[Congressional Record (Bound Edition), Volume 146 (2000), Part 2]
[Senate]
[Pages 2218-2223]
[From the U.S. Government Publishing Office, www.gpo.gov]



                          THE PAEZ NOMINATION

  Mr. SESSIONS. Mr. President, I remain very troubled by this 
nomination. I know it has been pending for a long time because of the 
controversy surrounding the activism of the Ninth Circuit Court of 
Appeals to which Judge Paez has been nominated and by Judge Paez's own 
personal history of activism and his philosophy of judging that 
indicates to me he is quite clearly right along with the leftward group 
in tilt and movement of that circuit. We need to remove that circuit to 
the mainstream, not continue it out in left field, not having it be 
reversed 17 times, unanimously, by the U.S. Supreme Court in 1 year, a 
record that has never been met and probably never will be surpassed by 
any circuit in history. We need to get that circuit in the mainstream 
of law. Judge Paez will keep it out of the mainstream.
  But we have had recent developments. We have been looking into Judge 
Paez's handling and acceptance of the guilty plea of John Huang, in Los 
Angeles, where he is a sitting district judge, Federal court judge. I 
believe there are a number of factors that indicate to me that that was 
not handled properly, not handled according to the highest standards of 
justice and, in fact, the plea bargain and sentence he approved was not 
justified under the law, and that he violated Federal guidelines in 
order to approve a plea bargain that was unacceptable, in my view, as 
to what should have occurred in the disposition of that case.
  So I believe, and I have asked, and I have written the majority 
leader and asked that he pull this nomination off the floor and we be 
allowed to go back to committee and have live witnesses, under oath, to 
find out how it was, out of 34 judges who could have heard the Huang 
case in Los Angeles, that this case got to Judge Paez, the one who was 
already being nominated by the President for a court of appeals that is 
one step below the U.S. Supreme Court. How did it go to him?
  Also, we had the Maria Hsia case that was recently tried here in 
Washington, and she was convicted. I believe there was a mistrial in 
California, but he had that case, too. How did this judge, out of 34, 
get both those cases that had great potential to embarrass the 
President, because this was the key part of the campaign finance 
corruption scandal? John Huang is the guy who raised $1.6 million in 
illegal funds from foreign sources that the Democratic National 
Committee had to return because they were illegally obtained.
  Then he comes in and the Department of Justice, which was urged by 
the chairman of the Judiciary Committee of the Senate and the House, 
Members of this body--we urged the Department of Justice to send a 
special prosecutor to handle this case, and she did, in a number of 
cases; Attorney General Janet Reno did make special appointments.
  Mrs. BOXER. Will the Senator yield for a question?
  Mr. SESSIONS. I will be glad to yield.
  Mrs. BOXER. I hope my friend understands that in the Maria Hsia case 
there were two trials. The campaign trial he is talking about did not 
go to Judge Paez. The trial he had with her had to do with a tax 
evasion case where there was a jury that deadlocked. My friend keeps 
bringing up these cases injecting politics into this. My friend knows 
all these cases are taken on a random basis. My friend knows there are 
rated--
  Mr. SESSIONS. Mr. President, I reclaim the floor. I appreciate the 
question.
  Mrs. BOXER. I want my friend to comment on it.
  The PRESIDING OFFICER. The Senator from Alabama has the floor.
  Mr. SESSIONS. Maria Hsia was indicted in California and charged here. 
She had a hung jury there and was convicted here. That was a critical 
case to the Clinton-Gore administration. It was important to them. She 
had the potential to cooperate and talk.
  At any rate, it still remains odd to me that in these high-profile 
cases about which much has been written in recent weeks, one of which 
was tried here in Washington, Judge Paez got both of them.
  I submit to my colleagues that perhaps that circuit is assigning 
those cases randomly, but this case of John Huang did not come off an 
indictment; it came off a plea bargain. I have a copy of the plea 
bargain which is part of the public record in California. It was signed 
by John Huang, his attorneys, and the prosecutor, a Department of 
Justice employee of Janet Reno who holds her job in Washington at the 
pleasure of the President of the United States, whose campaign was 
involved in this illegality. That is who was making the decision on the 
prosecutorial end.
  To me, the question is whether or not the judge handled himself 
correctly. Some say the judge did not know of all this material and it 
was not his fault; it was the prosecutor's fault. I do believe the 
prosecutors failed in advocating effectively the interests of the 
people of the United States and the rule of law in this case.
  In California, young people every day are getting sent to jail for 15 
years, 20 years, without parole, for dealing in crack cocaine and other 
violations. A guy raises $1.6 million from the Chinese Government and 
launders it into the Democratic National Committee, and what does he 
walk out with? Total probation, not a day in jail. That is wrong.
  This is how they did it. This is a plea agreement. First and 
foremost, a judge is not bound to accept the plea agreement. He does 
not have to accept it. I

[[Page 2219]]

am going to read the language in this agreement that talks about that. 
This is Huang and his attorneys and the U.S. attorney prosecutor. They 
signed this agreement. It says:

       This agreement is not binding on the Court.

