[Congressional Record (Bound Edition), Volume 146 (2000), Part 2]
[Senate]
[Pages 2129-2144]
[From the U.S. Government Publishing Office, www.gpo.gov]



     NOMINATIONS OF RICHARD A. PAEZ AND MARSHA L. BERZON--Continued

  Mr. REID. I rise to speak on the comments and statements made by 
Senator Hatch, chairman of the Judiciary Committee.
  First, Senator Hatch and I don't always agree on substantive issues. 
I think the country is well served with the leadership of the Judiciary 
Committee, the Senator from Utah, and the Senator from Vermont. These 
two men worked tireless hours to try to clear one of the busiest 
committees we have. I personally wish there were more nominations 
cleared. I have the greatest respect for Senator Hatch, and, of course, 
my dear friend, the Senator from Vermont.
  However, this Ninth Circuit issue is something that should be 
approached cautiously. We have done that. I say to my friend from Utah 
and the Senator from Alaska, who introduced legislation, as I said 
earlier today, we need to take a look at what the White commission said 
should be done with the Ninth Circuit. They spent a year's period of 
time listening to witnesses and using their experience and his 
experience as a member of the U.S. Supreme Court as to what should 
happen to the Ninth Circuit. They came up with the decision after they 
reviewed all the alternatives, and the decision was not to split the 
Ninth Circuit but to change the way it was administered. I think that 
is something at which we need to take a close look.
  Senator Lott, the majority leader, talked about his son being 
involved in the last issue before the body. I say candidly I have had 
two sons, one of whom was the administrative assistant for the chief 
judge of the Ninth Circuit, my son Leif; and my son Key, who is 
presently a clerk for the chief judge of the Ninth Circuit, Procter 
Hug. I have a keen interest there not only because my two sons have 
worked for the chief judge of the Ninth Circuit, but, in fact, the 
chief judge of the Ninth Circuit is a Nevadan, a graduate of the 
University of Nevada at Reno and Stanford School of Law, and has 
rendered great

[[Page 2130]]

credit to this country, the Ninth Circuit, and the State of Nevada.
  In short, let's not beat up on the Ninth Circuit because there are a 
lot of people in the circuit. Let's take a look at what should be done 
with the Ninth Circuit. I think the starting point should be what 
Justice White's commission said. If there were a few hearings held in 
the Judiciary Committee, I think we could move on to resolve this 
problem.
  I am happy we are moving forward on these two nominations. It is 
something that should have happened some time ago. We are moving 
forward on them. Based upon the statements made by Senator Hatch, there 
should be bipartisan support for both of these nominees. I hope 
tomorrow, or whenever it is decided by the leadership that we will vote 
on them, that there are overwhelming votes in support for Judge Paez 
and Judge Berzon.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from Vermont.
  Mr. LEAHY. Mr. President, I appreciate the comments of my friend from 
Nevada. I also want to commend the distinguished senior Senator from 
Utah for his support of Judge Paez and Marsha Berzon.
  Today, we are going to take up the long delayed nomination of Judge 
Julio Fuentes for the U.S. Court of Appeals for the Third Circuit. It 
is long delayed; Judge Fuentes was nominated 365 days ago. We tried for 
a whole year to get his nomination moving. He was finally included in a 
confirmation hearing on February 22, then on to the Judiciary Committee 
2 days later, then reported without a single objection.
  Now, I understand it came on the calendar yesterday and the 
distinguished majority leader scheduled it immediately for a vote. I 
thank him for doing that. No need to linger, especially after waiting a 
year to get his hearing and a vote.
  Moving at once from the hearing, quickly to a committee agenda and to 
committee consideration and on to the floor is how we used to proceed. 
In the days before 1994, nominees were favorably reported by the 
Judiciary Committee, then routinely considered by the Senate within a 
day or so thereafter. That was before the unfortunate practice that has 
developed in the last 6 years, where oft times extremely well-qualified 
nominees are held for long times--weeks, months, sometimes years.
  I am glad in this case, at least, while he had to wait almost a year 
for a hearing, once we got the hearing, the nomination is being moved 
very quickly.
  I look forward to Julio Fuentes' confirmation. I congratulate the two 
Senators from New Jersey, Mr. Lautenberg and Mr. Torricelli, for their 
longstanding support.
  Having said that, we should look at where we are. We have 76 current 
vacancies on the Federal judiciary and 9 more on the horizon. Last 
month, the Judicial Conference renewed its request for an additional 59 
judgeships and taking 10 of the existing temporary ones and making them 
permanent. There are only 22 weeks left in session this year. We should 
get moving if we are going to fulfill our constitutional responsibility 
and help the President fill these vacancies.
  In the first 2 months of this year, the Senate has only confirmed 
four judicial nominations--two a month. Incidentally, having waited for 
some time to even have their hearings and have their vote, they were 
voted overwhelmingly. Two of them were confirmed by votes of 98-0, 
which makes one wonder why in Heaven's name they were held up so long. 
The other two did have opposition. They had two votes against them: 96 
for them, 2 against them. Again, one wonders what held them up so long. 
In fact, they had all been reported favorably last year, or, as someone 
pointed out, last century, and voted on favorably this century. There 
are still three very important nominees reported last year to be taken 
up.
  The distinguished majority leader and the distinguished minority 
leader had a colloquy last November 10 talking about them. I fully 
expect them to be voted up or down. The three are Richard Paez, Marsha 
Berzon, and Timothy Dyk. Each has waited more than 23 months for Senate 
action. The Los Angeles Times calls Judge Paez the Cal Ripken of 
judicial nominations. This distinguished Hispanic, a man with one of 
the highest ratings ever to come before the Senate, one of the most 
sterling backgrounds of any nominee by either Republicans or Democrats, 
this distinguished jurist has waited more than 4 years. That is 
unforgivable. We should do our constitutional duty and vote up or vote 
down, not vote maybe.
  I am glad the majority leader has agreed to bring them to a Senate 
vote before the Ides of March. The nominees deserve to be treated with 
dignity and dispatch, not delayed for years.
  Judge Paez has been pending for over 4 years. He has the strong 
support of his home State Senators and of local law enforcement. He has 
had a distinguished judicial career in which he has served as a State 
and Federal judge for I believe 19 years. His is a wonderful American 
story of hard work, fairness, and public service. He and his family 
have much of which they can be proud. Hispanic organizations from 
California and around the country have urged the Senate to act 
favorably and soon.
  I hope we do the right thing when we are called upon to vote. As I 
recall, when Judge Sonia Sotomayor, another outstanding district court 
judge, was nominated to the Second Circuit and her nomination was 
delayed by this Senate, apparently she was so extremely well qualified, 
some feared if we confirmed her too quickly, she might possibly be 
considered as a Supreme Court nominee, and that is why she was held up 
through all kinds of secret holds. It was not the Senate's finest 
moment. In fact, after all the delay in Judge Sonia Sotomayor's case, 
it was interesting that not a single Senator who voted against her 
confirmation and not a single Senator who delayed her confirmation 
uttered a single word against her.
  Any Senator can vote as he or she sees fit, but I hope in the case of 
Judge Richard Paez, where his nomination has been delayed for over 4 
years--the longest period in the history of the Senate--that those who 
have opposed him will show him the courtesy of using this time to 
discuss with us any concerns they may have and explain the basis for 
the negative vote against a person so well qualified for this position.
  I believe we should come to a vote on Timothy Dyk. We should have 
done so long before now. He was first nominated to a Federal vacancy in 
April of 1998. After having a hearing and being reported favorably, the 
Senate in September 1998 left without action. The President had to 
resubmit the name. He was renominated in January 1999, favorably 
reported again in October 1999.
  Again, he is a man with a tremendous background. He is the only 
person I can remember clerking for three Supreme Court Justices. He is 
supported by the U.S. Chamber of Commerce, the National Association of 
Manufacturers, and others. I hope we will get on with this nomination.
  I look forward to the Senate finally approving the nomination of 
Marsha Berzon to the Ninth Circuit Court of Appeals. One-quarter of the 
active judgeships authorized for that court have been kept vacant for 
several years. The Judicial Conference recently requested that Ninth 
Circuit judgeships be increased, in light of its workload, by an 
additional five judges. That means that while Ms. Berzon and several 
other nominees have been waiting for confirmation, the court actually 
has been doing its work with 10 fewer judges than it needs.
  Marsha Berzon is an outstanding nominee. She is an exceptional lawyer 
with extensive appellate practice, including a number of cases heard by 
the Supreme Court. She has the highest rating from the American Bar 
Association and the support of both the Senators from California.
  It may well be coincidence, as someone suggests, that if you are a 
woman or a minority, you take a lot longer getting through the Senate. 
That is the way it has been the last 5 years.
  The Chief Justice of the United States Supreme Court said:

       Some current nominees have been waiting a considerable time 
     for a Senate Judiciary

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     Committee vote or a final floor vote. . . . The Senate is 
     surely under no obligation to confirm any particular nominee, 
     but after the necessary time for inquiry, it should vote him 
     up or vote him down.

  Which is exactly what I would like.
  We had one minority nominee, an extremely well-qualified individual, 
Jorge Rangel. He became tired of waiting. He got into this block of, if 
you are a minority or a woman, one seems to take longer. He said to the 
President:

       Our judicial system depends on men and women of good will 
     who agree to serve when asked to do so. But public service 
     asks too much when those of us who answer the call to service 
     are subjected to a confirmation process dominated by 
     interminable delays and inaction. Patience has its virtue, 
     but it also has its limits.

  Jorge Rangel withdrew.
  All three of the nominees reported last year and before have been 
extremely patient. Each remains among the 10 longest pending judicial 
nominations before the Senate, and one has waited the longest of 
anybody in the Senate's history.
  Some say, if it is a Presidential election year, we have to slow 
things down--the so-called Thurmond rule. Sure, if we are within a 
couple months of a Presidential election, we might slow things down. 
But before people justify the fact we have only moved four judges this 
year, I remind my colleagues of what happened in Presidential election 
years past.
  Let's take a few of the Presidential election years since I have been 
here: 1980 was a Presidential election year. We confirmed 64 judges 
that year; 1984 was a Presidential election year, and we confirmed 44 
judges that year.
  Let me take 1988, when President Reagan was at the end of his second 
term, as much of a lame duck as one could possibly be. There was a 
Democratic majority in the Senate. We could have done the same thing to 
President Reagan that the Republicans have been doing for years to 
President Clinton, but instead we confirmed 42 of his nominees.
  A better example: In 1992, under President Bush, when he was about to 
become a lame duck President, during a Presidential election year, 
where Democrats were in the majority, we confirmed 66 judges, as 
compared to the 4 who have been confirmed this year. At the end of 
President Bush's term, with Democrats in the majority, we confirmed 66.
  My friend from New York may be interested in knowing that in 1996, 
again at the end of the first term of President Clinton, where 
Republicans were in the majority--do you know how many were confirmed? 
Seventeen. Democrats confirmed 66 of a Republican President's nominees; 
Republicans confirmed 17 of a Democrat President's nominees.
  What happens is qualified nominees, such as Richard Paez or Marsha 
Berzon or Tim Dyk, instead of being treated with dignity and dispatch, 
are delayed for years--or those like Jorge Rangel, they say: We cannot 
put up with the delay anymore. We withdraw our name.
  Then we have to understand what this does to people who have offered 
themselves for this public service. But we have to also ask: What does 
it do to the independence of our Federal judiciary, the independence 
that is praised worldwide?
  So if Judge Fuentes is confirmed this afternoon, as I fully expect he 
will, I congratulate him because he will be the first judicial 
nomination both reported by the Judiciary Committee and confirmed by 
the Senate this year.
  I would hope that would give some indication that we might move 
forward with the nominations of Richard Paez, Marsha Berzon and Tim Dyk 
from years past, as well.
  I am glad we are finally going to have the opportunity on this 
extremely well-qualified nominee to move forward to the Third Circuit. 
We will move forward on Judge Julio Fuentes, as I say, an outstanding 
Hispanic nominee, an outstanding American, to the Federal judiciary.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, first, I thank my colleague from New 
Hampshire for allowing me to speak for a brief period of time before 
him. I saw those books piled up on his desk and realized if I did not 
get my words in now, I might not ever get them in.
  I very much appreciate his graciousness.
  I also thank my colleague from Vermont for, as usual, his intelligent 
and considerate words. I also thank the chairman of our Judiciary 
Committee for bringing this nomination forward and for, just as 
importantly, announcing he will support the nomination of Judge Paez.
  Mr. President, first, I rise in support of the nomination of Judges 
Paez, Berzon, Fuentes, and Dyk. But, more importantly, I rise to talk 
about the process very briefly. For instance, we do not have any 
problem with the Senator from New Hampshire debating, to the end, 
whether Judge Paez should be a judge. We have a problem that he had to 
wait 4\1/2\ years to do it.
  The basic issue of holding up judgeships is the issue before us, not 
the qualifications of judges, which we can always debate. The problem 
is it takes so long for us to debate those qualifications. It is an 
example of Government not fulfilling its constitutional mandate because 
the President nominates, and we are charged with voting on the 
nominees.
  The Constitution does not say if the Congress is controlled by a 
different party than the President there shall be no judges chosen. But 
that is sometimes how the majority has functioned.
  Second, by not filling vacancies, we hamper the judiciary's ability 
to fulfill its own constitutional duties.
  Our courts--my own in New York State--have large backlogs. We have 
three vacancies in New York: One in the eastern district; two in the 
southern district. We had four, and I thank the chairman of the 
Judiciary Committee for approving George Daniels last week. But we 
still have vacancies.
  I also plead with my colleagues to move judges with alacrity--vote 
them up or down. But this delay makes a mockery of the Constitution, 
makes a mockery of the fact that we are here working, and makes a 
mockery of the lives of very sincere people who have put themselves 
forward to be judges and then they hang out there in limbo.
  Judge Paez, Judge Berzon, Judge Dyk, and Judge Fuentes are extremely 
qualified. I urge all of my colleagues, at long last, to vote for their 
confirmation.
  Again, I very much appreciate the Senator from New Hampshire for 
allowing me to speak for this brief moment.
  I yield back my time.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SMITH of New Hampshire. Mr. President, I was very much intrigued 
by the remarks of my colleagues from New York and Vermont a few moments 
ago, talking about how we should move on in the process and that there 
does not seem to be much of a history of blocking nominees and that it 
is not good for the constitutional process.
  I think the constitutional process is very clear that the Senate has 
the right and the responsibility, under the Constitution, to advise and 
consent. That is exactly what I intend to do in my role as a Senator as 
it pertains to these two nominees before us.
  Let me summarize where I think we are on the issue of judicial 
nominees in general.
  It is no secret that I am opposed to Judge Berzon and Judge Paez, as 
many of my colleagues on this side of the aisle are, I hope. At least 
that is what I am told.
  The issue, though, is whether it is OK to block judicial nominees. We 
have heard from a couple of my colleagues in the last few moments that 
it isn't OK to block judicial nominees, as if there was something 
unconstitutional about it. There is thinking among some that we should 
not start down this path of blocking a judicial nominee whom we do not 
think is a good nominee for the court because it may come back to haunt 
us at some point when and if a Republican should be elected to the 
Presidency.
  Let me say, with all due respect to my colleagues, I am not starting 
down any new path. The tradition of the Senate is one of blocking 
judicial nominees in the final year of an administration. I am going to 
be very specific and

