[Congressional Record (Bound Edition), Volume 148 (2002), Part 10]
[Senate]
[Pages 13507-13510]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   NOMINATION OF RICHARD R. CLIFTON, OF HAWAII, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE NINTH CIRCUIT


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the Chair lays 
before the Senate the pending cloture motion, which the clerk will 
report.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 825, the nomination of Richard R. Clifton, to be 
     United States Circuit Judge for the Ninth Circuit.
         Jeff Bingaman, Patrick Leahy, Daniel Inouye, Harry Reid, 
           Tom Daschle, Dianne Feinstein, Orrin Hatch, Chuck 
           Grassley, Michael B. Enzi, Craig Thomas, Christopher 
           Bond, Jeff Sessions, Jon Kyl, Rick Santorum, Pat 
           Roberts, Trent Lott.

  The PRESIDING OFFICER. Under the previous order, the quorum call is 
waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 825, the nomination of Richard R. Clifton of 
Hawaii, to be United States Circuit Judge for the Ninth Circuit, shall 
be brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Iowa (Mr. Harkin) is 
necessarily absent.
  Mr. NICKLES. I announce that the Senator from North Carolina (Mr. 
Helms) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 97, nays 1, as follows:

                      [Rollcall Vote No. 183 Ex.]

                                YEAS--97

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Hutchinson (AR)
     Hutchison (TX)
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed (RI)
     Reid (NV)
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                                NAYS--1

       
     McCain
       

                             NOT VOTING--2

     Harkin
     Helms
       
  The PRESIDING OFFICER. On this vote, the yeas are 97, the nays are 1. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. LEAHY. With today's vote, the Senate will confirm its 11th judge 
to our Federal Courts of Appeals and our 59th judicial nominee since 
the change in Senate majority little more than one year ago. The Senate 
confirmed the first Court of Appeals judge nominated by President Bush 
on July 20 last year and now, less than one year later we are 
confirming the 11th. That is almost one per month.
  By contrast, the Republican majority that preceded us averaged seven 
Court of Appeals confirmations every 12 months. During an entire 
session of Congress, 1996, the Republican majority allowed no circuit 
court nominees to be confirmed, not one. The Republican majority 
confirmed 46 Court of Appeals judges in 78 months. While they were in 
the majority vacancies on the Courts of Appeals more than doubled, 
going from 16 to 33. Since the change in majority the numbers are going 
in the right direction--vacancies are going down and confirmations have 
significantly increased. We would be doing even better with a little 
cooperation from the Administration and the Republican leadership, 
which created roadblocks to the consideration of all judicial 
nominations by the full Senate since May.
  The nominee voted on today, Richard Clifton, was one of the 78 
nominees to receive a hearing in the first year since the 
reorganization of the Judiciary Committee on July 10, 2001. In that 
period, we held more hearings for more circuit court nominees than in 
any of the prior six years of Republican control. In fact, we have had 
hearings for more judicial nominees in the past year than in 20 of the 
last 22 years under Republican or Democratic presidents. Those who wish 
to paint the Senate as obstructionist ignore the facts and the fair 
treatment by the Senate of President Bush's judicial nominees. They 
focus instead on the most controversial nominees who do take more time, 
rather than the vast majority who have received hearings and been 
confirmed in bipartisan votes of the Senate. They would rather use 
misleading percentage calculations that obscure the fact that the 
Democratic-led Senate is considering President George Bush's nominees 
at one of the fastest paces in recent history.

[[Page 13508]]