  And the court in this case is Judge Paez.

       The United States and you--

  Huang--

     understand that the Court retains complete discretion to 
     accept or reject the agreed-upon disposition provided for in 
     Paragraph 15(f) of this Agreement.

  They had an agreement, but the judge had every right not to accept 
it. It goes on to say:
       In addition, should the Court reject the Agreement and 
     should you thereafter withdraw your guilty plea--

  They said if the judge did not follow this recommendation of 
probation, John Huang could withdraw his plea and go to trial and 
declare his innocence and they would not use anything he said against 
him.
  It goes on to say:

       . . . without prejudice . . . to indictment--

  In your defense.
  It goes on in detail about it. That is normally done. I was a Federal 
prosecutor. I am aware of that.
  They had the deal arranged. They took it to him. He was not given all 
of the facts in the case, but he was given enough facts in the case and 
he was aware of enough facts to reject this plea.
  I want to go over with my colleagues a couple of the items. I 
mentioned them earlier, but this is so critical. This is why we need to 
take some time to pause before we confirm this man for a lifetime 
appointment to a court one step below the U.S. Supreme Court. We waited 
and fought for 4 years as to whether or not he should be confirmed. Now 
we have these new charges pending, and I do not see why in the world we 
cannot be given 3 weeks--just 3 weeks--to inquire into it and make a 
decision.
  This is what he was given. He was given evidence that a substantial 
part of the fraudulent scheme was committed outside the United States 
because this was foreign money. If that is true, the judge was required 
to add two levels to the sentencing. He added no levels to the 
sentencing for that.
  He was told there were 24 illegal contributions spread out over a 
course of 2 years involving multiple overseas corporate entities of 
which June Huang was responsible for soliciting the money and 
reimbursing the contributions. That should have added two to four new 
levels.
  He was an officer and a director in a bank, and as an officer and a 
director, he should have had two levels added for abusing a position of 
public or private trust.
  These are not requests. These are matters at which the judge is 
supposed to look. They are mandates of law. He ignored all of those, 
and that is how the judge came out with a sentence level of 8 and not 
maybe 14 because if it had been a level 9, one more level up, and this 
sentence would have required John Huang to go to jail at least some 
time.
  The Department of Justice did not want him to go to jail. They wanted 
him to have a deal. He spent not one day in jail and pled to a 
contribution to the mayor's race of the city of Los Angeles and did not 
plea to any criminal charge relating to the 1996 Presidential campaign 
and, in fact, I want to note what this plea agreement said. It grants 
him immunity on all of those charges. This is what the agreement said, 
America. Listen to this. This is serious business.
  It said: Judge, if you accept this plea, the prosecutors of the 
United States will not prosecute you, John Huang, for any other 
violations of law other than those laws relating to national security 
or espionage occurring before the date of this agreement signed by you.
  He could have been found to commit murder. Giving blind immunity is a 
very dangerous commitment to make. He could have committed 
embezzlement. He could have committed bribery. He could never be 
prosecuted. He got his probation deal, he walked out of court, and he 
received no time in jail.
  There was no evidence presented in court about the $1.6 million he 
spent in this campaign for the Democratic National Committee, which was 
illegal and had to be returned. None of that came out. It was not a 
plea bargain; it was a wrong plea bargain. He should have looked those 
lawyers in the eye and said: Gentlemen, I have the right to reject this 
plea and I do. This is a matter of national importance. It is a matter 
that goes to the core of justice and our commitment in this country to 
equal justice under law.
  He did not do so. He actually went along with a procedure in which he 
accepted guideline levels that he could not justify and that were 
wrong. He was affirmatively wrong. He maybe should have had more 
evidence, but he had enough to reject this agreement.
  I know my time is up, Mr. President. I believe strongly in this. We 
ought not to be doing this. We ought not to be shoving this through. 
This man ought not to be on the bench until we know precisely how he 
got this case and why, and have him stand up under oath and explain why 
he did not follow the plain guidelines of the law of the United States 
of America. I believe strongly in it. I have voted for an overwhelming 
number of Federal judges put forth by this administration. This 
Congress has rejected only 1 out of over 300-something. This one has 
been controversial from the beginning, and he ought not go forward.
  Mr. President, my time is up, and I yield the floor.
  Mr. HATCH. Mr. President, I support the nominations of Ms. Berzon and 
Judge Paez, and spoke yesterday urging my colleagues to do the same.
  I would hope my remarks prove persuasive. But if they do not, my 
colleagues of course are free to reasonably disagree with my view and 
to cast a vote against these candidates.
  It is quite another story, however, for members of this body to 
frustrate a majority vote on these nominees by forcing a super-majority 
cloture vote.
  I have reached this conclusion after having been part of this process 
for over 20 years now, and having served as Chairman of the Judiciary 
Committee for more than half a decade.
  There are times when legislators must, to be effective, demonstrate 
their mastery of politics. But there are also times when politics--
though available--must be foresworn.
  I am reminded of the great quote of Disraeli, which I will now 
paraphrase--``next to knowing when to seize an opportunity, the most 
important thing is knowing when to forego an advantage.'' I hope my 
colleagues will forego the perceived advantage of a filibuster.
  Simply put, there are certain areas that must be designated as off-
limits from political activity. Statesmanship demands as much. The 
Senate's solemn role in confirming lifetime-appointed Article III 
judges--and the underlying principle that the Senate performs that role 
through the majority vote of its members--are such issues. Nothing less 
depends on the recognition of these principles than the continued, 
untarnished respect in which we hold our third branch of Government.
  On the basis of this principle, I have always tried to be fair, no 
matter the President of the United States or the nominees. Even when I 
have opposed a nominee of the current President, I have voted for 
cloture to stop a filibuster of that nominee. That was the case with 
the nomination of Lee Sarokin.
  To be sure, this body has on occasion engaged in the dubious practice 
of filibusters of judicial nominees. But such episodes have been 
infrequent and, I shall add, unfortunate.
  During a number of occasions in the Reagan and Bush Administrations, 
my colleagues on the other side engaged in filibusters of judicial 
nominees. Frequently, they backed off, ostensibly realizing there were 
enough votes to stop a filibuster.
  And just last year, I watched with sadness as the minority made 
history by filibustering one of its own party's nominees. Forcing a 
cloture vote on Clinton nominee Ted Stewart--who is now acquitting 
himself superbly as a district judge in Utah--reflected nothing more 
than a political gambit to