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prove exactly my point that we are not starting down any new path. The 
path is well worn. We are following a path; we are not starting down 
any new path.
  I am going to go back to 1992, since that is the most relevant year 
for this discussion, the final year of the Bush administration.
  How did the Senate treat judicial nominees? Facts are sometimes 
pretty devilish things. They do point out the truth. They are pretty 
hard to discredit. Let's look at the facts.
  There was only one controversial judicial nominee considered the 
entire year in 1992--in fact, only one rollcall vote, period, on 
judicial nominees. Why is that? That is no big deal. They voted the 
only one that came up. That is the point. Why didn't they come up? With 
all due respect to my colleagues from Vermont and New York, it is 
called blocking the nomination. It is called bottling them up in 
committee. It is called not bringing them to the floor. Let's be 
specific.
  In 1992, we had a nominee by the name of Edward Carnes. He was 
nominated to the Eleventh Circuit. There were no fewer than three full 
votes in the Senate on one nominee: A motion to proceed, followed by a 
filibuster, a 66-30 cloture vote, and finally, on September 9, 1992, 
approval--a long process for this one judge. But other than that one 
nominee who was, in fact, filibustered, there was nothing--no action, 
no debate, no nothing--on the floor of the Senate. All other 
controversial nominees were filibustered in committee under the 
Democrat leadership in the Senate.
  Sure, the Senate approved nominees here or there. I admit that. But 
if we define ``controversial'' as having at least a rollcall vote, 
there weren't any.
  What about the controversial ones? Let's take a look at a few. Let me 
stick with the appeals court since that is what we are dealing with 
today with Judges Berzon and Paez. In April of 1990, President George 
Bush nominated Kenneth J. Ryskamp to the Eleventh Circuit. Mr. Ryskamp 
was opposed by none other than civil rights activists, and the 
Judiciary Committee bottled up the nomination of Mr. Ryskamp for an 
entire year. At the end of the year, they sent the nomination back to 
President Bush, and Mr. Ryskamp was resubmitted but never made it.
  Don't come here on the floor and tell me that if I want to block 
Judge Paez or Judge Berzon, somehow I am going down some new path. I am 
not going down any new path. I am following the tradition and precedent 
of this Senate. Those who did that in 1992 had every right to do it 
under Senate rules and under the Constitution, as I do today and as I 
intend to do on these nominations.
  In September of 1991, President Bush nominated Franklin S. Van 
Antwerpen of Pennsylvania to the Third Circuit. The nomination was 
blocked in committee for the entire final year of the Bush Presidency. 
It never saw the light of day. In November of 1991, President Bush 
nominated Lillian R. BeVier, a conservative from Virginia who had 
testified for Robert Bork. That was her first mistake. Lord help us, 
she was a conservative, No. 1, in the Democrat years here. No. 2, she 
testified on behalf of Robert Bork. She was nominated to the Fourth 
Circuit. Guess what happened to her. Her nomination languished for a 
whole year. Finally, the committee deep-sixed her at the end of the 
Bush Presidency--gone, didn't see the light of day. I guess that was 
unconstitutional. If it is unconstitutional now, surely it was 
unconstitutional then.
  Of course, it is not unconstitutional. You have that right. On the 
same day, President Bush nominated Terrence W. Boyle to the Fourth 
Circuit. Again, the chairman put a hold on the nomination for an entire 
year. It languished in the darkness of Judiciary and never saw the 
light of day.
  Here is an article from 1992. It says: ``North Carolina Judge One of 
50 Bush Court Nominations that Won't be Approved.'' It talks about the 
intentional strategy of Chairman Biden to delay and kill Bush nominees 
because of the likely Clinton victory. That speaks for itself.
  Here are a few lines from the news service, September 28, 1992:

       Men and women named by President Bush to 50 vacant 
     judgeships will not be confirmed by the Senate this year, 
     leaving Republicans and Democrats pointing fingers of blame 
     at each other. The nominees who must be approved by the 
     Senate Judiciary Committee include Terrence W. Boyle, 46, a 
     U.S. District Court Judge in Elizabeth City who was proposed 
     for a seat on the U.S. Circuit Court of Appeals. Last week, 
     Senator Joe Biden, Democrat of Delaware, who chairs the 
     panel, said no additional hearings on nominations will take 
     place this year. With Congress expected to adjourn for the 
     year next Monday and Democratic presidential candidate Bill 
     Clinton ahead in the polls, many Republicans fear the 
     nominees will never be approved and charged Biden with 
     intentionally delaying the process.
       South Carolina Senator Strom Thurmond, highest ranking 
     Republican on the panel, said he had asked Biden earlier this 
     year to increase the number of hearings and the number of 
     nominees considered at each hearing. This was not done and we 
     are now out of time, he said. ``It's got partisan written all 
     over it,'' said Andy Wright, political director of the North 
     Carolina Republican Party. Biden, Wright said, is ``taking 
     advantage of an opportunity. He knows what power he has.'' 
     But a Judiciary Committee aide rejected charges that the 
     panel has initially stalled progress on the nominees, saying 
     the committee had approved ``a record number of nominees in a 
     presidential election year when the Senate and White House 
     were controlled by different parties.''

  Well, they are controlled by different parties. The thing is 
reversed.
  They go on to explain that ``the Senate had approved 59 Bush 
nominees,'' so forth and so on.
  The point is, this is not new ground; this is old ground we are 
walking.
  In November of 1991, George Bush nominated Frank Keating of Oklahoma 
to the Tenth Circuit. It was blocked for the entire year. It died 2 
years later at the end of the Bush Presidency.
  Let me read an article from the Philadelphia Tribune entitled 
``Shelving of Keating Nomination Pleases Rights Groups.'' The 
nomination wasn't defeated by the Senate. It was shelved by the 
committee. A group of liberal organizations opposed him, and the 
committee buried the nomination.

       National civil rights groups like the NAACP Legal Defense 
     Fund, National Fair Housing Alliance, Children's Legal 
     Defense Fund, are still smiling as a result of the U.S. 
     Senate Judiciary Committee's decision not to vote on the 
     nomination of Francis Keating for a judgeship on the Tenth 
     U.S. Circuit Court of Appeals.
       This means that Keating's nomination and the fate of 50 
     other judicial nominees still under consideration by the 
     committee will have to wait until January when the Senate is 
     scheduled to come back into session.

  It goes on to discuss this nomination--again, a nomination killed in 
committee by the other party. Controversial, never saw the light of 
day. New ground? I don't think so.
  In January of 1992, President George Bush nominated Sidney Fitzwater 
to the Fifth Circuit. Same old story: Nomination languishes, a whole 
year goes by and the nomination dies.
  Here is a story from the Texas Lawyer entitled ``Judiciary Panel 
Kills Texans' Nominations.'' This is American Lawyer Newspapers Group, 
October 1992:

       Surprised? Hardly. ``It's an every four-year occurrence,'' 
     said U.S. District Judge Lucius D. Bunton, III of Midland, 
     Texas, chief of Texas' Western District.
       As spring turns to summer in presidential election years, 
     the party out of power at the White House traditionally 
     throws up roadblocks to slow a process that in normal times 
     confirms most candidates automatically. In addition to the 
     expected slowdown, those close to the process from both 
     parties say Governor Bill Clinton's lead in the polls has 
     prompted Democrats to delay judicial confirmations in hopes 
     of preserving the vacancies of the presidential candidate.

  Again, they have the right to do that. They did do it, and they did 
it effectively. So when we come out here to do it now because of two 
very liberal activist judges, why should we be criticized for 
exercising our rights under the process? If you disagree with us on the 
basis of why we are objecting, fine. But don't pontificate on the floor 
of the Senate and tell me that somehow I am violating the Constitution 
of the United States of America by blocking a judge or filibustering a 
judge that I don't think deserves to be on the circuit court because I 
am going to continue to do it at every opportunity I believe a judge 
should not be on that court. That is my responsibility. That is my 
advise and consent role, and I intend to exercise it. I don't 
appreciate

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being told that somehow I am violating the Constitution of the United 
States. I swore to uphold that Constitution, and I am doing it now by 
standing up and saying what I am saying.
  The same day in 1992, Bush nominated John G. Roberts of Maryland to 
the D.C. circuit. That was filed in the same old black hole with the 
rest of them. Congress adjourned; the nomination was blocked, end of 
story. Another nomination in January of 1992 was blocked in committee 
and killed at the end of the Presidency. Justin Wilson, nominated in 
May of 1992, was killed by committee. Here is an article, September of 
1992: ``Outlook grim for Wilson nomination,'' from the Gannett News 
Service.
  Byline by Lacrisha Butler, this article says:

       Nashville lawyer Justin Wilson's nomination to fill a 
     vacancy on the U.S. Sixth Circuit Court, which has been 
     pending in the Senate committee for 6 months, is among more 
     than 100 Federal judge nominations still awaiting action 
     before Congress adjourns in early October.
       And it appears unlikely that Wilson's nomination will see 
     action before the session ends, because of snags in his 
     background check and what is being called an attempt by 
     Democrats to hold up nominations in anticipation of a change 
     in administration.

  Again, this is not new ground. This is a role the Senate has played 
for years, decades. It is an appropriate role if we believe a 
nomination, or the other side believes a nomination might be too far to 
the left or right--depending on which side you are.
  Mr. President, this is just one year of the Presidency I am talking 
about. I have only dealt with 1992 when circuit court nominees were 
blocked in committee. I could have gone back further into the Bush 
Presidency. I could have gone back into other Presidencies. I didn't do 
that, but these are filibusters. When you don't allow a nomination to 
get to the Senate floor--it may not be under the technical term 
``filibuster,'' but when you block it, that is a filibuster. You are 
not getting it here and you can't talk about it if it isn't up here. If 
it is languishing in committee, then we are not going to be able to 
debate it, approve it, or reject it. No matter how you shake it, they 
were filibusters led by committee chairmen rather than the majority 
leader on the floor.
  If you want precedent for floor filibusters--I have heard it said 
there is no history of filibusters on the Senate floor. OK, they have 
been in committee; we stopped them in committee. All right. Well, let 
me read this:

       On July 2, 1999, Senate Judiciary Committee ranking member 
     Patrick Leahy issued a statement claiming, ``I cannot recall 
     a judicial nomination being filibustered ever.''

