[Congressional Record (Bound Edition), Volume 148 (2002), Part 15]
[Senate]
[Pages 20492-20495]
[From the U.S. Government Publishing Office, www.gpo.gov]




     THE JUDICIARY COMMITTEE'S 100TH VOTE IN 15 MONTHS ON JUDICIAL 
                              NOMINATIONS

  Mr. LEAHY. Mr. President, today marks the 15-month anniversary of the 
reorganization of the Senate Judiciary Committee following the change 
in the Senate majority last summer. This week also became another 
milestone as the Judiciary Committee voted on the 100th judicial 
nominee of President George W. Bush. This historic demonstration of 
bipartisanship toward this President's judicial nominees has been 
overshadowed by partisan attacks in this very chamber and in the press.
  I have worked diligently along with the other Democratic Senators on 
the Judiciary Committee to hold a record number of hearings for this 
President's district and circuit court nominees

[[Page 20493]]

during the past 15 months and to bring as many as we could to a vote 
this year. Given all of the competing responsibilities of the committee 
and the Senate in these times of great challenges to our Nation, 
hearings for 103 judicial nominees, voting on 100, and favorably 
reporting 98 is a record of which the Judiciary Committee and the 
Senate can be proud. We have transcended the relative inaction of the 
prior 6\1/2\ years of Republican control by moving forward on judicial 
nominees twice as quickly as our predecessors did. Indeed, the Senate 
has already confirmed more judicial nominees in 15 months than the 
Republican-controlled Senate did during its last 30 months. More 
achieved, and in half the time.
  The raw numbers, not percentages, reveal the true workload of the 
Senate on nominations and everyone knows that. Anyone who pays 
attention to the federal judiciary and who does not have a partisan 
agenda must know that. In addition, Democrats have moved more quickly 
in voting on judicial nominees of a President of a different party than 
in any time in recent history. Led by Majority Leader Daschle, the 
Democratic majority in the Senate has confirmed 80 judicial nominees, 
including 14 circuit court nominees, for a President of a different 
party, in just 15 months since the reorganization of the Judiciary 
Committee. In comparison, in the first two full years of President 
George H.W. Bush's administration, the Democratic-led Senate confirmed 
71 judicial nominees. In fact, during the first 15 months of the first 
Bush Administration, only 23 judges were confirmed, with eight to the 
circuit courts. Our confirmation of 80 of President George W. Bush's 
judicial nominees in just 15 months is historic progress for a 
President and a Senate led by different parties.
  Apparently, however, Republicans believe that there is partisan hay 
to be harvested in complaining that every single judicial nominee has 
not yet been confirmed. The fact is that we have proceeded with 
hearings for 103 of the 110 judicial nominees eligible for hearings 94 
percent, for those focused on percentages. The other 17 judicial 
nominees who have not participated in a hearing either lack home-state 
consent or peer reviews or both. Thus, when partisans harp on the 
nominations of Terrence Boyle and Carolyn Kuhl and other nominees 
without home-State Senator support, they know they are being 
misleading. Senator Hatch never proceeded on a nomination without home-
State Senator support and acknowledges that this is the Senate's 
tradition. At least six of the President's circuit court nominees fall 
into this category and, for many if not all of them, the White House 
knew about the lack of home-State Senator support before the 
nominations were made.
  The committee has voted on 100 of the 103 judicial nominees eligible 
for votes--97 percent. Of those voted upon, 98--98 percent have been 
reported favorably to the Senate. In addition to the 80 judges already 
confirmed, another 18 approved by the Judiciary Committee await Senate 
action on the Senate Executive Calendar.
  It is disappointing that the Republican leader and others are 
reported to have said that they will not be allowed Senate votes before 
we adjourn. Earlier this year the majority leader had to work through a 
problem caused by the administration's failure to work with Senators on 
executive branch appointments. The majority leader was required by 
Republican objection to invoke cloture in order to vote on President 
Bush's judicial nominations. Whether there is time left in this session 
to overcome Republican objections to action on the roster of President 
Bush's judicial nominations currently on the calendar is problematic.