[[Page 2220]]

force action on other judicial nominees. Fortunately, the effects of 
that filibuster were short-lived, as the minority recognized the errors 
of its ways.
  These unfortunate episodes do not a precedent make. The fact that 
these actions precede us does not establish a roadmap for the Senate's 
handling of future nominations.
  Moreover, these filibusters were limited in number. During some of 
the Reagan and Bush years, I thought our colleagues on the other side 
did some reprehensible things in regard to Reagan and Bush judges. But 
by and large, the vast majority of them were put through without any 
real fuss or bother, even though my colleagues on the other side, had 
they been President, would not have appointed very many of those 
judges. We have to show the same good faith on our side, it seems to 
me.
  My message against filibusters of judicial nominees is one I hope to 
make abundantly clear to my colleagues in the majority. This is so 
because, to the extent our majority party gives repeated credence to 
the practice of filibustering judicial nominees, we can expect the 
favor to be returned when the President is one of our own. We hope in 
earnest that the next President will hail from our party. And if we are 
gratified in that hope, how short-sighted it will have been that we 
gave a fresh precedent to the minority party in this body to defeat--by 
requiring not 51 but a full 60 votes--that Republican President's 
judicial nominees.
  It is important to remember another reason against filibustering 
judicial nominees. Most of the fight over a nomination has occurred 
well before a nominee arrives at the Senate floor. Proverbial battles 
are fought between people in the White House and members of the 
Judiciary Committee.
  As a general matter, when nominees get this far, most of them should 
be approved. Though there are some that we will continue to have 
problems with, it is our job to look at them in the Judiciary 
Committee. That is our job--to look into their background. It is our 
job to screen these candidates.
  In the case of both Ms. Berzon and Judge Paez, each was reported 
favorably to the floor. And now we have the unusual situation of a 
Democrat President, the Republican and Democrat Senate Leaders, and 
Republican and Democrat Chairman and Ranking Member of the Judiciary 
Committee, all agreeing that votes on the nominees should go forward. 
But certain Senators who oppose these nominees have nonetheless elected 
to thwart such votes.
  At bottom, it is a travesty if we establish a routine of 
filibustering judges. We should not play politics with them.
  Mr. FEINGOLD. Mr. President, I am pleased that the Senate is finally 
going to act on the nomination of Marsha Berzon to be a judge on the 
Ninth Circuit Court of Appeals. The history of her nomination is one of 
the most disappointing episodes in the Senate's recent shameful 
treatment of judicial nominees. One of America's most qualified 
appellate litigators has been held hostage by opponents who raise 
complaints without substance or merit to impede her confirmation. Today 
I hope to dispel some of the myths that opponents of her confirmation 
have used to block Marsha Berzon's nomination. I urge the Senate to 
confirm her, and put a highly qualified lawyer on the bench where she 
belongs.
  What kind of nominee do we have before us today in the person of 
Marsha Berzon? We have a woman who has distinguished herself at all 
levels, from clerkship through successful private appellate practice. 
We have a woman who has already argued before the Supreme Court four 
times and has repeatedly appeared before Circuit courts around the 
country.
  Thirty years ago Ms. Berzon received the honor of being picked as 
U.S. Supreme Court Justice William Brennan's first female law clerk. 
Her opponents have seized on this honor as suggesting that Ms. Berzon 