  OK. Mr. President, I have 1, 2, 3, 4, 5, 6, 7, 8 volumes of the 
Congressional Record, Senate proceedings, and not every word is of the 
filibuster, but in each volume is a filibuster of 4 judicial 
nominations, both political parties, since 1968--4 out of 13. So out of 
13 judges who have been filibustered on the floor of this Senate since 
1968, these volumes here, 8 volumes, represents only 4 of the 13. Yet 
the ranking member of the Judiciary Committee says he can't ever recall 
a filibuster being offered.
  As a challenge to my friend from Vermont, if he comes down and says 
it again, I am going to read every word of these filibusters on the 
floor of the Senate and filibuster these nominations by doing it. If he 
doesn't come down or retract that statement, I won't. If he comes down 
and says he can't ever remember a filibuster taking place on the floor 
of this Senate, I am going to read every word of just these four. If he 
continues to aggravate me, I might read all 13 of them, if I can dig 
out the information.
  Let's get real and understand what is happening. The names are Abe 
Fortas in 1968; William Rehnquist, who sat in that chair and was 
praised by all during the impeachment trial, was filibustered by 
Senator Birch Bayh. There are volumes and volumes, hundreds of pages 
here of that filibuster. I am prepared to read every word of it if he 
wants to say there have been no filibusters.
  Stephen Breyer was filibustered; J. Harvie Wilkinson, Sidney 
Fitzwater, Daniel Manion in 1985, Edward Carnes, Rosemary Barkett, H. 
Lee Sarokin--there are 13 of them.
  So don't tell me we haven't filibustered judges and that we don't 
have the right to filibuster judges on the floor of the Senate. Of 
course we do. That is our constitutional role. Some like it. And I have 
been on the other side. Listen, I wasn't in the Senate when it 
disapproved Robert Bork, but we lost one heck of a good judge. Clarence 
Thomas wasn't filibustered, but he sure was debated. I didn't like that 
either. But it is our right as Senators to do that. So don't criticize 
our right to do these things and don't say things didn't happen that 
did happen.
  Now, let me move to the question at hand, which is the Ninth Circuit, 
where we have the nominations of Judges Paez and Berzon for the Ninth 
Circuit Court of Appeals. We need to understand this circuit is a very 
controversial circuit. Not only is it a controversial circuit, it is a 
renegade circuit. It basically is out of the mainstream of American 
jurisprudence. It is interesting that this circuit has been reversed by 
the Supreme Court--get this--in nearly 90 percent of the cases decided 
in the past 6 years. Let that sink in for a moment. Ninety percent of 
the decisions made by the circuit court in this Ninth Circuit have been 
reversed by the U.S. Supreme Court, the next highest court. What does 
that tell you about the judges on that court?
  Mr. REID. Will the Senator from New Hampshire yield for a brief time?
  Mr. SMITH of New Hampshire. Yes.
  Mr. REID. Mr. President, I would like to have a colloquy between the 
two of us based on some statements made to this point. If I could say 
to my friend--and there is nobody in the Senate I have more respect for 
than the Senator from New Hampshire. We have served together on the 
MIA/POW Committee, and for many years, until he became a full committee 
chairman, we served as the two leaders of our parties with the Ethics 
Committee. I have the greatest respect for the Senator. I say, of 
course, he has a right to filibuster if that is what he chooses. Since 
the time I have been in the Senate, there have been a number of 
occasions when there has been, if not a filibuster, at least a delaying 
of judicial nominees. That is part of the tradition of the Senate. I 
have no problem with that.
  I say, though, to my friend that the year the Senator has talked 
about in some detail--1992--holds the record for confirming more judges 
than during any other presidential election year. Sixty-six judges were 
confirmed at that time. That is when we had a Democratic Senate and a 
Republican President. So that year, 1992, should stand out as an 
example of how you can move these nominees, in spite of the fact that 
you have a majority of one party in the Senate, and the other party is 
represented in the Presidency. I will not take a lot of time, but I 
want the record to reflect that in 1996 we only had 17 confirmations.
  So I think what we have been able to do in 1988 and 1992 when we got 
42 nominees and 66, which is an all-time record--there is no question 
because I was there then. Toward the end of the session, there were a 
lot of nominees who didn't come forward. There was a line drawn and 
they said no more. Some were submitted too late.
  What I am saying to my friend is that in addition to what I have just 
said, we now have 30 nominations pending. Once they get out of 
committee, let's bring them here and vote up or down on them. I don't 
know Richard Paez. I talked to him on the phone. I have talked to his 
mother. I think anybody who has to wait 4 years deserves an up-or-down 
vote.
  I say to my friend that if there is something wrong with Judge Paez 
or Ms. Berzon, come out here and vote them down. But I think we need to 
move forward with these nominations as quickly as we can.
  I can only say to my dear friend from New Hampshire that the State of 
Nevada for 14 years has been the fastest growing State in the Union. We 
have tremendous problems with the administration of justice. At this 
time, when the Senator and I are speaking, we are short four judges. It 
is not Senator Leahy's fault, it is not Senator

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Hatch's fault, that these are not being voted on now. They are in the 
pipeline, so to speak. But we are desperate for judges. That is the way 
it is in other parts of the country.
  We really need to move forward. I understand the Senator's feelings 
on the Ninth Circuit. I have heard them expressed several times today: 
It is too big. It is unwieldy. They have been reversed too much. That 
is a problem. I think we need to do something about it.
  I would be happy to join with my friend. A number of Senators were 
really upset about this a number of years ago. The commission was 
appointed led by Justice White. He made recommendations. I think that 
is a starting point as to how we resolve it.
  I close by saying, yes, there were people in 1992 who were not given 
the chance to vote. Keep in mind that the record for the Senate in 
1992--when we had a Republican President and a Democratic Senate--is 
that we approved 66 nominees. There were 17 in 1996 when there was a 
Democratic President and a Republican Senate.
  Mr. SMITH of New Hampshire. Mr. President, let me say to my colleague 
that I don't disagree with what he just said as far as the numbers are 
concerned. I point out that I am really referring here to controversial 
nominees. When a nominee has some controversy about him or her, if it 
gets to the floor, there are normally quite a few discussions; i.e., a 
filibuster. There were no votes. There was only one vote in the year 
1992 on a controversial judge. That was filibustered. It eventually 
passed the nomination under the Bush Presidency. But it was 
filibustered and substantially debated.
  That is the point I was making. Most of the nominees I listed and 
referred to languished for a whole year in the committee. I am not 
criticizing the Senator and his party for what they did then. They have 
a right to do that. I might not agree because I perhaps would have 
supported the judges. But I think you have the right to do it. I think 
we have a responsibility to the President of the United States duly 
elected by the American people. I think in our advice and consent role, 
we have an obligation to confirm some of those judges, especially those 
who are not controversial. But I think on those controversial judges, 
we should have the right to be able to air the concerns.
  I don't want to speak at great length on this because I know one of 
my colleagues--perhaps Senator Sessions--wishes to do that.
  But in the case of Paez, for example, I don't know that the American 
people are aware he has been involved in two decisions pertaining 
directly to the Clinton scandals. Why don't you get both of those 
decisions, the Marya Hsia case, for one, and the John Huang case? In 
both of those cases, the sentencing was lenient--perhaps as lenient as 
it could be.
  I think those questions ought to be answered. I think we should know 
the answers to those questions about what happened before we put this 
person on the circuit court.
  I tend to agree that to simply hold somebody up forever and never let 
them know how it is going to be resolved is very unfortunate for the 
individual. I tend to agree. But these are serious questions. When I 
say ``filibuster,'' I use the term in the sense of right now because 
the rule is pretty fairly restrictive. We have 48 hours after the 
motion is filed for cloture and, at the most, 30 hours after that. So 
we are not talking forever. But we are talking about just venting and 
airing concerns. That is what I am doing with both the Ninth Circuit as 
well as two individuals to which I will speak more directly in detail 
on Thursday.
  It is not pleasant to stand here and criticize and air concerns you 
have about people who are wanting to move up to another level on the 
court. But I think we have an obligation to air our concerns. 
Certainly, concerns are aired about us when we run for our respective 
offices.
  I think it is fair that as to judges who are appointed forever, who 
will be making decisions long after we are out of here, probably when 
our children are coming into voting age, or our grandchildren, whatever 
the case may be--these judges may still be here long after the 
President leaves--we have a responsibility to look very carefully at 
them. If they are active as judges and are making decisions that are 
being overturned almost 90 percent of the time in the case of the 
current court--I am not saying that would necessarily be the case of 
the two nominees, but the court itself has a very undistinguished 
record, in my view.
  Mr. REID. If the Senator will yield with his right to have the floor, 
I agree. If there is a Senator who believes there is a problem with any 
judge, whether it is the one we are going to vote on at 5 o'clock or 
the two we are going to vote on tomorrow, or Thursday, they have every 
right to come to talk at whatever length they want. But with Judge 
Paez, it has been 4 years. There has been ample opportunity to talk 
about this man. He has bipartisan support. I have no problem with 
people talking about the decisions he has rendered. He has been a judge 
for about 18 years in State and Federal courts. I think there has been 
an exhaustive review of those.
  If the Senator from Alabama, who has a fine legal mind and is former 
attorney general of Alabama, and the Senator from New Hampshire, who 
has had wide-ranging experience in government and in the Senate and 
House of Representatives, want to talk, more power to them. My only 
point is, 4 years is too long.
  I also repeat some of the things the ranking member of the committee 
has said. It is a myth that judges are not traditionally confirmed in 
Presidential election years. It is simply not true. Recall that in 
1980, a Presidential election year, 64 judges were confirmed; in 1984, 
44; in 1988--we talked about that when we had a Democrat Senate and 
Republican President--42 were confirmed; in 1992, we had 66. That is 
the record. I think that really says a lot.
  When we had President Bush and a Democratic majority, and a 
significant majority, we could have stalled things. We approved 66 
nominees--I repeat that for the record--whereas, in President Clinton's 
last year of his first term, 17 were approved. That is really not fair.
  My point is that we need to move these along. I think as part of the 
legacy of the Republican leadership of this Congress, you can't hold 
your heads high when you have up to this point confirmed three or four 
nominees. You need to move up and have 40, 50, or 60. Otherwise, I 
think you are not fulfilling the need the country has to take care of 
the tremendous backlog of 30 pending judges and probably 35 or 40 more 
in the pipeline as we speak.
  I hope Senator Sessions and Senator Smith of New Hampshire, who are 
both very fine legislators, will say all they want to say negative or 
positive about the nominees. But let us move forward and vote on them.
  I again repeat, I don't think it is a good legacy for the Republican 
leadership of the Senate to break a record that you certainly don't 
want to break; that is, in the country that is rapidly growing with all 
kinds of Federal crimes being committed, we have fewer judges to do the 
job. It is very desperate.
  In the State of Nevada, a fine judge in the prime of his judicial 
life and a senior judge took senior status. It was the only way we 
could get another judge. It is that way all over the country.
  I have no problem, I repeat, with what the Senator is doing. I think 
it is commendable.
  I also think when we talk about the Ninth Circuit, which I have 
defended, I have, as I have stated, I guess some could say, a conflict 
of interest because one of my two sons was administrative assistant to 
the chief judge and my other boy is presently working there. It is a 
circuit in which I live and practice law. Let Members not denigrate 
that circuit.
  Of course, they have so many cases; and it is true, their reversal 
rate is high. They decided almost 5,000 cases in a year. Out of 
approximately 5,000 cases, they have had about 12 or 14 reversals. That 
is not so bad. The cases