  To date, and unlike the recent past, every judicial nominee who 
participated in a hearing has been considered and voted upon by the 
Judiciary Committee but for the three controversial circuit court 
nominees we continue to consider.
  I know that Senator Thurmond is very disappointed that we could not 
bring his choice for the Fourth Circuit to a vote this week. I regret 
that he is upset. The nomination of his former aide for a promotion to 
the Court of Appeals has grown more controversial. On our committee, as 
on all committees, controversy takes a toll in the time needed for 
action on a bill or on a nomination. Members of the committee need time 
to fully evaluate the merits of concerns about this nomination raised 
by hundreds if not thousands of citizens from throughout the Fourth 
Circuit and the Nation. In accordance with our responsibilities under 
the Constitution to evaluate these nominations for lifetime 
appointments, the members of the committee continue to work diligently 
on simultaneously evaluating three controversial circuit court 
nominations.
  As much as I personally would have liked to resolve this nomination 
by now at the request of the distinguished Senior Senator from South 
Carolina, and as hard as I have worked to resolve the problems with it, 
we were not able to vote on it this week. I worked hard to try to move 
the nomination of his former aide forward to a vote up or down but, 
with war resolutions pending before the Senate and limited time for 
debate this Tuesday, I had to make a difficult decision. Seventeen 
relatively noncontroversial judicial nominations were ready for 
committee votes this week. I decided to try to bring some relief to 17 
vacant seats in district courts across our country rather than begin 
what promised to be a lengthy and inconclusive debate about Judge 
Shedd's record as a Federal district court judge and whether he should 
be elevated. That was a tough decision for me, personally, but the 
rising tide of citizen distress over the Shedd nomination made bringing 
that vote to a conclusion an impossibility this week.
  Republican efforts to gain some political advantage for this 
difficult situation are especially unfounded given the stark contrast 
between what we have achieved in the past 15 months compared with the 
most recent period of Republican control of the committee. In the 15 
months before the reorganization of the Judiciary Committee after the 
shift in Senate majority, the Senate confirmed only 32 judicial 
nominees, including three to the circuits. Under Democratic leadership, 
we have already confirmed 80, including 14 to the circuit courts, in 
just 15 months. Even if we compare our record with a period of 
Republican control that is twice as long--the last 30 months of 
Republican control--our predecessors confirmed only 72 judges, while in 
half the time, we have confirmed 80. Alternatively, if we go back and 
compare the Republicans' first 15 months of Senate control in 1995 and 
1996, we have accomplished far more: more hearings, 26 versus 14, for 
more judicial nominees, 103 versus 67, with more committee votes, 100 
versus 61, for more confirmations, 80 versus 56. We have reached the 
century mark for committee votes in less than half the time, 15 months, 
while it took our predecessors 33 months to vote on 100 judicial 
nominees.
  In another departure from the past, we have had hearings even for 
several controversial judicial nominees and brought them to votes this 
year. Most were voted out of committee despite their controversy. Given 
the number of vacancies that we inherited--110--concentrating on the 
most controversial, time-consuming nominations would have been to the 
detriment of the courts. The President has made a number of divisive 
choices--divisive to the American people and divisive to the Senate--
for these lifetime seats on the courts, and they take more time to 
bring to hearings and votes. None of these nominees, however, have 
waited as long for hearings or votes as did some of President Clinton's 
judicial nominees, such as Judge Richard Paez, who waited 1,500 days to 
be confirmed and 1,237 days to get a final vote by the Republican-
controlled Senate Judiciary Committee, or Judge Helene White, whose 
nomination languished for more than 1,500 days without ever getting a 
hearing or a committee vote.
  As frustrated as Democrats were with the lengthy delays and 
obstruction of scores of judicial nominees in the prior 6\1/2\ years of 
Republican control, we never attacked the Chairman of the Committee in 
the manner Republicans chose this week. Similarly,

