[Congressional Record (Bound Edition), Volume 148 (2002), Part 11]
[SEN]
[Pages 15655-15656]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. NICKLES. Mr. President, earlier today we confirmed a total of 
eight judges. A lot of people said, boy, didn't we do great? We have 
done more in the last 12 months than anybody has done in the last 12 
months.
  I thank Senator Daschle, Senator Leahy, and others because we did 
confirm a few more circuit court judges, but let me state my 
disappointment in the fact that we have not done near enough. I want to 
put out facts. We have now confirmed 13 circuit court judges. President 
Bush submitted 32. We are in the second year of his Presidency. We are 
not quite finished, but we have confirmed 40 percent of his circuit 
court nominees. I looked at the first 2 years of the Clinton 
administration, and this Senate confirmed 19 of 22. That is 86 percent. 
I looked at the first 2 years of the first President Bush, the 101st 
Congress, and we confirmed 22 of 23 circuit court judges. That is 95 
percent.
  I looked at the first 2 years of President Reagan, 97th Congress, we 
confirmed 19 of 20 of his circuit court nominees. That is 95 percent.
  So for the three previous Presidents we confirmed over 90 percent of 
their circuit court nominees in their first 2 years.
  This Congress--and granted, the first several months, the first 6 or 
7 months of this Congress was controlled by Republicans and we did not 
confirm any judges because the President was just sending his nominees 
through and they did not have time, and that is not unusual. We usually 
do not confirm very many in the first 6 months of any administration.
  So far this year, we have done 13 out of 32; that is 40 percent. That 
is less than half the percentage of what we did in three previous 
Presidencies. Those are just facts. I heard someone said we confirmed 
72 judges. Great, 72 is a lot more than we confirmed in the last 2 
years of the Clinton administration. Granted, we usually don't confirm 
very many in the last year of a President's terms, but in the first 2 
years we usually do, and we are way behind.
  Some of the individuals were nominated 449 days ago--over a year ago. 
They were nominated last May--a year ago May. Some of these are the 
most outstanding nominees I have ever seen. John Roberts, nominated for 
the DC Circuit, has argued 37 cases before the U.S. Supreme Court. Is 
this individual qualified? He was nominated a year ago in May, and he 
has yet to have a hearing. He has argued 37 cases before the Supreme 
Court. How do you get more qualified? Miguel Estrada argued 15 cases 
before the Supreme Court and was unanimously rated well qualified by 
the ABA. He emigrated to the United States as a teenager from Honduras 
and spoke virtually no English. He graduated magna cum laude from 
Harvard Law School, editor of the Harvard Law Review, law clerk to 
Justice Kennedy, a former assistant solicitor general and assistant 
U.S. attorney. He has not received a hearing.
  I guess you can say, we have confirmed 72 this year, how is it fair 
to have 2 individuals such as John Roberts and Miguel Estrada not even 
have a hearing, having been nominated over a year ago? Senator Leahy 
made a commitment we would do Miguel Estrada. I am waiting.
  Priscilla Owen: We had a hearing in July of this year but no vote. 
The Republicans asked that be postponed because we are not sure where 
the votes are. Texas Supreme Court justice since

[[Page 15656]]

1994; unanimously rated well qualified by ABA; Baylor Law School 
graduate; member, Baylor law review; highest scorer on the Texas bar 
exam; eminently qualified.
  Maybe some people are now putting a litmus test in the committee. We 
did not used to do that. People used to rail against having a litmus 
test, and now people are trying to come up with a litmus test. If she 
is not confirmed, that is a travesty.
  Terrence Boyle was nominated in May, a year ago chief judge of the 
U.S. District Court, District of North Carolina, since 1997; 
unanimously rated well qualified. He worked as counsel in the House 
Subcommittee on Housing; was a legislative assistant in the Senate; 
prior district judge, 1984 to 1987; very well qualified and still no 
hearing and certainly has not had a vote.
  Michael McConnell, nominated to the Tenth Circuit; presidential 
professor of law, University of Utah; unanimously rated well qualified 
by ABA; one of the country's leading constitutional law experts; argued 
11 cases before the U.S. Supreme Court; prior assistant solicitor 
general; law clerk for Justice Brennan and cannot even get a hearing.