[[Page 2135]]

that are taken up are ripe for the Supreme Court because they are in 
conflict with other circuits.
  That reversal rate has improved. The numbers, as indicated by Senator 
Murkowski earlier today, are from another year.
  I think criticism of the Ninth Circuit is certainly in order. Go 
ahead and criticize the Ninth Circuit. As far as the Senator doing 
anything unconstitutional, it isn't even close. The Senator has every 
right to do what he is doing.
  I appreciate very much the courtesy of the Senator. He did not have 
to allow me to speak out of order. I know the Senator has a lot to say.
  Mr. SMITH of New Hampshire. I appreciate my colleague's remarks and 
will yield to him at any time.
  I will respond briefly to my colleague because I think he is correct 
on the numbers. I think the numbers speak for themselves. I believe 
there were some 66 nominations brought through during the Bush years. 
This is not about the number of people. I think it is a fairly 
reasonable assessment to say if those nominations came through in 1992 
or from 1989 through the end of the term in 1993, it is likely they 
were not very controversial. There was no debate, really. They were 
pretty much unanimously agreed to.
  We are talking about two issues: One is the controversial nature of 
the judges involved; two, the controversial nature of the Ninth 
Circuit. Both the Ninth Circuit and the judges are in and of themselves 
controversial. In the case of the one vote the Democrats in 1992 
brought forth, although it did win, it was a controversial nomination. 
I think Judge Paez, with all due respect, and Judge Berzon, are 
controversial nominations. Clearly, the Ninth Circuit is controversial.
  I have agreed with the majority leader; if he chooses to accept, I 
have indicated I am willing to limit the debate on Thursday to about 5 
hours total time on our side to discuss these nominations. I am not 
blocking for the sake of blocking. I am trying to make some points that 
I hope will result in the rejection of these nominees.
  I will discuss this Ninth Circuit and the reversals. As I said, from 
1994 to 2000, 85 of 99 decisions--86 percent--by the Ninth Circuit were 
reversed by the Supreme Court.
  What kind of a record is that? What kind of knowledge of the law does 
this indicate when the Supreme Court could overturn 86 percent of the 
cases in the last 6 years and, as I said, 90 percent of the cases 
overall?
  To be specific, in 1999 to 2000, 7 of 7--100 percent of the cases set 
down by this court--were overturned by the Supreme Court. There are 
four more pending now that are being challenged. I will not go into the 
details of each case, but U.S. v. Locke, Rice v. Cavetano, Roe v. 
Flores-Warden, U.S. v. Martinez-Salazar, Smith v. Robbins, Gutierrez v. 
Ada, Los Angeles Police Department v. United Recording Publication--all 
of those were overturned, all 7 of 7.
  From 1998 to 1999, during that year, 13 of 18 of the decisions of 
this court, 72 percent, were overturned by the Supreme Court--reversed.
  From 1997 to 1998, 14 of 17 were overturned by the Supreme Court, 82 
percent of the cases.
  From 1996 to 1997, 27 of 28 cases were overturned, 96 percent of the 
cases overturned.
  From 1995 to 1996, 10 of 12, 83 percent, were overturned.
  And on and on and on.
  I have the documentations of these cases.
  The bottom line is the Ninth Circuit is notorious for its antilaw 
enforcement record, its frequent creation of new rights for criminals 
and defendants, often in the face of clearly established law.
  These two judges we now are debating, I believe based on their own 
records and comments and paper trail, are going to be act the same. 
They will be making the same kinds of decisions.
  It is an embarrassment to have 90 percent of the cases overturned. In 
my view, it shows, frankly, an ignorance of the law, or certainly a 
disrespect for the Constitution in some way to get that many cases 
overturned by the Supreme Court.
  The Ninth Circuit, as I said before, is a renegade circuit. It is out 
of the mainstream of American jurisprudence. It has been reversed by 
the Supreme Court 90 percent of the time, 84 of 98 cases. That is 
terrible.
  It routinely issues activist opinions. While the Supreme Court has 
been able to correct some of the worst abuses, the record is replete 
with antidemocratic, antibusiness, procriminal decisions which distort 
the legitimate concerns and democratic participation of the residents 
of the Ninth Circuit.
  To give a couple of examples of the more outrageous decisions: 
Striking down the NEA decency standard, creating a right to die, 
blocking abortion parental consent law, and a slew of obstructionist 
death penalty decisions.
  The Senate, and particularly Republican Senators from the Ninth 
Circuit, are on record in favor of a split of the circuit they are so 
upset with this. In 1997, all Republicans voted against an amendment to 
strike a provision to split the circuit. That is how outrageous these 
decisions have been. Even the independent White commission recommended 
a substantial overhaul of the circuit's procedures; it still has not 
been implemented. We are adding two liberal, very activist judges to 
this circuit, without any of the reforms that have been called for by 
many.
  The Ninth Circuit covers 38 percent of this country, more than twice 
as much as any other circuit. It covers 50 million people. President 
Clinton has already appointed 10 judges to this circuit. Democrat 
appointees comprise 15 of the 22 slots currently occupied.
  I say to the American people who may be listening right now, judges 
impact our lives big time in the decisions they make. Citizens complain 
about the violence and the criminals getting out. We hear all the 
stories about somebody serving 5 years for murder and going out and 
killing somebody else; or somebody stalking, serving a little time, and 
stalking and killing the woman he stalked before because he didn't 
spend enough time in jail, over and over again.
  This is not by accident. These are bad judges making bad decisions 
that cost Americans their liberties, cost them their lives sometimes. 
That is wrong.
  We have an obligation in the Senate to take a good, hard look at a 
lifetime appointment to the circuit. The members are there forever, 
even when they get real old. It is pretty hard to get rid of them. This 
is a lifetime appointment.
  We have a responsibility to make darn sure these judges are going to 
represent the views of the majority of the American people in terms of 
the law. I intend to do that as long as I can stand here to do it.
  Let me briefly hit two points on the two judges in question and then 
make a couple of other points and wrap up. The U.S. Chamber of Commerce 
is officially opposed to the nomination of Paez. In Berzon's case, the 
nomination was described by the National Right to Work Committee as the 
worst judicial nomination President Clinton has ever made.
  I am going to go into more detail on Thursday on the Ninth Circuit 
and its anti-law enforcement record, for its frequent creation of new 
rights for criminals and defendants, often in the face of clearly 
established law. For that reason alone, we should look very carefully 
and very cautiously at whom we put on that court.
  For instance, in Morales v. California, 1996, the Ninth Circuit 
struck down the California State law governing when defendants could 
present claims during habeas corpus appeals which had not been made 
during the appeals in the State courts. According to the California-
based Criminal Justice Legal Foundation, this holding ``opened the door 
to a flood of claims that would be barred anywhere else in the 
country.''
  In United States v. Watts in 1996, the Supreme Court issued summary 
reversals in two cases without even hearing arguments after the Ninth 
Circuit allowed past acquittals to be considered during sentencing.
  This is just silliness in terms of the obvious intent of the law and 
the Constitution.

[[Page 2136]]

  I will conclude, I say to my colleagues who may be prepared to speak, 
on this point. These judges are activist judges who are going to 
promote an agenda on the Ninth Circuit that has already been rejected 
90 percent of the time by the U.S. Supreme Court. Let's not add insult 
to injury by putting two judges on this court, essentially fulfilling 
that promise of continuing that bad judicial policy.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Gorton). The Senator from Nevada.
  Mr. REID. Mr. President, I want to make an observation. We have heard 
a lot about the reversal rate of the Ninth Circuit. There has been a 
lot of talk that the Ninth Circuit's reversal rate in 1996 was some 90 
percent, but that was less than five other circuits' reversal rates of 
100 percent.
  In the 1997-1998 term, the Ninth Circuit's reversal rate was 76 
percent, equivalent to that of the First Circuit and less than other 
circuits because those circuits continued to have a 100-percent 
reversal rate.
  In the 1998-1999 term, the Ninth Circuit's reversal rate was 78 
percent, which was far less than several other circuits.
  The point I am making is the Ninth Circuit decides thousands of 
cases, and they acknowledge, we acknowledge, everyone acknowledges, 
that 12 to 14 cases are reversed. That is not bad. Remember, the 
Supreme Court picks cases they believe will make good law, and that is 
why all these other circuits have a huge reversal rate. That is the way 
it is. That is the job of the U.S. Supreme Court, to look at these 
circuits and find cases it believes deserve to be interpreted one way 
or the other.
  I hope my friends do not continue harping on the 90-percent reversal 
rate. It is lower than other circuits.
  Also, Judges Paez and Berzon are qualified to sit on the court. I 
went over at some length earlier today the qualifications of Judge 
Paez, with whom I have spoken on the telephone, and I have talked with 
his mother. I do not have that same familiarity with Judge Berzon.
  These are nominations that should go forward. These are good people 
who deserve the attention of the Senate. Certainly, Paez, after 4 
years, deserves an up-or-down vote. I hope we can get to that at the 
earliest possible date. Judge Paez is not going to go away. He is a 
good man who is well educated and has been a judge for 18 years, 13 
years in State court, some 5 years as a Federal district court judge. 
Everyone speaks highly of him, not the least of whom is a member of the 
House Judiciary Committee, a former State judge in California, a devout 
Republican, James Rogan, who supports Paez. He has bipartisan support. 
I hope we can move forward on these as quickly as possible.
  Also, to illustrate what I said earlier, my friend from New Hampshire 
talked about the fact that in 1992 certain judges were not approved. 
More judges were approved in 1992 than in the entire history of the 
country, and we had a Democratic Senate and a Republican President.
  In Presidential election years, we had a large number of judges 
approved.
  Look what happened the last year of President Clinton's first term: 
17 judges. And this year we are starting out worse than that.
  I say to my friends on the other side of the aisle, this is not a 
legacy of which one should be proud. My colleagues need to move these 
nominations. If there are some nominees whom they do not like, vote 
them down or do not bring them forward, but let's get these numbers up 
this year into the fifties or sixties. We need that badly. States all 
over this country are in desperate need of judges, especially at the 
trial level.
  Let's not be so hard on the Ninth Circuit. There are those of us who 
have practiced law in the Ninth Circuit. We are willing to move forward 
and do something to improve it. The Presiding Officer is a person who 
has argued before the Supreme Court--I do not think there is any doubt 
about this--far more times than anybody else in this body. I could be 
wrong, but I doubt it. He certainly understands the appellate process 
very well.
  The Ninth Circuit needs some changes. Justice White, the leader of a 
study commission, sat down and decided what needed to be done. Let's 
start from there and see if we can do something constructive rather 
than berate this appellate division that has 51 million people in it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, you have practiced in the Ninth Circuit. 
So has the distinguished assistant minority leader. There is no doubt 
that over a period of years, the Ninth Circuit has been reversed more 
than any other circuit. Their record of having 27 out of 28 reversed in 
1 year is absolutely unprecedented. It has never been approached by any 
other circuit.
  As a Federal prosecutor who spent 15 years full time in Federal 
court, I can assure my colleagues there is no circuit in America that 
is looked on with less respect on questions of law enforcement than the 
Ninth Circuit. It is the furthest left Circuit in the American 
judiciary, and there is no doubt about it. There are some great people 
there. They are wonderful. I would not mind having them over to my home 
discussing great legal issues, but they have been outside the 
mainstream of American law.
  Mr. REID. Will the Senator yield for a brief question?
  Mr. SESSIONS. Yes.
  Mr. REID. Mr. President, maybe the Senator was busy with his staff, 
but in the 1996-1997 court term, the Ninth Circuit reversal rate was 90 
percent. Five other circuits--the Fifth, Second, Seventh, D.C., and 
Federal Circuit--had a 100-percent reversal rate.
  The only point I am trying to make----
  Mr. SESSIONS. The D.C. Circuit had one case and Federal Circuit had 
one case reviewed by the Supreme Court, whereas the Ninth Circuit had 
27 out of 28 reversed.
  Mr. REID. The point, I say to my friend from Alabama, recognizing the 
different workloads the courts had, the appellate division with 51 
million people has thousands of cases every year.
  Also, the Senator has every right to feel the way he does about the 
Ninth Circuit, but I do not want the Senator's statement to go 
uncontested that reversal rates of other circuits pale in comparison to 
the Ninth Circuit because it is simply not factual.
  Mr. SESSIONS. I do admit, in 1996, it looks as if the D.C. Circuit 
and the First Circuit had one case considered by the Supreme Court and 
it was reversed. D.C. Circuit had one, and it was reversed. And the 
Federal appeals court had one, and it was reversed.
  Let me show you an article from the New York Times.
  Mr. REID. One more thing, and then I promise to leave.
  Mr. SESSIONS. All right.
  Mr. REID. The Senator has not mentioned the Fifth, Second, and 
Seventh Circuits which also were 100 percent reversed.
  Mr. SESSIONS. The Seventh had three cases, and those were reversed. 
Over the 3 years--I have done the numbers--the Ninth Circuit remains 
No. 1 in the number of cases reversed.
  Mr. REID. I appreciate the Senator yielding.
  Mr. SESSIONS. The New York Times had an article some time ago, saying 
this:

       The Ninth Circuit, which sits in San Francisco, remains the 
     country's most liberal appeals court, and there is some 
     evidence that the Supreme Court's conservative majority--

  I would say it is a moderate to conservative majority--

     views it as something of a rogue circuit, especially on 
     questions of criminal law and even more particularly on the 
     death penalty.

