[Congressional Record (Bound Edition), Volume 148 (2002), Part 11]
[Senate]
[Pages 15403-15404]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. HATCH. Mr. President, I do have to make a few remarks since my 
colleague from New York made some very cogent, very important remarks 
this evening.
  I happen to have a lot of respect for my colleague from New York, and 
he has the guts to really stand up and say that one of the reasons he 
is voting against some of these judges is the question of ideology. I 
think he is dead wrong on that, but the fact is, I respect him for at 
least being upfront and stating what he believes.
  He has also said we need to have balance on the courts. I am not so 
sure that is a bad concept, but I believe whoever is President, we have 
to have that President's choice of judges. That is one thing we do when 
we elect a President. Unless you can find some really valid reason for 
voting against these judges, that I think has to be more than 
ideology--at least that is my view--then you should vote for those 
judges, which is a practice I have followed throughout the Clinton 
administration and throughout the Carter administration, as a matter of 
fact. I think it is the correct practice.
  I still respect my colleague for his beliefs, for his forthright 
statements.
  I want to correct the record on a few things. No. 1, with regard to 
balance, there is a lack of balance in many circuit courts of appeals 
today one way or the other. In the Ninth Circuit Court of Appeals, 17 
of the 23 judges are Democrats; 14 were appointed by none other than 
President William Jefferson Clinton.
  In the Second Circuit Court of Appeals, the majority of them are 
Democrats.
  These are two very important circuit courts. In the Circuit Court of 
Appeals for the District of Columbia, it could very easily have been 
that way.
  It comes down to whoever is President. That is one of the things we 
do when we choose a President: We choose the person who is going to 
pick the judges for the next 4 years. And I believe, unless you have a 
legitimate reason--and it has to be a very legitimate reason for 
opposing those judges--you need to vote for them.
  I heard the distinguished Senator from Vermont tonight say Judge 
Smith rules too much for corporations. Give me a break. He has been on 
the bench 14 years. He has ruled for everybody during those 14 years. 
And, by the way, occasionally corporations are right. And if they are 
right, as judges in this country they ought to rule in their favor if 
it is a nonjury trial. They ought to be fair in their instructions if 
it is a jury trial and in the conduct of the trial if it is a jury 
trial. Brooks Smith has had that type of reputation.
  With regard to another comment of my friend from New York, he 
continues to repeat a myth that arose out of the Clarence Thomas 
proceedings. I happened to be there during those Clarence Thomas 
proceedings, and that myth is that he said he never discussed Roe v. 
Wade. That is not what he said. He was asked directly, and he said: I 
never debated it with my philosophy classmates. That is a considerably 
different answer.
  And from that, they extrapolated he never discussed it, and he wasn't 
asked any further questions about it by the same person who asked that 
question.
  The fact of the matter is, some ideologically disagree with Justice 
Thomas. Many on our side disagree with Justice Thurgood Marshall. I 
happened to have respected him greatly. I didn't agree with a lot of 
the things he wrote, but I also respected him.
  Clarence Thomas is writing some of the most literate, intelligent 
decisions on the Supreme Court right now.
  Let me say the danger of the position of my friend from New York, in 
saying ideology counts, is: Whose ideology? Because I have seen some 
very conservative judges get on the bench and become very liberal 
judges almost overnight. I have seen some very liberal judges get on 
the bench and become very conservative judges--maybe not overnight but 
certainly in time.
  I have to ask you, if you start talking ideology, whose ideology? 
There are differences on the Democratic side on ideology. There are 
differences on the Republican side on ideology. Are we going to have a 
single litmus test to bar somebody from serving just because they may 
be against Roe v. Wade or may be pro-life? Are we going to

[[Page 15404]]

have a litmus test against somebody serving because they once 
participated as a corporate lawyer? A terrible thing to do, I guess.
  No, we should not do that. If we took that attitude, that Roe v. Wade 
is paramount and preeminent in all judicial considerations, there would 
have been very few Clinton judges. As I say, he came very close, 
virtually was the same as the all-time confirmation champion, Ronald 
Reagan.
  So that is the danger, in my belief and in my philosophy, of the 
position of the distinguished Senator from New York. I respect the 
position. I respect his openness. I respect his forthrightness. I 
respect him personally. He is very intelligent, a good lawyer--some 
would say a great lawyer. I would say that. I enjoy being with him on 
the Judiciary Committee. But his doctrine is a dangerous doctrine 
because--whose ideology?
  People have tried to stereotype me the whole time I have been in the 
Senate. I just got finished writing a book that will be published this 
fall. It is going to be called ``The Square Peg.'' Guess who the square 
peg is. The fact is, that book is going to show I don't particularly 
fit in any category. Neither does the Senator from New York. In some 
respects, he is a very conservative Senator. In other respects, he is 
very liberal. I have had the same thing said about me. Does that mean 
neither of us could serve on any court because we might be conservative 
on some issues, we might be liberal on other issues, that offend some 
in this body? No, it should not mean that.
  Look, if a person is out of the mainstream, that is another matter. 
But I have seen the argument come up time after time the judges are 
outside of the judicial mainstream. That is pure bunk, to be honest 
with you. They do not get through this process where they are nominated 
by any President of the United States by being outside of the 
mainstream. They just do not. Some are conservative and some are 
liberal. This President has nominated some very liberal judges. He has 
nominated some very good conservative judges. He has nominated people 
in between. He has nominated Democrats. He has nominated Republicans.
  But it is dangerous to say that anybody's personal ideology ought to 
determine whether a person serves on the bench if that person is 
otherwise qualified.
  I hope my colleague who is forced to sit there and listen to me at 
this time as the Presiding Officer will reconsider at least some 
aspects of his position because he may be chairman of the Judiciary 
Committee someday. When he is, he is going to find that in the interest 
of fairness, you have to presume and give the benefit of the doubt to 
the President's nominee, especially unless you can show that they are 
outside of the mainstream of American jurisprudence.
  I have to tell you that I haven't seen many--in my whole time in 26 
years in the Senate and confirming almost every judge that currently 
sits on the Federal bench--that I would consider coming close to being 
outside of the mainstream of American jurisprudence. By the time they 
get through the vetting process at the White House, the vetting process 
of the FBI, the vetting process of the American Bar Association, and 
when they wind up with a well-qualified rating from the American Bar 
Association, you can't say they are outside of the mainstream of 
American jurisprudence, nor can you say that because they differ with 
you ideologically you have to vote against them.
  I happen to love my colleague. I just hope he will reconsider because 
I don't want him leading those who are less mentally equipped down the 
primrose path of partisan politics.
  I yield the floor to my dear colleague and friend from Florida, who 
has really fought that good battle on S. 812, which is something I very 
much respect.
  The PRESIDING OFFICER. The Senator from Florida is recognized after 
the eloquent and kind remarks of the Senator from Utah.
  Mr. GRAHAM. Mr. President, I also appreciate the kind remarks of the 
Senator from Utah and hope that he will open his Congressional Record 
tomorrow and will read the remarks that I am going to be delivering 
shortly, as we both share a very strong interest in the same 
destination, which is to assure that the 40 million Americans who are 
currently benefitting by Medicare will see in this year a fulfillment 
of a long held aspiration, which is to expand Medicare benefits to 
include prescription drugs.

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