S4767]]

days this time and the chairman close to waive his own rule and hold a 
hearing without an evaluation from the American Bar Association, 
something we still do not have today for Judge White.
  That is a party that insisted we always have the ABA evaluation in--
for Republican nominees.
  So written questions following the hearing were entirely in order. 
The number of questions asked of Judge White pales in comparison to the 
number of questions my friends on the other side have asked of 
President Bush's judicial nominees who had been pending far longer and 
for whom we had received an ABA--American Bar Association--evaluation.
  We had 112 days before Fifth Circuit nominee Jennifer Elrod's 
hearing, for example, more than five times longer than we had with 
Judge White. Yet my Democratic friends gave Judge Elrod 108 questions, 
far more than Judge White has received. After all that, the Senate 
confirmed Judge Elrod by voice vote.
  I might add, to mention a nonjudicial nominee, Grace Becker, who was 
nominated 189 days ago to head the Civil Rights Division. She has 
received 250 questions from my Democratic friends. I hear they are not 
done yet. It is as though no Republican should have the job of heading 
the Civil Rights Division. Grace is a former counsel on the Judiciary 
Committee and is well known to all of us as a woman of intellect, 
character, and compassion. She is a Eurasian woman with whom I think 
nobody can find one iota of fault.
  A few days ago, the current Judiciary Committee chairman said the 
judicial confirmation process reminded him of the fairytale, 
``Goldilocks and the Three Bears.'' Sometimes it reminds me, instead, 
of the episode of the sitcom ``Seinfeld'' about ``Bizarro World.'' That 
is the world where everything up is down, left is right, and everything 
is not as it seems. In the ``Bizarro World'' of today's judicial 
confirmation process, a plan almost certain to fail is called a 
commitment; 84 is called 75; a senatorial courtesy see is called a 
pocket filibuster; being more productive is being called being less 
productive; and due diligence is being called obstruction. I believe 
the facts and the truth matter, even in the judicial confirmation 
process, in spite of some of this rhetoric.

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