  That is from the New York Times, which certainly is not a 
conservative organ, particularly on legal matters. I think they are 
misunderstanding the importance of a lot of legal matters, frankly, but 
that is a comment they made, their observation.
  That is why the Ninth Circuit has been reversed so regularly. As a 
matter of fact, I will mention a little later in my remarks--I believe 
in 1996-1997--there were 17 reversals in that year of the Ninth Circuit 
by a unanimous U.S. Supreme Court. In other words, the liberal and 
conservative members of the Supreme Court, in 17 out of 27 cases 
reversed, unanimously agreed the Ninth

[[Page 2137]]

Circuit was wrong. I think that is a matter that we ought to think 
about.
  I may go into that more because it is important to my analysis of how 
we ought to vote on these nominees.
  There are two purposes for my remarks today. I would like to enter 
into the Record the results of the research I have done on two 
nominees--Mrs. Berzon and Judge Paez--for the Ninth Circuit Court of 
Appeals. My research forms the basis for my opposition to their 
nominations.
  I would like my colleagues who do not sit on the Judiciary Committee, 
as I do, and who were not part of the initial evaluation process of 
these nominees to have the benefit of the full record and my 
observations on it.
  Secondly, I would like to take this opportunity to ask my colleagues 
to consider the points I am raising and to join me in opposition to 
these nominees.
  First, I would like to mention, I believe it is 330 or 340 nominees 
that have been brought forward by the President. Only one of those 300-
plus nominees has been voted down on this floor.
  We now have two nominees that have been held up for some time because 
they have been particularly controversial, and they are nominees to a 
particularly controversial circuit. That is what the Senate ought to 
do. We are not a potted plant. We are not a rubber stamp. We have given 
fair and just consideration to nominee after nominee after nominee of 
this President. We have confirmed his nominees overwhelmingly; 300-
something to 1 have been confirmed to this date.
  In terms of vacancies, nearly half of the vacancies that now exist in 
the Federal courts in this country are because the President has not 
submitted a nomination yet. This Senate cannot vote on a nomination 
when we do not have a nominee. The President is required to nominate. 
He ought to be careful. He ought not to rush in and pick the first name 
that comes out of a hat. But I am just saying that we are close to what 
experts have declared to be a full employment Federal judiciary.
  I do not think that we have a crisis in failing to move nominees. We 
are going to continue to move them. We are going to have other votes on 
nominees this year; some which I will support and others who I will 
oppose.
  I do not believe we ought to take these decisions about how to vote 
on a judicial nominee lightly. Having had to undergo, myself, an 
unsuccessful confirmation process for a Federal judgeship, I know 
better than most the thoughts and feelings these nominees have. That is 
why I always make sure I treat them in a respectful manner. I do not 
believe they are people who are unworthy in a lot of ways. What I 
believe is that their deeply held personal views are such that even 
though I might respect them as a person for those views, I do not 
believe that at this point in time, for this circuit, these nominees 
ought to be approved. I believe that very deeply. That is why I am here 
and share these comments.
  I have done my best to ensure that the concerns I have raised about a 
nominee have been fair and objective over the 3 years I have been in 
this body. I try to ask questions that are appropriate and make sure 
that we are treating people fairly.
  For a variety of reasons, I regrettably have concluded that Berzon 
and Paez should not be confirmed.
  Let me talk about the Ninth Circuit in a fashion that I think is fair 
and gives an overall perspective.
  First, we need to look at the problems that are in existence now in 
this circuit. It is the largest circuit, covering Alaska, Hawaii, the 
State of Washington, Oregon, California, Idaho, Nevada, Arizona, and 
Montana, as well as Guam and the Northern Mariana Islands. This amounts 
to roughly 38 percent of the country's area, approximately 50 million 
people.
  In recent years, this circuit has been singled out to be the subject 
of increased scrutiny by the Supreme Court because of its tendency to 
engage in judicial activism.
  In other words, roughly 20 percent of the American population lives 
in this circuit in which the rule of law is regularly being challenged 
by the issuance of activist opinions by ideologically driven Federal 
judges.
  But do not just take my word for it. We have the article in the New 
York Times describing this circuit that I just quoted. The court's 
conservative majority--five members of the Supreme Court of the United 
States constitutes a majority; they are all not conservatives, a lot of 
them are more moderate judges--they view it as something of a rogue 
circuit. That is strong language, I submit. If you look at the reversal 
figures for the Ninth Circuit, I believe you will tend to agree with 
the assessment made in that article.
  In my experience as a Federal prosecutor, I found that a reliable 
index of a court's performance is the history of the circuit's 
reversals.
  For the benefit of individuals who may be watching this debate at 
home and are not familiar with the workings of the Federal judicial 
system, a reversal rate is simply the measurement of the number of 
times a decision entered by that circuit is being reversed by the U.S. 
Supreme Court--changed or reversed because the lower court's decision 
was incorrect.
  These figures illustrate the instances in which a judge, or in this 
case, a circuit is acting incorrectly. Reversal rates are a warning 
system of judicial activism and judicial error.
  What do the statistics say? Do they lend validity to the New York 
Times charge I just cited? As a matter of fact, a fair reading of the 
reversal figures for this circuit does reveal that year after year, the 
Ninth Circuit leads the Nation in the number of times it is reversed in 
total numbers. It is the highest in percentage.
  By way of illustration, allow me to present the reversal figures for 
the last three terms for which I have the data. In the 1996-1997 term, 
28 cases were reviewed; that is, the Supreme Court agreed to hear 28 
cases that arose out of the Ninth Circuit. Many times the Supreme Court 
does not hear a case unless it is important for them to hear it. They 
hear a case because a circuit rendered an opinion that they believe is 
plainly wrong. They hear a case if a circuit has rendered an opinion 
that is contrary to the other 11 circuit courts of appeals. They think 
there ought to be a uniform answer. So the Supreme Court renders the 
answer and, once it does, every circuit is bound by that answer. But in 
terms of the cases that are being heard by the Eleventh Circuit, 
hundreds, thousands of cases go through that on an annual basis. And 
most of those, even if wrong, will never be reviewed by the Supreme 
Court. The Supreme Court cannot and will not review every wrong case in 
America. It picks those that are most important, that will likely 
perpetuate an error, and tries to correct it and create a uniform 
system of law in the country.
  Again, there were 27 out of 28 cases in 1996. That, in my view, is a 
stunning figure. It is a figure unmatched at any time by any circuit 
anywhere. In the 1997-98 term, the court reviewed 17 opinions and 
reversed 13 of those in the Ninth Circuit. In 1998-99, they reviewed 18 
opinions and reversed 14. And this year, they have only heard, to date, 
six opinions from the Ninth Circuit, and they reversed all six of them.
  This is from an article that appeared in the University of Oregon Law 
Review in 1998. The title of the article was ``Reversed, Vacated and 
Split: The Supreme Court, the Ninth Circuit, and the Congress.'' The 
author, realizing this is an important, newsworthy item, wrote a law 
review on it and said:

       Another interesting phenomenon is that the Supreme Court 
     unanimously agreed--across the political spectrum--that the 
     Ninth Circuit was wrong seventeen times during the [1996-97] 
     term. This is a fairly remarkable record, considering that 
     the rest of the Circuits combined logged in with only twenty 
     unanimous votes, seven of which were affirmances.

  Only 13 unanimous reversals throughout the whole United States, 17 in 
the Ninth Circuit. This circuit is out of step, in my view. In other 
words, over the 3-year span from 1996 through 1999, the Ninth Circuit 
has reversed 54 of 63 cases examined by the U.S. Supreme Court. That 
means that of the cases the Supreme Court has reviewed, the Ninth 
Circuit has been wrong a staggering 86 percent of the time. No

[[Page 2138]]

other circuit in my analysis approaches these kind of numbers.
  If this number were not bad enough on its own, it becomes truly 
appalling when it is compared to the number of reversals in the other 
circuits. Over the same 3-year period in which the Ninth Circuit was 
reversed 54 times, the next highest total number of reversals in any 
circuit was 14 out of 24 cases reviewed occurring in the Eighth Circuit 
and 14 reversals out of 22 cases in the Fifth Circuit.
  In fact, the Ninth Circuit is so substantially wrong so much of the 
time that it even leads in the number of instances in which the U.S. 
Supreme Court is unanimous. Unfortunately, the Supreme Court has a 
limited docket and gets the opportunity to only review a relative 
handful of cases which any of the circuits or the Ninth Circuit 
adjudicates. So while the reversal rates are very revealing on their 
own, they fail in one troubling regard. They are unable to accurately 
quantify the number of activist or just plain wrong decisions that get 
through and become established law in the circuit because they cannot 
be reviewed by the Supreme Court. This is a sobering thought, and it is 
why we need to insist that we will only confirm judges to the Ninth 
Circuit who will move that court into the mainstream of American legal 
thought and not confirm judges who will continue the Ninth Circuit's 
leftward drift. That is the plain duty and responsibility of all of us 
in this body.
  Many of these are just not trivial errors. If it is heard by the U.S. 
Supreme Court, it is a significant error. These reversal figures are 
not being inflated by mere inadvertence. Instead, they are the products 
of a seeming desire by the circuit to make law when the opportunity 
arises. In fact, I will describe one of the cases the Supreme Court has 
reversed in which the Ninth Circuit, without restraints, twisted the 
Constitution to further what appears to me to be their political goals.
  In the case of Washington v. Glucksburg, the Ninth Circuit struck 
down the State of Washington's ban on assisted suicide by reading a 
constitutionally protected ``right to die'' into the 14th amendment. 
The 14th Amendment doesn't say anything about a right to die. I revere 
the text of the Constitution, and I assure my colleagues that there is 
nothing in that amendment that says anything about a right to die. Just 
look it up.
  Despite the clear language of the 14th amendment, the Ninth Circuit 
judges chose to read into it the social policy outcome the circuit 
desired, overturning the will of the people of Washington who had voted 
for this law. That is what we are talking about. We have elected 
representatives in the State of Washington, elected by the democratic 
process, a free vote, held accountable. If they vote wrongly, they can 
be voted out of office. But what about Federal judges who are 
appointed. The only review they ever get is in this Senate. If we 
fail--and we do too often--they just go right on the bench and serve 
for life. No matter how wrong their opinions are, they get to stay in 
there. Who ought to set policy in America if we have a republic? I 
believe this a responsibility of the elected branch, not the lifetime-
appointed branch.
  The reason these issues are important is that it goes to the question 
of fundamental rights of the people to set the standards in America. 
The Ninth Circuit threw out the law that was passed by the legislature 
because the Ninth Circuit judges chose to read into it the social 
policy they desired even though it meant overturning the will of the 
people. This is what we classically call judicial activism. In an 
ironic twist, the Ninth Circuit employed their apparent belief in a 
living Constitution, which is what liberal people say the Constitution 
is, a living document. It is a piece of paper; it is not living. It is 
a contract with the American people entered into by our ancestors. The 
Ninth Circuit evidently said it is a living document, and, ironically, 
they read into this living document a right to die.
  Upon review, the U.S. Supreme Court corrected the Ninth Circuit and 
restored the validity of Washington State's ban on assisted suicide. In 
blunt language, the U.S. Supreme Court reminded the Ninth Circuit that:

       * * * in almost every State--indeed, in almost every 
     Western democracy--it is a crime to assist suicide. The 
     States' assisted suicide bans are not innovations. Rather 
     they are longstanding expressions of the States' commitment 
     to protection and preservation of human life. * * *

  I submit to you, the Supreme Court was directing that language to 
them directly. The judges on that circuit knew that was a rebuke, in my 
opinion. In fact, the Supreme Court further used the Glucksburg case to 
illustrate just how far out of the mainstream the Ninth Circuit is. The 
Supreme Court wrote further:

       Here * * * we are confronted with a consistent and almost 
     universal tradition that has long rejected the asserted 
     right, and continues to explicitly reject it today, even for 
     terminally ill, mentally competent adults. To hold for the 
     respondents [the way the Ninth Circuit did] we would have to 
     reverse centuries of legal doctrine and practice, and strike 
     down the considered policy choice of almost every state.

  But these unelected judges, with lifetime appointments, in no way 
accountable to the American people, just blithely go in there and wipe 
out the right, the statute of the State of Washington, and claim that 
the 14th amendment to the Constitution of the United States directed 
them to do so. And that is bogus because there is nothing in the 14th 
amendment that says anything of the kind. They got busted by the U.S. 
Supreme Court for it. That is just one of the cases. This is a recent 
one, and that is the reason I quoted it.
  Glucksburg does not stand by itself on this dishonorable list of 
activist Ninth Circuit opinions that have been struck down, of course, 
but it is a perfect illustration of judicial arrogance that seems to 
permeate many judges, particularly in this circuit, and it helps frame 
the point that many of us who care about maintaining the rule of law in 
this country constantly make. We have a responsibility as Senators to 
ensure that the judicial branch is composed of individuals who will 
faithfully interpret the Constitution and the laws of this country. If 
we have doubts about a nominee's ability to do that, then we have a 
responsibility, a constitutional duty, if you will, under our advise 
and consent power to reject the nominee.
  The President has the power to nominate, but we are given the power 
to advise and consent, which means in effect, in the words of the 
Constitution, we have a right to reject a nominee if we do not consent.
  While statistics and written opinions are useful in looking at this 
troubled circuit, they do not get to the heart of the matter in that 
they don't answer the fundamental question as to why this circuit 
behaves in such an aberrational manner. I have looked at these issues 
and what legal analysts have said, and I want to share findings with 
you. Essentially, my findings strongly support an argument that one of 
the core problems with the Ninth Circuit is its composition of judges.
  The Oregon State Bar Bulletin, in 1997, identified the current 
composition of judges on the Ninth Circuit as a primary cause of the 
circuit's extraordinarily high reversal rate. In fact, the author 
found:

       There is probably an element of truth to the claim that the 
     Ninth Circuit has a relatively higher proportion of liberal 
     judges than other circuits. . . .