  I commend Senators Inouye and Akaka for the statesmanship they have 
shown in connection with this nomination. I remember very well their 
important efforts to establish the Hawaii seat on the Ninth Circuit and 
to try to fill it with a qualified nominee. I voted with them and 
supported their effort to ensure that every State, even States as small 
as Hawaii and Vermont, are represented on our Courts of Appeals.
  I recall the saga of the nomination of James Duffy to fill the Hawaii 
seat on the Ninth Circuit, how hard they worked to find a consensus 
nominee and how that nomination was stalled for years. Despite the 
``Well Qualified'' rating he received from the ABA and the strong 
support of both his home-state Senators, Mr. Duffy never received a 
hearing or a vote. He was nominated at the beginning of 1999 and 
remained pending for over two full years until it was withdrawn by 
President Bush in March 2001 without any Senate action of any kind.
  Despite that recent history, the Hawaii Senators support Mr. Clifton 
for that same vacancy. In contrast to the treatment that Mr. Duffy 
received, Mr. Clifton's nomination was scheduled for a hearing less 
than 60 days after his file and paperwork were completed. Mr. Duffy 
waited 791 days and never got a hearing. When partisan critics charge 
Democrats with tit-for-tat and seeking revenge, they ignore the facts. 
The confirmation of Richard Clifton is another example of Democrats 
treating President Bush's judicial nominees far better than Republicans 
treated President Clinton's.
  Today's vote on Mr. Clifton's nomination should provide some relief 
to the Ninth Circuit, which has four vacancies that have been 
classified as ``judicial emergency'' vacancies by the U.S. Courts. Two 
of those vacancies are more than five years old. They date back to 1996 
and 1997, and there were two outstanding nominees to those seats. I 
have mentioned the nomination of James Duffy. The other nominee was 
Barry Goode of California, whose nomination also languished for years 
without ever getting a hearing or a vote.
  When Barry Goode was first nominated to a Ninth Circuit vacancy in 
1998 it was already a judicial emergency. Both of his home-state 
Senators supported the nomination but the Republican leadership refused 
to act. Mr. Goode was nominated not once, not twice, but three times to 
the Ninth Circuit and he never was given the courtesy of a hearing or a 
vote during almost 1,000 days (998 days). In March of 2001, President 
Bush withdrew Mr. Goode's nomination but he has not nominated anyone to 
this judicial emergency vacancy. It remains one of a number of judicial 
emergency vacancies for which there is no nominee and one of the 43 
judicial vacancies for which there is no nominee.
  The Ninth Circuit vacancies are a prime and unfortunate legacy of the 
partisan obstructionist practices during the Republican control of the 
Senate. Some are now complaining that a few nominees are waiting a year 
for hearing. Even though the anniversary of the reorganized Judiciary 
Committee with a Democratic majority was July 10, and we have already 
held hearings for 16 Court of Appeals nominees among the 78 total 
judicial nominees who had hearings in our first year.
  I also recall how all confirmations to the Ninth Circuit from 
California were stalled by the demands of a Republican Senator not from 
that State to be given the ability to name a Court of Appeals judge 
from his State. With the support of the Republican leadership in the 
Senate, that Republican Senator succeeded in getting President Clinton 
to accord him that prerogative in order to break that logjam.
  Just as the May 9th hearing on Mr. Clifton's nomination was the first 
hearing on a Ninth Circuit nominee in two years, earlier this year we 
had the first hearing for a Sixth Circuit nominee, Judge Gibbons, in 
almost five years. Similarly, the hearing we held on the nomination of 
Judge Edith Clement to the Fifth Circuit last year was the first on a 
Fifth Circuit nominee in seven years and she was the first new 