[[Page 20494]]

as disappointed as Democrats were with the refusal of Chairman Hatch to 
include Allen Snyder, Bonnie Campbell, Clarence Sundram, Fred Woocher 
and other nominees on an agenda for a vote by the committee for months 
following their hearings, we never resorted to the tactics and tone 
used by Republicans in committee statements, in hallway discussions, in 
press conferences or in Senate floor debate. We never tried to override 
the chairman's prerogative to set the agenda for consideration of 
judicial nominees by trying to manipulate the committee's cloture rule. 
We did not try to use the committee rule to hold off consideration of 
an agenda item for at least a week to force either legislation or 
nominations to be voted on in one week's time. During Republican rule, 
even some uncontroversial nominees like Judge Kim Wardlaw were held 
over more than once. We also never sought to invoke Senate Rule 26.3 to 
make an end-run around Chairman Hatch--even when weeks and months 
passed without a single nominee on the agenda or when nominees who had 
hearings went for months without being placed on the agenda. As 
frustrated and disappointed as we were that the Republican majority 
refused to proceed with hearings or votes on scores of judicial 
nominees, we never sought to override Senator Hatch's judgments and 
authority as chairman of the committee.
  Some in the other party have spared no efforts in making judicial 
nominations into a partisan, political issue, all the while refusing to 
acknowledge the progress made in these past 15 months when 100 of 
President Bush's judicial choices have had committee votes. We have 
perhaps moved too quickly on some, relaxing past standards, being more 
expeditious and generous than Republicans were to a Democratic 
President's nominees, and trying to take some of them at their word 
that they will follow the law and the ethical rules for judges.
  Just last week, on October 2, 2002, we confirmed Ron Clark to an 
emergency vacancy in the United States District Court for the Eastern 
District of Texas. Two other judicial nominees, Larry Block and Judge 
James Gardner, were confirmed the very same day. The commissions for 
Judge Block and Judge Gardner were signed by the President on October 
3, but the judge for the emergency vacancy in the President's home 
state was not. Just this week we learned that Mr. Clark was quoted as 
saying that he asked the White House to delay signing his commission 
while he runs as a Republican candidate for re-election to a seat in 
the Texas legislature. The White House apparently has been complicit in 
these unseemly political actions by a person confirmed to the federal 
bench. Mr. Clark, who the Senate has confirmed to a seat on the Federal 
district court in Texas, has been actively campaigning for election 
despite his confirmation.
  These actions call into question Mr. Clark's ability to put aside his 
partisan roots and be an impartial adjudicator of cases. In his answers 
under oath to the committee, he swore that if he were ``confirmed'' he 
would follow the ethical rules. Canon 1 of the Code of Conduct for 
United States Judges explicitly provides that the Code applies to 
``judges and nominees for judicial office,'' and Canon 7 provides quite 
clearly that partisan political activity is contrary to ethical rules. 
In his answers to me, Mr. Clark promised: ``[s]hould I be confirmed as 
a judge, my role will be different than that of a legislator.'' Yet now 
that he is confirmed, he has been flaunting his written statements to 
me personally and to the Senate Judiciary Committee and, by proxy, to 
the Senate as a whole. That the White House would go along with these 
partisan ploys reveals much about the political way this administration 
approaches judicial nominations.
  Senators Kennedy and Schumer have written a letter of complaint to 
the Fifth Circuit Judicial Council, which has jurisdiction over ethical 
complaints arising in that jurisdiction. I ask unanimous consent that 
the letter and a newspaper report of the Clark scandal be included in 
the Record. Tonight, only after this scandal came to the Nation's 
attention in today's news account in the New York Times, the President 
has apparently signed Mr. Clark's commission.
  With a White House that is politicizing the Federal courts and making 
so many nominations, especially to the circuit courts, to appease the 
far-right wing of the Republican Party, it would be irresponsible for 
us to simply rubber-stamp these nominations for lifetime appointments 
to our independent Federal judiciary. Advice and consent does not mean 
giving any President carte blanche to pack the courts with ideologues 
from the right or the left.
  I have worked hard to bring to a vote an overwhelming majority of 
this President's judicial nominees, but we cannot afford to make errors 
in these lifetime appointments out of haste or sentimental 
considerations, however well intentioned. To help smooth the 
confirmation process, I have gone out of my way to encourage the White 
House to work in a bipartisan way with the Senate, as past Presidents 
have, but, in all too many instances, the White House has chosen to 
bypass bipartisan cooperation in favor of partisanship.
  The American people expect the federal courts to be fair forums and 
not bastions of favoritism on the right or the left. These are the only 
lifetime appointments in our whole system of government, and they 
matter a great deal to the future of each and every American. I will 
continue to work hard to ensure the independence of our Federal 
judiciary.