  Furthermore, the analysis concluded:

       The effect of the Carter appointments is that, relative to 
     other circuits, there is a greater likelihood that a Ninth 
     Circuit panel will be comprised mostly of liberals. This may 
     result in decisions in some substantive areas that are out of 
     step with the current thinking of the Supreme Court and other 
     circuits.

  In other words, when you have a substantial number on there, and a 
panel is randomly selected of three judges to hear a case, that is the 
way they do it. Three of the 20-some other judges will be selected to 
be on the panel. All three of them could be activist selectees. So the 
opinion may not even really speak for the Ninth Circuit. That points 
out again how important it is that we have a balance on the circuit to 
avoid panels routinely coming up that are out of step with mainstream 
legal thinking of the Supreme Court and other circuits throughout the 
United States.

[[Page 2139]]

  One of the big reasons for this is, there was a major expansion of 
the size of the Ninth Circuit during President Carter's administration. 
It allowed him to make a number of appointments--an incredibly large 
number of appointments--and now we see that President Clinton has 
similarly successfully appointed a large number. Of the 23 judges that 
are active on the circuit, Democratic Presidents have appointed 15 of 
them. In fact, President Clinton has already appointed 10 and confirmed 
them to this circuit, and he has 5 additional nominees, including Paez 
and Berzon, awaiting Senate action, giving him the opportunity to have 
personally, himself, appointed 15 of the 28 judges.
  So it is easy to see why activists and liberals are interested and 
chomping at the bit to push these nominations through, so it will 
solidify the stranglehold that Democrats and liberal activists have on 
this court. In fact, this is the impetus that drives me to believe we 
need to and are justified in reviewing more carefully nominees to this 
circuit. It is all right for there to be Democrats and for people to be 
liberal; every judicial nominee who has come up here since the Clinton 
Administration took office has been a Democrat and liberal. But the 
question for these nominees is: Will they remain disciplined and honor 
the law? Do they have a history and a tendency to impose their will 
under the guise of interpreting law? This is the fundamental question 
we have to answer.
  I voted against Raymond Fisher to the circuit last year as I believed 
he was an activist nominee who would perpetuate this circuit's leftward 
drift, and I was joined by 28 colleagues in opposition to that 
nomination. I was able to support the nomination of Ronald Gould to the 
circuit after reviewing his record and hearing him in the Judiciary 
Committee. I believed him to be someone who was likely to serve as a 
moderating force to temper the activism of this circuit, and I believed 
his nomination was proof that my efforts, which I communicated to the 
White House, to begin sending moderate nominees forward was beginning 
to pay off. Regrettably, however, neither Judge Paez nor Mrs. Berzon 
meets that standard. I do not believe they will restore balance. As a 
matter of fact, I believe their nominations represent a further move to 
the left.
  Let's talk about Judge Paez. I don't have anything against him 
personally. He is a fine man, and he has a fine family. But it should 
be noted that both of these nominees, Berzon and Paez, were 
controversial even in the Judiciary Committee. Both came out of the 
committee with only a 10-8 vote--pretty unusual--which is the highest 
level of opposition any judicial nomination faced in the committee. 
This vote reflected serious concerns committee members have with regard 
to the records these two nominees have compiled over their careers. In 
my opinion, the record of each indicates that confirming them to this 
circuit would be like adding fuel to the fire.
  I want to begin this discussion by focusing first on Judge Paez. 
First, he is, in fact, a self-proclaimed activist. This is remarkable. 
If there is one thing the Ninth Circuit does not need, it is a nominee 
who will maintain activist traditions. However, his own words show that 
he is just that. First, he called himself a person with ``liberal 
political views.'' While this is hardly incriminating in itself, these 
statements do indicate some of the tendencies he might have. In his own 
words, he described his judicial philosophy as including an 
appreciation for--I will read this to you and ask you to think about 
these words carefully. This is from the Los Angeles daily Journal:

       The need of the courts to act when they must, when the 
     issue has been generated as a result of the failure of the 
     political process to resolve a certain political question. . 
     . .

  So as a failure, in his view, of the political process to resolve a 
certain political question, the courts can act, and they must act.
  He goes on to say:

     because in such an instance [Paez explained] ``there's no 
     choice but for the courts to resolve the question that 
     perhaps ideally and preferably should be resolved through the 
     legislative process.''

  Now, that is a statement by an already sitting judge that a judge has 
the power, when a legislative body fails to act, to do what that judge 
believes he must to solve the policy problem before him. I submit to 
you, that is the very definition of what activism by the judiciary is.
  Think about this. When a legislative body fails to act, it has made a 
decision just as certainly as if it had decided to act. A decision not 
to act is a decision. It is a decision made by elected representatives, 
and if the people who send them to Washington or to the State 
legislature don't agree, they can remove them from office. But can you 
remove a Federal judge who declares he has a right to act when the 
legislature does not? Can you remove that person? No, you cannot, under 
the Constitution, because he has a lifetime appointment with no ability 
to be reviewed whatsoever. That is one of the most thunderous powers 
ever given by our Founding Fathers, I have to say. In many ways, it 
works well. Judges are free, for the most part--Federal judges who I 
have practiced before for 15 years during the majority of my career as 
a professional lawyer in Federal court, almost entirely. I respect 
Federal judges. But when you have a Federal judge who has an activist 
mentality, who believes that he or she has the power to solve political 
questions when the legislature does not act, you have the makings of a 
rogue jurist, and you cannot contain that person. It costs litigants 
thousands and thousands of dollars to appeal their rulings. They cannot 
always get to the Supreme Court. The Supreme Court is too busy. Even if 
they have a bad ruling, they can't always get there to get it reversed. 
Sometimes they are just stuck by these rulings no matter what they do.
  That is wrong. That is a philosophy of adjudication that is false. It 
is precisely what Americans are concerned about. It should not be 
affirmed by this body in approving this judge to a circuit that is 
already out of control, in my opinion.
  The record indicates that the judge is hostile to law enforcement. We 
have to be careful about that. I prosecuted many years, as I said. A 
judge can rule against a prosecutor, and he cannot appeal. If he rules 
against a defendant, the defendant can appeal.
  Mrs. BOXER. Mr. President, will the Senator yield for a question on 
this very point?
  Mr. SESSIONS. Very well.
  Mrs. BOXER. I thank my friend.
  Is the Senator aware that Judge Paez has been endorsed by the 
National Association of Police Organizations, Executive Director Robert 
Skully, the Los Angeles Police Protective League Board president, the 
Los Angeles County Police Chief Association, the Los Angeles 
Association of Deputy Sheriffs, the commissioner of the California 
Department of Highway Patrol, and a whole host of Republicans and 
Democrats alike in law enforcement and on the bench?
  I am surprised that my friend would make the statement that the judge 
is hostile to law enforcement when, in fact, he has tremendous support 
from law enforcement.
  Mr. SESSIONS. Mr. President, I was going to mention a few reasons for 
that.
  I believe his record would indicate that he is not going to provide 
the kind of balanced adjudication that would be required in law 
enforcement matters.
  For example, shortly after the judge was nominated, Los Angeles 
newspapers--I know the Senator supported his nomination, or was 
responsible perhaps for it--were filled with quotes made by his 
supporters. One supporter happened to be Ramona Ripston, the executive 
director of the American Civil Liberties Union of Southern California. 
Now, I would like to state for the Record that I doubt that the ACLU 
shares my concerns about the Ninth Circuit's activist bent. In any 
event, Ms. Ripston welcomed Paez' nomination to the Federal Bench 
describing Judge Paez as: ``A welcome break after all the pro-law 
enforcement people we've seen appointed to the state and federal 
courts''.
  From the ACLU's position, Ms. Ripston's support for Judge Paez 
appears to be well-justified, as Judge

[[Page 2140]]

Paez soon began to issue anti-law enforcement opinions. One case in 
point involved the case of Los Angeles Alliance for Survival v. City of 
Los Angeles, in which Judge Paez granted an injunction sought by the 
ACLU which prohibited the city's ordinance prohibiting aggressive 
panhandling from taking effect.
  The city had an ordinance against aggressive panhandling passed by 
the people of Los Angeles. And a judge just up and threw it out, and 
said it was unconstitutional; no matter what you pass, I am the judge; 
no good, out.
  The ordinance, incidentally, was passed following the stabbing death 
of an individual who would not give a panhandler 25 cents. In his 
decision, Judge Paez viewed the Los Angeles ordinance as ``facially 
invalid'' under the ``Liberty of Speech Clause''--I don't know exactly 
what that is. But the ``Liberty of Speech Clause'' is found in the 
California's State Constitution.
  Listen to how one legal commentator described the judge's ruling:

       Judge Paez struck down the law as an unconstitutional 
     restriction on ``speech'' and issued a preliminary injunction 
     against its enforcement. He found that the ordinance 
     constituted ``content based discrimination'' because it 
     applied only to people soliciting money. Just hope Judge Paez 
     doesn't get his hands on any laws against extortion, bribery 
     or robbery. ``Stick 'em up'' could become Constitutionally 
     protected speech in certain parts of California . . . The 
     identical law has been upheld in other parts of California by 
     other federal judges, but thanks to Judge Paez, the ordinance 
     lawfully enacted over two years ago has yet to be enforced in 
     Los Angeles.

  The PRESIDING OFFICER. All time for the opponents of the nomination 
has expired. The time between now and 5 o'clock belongs to the 
proponents.
  Mr. SESSIONS. I would ask unanimous for one minute.
  Mrs. BOXER. Reserving the right to object, and, of course, I shall 
not object, we would like one minute on our side as well. Senator 
Kennedy and I will divide the time.
  Thank you.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I point out in that case the Ninth 
Circuit asked the California Supreme Court for an advisory opinion. The 
California Supreme Court reversed Judge Paez' opinion, finding it to be 
erroneous, and condemned Judge Paez's ruling in exceptional strident 
terms stating:

       As noted above, the regulation of solicitation long has 
     been recognized as being within the government's police 
     power. . . . If, as plaintiffs suggest, lawmakers cannot 
     distinguish properly between solicitation for immediate 
     exchange of money and other kinds of speech, then it may be 
     impossible to tailor legislation in this area in a manner 
     that avoids rendering that legislation impermissibly 
     overinclusive. In our view, a court [Judge Paez] should avoid 
     a constitutional interpretation that so severely would 
     constrain the legitimate exercise of government authority in 
     an area in which such regulation long has been acknowledged 
     as appropriate.

  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, will you let me know when I have used 
seven minutes? The rest of the time will be yielded to Senator Kennedy.
  Mr. President, I am very pleased to be here.
  Finally, we are debating the nominations of Richard Paez and Marsha 
Berzon, two eminently qualified people for the Ninth Circuit. We have 
heard a lot of complaining about the Ninth Circuit. I think it is 
important to note that many of the opinions cited on the other side of 
the aisle as being overturned were written by Reagan appointees.
  This isn't about politics. This is about allowing a court to function 
for the justices, whether they are appointed by Ronald Reagan, or 
George Bush, or Bill Clinton, to give it their best judgment. We have 
nominated two people who would add a tremendous amount to the Ninth 
Circuit.
  Instead of the negativity we have heard today, I want to put a human 
face on these two nominees who have waited so long for this day.
  The first one I want to talk about is Marsha Berzon. I have a photo. 
Here is Marsha with her husband and children.
  There is a reason I have done this. I think it is important when we 
hear about the candidates; they have kind of become statistics. People 
talk about how many years it has taken.
  Here is Marsha. Here is her family. I want to talk a little bit about 
this eminently qualified woman. She is an outstanding woman. She has 
displayed in her career a strong sense of integrity, dedication, and 
compassion, the very characteristics we should expect any Federal judge 
to have.
  She has built a distinguished career as an attorney, and beyond that 
she has shown through her activities in the community a real caring and 
concern. She is an impassioned teacher and a published author. She is a 
wife and mom. She is an extraordinary person who deserves confirmation.
  I am not going to go through all of her incredible accolades through 
college and law school because I have a feeling we will be talking 
about these nominees at length at another time.
  I will talk a little bit about her experience with Federal court 
issues. She specializes in U.S. Supreme Court representation. She has 
argued four cases before the Supreme Court and has submitted over 100 
briefs to the Court on behalf of a broad spectrum of cases. In the past 
5 years, she has acted as chief counsel on five Supreme Court cases, as 
well as cocounsel before the Court on numerous other occasions.
  This is the kind of support that Marsha Berzon has. Let me read what 
Senator Hatch wrote in her favor.

       I am impressed by Miss Berzon's intellect, accomplishments 
     and the respect she has earned from labor lawyers 
     representing both management and the unions.

  I do appreciate Senator Hatch's kind words and his decisive action in 
behalf of Marsha Berzon.
  Former Republican Senator James McClure of Idaho, in support of 
Marsha, stated:

       What becomes clear is that Miss Berzon's intellect, 
     experience, and unquestioned integrity have led to strong and 
     bipartisan support for her appointment.

