[Congressional Record Volume 154, Number 85 (Thursday, May 22, 2008)]
[Senate]
[Pages S4768-S4770]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         JUDICIAL CONFIRMATIONS

  Mr. McCONNELL. Mr. President, in the final year of President 
Clinton's final Congress, two of his circuit court nominees, Richard 
Paez and Marsha Berzon, were pending in the Judiciary Committee. 
Frankly, they were quite controversial. For example, Judge Paez had 
openly defended judicial activism. He said if the Democratic branch has

[[Page S4769]]

failed to act on a political matter, it was incumbent on judges to do 
so, even if the matter properly belonged to the legislature.
  Not surprisingly, conservative groups and many Republican Senators 
opposed the Paez and Berzon nominations. The Chamber of Commerce, a 
business association, not an ideological group, was so troubled by the 
prospect of Judge Paez's confirmation that it broke its policy of 
staying out of nomination disputes and opposed his nomination.
  I ask unanimous consent to have printed in the Record the release by 
the Chamber of Commerce opposing Judge Paez.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

     U.S. Chamber Announces Opposition to Paez Judicial Nomination

       Washington, D.C.--The United States Chamber of Commerce 
     today announced its opposition to the elevation of district 
     court judge Richard Paez to the 9th Circuit Court of Appeals. 
     The 9th Circuit Court reviews federal court decisions in 
     California, Arizona, Washington, Oregon, Idaho, Nevada and 
     Montana.
       In taking the unusual step of opposing a judicial nominee, 
     Chamber senior vice president Lonnie Taylor said, ``Judge 
     Paez' lower court rulings demonstrate an alarming degree of 
     judicial activism that must not be rewarded.''
       Taylor specifically cited Paez' ruling in John Doe I v. 
     Unocal, saying the decision ``represents an unconstitutional 
     judicial intrusion into foreign policy with dangerous 
     implications for the U.S. economy and world markets.''
       In the Unocal case--which concerns the construction of an 
     offshore drilling station and natural gas pipeline--Judge 
     Paez held that U.S. companies doing business overseas were 
     liable for the actions of foreign governments. The ruling 
     opened the door to environmental activists and others to use 
     similar class action lawsuits as an avenue of attack on 
     disfavored business projects, Taylor charged.
       ``Judge Paez' ruling, if upheld, could cripple 
     international commerce and establish a far-reaching precedent 
     of holding U.S. companies hostage to the actions of foreign 
     governments,'' said Taylor.
       Improving the ability of American businesses to compete in 
     the global marketplace is a top priority of the Chamber. As 
     part of the Chamber's efforts to advance free trade, it will 
     oppose any attempts to undermine international 
     competitiveness. The U.S. Chamber notified Senators of its 
     opposition to Judge Paez in a letter yesterday.
       The U.S. Chamber of Commerce is the world's largest 
     business federation representing more than three million 
     businesses and organizations of every size, sector and 
     region.