possesses a liberal and activist judicial philosophy. I say to those 
who believe serving as a Supreme Court clerk is emblematic of one's 
political beliefs that they are wrong to believe a clerk adopts her 
Justice's philosophy for life. First, to be chosen by any Justice of 
the Supreme Court as a clerk is a rare and noteworthy honor, reserved 
for the most promising legal minds from the finest law schools. So the 
most important thing to be gathered from Ms. Berzon's service as a 
Supreme Court clerk is that her promise as a lawyer and future judge 
was already apparent thirty years ago just as she was beginning her 
career.
  Second, it is demonstrably untrue that you can tell the philosophy of 
an individual by the belief of his or her former boss. I'm sure we all 
know examples of people who have worked for us in the Senate who don't 
share our views on every issue. But perhaps the best example of the 
unfairness of assuming that Marsha Berzon believes everything that 
Justice Brennan did is another former Brennan clerk, Judge Richard 
Posner of the 7th Circuit Court of Appeals. Many consider Judge Posner 
the most creative legal mind of his generation, and no one who is 
familiar with his law and economics philosophy would call him a 
liberal.
  So let's put that fallacious line of argument to rest.
  Listen to the praise our Judiciary Committee Chairman, my friend Sen. 
Hatch, heaped upon Marsha Berzon when the Committee considered her 
nomination before forwarding it to the full Senate. Chairman Hatch 
called Berzon ``one of the best lawyers I've ever seen.'' He noted in a 
letter supporting her nomination that her ``competence as a lawyer is 
beyond question'' and that she has the ``sound temperament that will 
serve her well as a federal judge.'' At the time Chairman Hatch also 
noted that Marsha Berzon had attracted ``both Republican and Democratic 
support.'' I am pleased that the Chairman continues to support her 
nomination on the floor.
  Opponents of Marsha Berzon have questioned her credentials unfairly. 
Despite graduating with honors from Harvard/Radcliffe college and 
teaching law school courses at both Cornell and Indiana University Law 
schools, her scholarship has been attacked.
  Some who have opposed Berzon's nomination have even called her a 
labor zealot. But Mr. President, there are a number of people in this 
room who were attorneys before joining the Senate. They know, as do I, 
that the code of professional responsibility requires zealous advocacy 
on a client's behalf. So to mention her zeal for her practice is simply 
to highlight one of those qualities which makes her such a fine 
candidate for the 9th Circuit. It shows that she has taken her practice 
of law to the highest and most professional level.
  And lest her opponents complain about professionalism and infer 
unfairly that a former labor lawyer cannot be fair to management, 
listen to what numerous management-side attorneys who have litigated 
against her say about Marsha Berzon. Let's take the case of W.I. Usery, 
Jr., a former Republican Secretary of Labor:
  Usery said Ms. Berzon ``has all the qualifications needed, as well as 
the honesty and integrity that we need and deserve in our court system 
today. . . I know she will be dedicated to the principles of fairness 
and impartiality in all her judicial activities.''
  Or perhaps, we should listen to Fred Alvarez, President Ronald 
Reagan's former EEOC Commissioner and Assistant Secretary of Labor. 
Alvarez says:

       Someone with the intellect and integrity, which Ms. Berzon 
     has demonstrated, understands the difference between advocacy 
     and the solemn responsibilities undertaken as a federal 
     appellate court judge . . . I can think of no other union-
     side lawyer who would command so strong and so compelling a 
     consensus from management lawyers on her suitability for such 
     an important position on the 9th Circuit Court of Appeals.

