[Congressional Record (Bound Edition), Volume 148 (2002), Part 11]
[Senate]
[Pages 15164-15166]
[From the U.S. Government Publishing Office, www.gpo.gov]




 NOMINATION OF JOY FLOWERS CONTI, OF PENNSYLVANIA, TO BE UNITED STATES 
        DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes for debate equally divided prior to the vote on Executive 
Calendar No. 827, which the clerk will report.
  The legislative clerk read the nomination of Joy Flowers Conti, of 
Pennsylvania, to be United States District Judge for the Western 
District of Pennsylvania.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEAHY. Mr. President, with today's votes on these judicial 
nominations to the Federal district courts in Pennsylvania, the 
Democratic-led Senate will have confirmed 63 judicial nominees since 
the change in Senate majority a little more than 1 year ago. I commend 
Majority Leader Daschle for having worked through the problems created 
by the White House's refusal to proceed in a bipartisan way with 
nominations to bipartisan boards and commissions and for having worked 
with Senator McCain to get to this point.
  I understand Senator McCain's frustration with the White House and 
how it is treating nominations but thank him for allowing us to proceed 
with these judicial nominations at this time. In fact, this majority 
leader has worked hard to bring these nominations to the floor and his 
efforts have included having to proceed by way of cloture on three 
nominees in the last few weeks. He has gone the extra mile and that 
should be acknowledged.
  Similarly, the Judiciary Committee continues to make efforts that 
were not made by the Republican leadership.
  We have held hearings on a record number of nominees and reported a 
record number of nominees. Seventy-five judicial nominees have been 
voted on by the Judiciary Committee since the change in majority last 
summer. This week we will hold a hearing for the 82nd, 83rd, 84th and 
85th judicial nominees, including our 18th circuit court nominee. We 
have proceeded with nominees to fill vacancies even though Republicans 
held up moderate nominees by President Clinton to those same vacancies. 
We have confirmed new judges for the Fourth, Fifth, and Sixth Circuit 
courts of appeals for the first time in three, six and five years, 
respectively. So much for the partisan critics who scream about a 
blockage of President Bush's nominees by Democrats in the Senate. The 
facts are that we have been fairer to President Bush's nominees than 
the Republicans were to President Clinton's.
  Today is another example. The Senate has acted quickly on these 
nominations to the district courts in Pennsylvania. Joy Flowers Conti 
participated in a hearing in May, within weeks of her paperwork being 
complete. I know that Senator Specter strongly supports Ms. Conti's 
nomination, as well as Mr. Jones, and he specifically requested that 
she be accorded a hearing as soon as possible. Likewise John Jones 
received a hearing in May, shortly after his paperwork was completed.
  With today's votes on two Pennsylvania nominees, the Judiciary 
Committee will have held hearings for 10 district court nominees from 
that State, including Judge Davis, Judge Baylson, and Judge Rufe, who 
were confirmed in April, and Judge Conner, who was just confirmed last 
Friday. Those confirmations illustrate the progress being made under 
Democratic leadership and the fair and expeditious way this President's 
nominees are being treated.
  With today's confirmations, there is no State in the Union that has 
had more Federal judicial nominees confirmed by this Senate than 
Pennsylvania. I think that the Senate Judiciary Committee and the 
Senate as a whole have done well by Pennsylvania. Contrast this with 
the way vacancies in Pennsylvania were left unfilled during Republican 
control of the Senate, particularly regarding nominees in the western 
half of the State.
  Despite the best efforts and diligence of my good friend from 
Pennsylvania, Senator Specter, to secure confirmation of all of the 
judicial nominees from every part of his home State, there were seven 
nominees by President Clinton to Pennsylvania vacancies that never got 
a hearing or a vote.
  A good example of the contrast is the nomination of Judge Legrome 
Davis. He was first nominated to the position of U.S. District Court 
Judge for the Eastern District of Pennsylvania by President Clinton on 
July 30, 1998.
  The Republican-controlled Senate took no action on his nomination and 
it was returned to the President at the end of 1998. On January 26, 
1999, President Clinton renominated Judge Davis for the same vacancy. 
The Senate again failed to hold a hearing for Judge Davis and his 
nomination was returned after 2 more years.
  Under Republican leadership, Judge Davis' nomination languished 
before the committee for 868 days without a hearing. Unfortunately, 
Judge Davis was subjected to the kind of inappropriate partisan rancor 
that befell so many other nominees to the district courts in 
Pennsylvania during the Republican control of the Senate.
  The lack of Senate action on Judge Davis's initial nominations is in 
no way attributable to a lack of support from the senior Senator from 
Pennsylvania. Far from it. In fact, I give Senator Specter full credit 
for getting President Bush to renominate Judge Davis earlier this year 
and commended him publicly for all he has done to support this 
nomination from the outset.
  This year we moved expeditiously to consider Judge Davis, and he was 
confirmed in just 84 days.
  The saga of Judge Davis recalls for us so many nominees from the 
period of January 1995 through July 10, 2001, who never received a 
hearing or a vote and who were the subject of secret anonymous holds by 
Republicans for reasons that were never explained.
  In contrast, the hearing we had earlier this year for Ms. Conti was 
the very first hearing on a nominee to the Western District of 
Pennsylvania since 1994, in almost a decade, despite President 
Clinton's qualified nominees. No nominee to the Western District of 
Pennsylvania received a hearing during