  Mr. President, the gentleman who ran against me the first time I ran 
for Congress in 1982, Dennis McQuaid, a Republican attorney, said:

       Unlike some advocates, Ms. Berzon enjoys a representation 
     devoid of any remotely partisan agenda.

  He goes on to say:

       Frankly, her presence will enhance the reputation of the 
     ninth circuit.

  We can go on and on with quotes from her opposing counsel. She has 
support from the Los Angeles County Professional Peace Officers 
Association. They wrote that she is analytical, fair and thorough.
  When it comes to Marsha Berzon, I hope we will have a tremendous vote 
for her. She deserves that vote. She has waited 2 years. I hope she 
will get it.
  Equally important and equally wonderful in terms of a nomination that 
stands on its own merit is Judge Richard Paez. Look at this man. He has 
been on the bench for many years. Behind him are photographs of his 
children. He has been married for many years, another wonderful family 
man and a wonderful jurist.
  This Senate has already confirmed Richard Paez to a seat on the 
district court, and he has shown himself to be an incredible jurist. I 
don't have time to go through all the accolades. He was the first 
Mexican American on that particular bench in Los Angeles. He has won 
the respect of law enforcement, attorneys practicing in his courtrooms, 
and local scholars.
  When Members poke holes in Richard's record, we will have time in the 
next 2 days to respond to every single example because there has been 
tremendous misstatement.
  In the remaining short time I have, I will quote lawyers who have 
appeared before him. These are anonymous quotations that appeared in a 
review.

       He is a wonderful judge. He is outstanding. He rates a 12 
     or 13 on a scale of 10.

  Another:

       He is highly competent, one of the smartest people on the 
     bench; thoughtful and reflective.

  Another:

       I don't know anyone here who hasn't been exceedingly 
     impressed by him. He does a great job.


[[Page 2141]]


  Another:

       He is very well represented. He knows more about a case 
     than the lawyers will.

  And another:

       He has a great temperament. He never says or does anything 
     that is off. He has a very good demeanor. He is professional. 
     He doesn't have any quirks. He is very fair. He has a sense 
     of justice.

  It goes on.
  Mr. President, we have some terrific editorials in behalf of Judge 
Paez that at another time I will have printed in the Record.
  In closing this particular brief presentation, I thank my colleagues 
for listening. We have two incredible nominees deserving a yes vote. I 
hope we can all celebrate when this is behind us and as a Senate 
confirm these two excellent people.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. I yield myself 6 minutes.
  I ask my friend and colleague from California, there was reference 
made on the Senate floor a few moments ago about a Los Angeles Daily 
Journal article that reviewed a variety of Judge Paez's rulings, which 
I think is fair to point out.
  I wonder whether the Senator could confirm that in that Daily Journal 
review, seven cases were selected by the Los Angeles Daily Journal that 
would most effectively test the ability of Judge Paez to serve on the 
Ninth Circuit. The Journal asked 15 experts, including a fair balance 
of liberal and conservative law professors and attorneys, to evaluate 
Judge Paez's legal rulings. The Journal concluded:

       The portrait that emerged is of a thoughtful, unbiased, 
     even-tempered judge, propelled into the political spotlight, 
     only to be trapped into a seemingly never-ending and bitterly 
     polarized nomination process. . . . Of the 15 legal experts 
     who examined Paez's ruling for the Daily Journal, 13 praised 
     them, using descriptions such as ``clear, concise, and 
     straightforward,'' ``clearly written and carefully 
     reasoned,'' and ``scholarly and thorough.''

  This is the import of the Los Angeles Daily Journal, as I understand. 
One could draw, perhaps, a different conclusion from the earlier 
references.
  Would the Senator agree my characterization was a more accurate 
characterization than referenced earlier?
  Mrs. BOXER. The Senator from Massachusetts is correct. I quote from 
the headlines in this paper: ``Paez's Opinions Praised as Well-
Reasoned.'' Another says, ``Experts Say His Rulings Will Stand the Test 
of Time.''
  My friend is right; this is a positive story. I think if every 
Senator read this story, there would be no question he should be 
confirmed.
  Mr. KENNEDY. It was a reference to an objective evaluation. In that 
evaluation, the reviewers came to the same conclusion that the Bar 
Association arrived at, which was that the cause of justice in the 
Ninth Circuit would be well served and the people highly served with 
his confirmation.
  I join with my friend and colleague from California, as well as 
others, in urging the favorable consideration of Marsha Berzon and 
Richard Paez for the Ninth Circuit Court of Appeals. They are 
exceptional nominees who have waited far too long for action.
  The delay in reviewing the nominations is a case study in the failure 
of the Senate to deal effectively with judicial nominations. That 
failure has left the courts with 29 judicial emergencies, and is the 
result of the Senate's adbication of its constitutional responsibility 
to act on judicial nominees.
  Marsha Berzon, as the Senator has pointed out, is an outstanding 
attorney. She is a graduate of Harvard/Radcliffe College and the 
University of California Law School. She clerked for the Ninth Circuit 
Court of Appeals and the U.S. Supreme Court--rare commendations for a 
young lawyer.
  Nationally known as an appellate litigator in a highly regarded San 
Francisco law firm, she has written more than 100 briefs and petitions. 
She received strong recommendations from a bipartisan list of 
supporters, from major law enforcement organizations, and from those 
who have opposed her in court.
  As our chairman, Senator Hatch, commented last June, Marsha Berzon 
``is one of the best lawyers I've ever seen.''
  It reflects poorly on the Senate that such a gifted lawyer was denied 
a vote on the Senate for so long.
  The Senate's shabby and insulting treatment of Richard Paez is worse. 
He has almost two decades of judicial experience and received the 
highest rating from the American Bar Association. He was first 
nominated more than 4 years ago to serve in the Ninth Circuit. Judge 
Paez graduated from Brigham Young University and Boalt Hall Law School. 
Early in his career, he represented low-income clients. He later served 
in the Los Angeles Municipal Court, and the Los Angeles Superior Court, 
the California Court of Appeals, and 5 years ago he was nominated and 
appointed to the U.S. District Court for the Central District of 
California.
  Clearly, Judge Paez has the experience and the ability to serve with 
great distinction on the Ninth Circuit. He has the support of former 
California state judge and Republican Congressman Jim Rogan, as well as 
the Sheriff, the District Attorney, and the Police Officers Association 
of Los Angeles.
  We rarely have two nominees who are as well qualified with the 
breadth of support these nominees have. We are fortunate to have these 
two nominees who are willing to serve in the judiciary. What they have 
been put through in terms of the failure of this body to act, I think, 
is indeed unfortunate.
  Now we do have that opportunity. I join with all of my colleagues to 
urge the approval of both of these nominees. Since his nomination in 
January 1996, 4 years ago, Judge Paez has been approved by the Senate 
Judiciary Committee twice. Surely he deserves an affirmative vote by 
the full Senate. It is time for the Senate to stop abusing its power.
  Over 200 years ago, the Framers of the Constitution created a system 
of checks and balances to ensure that excessive power is not 
concentrated in any branch of government. The President was given the 
authority to nominate federal judges with the advise and consent the 
Senate. The clear intent was for the Senate to work with the President, 
not against him, in this process.
  In recent years, however, by refusing to take timely action on so 
many of the President's nominees, the Senate has abdicated its 
responsibility.
  Both of these nominees are uniquely well qualified. Both have 
demonstrated outstanding qualities and abilities to serve in the courts 
of this country and serve the cause of justice in this nation. I hope 
both of them will be speedily approved by the Senate.
  At long last the Senate is considering the nominations of Marsha 
Berzon and Richard Paez for the Ninth Circuit Court of Appeals. They 
are both exceptional nominees who have waited far too long for action 
by the Senate. Indeed, the delay in reviewing these nominations is a 
case study in the failure of the Senate to deal effectively with 
judicial nominations. That failure has left the courts with 29 judicial 
emergencies, and is the result of the Senate's abdication of its 
constitutional responsibility to act on judicial nominees.
  Marsha Berzon is an outstanding attorney with an impressive record. 
She is a graduate of Harvard/Radcliffe College and the Boalt Hall Law 
School at the University of California, Berkeley. She clerked for both 
the Ninth Circuit Court of Appeals, and the U.S. Supreme Court.
  She is currently a nationally known appellate litigator with a highly 
regarded San Francisco law firm. She has written more than 100 briefs 
and petitions in the Supreme Court, and has argued four cases there. 
She has received strong recommendations from a bipartisan list of 
supporters, from major law enforcement organizations, and from those 
who have opposed her in court. She has argued in many U.S. Circuit 
Courts of Appeals, U.S. District Courts, and at all levels of the 
California state court system. She has represented numerous private 
clients, as well as the governments of the States of California and 
Hawaii, and the City of Oakland, California. Senator Hatch commented

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last June that Marsha Berzon, ``is one of the best lawyers I've ever 
seen.'' She was first nominated by President Clinton on January 27, 
1998--over two years ago--and it reflects poorly on the Senate that 
such a gifted lawyer was denied a vote by the full Senate for so long.
  The Senate's shabby and insulting treatment of Judge Richard Paez is 
even worse. He has almost two decades of judicial experience. He 
received the highest rating from the American Bar Association, and was 
first nominated more than four years ago--more than four years ago--to 
serve on the Ninth Circuit.
  Judge Paez is a graduate of Brigham Young University and Boalt Hall 
Law School. Early in his career, he represented low income clients. He 
later served on the Los Angeles Municipal Court, the Los Angeles 
Superior Court, and the California Court of Appeals. Five years ago, 
Judge Paez was appointed to the United States District Court for the 
Central District of California.
  Clearly, Judge Paez has the experience and the ability to serve with 
great distinction on the Ninth Circuit. He has the support of former 
California state judge and Republican Congressman Jim Rogan, as well as 
the Sheriff, the District Attorney, and the Police Chiefs' Association 
of Los Angeles County.
  Since 1991, Judge Paez has been appointed twice by the chief justice 
of the California Supreme Court to serve as a member of the California 
Judicial Council, the policy-making body for the California judiciary.
  Last month, the Los Angeles Daily Journal reviewed a variety of Judge 
Paez's rulings, and selected seven cases that would most effectively 
test his ability to serve on the Ninth Circuit. The Journal then asked 
fifteen experts, including a fair balance of conservative and liberal 
law professors and attorneys--to evaluate Judge Paez's legal rulings. 
As the Journal concluded,

       The portrait that emerged is of a thoughtful, unbiased and 
     even-tempered judge, propelled into the political spotlight, 
     only to be trapped in a seemingly never-ending and bitterly 
     polarized nomination process. . . . Of the 15 legal experts 
     who examined Paez's rulings for the Daily Journal, 13 praised 
     them, using descriptions such as ``clear, concise and 
     straightforward,'' ``clearly written and carefully 
     reasoned,'' and ``scholarly and thorough.''
  Even the ruling subjected to the greatest scrutiny was complimented 
by other prominent legal experts.
  In its evaluation of Judge Paez, The Almanac of the Federal Judiciary 
notes that attorneys have praised him highly in the following terms. 
They say he is one of the smartest judges on the bench; he rates a 12 
or 13 on a scale of one to 10; he is highly competent; he's very 
professional; and he's always fair. Despite what some contend, he is 
not anti-business, he is not anti-religion. He is a well-respected and 
right-minded judge.
  Since his nomination in January 1996--over four years ago--Judge Paez 
has been approved by the Senate Judiciary Committee twice. Surely, he 
deserves an affirmative vote by the full Senate.
  It is time for the Senate to stop abusing its power over nominations. 
Over 200 years ago, the Framers of the Constitution created a system of 
checks and balances to ensure that excessive power was not concentrated 
in any branch of government. The President was given the authority to 
nominate federal judges with the advice and consent of the Senate.
  The clear intent was for the Senate to work with the President--not 
against him--in this process. In recent years, however, by refusing to 
take timely action on so many of the President's nominees, the Senate 
has abdicated its responsibility. By doing so, the Senate has seriously 
undermined the judicial branch of our government.
  This kind of partisan stonewalling is irresponsible and unacceptable. 
It's hurting the courts, and it's hurting the country. Chief Justice 
William Rehnquist felt so strongly about the long delays in acting on 
nominees that he sharply criticized the Senate in his 1997 Year-End 
Report,

       Judicial vacancies can contribute to a backlog of cases, 
     undue delays in civil cases, and stopgap measures to shift 
     judicial personnel where they are most needed. Vacancies 
     cannot remain at such high levels indefinitely without 
     eroding the quality of justice that traditionally has been 
     associated with the federal judiciary . . . Whatever the size 
     of the federal judiciary, the president should nominate 
     candidates with reasonable promptness, and the Senate should 
     act within a reasonable time to confirm or reject them . . . 
     The Senate is, of course, very much a part of the appointment 
     process for any Article III judge. One nominated by the 
     President is not ``appointed'' until confirmed by the Senate. 
     The Senate is surely under no obligation to confirm any 
     particular nominee, but after the necessary time for inquiry 
     it should vote him up or vote him down.