  So there you have it Mr. President. Top Republican officials--who we 
can be sure favor management positions by personal philosophy--endorse 
Berzon and her professionalism without reservation.
  So let's put the foolish argument that Marsha Berzon can't be fair 
concerning labor issues to rest.
  Let's review. We've shown that arguments that Berzon is some liberal 
by her association with Justice Brennan are fallacious. We've shown 
that arguments that she is a zealous advocate

[[Page 2221]]

and should be rejected as an ideologue in fact highlight her mastery of 
the practice of law and make her highly qualified for this position. 
We've exploded the myth that she is anti-management and incapable of 
impartiality in hearing cases pitting management versus labor, and 
found that she works towards reaching consensus. So one has to wonder 
Mr. President, what is really going on here?
  I'm concerned about the appearance that Marsha Berzon has had such a 
long, hard road to confirmation because she is a woman. And I don't 
blame the public for taking that message from this delay when a highly 
qualified appellate attorney is held up for years and the arguments 
against her confirmation are so thin.
  At the end of 1999, the entire federal judiciary included only 158 
women--that's a scant and embarrassing 20% of sitting judges. Rather 
than attempting to address that disparity, this Senate has chosen to 
continue the policies of limiting the upward elevation of talented and 
capable women attorneys and judges. We've repeatedly delayed action on 
a host of female candidates. What's the impact? If fewer women get 
confirmed, there are fewer lower court judges to elevate to the 
nation's appellate courts. And if the judiciary remains a male bastion, 
as far as we've come in this country in recognizing equal rights for 
women, we risk creating the perception that gender biases will continue 
to plague our judicial system well into the 21st century.
  I believe Ms. Berzon is highly qualified to sit on the 9th Circuit, 
and her confirmation should wait no longer. I enthusiastically support 
her and I urge my colleagues to do the same.
  I yield the floor.
  Mr. BUNNING. Mr. President, I rise in opposition to the nominations 
of Richard Paez and Marsha Berzon to sit on the 9th Circuit Court of 
Appeals.
  There are serious problems with the 9th Circuit. It has become a 
renegade Circuit, far out of the mainstream of modern American 
jurisprudence, and I am afraid that if these nominees are confirmed, 
they will only make a bad situation worse.
  Over the past six years, the 9th Circuit has been overturned 86% of 
the time by the U.S. Supreme Court, a terrible record. During this 
period, the Supreme Court has reviewed 99 decisions from the 9th 
Circuit, and overturned 85 of those decisions. During the current 
session, the 9th Circuit has been overturned in all of the 7 cases 
reviewed by the Supreme Court, and in one term--1996-97--27 of 28 
decisions were overturned, including 17 by unanimous votes.
  This is the worst record of any circuit, and is especially troubling 
given the size and influence of the 9th Circuit. It covers almost 40% 
of the country, and 50 million Americans--20 million more than any 
other circuit. The fact that the 9th Circuit has been slipping toward 
judicial extremism is no laughing matter, and directly affects a large 
part of our nation and almost one-fifth of our citizens.
  The main reason for the judicial imbalance on the 9th Circuit is that 
Democratic appointees currently comprise 15 of the 22 positions on the 
9th Circuit, 10 of whom were appointed by President Clinton. I do not 
begrudge President Clinton his appointees; he is the President, and has 
the constitutional right and responsibility to fill the federal bench. 
But the 9th Circuit has become lopsided with activist judges that has 
helped push it far out of the judicial mainstream. The circuit cries 
out for balance.
  Confirming Richard Paez and Marsha Berzon to the 9th Circuit would 
only exacerbate its problems. Mr. President, I do not know the nominees 
and I have nothing against them. Their records show that they have long 
legal backgrounds, and deserve a final vote on their nominations. But, 
the record also shows that they both tilt far too left in their 
judicial views and would not help to restore balance or judicial 