appellate judge confirmed to that Court in six years. When we held a 
hearing on the nomination of Judge Harris Hartz to the Tenth Circuit 
last year, it was the first hearing on a Tenth Circuit nominee in six 
years and he was the first new appellate judge confirmed to that Court 
in six years. When we held the hearing on the nomination of Judge Roger 
Gregory to the Fourth Circuit last year, it was the first hearing on a 
Fourth Circuit nominee in three years and he was the first appellate 
judge confirmed to that court in three years.
  Large numbers of vacancies continue to exist on many Courts of 
Appeals, in large measure because the recent Republican majority was 
not willing to hold hearings or vote on more than half--56 percent--of 
President Clinton's Courts of Appeals nominees in 1999 and 2000 and was 
not willing to confirm a single judge to the Courts of Appeals during 
the entire 1996 session. Democrats have broken with that recent history 
of inaction.
  I would like to commend in particular the Senators from Hawaii and 
also the members of the Judiciary Committee for their efforts to 
consider scores of judicial nominees for whom we have held hearings and 
on whom we have had votes during the last several months.
  Mr. HATCH. Madam President, I rise to support the nomination of 
Richard R. Clifton to be U.S. Circuit Court Judge for the Court of 
Appeals for the Ninth Circuit. Before I speak directly about him and 
his nomination, however, I would like to take just a moment to make a 
few comments about the Ninth Circuit.
  I think it's safe to say that everyone in the Senate agrees that the 
Ninth Circuit decision in Newdow v. U.S. Congress, striking down the 
Pledge of Allegiance as unconstitutional because it contains the phrase 
under God, was out of the mainstream of American jurisprudence. After 
all, the Senate voted 99 to 0 to reaffirm the reference to One Nation 
Under God in the pledge of allegiance--right after the decision was 
announced.
  But to me, the decision was more than wrong. It was an outrageous 
example of judicial activism and overreaching--of inappropriate, 
results-oriented policymaking from the bench. And it is a clear example 
of how the Ninth Circuit is failing to serve the best interests of the 
western states of California, Arizona, Nevada, Idaho, Montana, 
Washington, Oregon, Alaska, and Hawaii.
  The Ninth Circuit has 28 authorized judgeships. There are 23 active 
judges, and thus 5 vacancies. Seventeen of those 23 were appointed by 
Democrat Presidents--14 by President Clinton alone--and only 6 were 
appointed by Republicans.
  The Administrative Office of United States Courts has labeled all 
five vacancies on the Ninth Circuit as ``judicial emergencies'' given 
the enormous per-judge caseload on the Ninth Circuit.
  The Ninth Circuit takes several months longer than other circuits to 
dispose of cases. The average time from filing to disposition is 
approximately 14 months.
  In addition, as is well known and has been widely observed, including 
by several Supreme Court Justices, the Ninth Circuit has often decided 
cases in a manner that is well outside the mainstream of American law 
and entirely inconsistent with binding Supreme Court precedent. In 
1999-2000, the Supreme Court considered 10 Ninth Circuit cases and 
reversed 9 of them. In 1998-99, the Supreme Court considered 18 Ninth 
Circuit cases and reversed 14 of them. In 1997-98, the Supreme Court 
considered 17 Ninth Circuit cases and reversed 13 of them. And in 1996-
97, in an extraordinary Term, the Supreme Court considered 28 cases 
from the Ninth Circuit and reversed 27 of them.
  All of this makes clear why it is so important for the Senate to 
consider--and confirm--President Bush's nominees to the Ninth Circuit. 
We have two excellent candidates pending in the Judiciary Committee 
right now.
  Judge Carolyn Kuhl has extensive experience in federal and state 
government, in the Executive and Judicial Branches, in public service 
and private legal practice. She has a superb legal background and broad 
experience that

