[Congressional Record (Bound Edition), Volume 146 (2000), Part 2]
[Senate]
[Pages 2125-2126]
[From the U.S. Government Publishing Office, www.gpo.gov]



                           EXECUTIVE SESSION

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  NOMINATION OF MARSHA L. BERZON, OF CALIFORNIA, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE NINTH CIRCUIT

                                 ______
                                 

   NOMINATION OF RICHARD A. PAEZ, OF CALIFORNIA, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE NINTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the time between 
2:15 and 5 o'clock is equally divided between the proponents and 
opponents of the Berzon and Paez nominations.
  The Senator from Utah.
  Mr. HATCH. I ask unanimous consent that the debate now occur 
concurrently on the two nominations, as under the previous order; 
however, that any votes ordered with respect to the nominations occur 
separately.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, it is my understanding that has been cleared 
with the minority on the Judiciary Committee.
  Mr. HATCH. That is my understanding.
  Mr. REID. That being the case, Senator Leahy having approved this, we 
have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I rise today to speak on the nomination of 
federal district Judge Richard Paez to the Ninth Circuit Court of 
Appeals.
  Judge Paez was first nominated for this judgeship during the second 
session of the 104th Congress--a time when all nominees to the Ninth 
Circuit got bound up with the difficulties we were having in deciding 
whether to divide the Circuit. Once we established a Commission to 
study the matter, we were able to begin processing nominees to that 
court.
  Judge Paez was renominated at the beginning of the 105th Congress, 
but due to questions surrounding his record on the bench and comments 
he made about two California initiatives, his nomination elicited 
heightened scrutiny.
  Some have attributed this delay in Judge Paez's consideration by the 
full Senate to sinister or prejudicial motives. And I can only respond 
by stating what those very critics already know in their hearts and 
minds to be true: such aspersions are utterly devoid of truth, and are 
grounded in nothing more than sinister, crass politics.
  As we all know, before any judge can be confirmed, the Senate must 
exercise its duty to provide assurance that those confirmed will uphold 
the Constitution and abide by the rule of law. Sometimes it takes what 
seems to be an inordinate amount of time to gain these assurances, but 
moving to a vote without them would compromise the integrity of the 
role the Senate plays in the confirmation process.
  And so, it has taken a considerable amount of time to bring Judge 
Paez's nomination up for a vote. Indeed, it was not before a thorough 
and exhaustive review of Judge Paez's record that I have become 
convinced that questions regarding Judge Paez's record have, by and 
large, been answered.
  Because such questions have been answered does not, in all instances, 
mean they have been answered to my complete satisfaction. But on the 
whole, I am persuaded that Judge Paez will be a credit to the Ninth 
Circuit Court of Appeals. In so concluding, I do not want to diminish 
the seriousness of the concerns raised about certain aspects of Judge 
Paez's record.
  I was troubled by comments Judge Paez made about two California 
initiatives on April 6, 1995, while sitting as a U.S. District Court 
Judge. At that time, Judge Paez gave a speech at his alma mater, Boalt 
Hall School of Law, criticizing the passage of Proposition 187 and 
criticizing the ballot measure that would later be known as Proposition 
209. He described Prop 209 as ``the proposed anti-civil rights 
initiative'' and said it would ``inflame the issues all over again, 
without contributing to any serious discussion of our differences and 
similarities or ways to ensure equal opportunity for all.'' Judge Paez 
went on to opine that a ``much more diverse bench'' was essential in 
part because how ``Californians perceive the justice system is every 
bit as important as how courts resolve disputes.''
  When questioned at his hearing about these and other comments 
contained in the speech, Judge Paez stated that he was referring only 
to the potential divisive effect Prop 209 would have on California. He 
acknowledged that the Ninth Circuit had in fact upheld the 
constitutionality of Prop 209 and that this ruling resolved any 
question as to the legitimacy of the initiative. He also stated that he 
disagreed with the use of proportionality statistics in Title VII or 
employment litigation. And, perhaps most telling of his judicial 
philosophy, Judge Paez stated that federal judges must ``proceed with 
caution, and respect that the vote of the people is presumed 
constitutional.''
  Legitimate questions have been raised concerning whether his comments 
were consistent with the Judicial Canon governing judges' extra-
judicial activities, and Judge Paez maintains that his remarks fit 
within the exception set out in that Canon that permits a judge to make 
a scholarly presentation for purposes of legal education.
  I also raised concerns about a decision of Judge Paez's that would 
allow liability to be imposed on a U.S. company for human rights abuses 
committed by a foreign government with which the U.S. company had 
engaged in a joint venture. But it is a single moment in a lengthy 
catalog of cases in which Judge Paez appears to have handed down solid, 
legally-supported, precedent-respecting decisions.
  Moreover, Judge Paez has earned a good deal of bipartisan support 
within his home state of California and his native state of Utah, and 
has given me his word that he will abide by the rule of law and not 
engage in judicial activism.
  For these reasons, I am not willing to stand in the way of this 
nominee's confirmation. It was during the Committee's thorough review 
of his record that I became aware of Judge Paez's credentials and 
career of public service. He is a Salt Lake City native who graduated 
from Brigham Young University and he received his law degree from Boalt 
Hall.
  Before becoming a Judge on the Los Angeles Municipal Court, he served 
as an attorney for California Rural Legal Assistance, the Western 
Center on Law and Poverty, and the Legal Aid Foundation of Los 
Angeles--and during that time provided legal representation to a Korean 
War veteran in danger of losing his home to foreclosure, victims of 
intentional racial discrimination, and others. In 1994, President 
Clinton nominated, and the Senate confirmed, Judge Paez to sit on the 
district court bench in the Central District of California.
  Although I share many of my colleagues' concerns regarding the 
stability of the Ninth Circuit, none of us can in good conscience foist 
those concerns upon Judge Paez--an entirely innocent party with regard 
to that Circuit's dubious record of reversal by the Supreme Court--and 
force him into the role of Atlas in carrying problems not of his own 
making.
  Indeed, that Circuit's problems--many of which appear to me to be 
structural in dimension--call for an altogether different solution than 
that which this body would seek to impose through its advice and 
consent powers. And to that end, I have just [this morning] introduced 
legislation with Senator Murkowski that is being held at