                                                  U.S. Senate,

                                  Washington, DC, October 9, 2002.
     The Hon. Carolyn Dineen King,
     Chief Judge, U.S. Court of Appeals for the Fifth Circuit, New 
         Orleans, LA.
       Dear Chief Judge King: We write to raise an ethics issue 
     regarding Ronald W. Clark, who was nominated by President 
     Bush on January 24 and confirmed by the Senate on October 2, 
     to be a judge on the U.S. District court for the Eastern 
     District of Texas, but whose commission has not yet been 
     signed by the President.
       It has come to our attention Mr. Clark continues to hold 
     his seat in the Texas state legislature and continues to 
     campaign for re-election to that seat. Although Mr. Clark 
     does not officially become a federal judge until he takes the 
     oath of office, his continuing campaign activities appear to 
     be in clear violation of Code of Conduct for Untied States 
     Judges. The commentary to Code of Conduct makes clear that 
     the Canons of Ethics define judicial nominees as judges and 
     bind them to the same ethical rules. Canon 7 of the Code 
     states that ``a judge should refrain from political 
     activity'' and should not ``act as a leader or hold any 
     office in a political organization; make speeches for a 
     political organization, or candidate or publicly endorse or 
     oppose a candidate for public office; [or] solicit funds.'' 
     Canon 7 goes on to state that a judge ``should not engage in 
     any other political activity.''
       Traditionally, this provision has been construed to have 
     limited application to nominees. Because of the contingent 
     nature of the Senate confirmation process, it would be unfair 
     to require nominees to resign from elective office merely 
     upon being nominated. But once the President's nominees are 
     confirmed by the Senate, the process loses its uncertainty. 
     The only step between nominee and judge is a ministerial act 
     that should be completed promptly, and not delayed for 
     partisan or political reasons.
       Despite the clear applicability of the Code of Conduct, Mr. 
     Clark continues to be a candidate for re-election to the 
     Texas House of Representatives. This matter is of grave 
     concern to us. As Members of the United States Senate 
     Judiciary Committee, we take our Constitutional confirmation 
     responsibilities seriously. Mr. Clark's continued candidacy 
     appears to be a flagrant violation of the judicial code of 
     conduct, which is deeply troubling. Judges should be paragons 
     of ethics, and Mr. Clark's actions do not set a sterling 
     standard at the outset of his judicial career.
       According to the Code of Conduct, complaints of ethical 
     misconduct may be lodged with the Circuit council, which we 
     understand you chair. We would appreciate your prompt 
     consideration of this inquiry, and we look forward to hearing 
     from you in the near future.
           Sincerely,
     Charles E. Schumer,
       U.S. Senator.
     Edward M. Kennedy,
       U.S. Senator.
                                  ____

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Oct. 10, 2002]

               Bush Acting To Forestall an Issue in Texas

                           (By Neil A. Lewis)

       Washington, Oct. 9.--The White House moved quickly tonight 
     to quash a politically