  Mr. McCONNELL. The California Senators, to their credit, were 
tireless advocates for Judge Paez and Judge Berzon. Their nominations 
became the California Senators' cause, and their ultimate confirmations 
were due to our colleagues' tireless advocacy.
  Their confirmations, though, were also due to then-Majority leader 
Trent Lott ensuring that his commitment regarding the Paez and Berzon 
nominations was, in fact, kept. On November 10, 1999, Majority Leader 
Lott placed a colloquy between himself and then-Democratic Leader 
Daschle in the Congressional Record. In it, Senator Lott committed to 
proceed to Paez and Berzon by March 15 of the following year, which of 
course was a Presidential election year, as this year is.
  Majority Leader Lott also stated he did not believe that filibusters 
of judicial nominations are appropriate, and that if they were to 
occur, he would file cloture on their nominations and he would himself 
support cloture if necessary.
  He noted then-Judiciary Chairman Hatch was consulted on that 
commitment. Given that many in our conference and over 300 groups 
opposed those nominations, it would have been easier in many respects 
for Senator Lott not to fulfill his commitment. He could have taken a 
hands-off approach, shrugged his shoulders, put the onus on Chairman 
Hatch to make good on the majority leader's commitment. After all, 
Senator Lott was not the Judiciary Committee Chairman, Senator Hatch 
was. He could simply have said he did not control what happened in the 
Judiciary Committee, Chairman Hatch did. But Senator Lott understood 
that commitments in this body are not to be taken lightly, especially 
when they are made by the majority leader himself.
  So true to his word, Majority Leader Lott worked to ensure that his 
commitment was kept. The Paez and Berzon nominations were reported out 
of the committee. The majority leader, Senator Lott, filed cloture on 
both. On March 8, 2000, a week ahead of schedule, he and I and Chairman 
Hatch and a supermajority of the Republican conference voted to give 
Judges Paez and Berzon an up-or-down vote.
  Most of those Republicans, myself included, then voted against them 
because of concerns about their records. But Judges Paez and Berzon 
were then, of course, confirmed and have been sitting on the Ninth 
Circuit for 8 years because Senator Lott honored his commitment.
  Unfortunately, a similar commitment made to my conference was not 
honored today. Last month, my good friend from Nevada, the majority 
leader, acknowledged that the Democratic majority needed ``to make more 
progress on'' circuit court nominations.
  To that end, he committed to do his ``utmost;'' ``to do everything'' 
possible; to do ``everything within [his] power to get three [more] 
judges approved to our circuit [courts] before the Memorial Day 
recess.''
  ``Who knows,'' he even suggested, ``we may even get lucky and get 
more than that [because] we have a number of people from whom to 
choose.''
  True, the majority leader gave himself an out. He could not 
``guarantee'' his commitment because ``a lot of things can happen in 
the Senate.'' But when the Senate majority leader commits to do 
everything in his power to honor a commitment, that should mean 
choosing a path that likely will yield a result.
  Well, today we learned we are not going to get three more circuit 
court confirmations by the Memorial Day recess, let alone the four or 
more the majority leader thought might be possible. No, we are going to 
get one. Only one.
  Given my friend's clear commitment and the numerous nominees the 
Democratic majority had to choose from, the question my Republican 
colleagues and I are asking is this: Did the majority do its 
``utmost''? Did it do ``everything'' possible? Did it do ``everything 
within [its] power''?
  In fact, we are asking did it do anything at all to realistically 
ensure the commitment would be kept?
  When my friend made his commitment, he noted that we had circuit 
court nominees from all over the country in the Judiciary Committee who 
could be processed. He listed the States they were from. Most have been 
pending for a long time, and the Judiciary Committee has had ample time 
to study their records. Indeed, some have already had hearings; others 
have already been favorably reported by the committee to other 
important positions. These nominees were, in effect, on the two-yard 
line, and could easily have been picked and confirmed.
  People like Peter Keisler; he has been pending for almost 700 days. 
He has had a hearing. He has been rated unanimously well-qualified by 
the American Bar Association. He has earned accolades from Republicans 
and Democrats alike, including an endorsement from the Washington Post. 
His paperwork is complete, and he is ready to go.
  Or people like Chief Judge Robert Conrad; he has been pending for 
over 300 days. The Senate has already confirmed him, on two separate 
occasions, to important Federal legal positions, first as the chief 
Federal law enforcement officer in North Carolina and then to a life-
time position on the Federal trial bench. He, too, has received the 
ABA's highest rating, and has earned praise from Republicans and 
Democrats alike. He has the strong support of both home-State senators 
and is ready for a vote.
  During our colloquy, my friend did not reference the nomination of 
Michigan State Judge Helene White as an option. That is because her 
nomination to the Sixth Circuit did not yet exist. It wasn't here. It 
arrived here later that day, at which point there were only 5\1/2\ 
weeks until the Memorial Day recess. Or, put another way, her 
nomination arrived 700 days after Mr. Keisler's, 300 days after Judge 
Conrad's.
  Thirty-five days is not much time to process a nominee who, by her 
own admission, has participated in 4,500 cases, half of which are 
completely new since her last nomination. Indeed, the average time for 
confirming a judicial nominee in this administration is 162 days. The 
majority decided to try to