[[Page 15165]]

the entire period that Republicans controlled the Senate in the Clinton 
administration.
  One of the nominees to the Western District, Lynette Norton, waited 
for almost 1,000 days, and she was never given the courtesy of a 
hearing or a vote. Unfortunately, Ms. Norton died earlier this year, 
having never fulfilled her dream of serving on the Federal bench. 
Today's confirmation vote on Ms. Conti will be the first on a nominee 
to the Western District of Pennsylvania in almost 8 years, since Judge 
McLaughlin and Judge Cindrich were confirmed in October of 1994. 
Despite this history of poor treatment of President Clinton's nominees, 
we continue to move forward fairly and expeditiously.
  Large numbers of vacancies continue to exist, in large measure 
because the recent Republican majority was not willing to hold hearings 
or vote on more than 50 of President Clinton's judicial nominees, many 
of whom waited for years and never received a vote on their nomination. 
It is Democrats who have broken with that history of inaction from the 
Republican era of control, delay, and obstruction.
  With today's confirmations of Judge Conti and Judge Jones to the 
Federal district courts in Pennsylvania, the Senate will have confirmed 
51 district court nominees and 63 judges overall since the change in 
majority last summer. Contrast this with the Republican average, during 
their past 6\1/2\ years on control, of 31 district court judges a year 
and 38 judges a year overall. I congratulate the nominees and their 
families on their confirmations today and commend Senator Specter and 
Majority Leader Daschle for all they have done to bring us to this day.
  Mr. HATCH. Mr. President, I had no intention of bringing up the topic 
of judicial nominations today, but I feel I must respond to the 
comments made just now.
  Curently there are 92 empty seats in the Federal judiciary, a 10.7 
percent vacancy rate--one of the highest in modern times. This means 
that 10.7 percent of all Federal courtrooms are presided over by an 
empty chair.
  There are currently 22 nominees pending who are slated to fill 
positions which have been declared judicial emergencies by the 
Administrative Office of the Courts. Of those, 13 are courts of appeals 
nominees.
  During President Clinton's second year in office, the Senate 
confirmed 100 of his judicial nominees. I would expect the Senate 
Democrats to do the same for President Bush. But they are not doing so.
  Only 4 of President Bush's first 11 nominees--nominated on May 9, 
2001--have had hearings. In other words, the Judiciary Committee has 
taken no action whatsoever on nearly two-thirds of the circuit court 
nominations that have been pending for over 14 months. There is no 
reason for this other than stall tactics. All of these nominees 
received qualified or well-qualified ratings from the American Bar 
Association.
  There were 31 vacancies in the Federal courts of appeals on May 9, 
2001, and there are 30 today. The Senate Democrats are trying to create 
an illusion of movement by creating great media attention and 
controversy concerning a small handful of nominees in order to make it 
look like progress. But we are hardly making any progress in filling 
circuit vacancies.
  President Bush has responded to the vacancy crisis in the appellate 
courts by nominating a total of 31 top-notch men and women to these 
posts--but the Senate is simply stalling them. Over the past year, the 
Senate has confirmed only nine. There are still 22 circuit court 
nominees pending in committee. By comparison, at the end of President 
Clinton's second year in office, we had confirmed 19 circuit judges and 
had 15 circuit court vacancies.