[[Page 20495]]

     embarrassing problem with one of President Bush's nominees to 
     a federal court seat.
       Although the nominee, Ron Clark, was confirmed by the 
     Senate earlier this month to be a federal district judge 
     based in Texas, he was out campaigning today for re-election 
     as a state representative from his district north of Dallas. 
     Mr. Clark had said he might want to delay taking his seat on 
     the bench to serve one more term in the State Legislature, 
     where his vote might be crucial to Republicans winning the 
     speakership.
       Two Democratic Senators, Charles E. Schumer of New York and 
     Edward M. Kennedy of Massachusetts, complained about Mr. 
     Clark's actions today, saying they were a blatant violation 
     of judicial ethics, a view with which some legal scholars 
     agreed. The senators wrote to Carolyn D. King, the chief 
     judge of the United States Court of Appeals for the Fifth 
     Circuit based in New Orleans, asking her to evaluate whether 
     Mr. Clark had violated the judicial canons of ethics even 
     before he had put on his robe.
       By evening, the White House intervened, saying President 
     Bush would soon sign the formal commission for Mr. Clark, the 
     last step in making him a federal judge.
       In an interview earlier today, Mr. Clark said he was just 
     playing it safe.
       ``If the president signs the certificate then, I'll move 
     forward,'' he said before going out to a campaign appearance 
     in which he presented a flag to some cub scouts. He said he 
     had no control over Mr. Bush's actions and ``right now, I'm 
     running for state representative.''
       Mr. Clark said he had been trapped by circumstances because 
     he was confirmed on Oct. 2 and the last date for withdrawing 
     from the ballot under Texas law was Sept. 3. ``There is no 
     legal way to take it off, so I'm in the race, until Election 
     Day,'' he said. Asked if he intended to keep campaigning for 
     re-election, he said: ``Oh, yes, I go to functions, go block 
     walking, that sort of thing.''
       Mr. Clark has asserted that he did not know why Mr. Bush 
     had not yet acted, yet he was quoted in this week in Texas 
     Weekly, a political journal, as saying he had asked the White 
     House to delay signing his commission so he could serve 
     another legislative term. Ross Ramsey, the journal's editor, 
     who wrote the article, said Mr. Clark had told him he would 
     be interested in serving through May, when the 20-week 
     session is expected to end.
       In his article, Mr. Ramsey said Mr. Clark's presence in the 
     Legislature when it convenes in January might be crucial to 
     Republican hopes to retain the speakership in what is 
     expected to be a close race.
       Senators Schumer and Kennedy, both of whom serve on the 
     Judiciary committee, said in their letter that Mr. Clark's 
     legislative campaign ``appears to be in clear violation of 
     the Code of Conduct for United States Judges.'' The canons 
     mandate that ``a judge refrain from political activity.''
       Steven Gillers, the vice dean of the New York University 
     Law School and an authority on ethics, said that provisions 
     in both the federal and state codes of conduct mandated that 
     Mr. Clark resign his political office. The Texas code, he 
     said, makes it clear that a candidate for a judicial office 
     has to behave as a judge in avoiding politics. The federal 
     rules require a judge to resign from office when he or she 
     becomes a candidate for political office.
       ``While a person seeking a judgeship may have an argument 
     that he not give up a political office, this man is, for all 
     intents and purposes, a judge,'' Mr. Gillers said.
       Erwin Chemerinsky, a visiting law professor at Duke 
     University, said Mr. Clark seemed to be using the formality 
     of Mr. Bush's signature to avoid his obligations.
       ``But judicial ethics is all about removing judges from 
     politics,'' Mr. Chemerinsky said, and given that Mr. Bush is 
     the president who appointed him, Mr. Clark should not run for 
     office.
       Senate Republicans and President Bush have said that there 
     is an urgent need to fill federal judgeships and that action 
     is being blocked by the Democrats who have opposed several of 
     the president's nominees.
       In fact, today, at a White House celebration of Hispanic 
     Heritage Month, Mr. Bush criticized the Senate's handling of 
     his nomination of Miguel Estrada to a seat on the United 
     States Court of Appeals for the District of Columbia.
       ``There are senators who are playing politics with this 
     good man's nomination,'' the president said. ``There are 
     senators who would rather not give him the benefit of the 
     doubt, senators looking for a reason to defeat him as opposed 
     to looking for a reason to herald his intelligence, his 
     capabilities, his talent. I strongly object to the way this 
     man is going to be treated in the United States Senate.''
       The Judiciary Committee recently held a hearing on Mr. 
     Estrada's nomination but has not scheduled a vote.

                          ____________________