sensibilities to the 9th Circuit.
  Ms. Berzon has worked as the general counsel of the AFL-CIO for over 
a decade, and was long active with the ACLU. At least one conservative 
group has described her as the ``worst judicial nomination President 
Clinton has ever made.'' Mr. President, Ms. Berzon is entitled to her 
views and I am not going to criticize her for her personal beliefs. But 
looking at her past and the causes which she has pushed show that, if 
confirmed, she is not going to help steer the 9th Circuit toward the 
judicial mainstream.
  As for Judge Paez, he currently sits on the federal district court in 
the 9th Circuit, and his nomination is opposed by over 300 grassroots 
conservative organizations that are troubled by his judicial activism. 
The U.S. Chamber of Commerce, and the Hispanic Chamber of Commerce, 
have even taken the unusual step of opposing his nomination because of 
their concerns over some of his past decisions, arguing that he has 
pursued an agenda that ``has the potential to cause significant 
disruption in U.S. and world markets.'' Mr. President, business groups 
usually do not become involved in judicial nominations, and when they 
do it should make us wonder.
  Even the Washington Post editorial page, no friend of conservative 
causes, has cautioned that opposition to Judge Paez ``is not entirely 
frivolous'', and points to past public remarks by Judge Paez that show 
how ``sympathetic'' he is to activist, judicial thinking.
  Mr. President, since coming to the Senate I have voted for some of 
President Clinton's judicial nominees, and I have opposed several. 
Yesterday, in fact, I voted to confirm Julio Fuente to sit on the Third 
Circuit. But confirming Richard Paez and Marsha Berzon to sit on the 
9th Circuit would be a mistake, and would directly affect 50 million 
Americans. The 9th Circuit has serious problems, and confirming these 
nominations are not going to fix those problems. Consequently, I am 
going to oppose them.
  Mr. FEINGOLD. Mr. President, I rise to speak today in strong support 
of the nomination of Richard Paez to be a judge on the Court of Appeals 
for the 9th Circuit. By finally moving on the nominations of Judge Paez 
and Ms. Marsha Berzon this week, the Senate will take long-delayed 
steps towards returning the 9th Circuit dockets to a manageable level. 
Action on these nominees is long overdue. I believe their nominations 
should be confirmed, and I hope, after all this delay, there will be 
strong bipartisan votes in favor of them.
  Four years, 1 month, and 11 days. Just over forty-nine months. One 
thousand, four hundred and ninety-nine days. That's right. 1499 days, 
two short of 1500. That is how long Judge Richard Paez has been waiting 
for the Senate to act on his nomination. In the same amount of time, a 
young adult could enter and complete a full college degree program. Let 
me repeat that. Judge Paez has waited for the Senate to grant him the 
simple grace of voting his nomination up or down for longer than it 
takes a young American to complete an entire college education. A 
President or Governor could be inaugurated, serve his or her entire 
term and be re-inaugurated during that same four year time period. 
While I'm sure Judge Paez is a patient man, possessed of the proper 
judicial temperament that makes him an excellent candidate to sit on 
the 9th Circuit, I know that even his patience must have long-ago worn 
thin waiting for the Senate to act on his nomination.
  First nominated to fill a 9th Circuit vacancy on January 26, 1996, 
Judge Paez has been subject to delay after delay after delay, and yet 
his opponents have not been able to give a convincing reason why we 
shouldn't confirm his nomination. Even with his 13 year record as a LA 
Municipal Court Judge and nearly 6 years as a U.S. District Court Judge 
for the Central District of California, those who don't want him on the 
bench can't build a case against his elevation to the 9th Circuit. They 
charge that he is an ``activist judge,'' but the record simply doesn't 
support this allegation.
  Judge Paez now bears the dubious distinction of suffering through the 
longest pendency of a nomination to the federal bench in the history of 
the United States.
  All Judge Paez, has ever asked for was this opportunity: an up or 
down vote on his confirmation. Yet for years,