  Mr. President, the comparison does not end there. There were only two 
Circuit Court nominees left pending in Committee at the end of 
President Clinton's first year in office. In contrast, there were 23 of 
President Bush's circuit court nominees pending in committee at the end 
of last year.
  Mr. President, some try to blame the Republicans for the vacancy 
crisis, but that is bunk. At the end of the 106th Congress when I was 
chairman, we had 67 vacancies in the Federal judiciary. During the past 
9 months, the vacancy rate has been hovering right around 100. Today it 
is at 92.
  The real story here, Mr. President, is that the Senate's Democratic 
leadership is treating President Bush unfairly when it comes to 
judicial nominees. Some would justify this unfair treatment of 
President Bush as tit for tat, or business as usual, but the American 
people should not accept such a smokescreen. What the Senate leadership 
is doing is unprecedented.
  Historically, a President can count on seeing all of his first 11 
circuit court nominees confirmed. Presidents Reagan, Bush and Clinton 
all enjoyed a 100 percent confirmation rate on their first 11 circuit 
court nominees. In stark contrast, 8 of President Bush's first 11 
nominations are still pending now for over 1 whole year.
  History also shows that Presidents can expect almost all of their 
first 100 nominees to be confirmed swiftly. Presidents Reagan, Bush, 
and Clinton got 97, 95 and 97, respectively, of their first 100 
judicial nominations confirmed. But the Senate has confirmed only 57 of 
President Bush's first 100 nominees.
  In sum, Mr. President, I think that the American people deserve 
better, President Bush deserves better, and the Judicial Branch of our 
Government deserves better. I yield the floor.
  The PRESIDING OFFICER. The time of the Senator has expired. Who 
yields time?
  The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, it is a proud moment for me to speak on 
behalf of Joy Flowers Conti. I had the privilege of practicing with her 
as a lawyer in Pittsburgh. She is an outstanding litigator and 
outstanding person in the community, and I am very grateful that her 
nomination is coming to the Senate floor.
  The next vote will be on John E. Jones for the Middle District, 
another outstanding litigator and someone who is going to be a credit 
to the court. We still have six district court judges in Pennsylvania 
who have yet to be confirmed in the Senate and two third circuit--
Pennsylvania positions that need to be filled. I am hopeful those 
nominations will also make their way to the floor quickly.
  The PRESIDING OFFICER. Who yields time?
  Mr. SANTORUM. I yield the remainder of my time.
  The PRESIDING OFFICER. All time is yielded back. The question is on 
the confirmation of the nomination.
  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 Joy Flowers Conti, of Pennsylvania, to be United States District 
Judge for the Western District of Pennsylvania.
  The clerk will call the roll.
  Mr. NICKLES. I announce that the Senator from North Carolina (Mr. 
Helms), the Senator from Ohio (Mr. DeWine), the Senator from Arkansas 
(Mr. Hutchinson), and the Senator from Kentucky (Mr. McConnell), are 
necessarily absent.
  The PRESIDING OFFICER (Ms. Cantwell). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 96, nays 0, as follows:

                      [Rollcall Vote No. 195 Ex.]

                                YEAS--96

     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
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy

[[Page 15166]]


     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--4

     DeWine
     Helms
     Hutchinson
     McConnell
  The nomination was confirmed.

                          ____________________