  Deborah Cook, nominated to the Sixth District; justice to the Supreme 
Court of Ohio since 1994; unanimously rated well qualified by ABA. The 
Sixth Circuit is almost half vacant, with 7 out of 16 seats empty in 
the Sixth Circuit; exceptionally well qualified and no hearing.
  Jeffrey Sutton, nominated to the Sixth Circuit as well; rated well 
qualified by ABA and qualified by ABA; graduated first in his class, 
Ohio University College of Law; law clerk to Supreme Court Justices 
Powell and Scalia, and argued 9 cases and over 50 merits and amicus 
briefs before the Supreme Court; and prior State Solicitor of the State 
of Ohio. He has yet to have a hearing in the Judiciary Committee.
  Dennis Shedd, nominated to the Fourth Circuit; a judge in the U.S. 
District Court of South Carolina since 1991; rated well qualified by 
ABA; 20 years of private practice and public service prior to becoming 
a district judge; law degree from the University of South Carolina; 
master of law degree from Georgetown. He received a hearing on June 
27--still not reported out of committee.
  I thank my colleagues for the fact we have confirmed 72 judges, but I 
mentioned 8 nominees who were nominated in May of last year; a couple 
have had a hearing, and the rest have not had hearings and have not 
been voted on in committee, and we have not had a chance to have a vote 
on the floor. A year and a half, how much is enough? This is an 
outrage. I don't think this should be done, Democrat or Republican.
  I plan on being back in the majority, and I tell my friends and 
colleagues on the other side of the aisle, I plan on treating judicial 
nominees fairly. Regardless of who is in the White House, we should 
treat them fairly. If there is a judge really out of the mainstream, 
let's debate it. But to hold up these individuals who have argued 30, 
and 15, and 9, and 10 cases before the Supreme Court and we do not even 
give them a hearing in committee, that is not fair. That is an 
injustice. That is an abuse of power.
  Maybe we are confirming district judges, and that is great, and 
district judges have sponsors of Senators. These are appellate court 
judges, circuit court judges, next to the highest court in the land, 
next to the Supreme Court, and they cannot get a hearing. I don't think 
that is right. I don't think it is fair. I am not saying there have not 
been injustices before by Republicans. Enough of this nonsense: You did 
not treat us right, we are not going to treat you right.
  Again, the tradition of the Senate: We do not usually confirm a lot 
of nominees in a President's last year or so. We certainly do his first 
year or so, as evidenced by the fact--and I will put this in the 
Record--that 95 and 96 percent of the three previous Presidents' 
circuit court nominees were confirmed in the first 2 years--almost all 
of them--and this year we are at 40 percent on circuit court nominees.
  That is totally unsatisfactory. That is not fair to those 
individuals. It is not fair to the judicial system. It is certainly not 
fair to the Sixth Circuit Court, which is almost half vacant.
  I tell my colleagues, we have made some progress, and my compliments. 
But we have a lot more to do, especially on circuit court nominees and 
on individuals such as John Roberts and Miguel Estrada. Let's lower the 
rhetoric and get some people confirmed. Let's treat them like 
individuals, with dignity. They have been nominated to the highest 
courts in the land. They have been nominated for lifetime appointments. 
Let's do our work. The Senate traditionally, over the years, would move 
judicial nominees expeditiously. And they are getting more difficult.
  Now people are saying: We want to review every case that the judge 
has ever written; we want to review every case on which he made a 
recommendation. That is ridiculous. It is an excuse for delay. That is 
not right. It is not for the majority or the minority. I urge my 
colleagues to be fair to the nominees and get as many confirmed and 
move the Senate along as we should and restore the Senate through the 
great traditions that the Senate has long held so we can be worthy of 
the title of Senator, and not have a reputation of: I am sorry, judge, 
we are sorry about your political career or, Mr. Attorney, you were 
nominated by the President of the United States, but we are sorry you 
have waited a year and a half and you cannot get a hearing before the 
Senate; they are too busy. That embarrasses me.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRAHAM. I ask unanimous consent the order for the quorum call be 
rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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