[[Page 2222]]

the Senate has denied him that simple courtesy.
  I find it ironic that Judge Paez, the same judge who diligently 
worked to reduce the length of delays in resolving civil matters in Los 
Angeles and throughout California's court system through his design and 
implementation of a civil trial delay reduction project, should himself 
be subjected to such egregious delay in getting his ``day in court'' 
before the full Senate. Particularly when the Senate confirmed his 
nomination for a District Court judgeship in July 1994 by unanimous 
consent. Now I recognize that control of this body has changed since 
1994, but his nomination to the District Court was confirmed without 
objection. And his record on that court has been exemplary.
  This delay has not simply been unfair to Judge Paez and his family. 
It has affected the administration of justice. Listen to the concerns 
of Procter Hug, Jr., Chief Judge of the 9th Circuit. Chief Judge Hug 
has responsibility for overseeing the functioning and managing the 
caseloads of the entire Circuit. Currently, of the 28 spots on the 9th 
Circuit, 6 stand vacant. Chief Judge Hug explained in a letter this 
past week to the Judiciary Committee that during his term as Chief 
Judge, the Senate has left him with up to 10 vacancies on the court at 
any one time. He has responded to this judicial emergency by begging 
his colleagues to redouble efforts to resolve cases and then increased 
their dockets to prevent even longer delays in resolution of cases. Hug 
argues forcefully for the confirmation of Judge Paez and Ms. Berzon and 
asks this body to swiftly fill the other 4 vacancies on the court.
  Now Mr. President, let me address the argument made by the Majority 
Leader and others that the pending 9th Circuit nominations should be 
rejected because that circuit has a supposedly high level of reversals 
when its decisions are reviewed by the Supreme Court. This argument 
simply doesn't hold water.
  First, if we assume that this argument is not meant to be critical of 
the views or qualifications Judge Paez or any other nominee personally, 
it makes no sense at all. Even if we disagree with the direction of 
that court, why would we deny the 9th Circuit adequate resources, 
thereby depriving the litigants in that circuit of efficient 
administration of justice? It just makes no sense.
  More importantly, arguing that the Ninth Circuit is out of step with 
the Supreme Court and needs to be reined in doesn't get opponents over 
the hurdle that they have not yet been able to satisfy--to show that 
Judge Paez is unsuitable for the appellate bench. He is obviously not 
responsible for past decisions of the 9th Circuit. So the argument has 
to be that his elevation will continue the Circuit on its supposedly 
misguided course. The evidence of Judge Paez being unable to follow 
Supreme Court precedent is thin indeed, if not non-existent.
  But more fundamentally, it is simply not factually correct that the 
9th Circuit is out of step with the Supreme Court and other circuit 
courts. Chief Judge Hug in his letter convincingly refutes the argument 
that his circuit is reversed more often than others. In fact, its clear 
from the numbers that even in 1996-1997, when the 9th Circuit's 
reversal rate was at its highest level of recent years, it was reversed 
less frequently than 5 other circuits--the 5th, 2nd, 7th, D.C. and 
Federal--each of which were reversed 100% of the time that year by the 
Supreme Court. In more recent years, the statistics show even more 
clearly that the 9th Circuit is not a runaway train that somehow needs 
to be slowed down, but many in the Senate would like it to become a 
more conservative circuit, perhaps to be broken into two conservative 
circuits. And they are willing to hold up Judge Paez and others to 
achieve that political objective.
  Furthermore, I have to point out that reversal rates are a very poor 
criteria for judging a court's work. The Supreme Court is not required 
to review every appellate decision. It picks which cases to review. So 
it is hardly surprising that when it does take a case, it reverses a 
lower court. Chief Judge Hug quite rightly points out that the 9th 
Circuit decides about 4,500 cases on the merits each year. 4,500. So 
the fact that 10 or 20 cases per year are reversed really should not 
trouble us. It is just not a plausible argument against a nominee for 
this Circuit that its decisions are out of the mainstream.
  We ought to congratulate the women and men currently serving on the 
9th Circuit for so successfully fulfilling their judicial roles at the 
same time vacancies are greatly increasing their dockets and stretching 
their time thin. The pressure to carefully make the proper judicial 
decisions is great, and these Judges are responding with 
professionalism. I thank them for that, but I cannot help but think 
that we are putting an unconscionable burden on them.
  So what is the point of raising meritless arguments against this 
nominee? Why the long delay? Let me suggest two possibilities, neither 
of which reflect well on the Senate. First, Senators delaying these 
nominations may be trying to run out the clock until President Clinton 
leaves office. Confirmations always slow down in a presidential 
election year. In 10 months, we will have a new President. Perhaps a 
different President will put forward a different nominee. But Judge 
Paez was actually nominated a year before the President's 2nd 
inaugural. So holding up this particular nomination for purely 
political reasons is most unfair. In some ways, this nomination should 
get special treatment. We had an intervening election after the 
nomination was first made, and President Clinton won. It is 
indefensible to hold a nomination hostage for his entire second term. 
It defies the clear constitutional prerogatives of the duly elected 
President to choose nominees to the bench and the duty of the Senate to 
say yes or no.
  Some Senators may also object to moving the nomination of Judge Paez 
because of a perceived judicial philosophy. Some opponents of his 
nomination look to his long and distinguished service in legal aid and 
attempt to tar him with the epithet of ``liberal,'' forgetting that his 
exemplary judicial career has been filled with distinction at all 
levels. A close look at his record as a U.S. District Court judge since 
the Senate confirmed his nomination in 1994 debunks attempts to label 
his opinions as conservative or liberal, reactionary or progressive.
  The Los Angeles Daily Journal, which is a newspaper devoted to 
covering the courts and the legal profession in Los Angeles 
commissioned 15 legal experts to examine Judge Paez's decisions in 
seven different cases. Each case was reviewed by at least 2 experts. 
The results were clear. Thirteen of the legal scholars and 
practitioners found Paez's opinions ``well-reasoned and well-written.'' 
Two others were mildly critical. And, in the one decision in which the 
experts were critical of Judge Paez's decision not to dismiss claims 
that Unocal Corporation was liable for human rights abuses in Burma, a 
third expert countered the criticism of Judge Paez's decision, saying 
``I would give Judge Paez very good marks on his ruling.'' What's the 
point here? In a variety of decisions, the commentators praised the 
work of Judge Paez. Here are some of their comments:

       I carefully read Judge Paez's opinion and found that it was 
     excellent in every respect.
       His writing was clear and his expression was good. He did 
     not show any ideological or personal bias.
       Judge Paez's injunction--in a case against anti-abortion 
     demonstrators--was entirely consistent with the reasoning and 
     result in conservative jurisdictions.