[[Page S4770]]

run Judge White through the process in just 35 days. It scheduled a 
hearing for her that was only 22 days after her nomination. I respect 
the abilities of members on the Judiciary Committee, but even they 
cannot review 4,500 cases in 22 days.
  In addition, when the majority scheduled her hearing, the ink was 
barely dry on the FBI's background investigation, which had come up 
only the day before, and the committee had yet to receive her ABA 
report. In fact, today as I speak, it still is not here.
  This matters because Chairman Leahy has made it abundantly clear that 
the receipt of the ABA report is a precondition for him to allow a vote 
on a judicial nominee, saying: ``Here is the bottom line. . . . There 
will be an ABA background check before there is a vote.'' He reiterated 
that his rule will be observed with respect to the White nomination.
  So to honor the majority leader's commitment, did our Democratic 
colleagues choose someone whom the committee had ample time to vet, 
whose paperwork has been done for a long time, and who, in the case of 
Judge Conrad, the Senate had already confirmed--twice? No, they decided 
to rush through Judge White, someone whom several members of the 
committee are completely unfamiliar with, and whose record for most of 
the last decade the entire committee is completely unfamiliar with, 
including thousands of her cases.
  In essence, the majority decided to throw a confirmation ``hail 
Mary'' to satisfy its own Democratic membership, instead of taking a 
bi-partisan path that had every indication of success and would have 
fulfilled the commitment, like finally processing Mr. Keisler or Judge 
Conrad.
  If the majority were serious about keeping its commitment all this 
should have been avoided. My friend from Nevada has said he consulted 
fully with Chairman Leahy before making his commitment. Chairman Leahy 
has been the lead Democrat on the Judiciary Committee for over a 
decade. He, perhaps more than anyone, is aware of the logistical 
requirements for processing nominees.
  We assume he would have advised the majority leader of the near-
certain impossibility of confirming Judge White in time to keep the 
commitment. Even if he didn't, the ranking member and I did just that 
almost a month ago, when we wrote to him and the Chairman, expressing 
our serious concerns about this very situation arising.
  I ask unanimous consent that a copy of the letter be printed in the 
Record.
       There being no objection, the material was ordered to be 
     printed in the Record, as follows:

                                                  U.S. Senate,

                                   Washington, DC, April 29, 2008.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Capitol Building, Washington, 
         DC
     Hon. Patrick J. Leahy,
     Chairman, Senate Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC
       Dear Senators Reid and Leahy: We write to express our 
     serious concern regarding statements made by Chairman Leahy 
     during last week's Judiciary Committee Executive Business 
     Meeting. In discussing Senator Reid's April 15, 2008, 
     commitment to confirm three more circuit court nominations 
     before the Memorial Day recess, Senator Specter asked 
     Chairman Leahy to clarify whether he was saying he would not 
     honor the commitment if the scheduling was not ``convenient 
     for the two Michigan nominees.'' In response, Chairman Leahy 
     stated, ``I will do everything possible to get it [done] by 
     Memorial Day, but if the White House slow walks [the Michigan 
     nominees' paperwork], we probably won't.''
       We all know there are several time-consuming steps in the 
     judicial confirmation process, including a Federal Bureau of 
     Investigation background investigation, the issuance of a 
     rating by the American Bar Association (ABA), a hearing, 
     questions for the nominee following the hearing, a Committee 
     vote, and finally a floor vote. Given these standard 
     prerequisites and Judge Helene White's recent nomination date 
     of April 15, 2008, we do not believe regular order and 
     process will allow for her confirmation prior to May 23, 
     2008. In addition, the FBI is currently conducting a 
     supplemental investigation for Mr. Raymond Kethledge, which 
     must be completed prior to his hearing. Chairman Leahy's 
     statements insinuate that, if the Committee cannot process 
     Judge White and Mr. Kethledge prior to the recess, then the 
     straightforward commitment made by the Majority Leader and, 
     by reference, Chairman Leahy will not be honored.
       We would hope, given the likelihood that Judge White and 
     Mr. Kethledge cannot be confirmed prior to the recess, that, 
     in order to fulfill the commitment, Chairman Leahy would turn 
     to other outstanding circuit court nominees pending in 
     Committee who have been ready for hearings and waiting far 
     longer than Judge White or Mr. Kethledge. As we have 
     mentioned previously, Mr. Peter Keisler has already had a 
     hearing and has been waiting for over 660 days for a simple 
     Committee vote, and Judge Robert Conrad and Mr. Steve 
     Matthews, nominees to the Fourth Circuit, are ready for 
     hearings and have been waiting for many months. Both Judge 
     Conrad and Mr. Matthews have enjoyed strong home-state 
     support from their Senate delegations, one of whom is a 
     valued member of the Committee. All three of these nominees 
     deserve prompt consideration by the Committee and up-or-down 
     votes by the full Senate.
       It is simply a matter of fairness to include in the 
     commitment, nominees who clearly can be processed and who 
     have been ready for hearings and pending the longest. 
     Further, we object to the selective importance that the 
     Judiciary Committee is placing on home-state senatorial 
     support. The Committee appears to view the support of 
     Republican senators as a necessary, but insufficient, 
     condition for their constituent nominees; while at the same 
     time deeming dispositive the views of Democratic senators, 
     either for or against a nominee. As the Majority Leader 
     himself noted, such disparate treatment is patently unfair.
       The clock is ticking. It has now been two full weeks since 
     your commitment to do `everything' you could to confirm three 
     more circuit court nominees by the Memorial Day recess. Yet 
     since that commitment, the Committee has only scheduled one 
     hearing for one circuit court nominee. More troubling still 
     is the fact that the Chairman strongly intimated last week 
     that the Committee may refuse to honor the commitment, not 
     because it is impossible for it to do so, but because the 
     Chairman's preferred queue of nominees will not be ready in 
     time due to the standard requirements of the FBI and the 
     actions of a third party (the ABA), upon which the Democratic 
     Majority has placed particular importance over the years.
       If the Committee does not hold a hearing for two more 
     circuit court nominees prior to May 6, 2008, it is 
     exceedingly unlikely that the Senate will be able to confirm 
     at least three circuit court nominees prior to May 23, 2008, 
     given the standard amount of time it takes to move a 
     nomination through the steps in the confirmation process. In 
     order to honor the commitment, we respectfully urge the 
     Committee to schedule hearings for Judge Conrad and Mr. 
     Matthews, and hold a Committee vote for Mr. Keisler as soon 
     as possible.
       We look forward to your response.
           Sincerely,
     Mitch McConnell.
     Arlen Specter.
  Mr. McCONNELL. The reasons for our concern a month ago have proven to 
be correct. Anyone could have seen this problem coming--anyone, except 
evidently, our Democratic colleagues who must have chosen not to.
  Which brings me back to the question I and my Republican colleagues 
are asking: Is it consistent with a commitment to do ``everything 
within your power'' to confirm three more circuit nominees by Memorial 
Day, to then choose the one nominee who, for logistical reasons alone, 
is the least likely to be confirmed in time to keep the commitment? Mr. 
President, chasing the impossible, and then blaming others or 
expressing surprise when it eludes your grasp is not a good excuse, and 
will be remembered for a long, long time.
  So today is a sad and sobering day for me and my colleagues. There 
are now well-founded questions on our side about the majority's stated 
desire to treat nominees fairly and to improve the confirmation 
process. And there is frustration that will manifest itself in the 
coming days, and will persist until we get credible evidence that the 
majority will respect minority rights and treat judicial nominees 
fairly.

                          ____________________