[[Page 2126]]

the desk so as to enable immediate action by the full Senate--that 
would divide the 28-judge behemoth of a circuit into two manageable 
circuits.
  To return to the different subject of Judge Paez, I must concede that 
I have had concerns about his nomination. But on balance I do not 
believe that Judge Paez will contribute to the roguery that appears to 
have infiltrated this circuit. I would not, as Chairman of the 
Judiciary Committee, vote for the confirmation of any nominee who I 
believed would abdicate his or her duty to interpret and enforce, 
rather than make, the laws of this Nation.
  For these reasons, I will cast a vote in favor of the nomination of 
Judge Paez to serve on the Ninth Circuit Court of Appeals. I hope a 
majority of my colleagues will do likewise.
  Mr. President, I also rise to speak on behalf of the nomination of 
Marsha S. Berzon for a seat on the United States Court of Appeals for 
the Ninth Circuit. Based upon Ms. Berzon's qualifications as a lawyer, 
I support her nomination. I urge my colleagues to do the same.
  It cannot be disputed that Ms. Berzon's training and experience 
qualify her for a life of public service as a federal appellate judge. 
Indeed, Ms. Berzon's qualifications are unimpeachable, and her 
competence is beyond question. Ms. Berzon completed her undergraduate 
studies at Harvard/Radcliffe College, and then was graduated from the 
Boalt Hall Law School at the University of California. After law 
school, Ms. Berzon served as a judicial clerk--first for Judge James R. 
Browning of the United States Court of Appeals for the Ninth Circuit, 
and then for Justice William J. Brennan, Jr. of the United States 
Supreme Court.
  For the last 25 years, Ms. Berzon has built a national reputation as 
an appellate litigator at a private law firm in San Francisco. She has 
argued four cases and filed dozens of briefs before the United States 
Supreme Court, and has argued numerous cases before State and federal 
trial and appeals courts. In addition to representing private clients, 
Ms. Berzon also has represented the States of California and Hawaii, 
and the City of Oakland, California. Ms. Berzon is uniformly described 
as honest, intelligent and fair-minded. Attorney J. Dennis McQuaid, 
whom she opposed in a case, later stated that ``unlike some advocates, 
she enjoys a reputation that she is devoid of any remotely partisan 
agenda and that her service on the court will be marked by decisions 
demonstrating great legal acumen, fairness and equanimity.'' Another 
opposing counsel, Carter G. Phillips, said that in a case involving 
delicate federalism issues, Ms. Berzon

       . . . did an extraordinary job of presenting her clients' 
     position aggressively without overreaching. She presented 
     solid limiting principles that would allow the lawsuit to go 
     forward without placing too much of a burden on the State. I 
     thought her submissions, both written and oral, demonstrated 
     a significant effort to balance the respective interests 
     implicated by the legal issue. . . . Her advocacy 
     demonstrated skill, integrity and sound judgment. These are 
     precisely the traits I would want in a federal appellate 
     judge.

  Simply put, Ms. Berzon appears to have the intellect, integrity and 
impartiality to serve as a federal judge.
  The fact that many of Ms. Berzon's clients have been unions should 
not disqualify her from being confirmed. That Ms. Berzon has advocated 
on behalf of unions--and, by all accounts, advocated well--cannot, I 
think, be determinative of her qualifications. In her testimony before 
the Judiciary Committee, Ms. Berzon testified that she is committed to 
following the Supreme Court's Beck decision, which sets forth the 
statutory rights of employees who object to their union dues being used 
for political activities. Moreover, Ms. Berzon testified that, if 
confirmed, she will make decisions based upon the law and the facts of 
the particular case before her. No one has shown me evidence why I 
should not take Ms. Berzon at her word.
  In addition to having excellent legal training and experience as a 
lawyer, Ms. Berzon also has experience in legal academia. She has 
taught law students as a practitioner-in-residence at Cornell 
University Law School and at Indiana University Law School, and has 
published articles on various legal topics. In my view, she will bring 
to the Ninth Circuit a significant measure of intelligence, experience 
and legal scholarship.
  In conclusion, Ms. Berzon is well-qualified to assume a seat on the 
United States Court of Appeals for the Ninth Circuit. She enjoys a 
reputation among colleagues and opposing counsel for being a fair-
minded, well-prepared, and principled advocate. I therefore will cast 
my vote in favor of Ms. Berzon's confirmation.
  The PRESIDING OFFICER. The majority leader is recognized.

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