  The result is that claims that the Judge's record is activist, or 
liberally slanted are simply wrong. Claims that he is anti-business are 
simply not borne out by the facts. Paez also ruled in favor of Philip 
Morris on a second-hand smoke suit and for Isuzu against Consumers 
Union. Senators opposing this nominee because they claim he's anti-
business are missing the point. Paez rules on each case on the merits--
yes, on the merits--and shows no favoritism for or against business. So 
again, Mr. President, I'm just baffled by these

[[Page 2223]]

claims of activism or anti-business philosophy being leveled against 
Richard Paez.
  Now if his record as a judge doesn't support these charges of 
``judicial activism'' where did Judge Paez's opponents get the idea 
that he must be stopped. Opponents aren't saying it openly but it could 
be that they are worried that a judge who formerly worked in a legal 
aid capacity must be a liberal, and incapable of making balanced 
decisions. Having failed to find any hint of bias or lack of judicial 
temperament in 20 years of judicial decisions, what other reason for 
opposition could there be other than a belief that if you are an 
attorney who agrees to work on behalf of those unable to access the 
legal system because they are poor or under-educated, as Judge Paez did 
for nine years early in his career, you must be a liberal, right?
  Wrong. Dead wrong. The organized Bar in every single state requires 
public service of attorneys. Every major law firm has dedicated efforts 
to reach under-served populations needing legal advice. That's part of 
the profession, a noble part of the profession, and those who would 
complain about Judge Paez's service to those in need would do well to 
remember their own reasons for choosing to serve the public. For my 
part, I applaud the decision of Judge Paez and others like him to serve 
the poor, and I cannot imagine how his unique perspective from working 
one on one with these populations for nine years would not be desirable 
and an advantage to parties before the 9th Circuit. His perspective is 
badly needed in a circuit which serves 20% of the nation's population, 
many of whom are people who needed legal aid when he was working with 
them during the 70s.
  If opponents of Judge Paez want to fill the court only with seemingly 
conservative judges, they mistake their role in the constitutional 
scheme in my opinion. Let's not kid ourselves. Partisan politics 
shouldn't play a part in the confirmation of judges, but they do. But 
to hold up a well-qualified judge for a President's entire term on the 
basis of unsupported allegations of ``judicial activism'' is shameful, 
it takes the impact of politics on this process to an extreme that we 
have not seen before, and I hope we never see again.
  Mr. President, regardless of the reason for delays in acting on Judge 
Paez's nomination, the effects of delay are damaging and unmistakable. 
I believe they are twofold. First, as I discussed before, justice is 
put on hold in the 9th Circuit because of crowded dockets. Second, this 
Senate sends a subtle, but unmistakable signal to Hispanic Americans, 
or recent immigrants about opportunities in America.
  It's an old adage but a true one. Justice delayed is justice denied. 
Parties take their disputes to court to reach a resolution. Longer 
dockets mean delays for families and businesses seeking to settle legal 
conflicts and move forward. Holding up qualified nominees like Judge 
Paez and leaving huge holes to fill on appellate benches literally 
delays justice.
  And the subtle, even subconscious message sent to Hispanic Americans 
when they examine who hears their disputes in a court of law is that 
Circuit court judgeships are not open to them. Young Hispanic Americans 
hearing about Judge Paez will unfortunately learn the message without 
it ever being said out loud that there are limitations to their 
advancement in careers of public service. The signals sent by Senators' 
failure to vote for Paez's confirmation lead to diminished expectations 
and a view of limited, not limitless opportunities for millions of 
Hispanic Americans. The Washington Post reported on Monday that only 9 
Hispanic American judges currently sit on appellate courts in this 
country out of a total of 170 appellate judges. And only 31 out of 655 
District Judges, including Judge Paez, are Hispanic Americans. That's a 
shameful record as we begin the 21st century.
  Here's the message sent if Judge Paez is not confirmed. You can go to 
law school at UC Berkeley's Boalt Hall School of Law, work tirelessly 
with under-served and under-represented populations needing legal 
assistance, be a successful and well-respected judge on the local bench 
and the federal District Court, get the highest rating from the 
American Bar Association, receive endorsements from law enforcement 
organizations, bar leaders, business leaders, and community leaders, 
and yet be needlessly and unfairly delayed and prevented from being 
elevated to the prestigious 9th Circuit Court of Appeals based on 
unsubstantiated and vague concerns that you are a ``judicial activist'' 
or a ``liberal.'' There is only one nominee in this position, whose 
nomination has been held up for over 4 years. That is Richard Paez, who 
is a Hispanic American. That's the wrong message from this Senate to 
millions of Americans, and we should not send it.
  I strongly support Judge Paez's confirmation, and urge my colleagues 
to join me in quickly filling this and other vacancies on the 9th 
Circuit. This long delayed confirmation vote for Richard Paez is an 
important test for the Senate. I hope we pass it.
  I yield the floor.

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