  Little has changed since Chief Justice Rehnquist made that statement 
in 1997. For decades, the average time from nomination to a final vote 
on a judicial nominee was 91 days. But in 1998, the delay more than 
doubled--to 232 days. Of the 65 judges confirmed in 1998, only 12 were 
confirmed in 91 days or fewer.
  The trend continued in 1999. As of February 24, 2000, the average 
time between nomination and confirmation in the current Congress is 152 
days.
  In addition, it is women and minorities who have suffered the most 
during the impasse over judicial nominations. According to one study, 
it took an average of 60 days longer for non-whites than whites and 65 
days longer for women than men to be considered by the Senate in the 
last Congress. Minorities have failed to win confirmation at a 35% 
higher rate than white candidates. In 1999, six out of the ten nominees 
who waited the longest were women and minorities.
  While the Senate plays political games with the judiciary, the 
backlog of cases continues to pile up in the courts and undermines our 
judicial system. There are currently 76 vacant federal judgeships. 
Several more are likely to become vacant in the coming months, as more 
and more judges retire from the federal bench. Of the current 
vacancies, 29 have been classified as ``judicial emergencies'' by the 
Judicial Conference of the United States. That means that they have 
been vacant for 18 months or longer. Thirty- four nominees are 
currently waiting for Senate action. Three nominees are pending on the 
Senate floor, 3 are waiting for a vote in Committee, and all the others 
are waiting for a Judiciary Committee hearing. Only four judges have 
been confirmed by the Senate so far this year.
  The effect of Senate inaction is clear. At the circuit court level in 
Texas, the court's workload has increased 65% over the past nine years, 
with no increase in judges and three vacancies. In California in 1997, 
600 hearings had to be canceled because of the large number of 
vacancies. This slowdown in judicial confirmations is jeopardizing the 
integrity and viability of our judicial system.
  The Senate has a constitutional duty to work with the President to 
confirm judicial nominees--particularly at a time when Congress is 
shifting more responsibility to the courts. Members should not use the 
excuse of an election year to stall this process. In 1988 the 
Democratic-controlled Congress confirmed 42 judicial nominees, and in 
1992, they confirmed 66.
  Opponents of Berzon and Paez argue that the high reversal rates of 
the 9th Circuit by the Supreme Court are proof that the Ninth Circuit 
is too liberal. This argument is false and a poor excuse for Republican 
stonewalling. In fact, from 1998 to 1999, five circuits had reversal 
rates higher than or equal to the Ninth Circuit. The Ninth Circuit 
reversal rate was lower than the combined reversal rate of the state 
appellate courts. And from 1996 to 1997--the year that critics point 
to--the Ninth Circuit had lower reversal rates than the Second, Fifth, 
Seventh, D.C., and Federal Circuits. As Chief Judge of the Ninth 
Circuit, Procter Hug, Jr., has written,

       . . . the reversal rate has little to do with the 
     effectiveness of any circuit court of appeals. For example, 
     the 13, 14, or 20 cases reversed in a term were out of 4,500 
     cases decided on the merits in the Ninth Circuit. The 
     reversal rate in any circuit should also have little to do 
     with the nomination or confirmation of judges to fill 
     vacancies on a court.

  The Senate has a constitutional obligation to fill the existing 
judicial vacancies. After such long delays, a vote

[[Page 2143]]

in favor of Marsha Berzon and Richard Paez would be a significant step 
in the right direction. I urge my colleagues to support both of these 
highly qualified nominees.
  Mr. DOMENICI. Mr. President, I rise today to announce that I intend 
to vote to confirm Judge Richard Paez to the Ninth Circuit. Judge Paez 
has waited four years for this vote, and I believe that the time has 
come for the Senate to perform its constitutional duty to advise and 
consent on this nomination.
  I have reviewed Judge Paez's record, including some of the issues 
which have proven controversial over the last four years, and am 
satisfied that he has adequately responded to the concerns raised by 
some in this body about his fitness to serve on the Ninth Circuit.
  Particularly, Judge Paez has expressed his regret about commenting 
publicly about two California ballot initiatives while he served on the 
federal bench. Affirmative action and welfare benefits for illegal 
immigrants are two issues which inspire passion in many people on both 
sides of the political aisle. While I understand, but do not 
necessarily agree with Judge Paez's comments and concerns about these 
two initiatives, I think he also knows that he made a mistake. That 
mistake should not prevent his elevation to the appellate court.
  I also have reviewed several of Judge Paez's more controversial 
opinions. While I cannot say that I agree with some of his legal 
conclusions, I do believe that he has a well-deserved, bi-partisan 
reputation for fairness, and for being a thoughtful, scholarly jurist. 
His fifteen years as a municipal and federal district court judge will 
serve him well on the Ninth Circuit.
  Mr. President, Judge Paez has earned bi-partisan support from a 
variety of sources. Not only is he universally supported by the 
Hispanic community, but he also has received the endorsement of law 
enforcement officials, district attorneys and the business trial bar in 
California. I believe we have taken enough time to study Judge Paez's 
record on and off the bench. Despite the fact that Judge Paez and I 
come from opposite ideological positions, I am ready to join a majority 
of this body, Democrats and Republicans, in support of his 
confirmation. Thank you and I yield the floor.
  Mr. SPECTER. Mr. President, this afternoon the Senate takes up the 
nominations of Ms. Marsha Berzon and also Judge Richard A. Paez. These 
nominations have been pending in the Judiciary Committee for a 
considerable period of time. I supported both of those nominees in 
moving them to the floor from the Judiciary Committee.
  Ms. Berzon has an outstanding record academically and as a practicing 
lawyer. She received her bachelor's degree from Harvard and Radcliffe 
colleges in 1966. She received her J.D. degree, doctorate of law, from 
the University of California, Boalt Hall School of Law in 1973. 
Thereafter, she clerked for Ninth Circuit Judge James R. Browning and 
then for Supreme Court Justice William J. Brennan.
  She has been in the practice of law since 1975 and most recently, 
from 1978 to the present time, with the firm of Altshuler, Berzon, 
Nussbaum, Berzon & Rubin, where she has had a very active litigation 
practice. She argued four cases before the Supreme Court of the United 
States, which is a large number of cases for a practicing lawyer to 
have before the Supreme Court.
  That kind of appellate practice is a strong indicator of her 
preparation for work as an appellate court judge on the Ninth Circuit 
to which she has been nominated.
  There have been objections raised to Ms. Berzon on ideological 
grounds. It is my view that this kind of a challenge ought not to be a 
basis for defeating a nomination to the Federal court.
  She has opposed as a personal matter the death penalty, as many 
nominees do on a personal level, but has stated her willingness to 
follow the law in imposing the death penalty.
  She has been supported by many police organizations, which I 
ordinarily would not mention except that the challenge has been made to 
her qualifications based upon her opposition to the death penalty.
  I think it appropriate to note that she has been supported by a 
number of law enforcement organizations, including the National 
Association of Police Organizations, the California Correctional Peace 
Officers Association, the International Union of Police Associations, 
and the Los Angeles County Professional Police Officers Association.
  I have attended the hearings on Ms. Berzon, which have been very 
detailed. I recall one day the hearing was interrupted. We came to the 
floor to vote and later continued the hearing in one of the 
Appropriations Committee rooms. On the basis of that hearing and her 
familiarity with the law and her extensive practice, especially her 
appellate practice, I believe she is qualified to be confirmed for the 
Ninth Circuit. Accordingly, I urge my colleagues to support her.
  Judge Richard Paez is also on the list for confirmation. Judge Paez 
brings a distinguished record. He is a graduate of Brigham Young 
University where he received his Bachelor's degree in 1969; a graduate 
from Boalt Hall, University of California at Berkeley in 1972; worked 
for the California Rural Legal Assistance as a staff attorney from 1972 
to 1974; took on work for the next 2 years for the Western Center on 
Law and Poverty as a staff attorney; and from 1976 to 1981 was with the 
Legal Aid Foundation.
  Those are tough jobs, not high-paying jobs. I know from my work as 
district attorney of Philadelphia where I saw public defenders work--
did a volunteer stint many years ago in the public defender's office--I 
know the pay in those positions and I know the nature of the work. It 
is a real contribution.
  From 1981 to 1994, Richard Paez was a judge on the Los Angeles 
municipal court, and from July of 1994 until the present time, he has 
been a U.S. District Judge for the Central District of California.
  A number of objections have been raised to Judge Paez. One, that he 
made a speech in 1995 where he criticized a couple of initiatives in 
California: Initiative 187, on benefits to illegal aliens; and a 
second, No. 209 on affirmative action.
  I don't think a judge gives up his right to freedom of speech when he 
is on the bench. It could be said it would be a little more prudent not 
to speak on matters that might come before the court. But if the matter 
does come before the court, there are many other judges who can 
undertake the litigation matter on recusal. Even if Judge Paez had not 
spoken up on the matters and had such strongly held views, that 
probably would have been an appropriate matter for recusal in any 
event. I don't think speaking up on those matters is a burden or 
inappropriate for his judicial duties. Again, it might be better not to 
do that, but it is not a disqualifier.
  Objections have been raised on two matters where he refused to 
dismiss a case brought against Unocal involving charges of abuse of 
human rights in Bosnia--a pretty tough standard to get a case dismissed 
on a preliminary motion. There again, not a weighty matter which would 
warrant disqualification.
  An issue was raised at him being a municipal court judge handling a 
case involving Operation Rescue where there was an issue of whether he 
stormed off the bench or simply called a recess for a cooling off 
period, and some issue as to how he treated people in the audience who 
were waving Bibles, an issue of whether he threatened to take the 
Bibles away.
  Again, I think the aggregate of these three matters are not 
sufficient to rise to the level of disqualification.
  There is one matter which concerns me and that was a plea bargain 
which Judge Paez handled on a case involving John Huang. I have 
reviewed that matter in some substantial detail on the notes of 
testimony, of the sentencing, and of the Government's brief filed on 
the downward departure and believe that the Government did not present 
all the evidence, all the materials which should have been presented at 
the John Huang sentencing. I have discussed the matter with Judge Paez 
by telephone.
  There has been a pattern on plea bargains where the Department of 
Justice

[[Page 2144]]

has, in my judgment, not done the vigorous, forceful work that a 
prosecutor ought to do in the plea bargain. One of those cases involves 
Dr. Peter Lee, where there were serious charges of espionage. I went to 
California and talked to the Chief Judge Hatter out there about that 
case and found there was insufficient information presented to Judge 
Hatter. I mention that because it is a parallel to the case involving 
John Huang with Judge Paez.
  The Judiciary oversight subcommittee, which I chair, is looking into 
the Huang plea bargain, as we are looking into the Dr. Peter Lee plea 
bargain, as we shall look into other campaign finance matters, 
including the probation of Charlie Trie in the campaign finance case, 
and the probation of Johnny Chung in a campaign finance case. However, 
there were very serious matters which were not presented to Judge Paez. 
The essence of the complaint filed by the Department of Justice 
involved only $7,500 of illegal campaign contributions, and an obtuse, 
obscure reference in the Government's brief to a figure of $156,000 for 
the period covered by the conspiracy, which lasted from 1992 to 1994.
  What the Government did not bring forward was information disclosed 
by the Governmental Affairs Committee that John Huang was involved in 
soliciting $1.6 million which was returned by the Democratic National 
Committee. In that was a $250,000 contribution from a John H. Lee, a 
South Korean businessman, which Huang collected, knowing that Lee was a 
foreign national, and also the Huang solicitation for arranging for Ted 
Sioeng, a foreign businessman, with connections I will not describe on 
the Senate floor, which should have been called to Judge Paez's 
attention.
  After reviewing the records in the case, the notes of testimony at 
sentencing, and what was made available in the Government's memorandum, 
none of these matters were called to Judge Paez's attention.
  I have made a request of Judge Paez, as I made a request of Chief 
Judge Hatter in the Dr. Peter Lee case, to examine the presentence 
report. That is customarily a confidential matter, but Judge Paez said 
on a showing of cause after notification of the parties, that might be 
made available to the Judiciary subcommittee on oversight.
  I make these references to Judge Paez on this state of the record, 
and we are continuing to make the inquiries as to what the Government 
put on as to John Huang, but there is nothing on this record which 
suggests that Judge Paez knew of these other factors, which I think 
would have warranted a very different and a much more substantial 
sentence, just as I think had Chief Judge Hatter been informed about 
the details of Dr. Peter Lee, there would have been a different 
sentence in that espionage case.
  These matters are now ripe for decision by the Senate. There has been 
some suggestion of a further investigation on this matter, but when 
Judge Paez's nomination has been pending since January of 1996, and all 
of the factors on the record demonstrate it was the Government's 
failure, the failure of the Department of Justice to bring these 
matters to the attention of Judge Paez and on the record, he has 
qualifications to be confirmed. I do intend, on this state of the 
record, to support his confirmation.
  The PRESIDING OFFICER. All time has expired.

                          ____________________