[[Page 13509]]

makes her ideally suited to be an excellent circuit judge. And the same 
goes for Jay Bybee, who currently serves as Assistant Attorney General 
for the Office of Legal Counsel at the U.S. Department of Justice. I 
urge the Judiciary Committee to hold hearings on these nominees without 
further delay.
  Now, I would like to turn to the matter directly at hand, the 
confirmation of Richard R. Clifton to the Ninth Circuit Court of 
Appeals. Shortly following graduation from Yale Law School, Mr. Clifton 
moved to Hawaii to clerk for the Honorable Herbert Y.C. Choy of the 
U.S. Circuit of Appeals for the Ninth Circuit, the first and only 
Hawaiian to serve on that court. Notably, Mr. Clifton will be the 
second.
  After his clerkship, Mr. Clifton joined the Honolulu law firm of 
Cades Schuttle Fleming & Wright, one of the oldest and largest firms in 
Hawaii. He has remained with that firm since then, becoming a partner 
in 1982. His practice has focused on business and commercial 
litigation, with an emphasis on complex litigation and appellate 
practice.
  Mr. Clifton has ably handled cases in the areas of condemnation, tax 
law, securities transactions, class actions, debtor/creditor law, and 
trademarks.
  Mr. Clifton is the sold male director with the Hawaii Women's Legal 
Foundation, a member of the Hawaii Women Lawyers, a member of the 
Hawaii Chapter of the American Judicature Society, and director of the 
Ninth Judicial Circuit Historical Society.
  For approximately ten years, Mr. Clifton was an adjunct professor at 
the University of Hawaii William S. Richardson School of Law, where he 
taught appellate advocacy. He served as Chairman of Hawaii Public Radio 
for five years and remains a director and member of its executive 
committee. He has served as pro bono general counsel to the Hawaii 
Republican Party since 1991.
  Mr. Clifton has a reputation for excellence. Among other honors, Mr. 
Clifton was named as one of the 18 finest lawyers in Hawaii for 
business litigation in 2001. He is widely respected by the legal 
community in Hawaii.
  I proudly join my distinguished colleagues from Hawaii, Senators 
Inouye and Akaka, in supporting Mr. Clifton's nomination to the Ninth 
Circuit Court of Appeals, and I urge my colleagues to do the same. 
Richard Clifton will serve well on the federal bench in Hawaii.
  Mr. AKAKA. Mr. President, I rise today in support of the nomination 
of Mr. Rick Clifton to the United States Court of Appeals for the Ninth 
Circuit.
  I commend our Majority Leader, the Deputy Majority Leader, and the 
Chairman of the Judiciary Committee for the progress made on judicial 
nominations during the 107th Congress. Hawaii has waited a number of 
years for Senate confirmation of a Hawaii resident for a position on 
the U.S. Court of Appeals for the Ninth Circuit.
  In 1995, I introduced legislation to require representation on the 
court from each State within the jurisdiction of the court. We have 
waited many years for this opportunity. I am pleased that Hawaii will 
finally have a Justice on the Ninth Circuit.
  Rick Clifton has had a distinguished legal career. The Hawaii State 
Bar Association found him to be highly qualified for this position. A 
graduate of Princeton University, he received his juris doctorate from 
Yale Law School in 1975. Mr. Clifton has practiced law in Hawaii since 
1975 and has been a partner with the law firm of Cades Schutte Fleming 
& Wright in Honolulu, HI, since 1982. He has extensive legal experience 
in civil litigation, primarily business and commercial litigation. I 
believe he will be an asset to the Court of Appeals for the Ninth 
Circuit and urge my colleagues to support his nomination.
  The confirmation of Mr. Clifton will help to alleviate hardships 
confronting the Ninth Circuit brought about by four long-term vacancies 
on the Court. A number of these vacancies date back over five years, 
spanning a period where the previous Senate majority refused to act on 
these judicial emergencies despite President Clinton's nominations of 
several well-qualified individuals supported by their home-state 
Senators and local legal communities.
  I congratulate and commend Chairman Leahy for his leadership in 
working to confirm qualified nominees to the Federal bench and rectify 
the doubling in circuit court vacancies that occurred between 1995 and 
2001. In this instance, the Judiciary Committee scheduled a hearing on 
Mr. Clifton's nomination less than 60 days after his file and paperwork 
were completed. As both Chairman and Ranking Member, Senator Leahy has 
worked with Senator Inouye and me to fill the Hawaii seat on the Ninth 
Circuit. I appreciate his commitment to ensure that every State is 
represented on our Courts of Appeals.
  As the Chairman recently noted, Mr. Clifton's confirmation concludes 
a long and regrettable saga in confirming a qualified nominee from 
Hawaii. In 1999, the President nominated James Duffy of Hawaii to the 
Ninth Circuit. He was selected after an exhaustive screening process, 
following an admirable effort by the White House to consult widely with 
political, legal, and community leaders in Hawaii. Mr. Duffy was 
endorsed as ``the best of the best'' by the Hawaii State Bar 
Association. Despite his sterling reputation, the nomination languished 
for 791 days in the Judiciary Committee without ever receiving a 
hearing. Mr. Duffy is one of the well-qualified and talented men and 
women nominated by the President to the Ninth Circuit and other Courts 
of Appeals, individuals with bipartisan and home-state support whose 
nominations were never acted on by the Senate.
  I mention this unfortunate chapter not to air past grievances, but to 
underscore the challenges facing the Chairman of the Judiciary 
Committee and the Majority Leader in bringing nominations before the 
Senate for action. In an exceptionally evenhanded manner, they have 
worked to overcome the partisanship and stalling practices that 
precipitated many of the judicial emergencies and vacancies some of our 
colleagues on the other side of the aisle have recently come to this 
floor to decry.
  Today's confirmation vote for Mr. Clifton's nomination attests to the 
fairness that the Majority Leader and Senator from Vermont have 
restored to the judicial confirmation process in the past year. I thank 
them for their support.
  Mr. LEAHY. Madam President, have the yeas and nays been ordered on 
the nomination?
  The PRESIDING OFFICER. They have not.
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Richard R. Clifton, of Hawaii, to be United States Circuit Judge for 
the Ninth Circuit? The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from North Carolina (Mr. 
Helms) and the Senator from Ohio (Mr. Voinovich) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 184 Ex.]

                                YEAS--98

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)

[[Page 13510]]


     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone
     Wyden

                             NOT VOTING--2

     Helms
     Voinovich
       
  The nomination was confirmed.

                          ____________________