[Congressional Record (Bound Edition), Volume 148 (2002), Part 15]
[Senate]
[Pages 20869-20871]
[From the U.S. Government Publishing Office, www.gpo.gov]




              UNANIMOUS CONSENT REQUEST--SHEDD NOMINATION

  Mr. LOTT. Mr. President, last week, the Judiciary Committee pulled 
from their agenda the pending nomination of Judge Dennis Shedd to fill 
a seat on the 4th circuit court of appeals. That was contrary to all of 
the understandings as to what would happen with regard to that nominee. 
I think various Members on the judiciary committee on several occasions 
had been assured he would be given a vote. I think there is no question 
that Senator Thurmond had been under the impression there would be a 
vote on Shedd's nomination this year. Yet the nomination was removed 
from the calendar and, therefore, not even considered by the committee. 
A vote was not taken, and I presume it was blocked procedurally because 
there would have been enough votes in the Committee to actually report 
Shedd's nomination to the full Senate had there been a vote.
  I understand that moving to the executive calendar is traditionally a 
prerogative of the Majority Leader. However, there has been an 
extraordinary and unprecedented violation of Senate rules and tradition 
in the manner in which Judge Dennis Shedd's nomination was considered 
in the Judiciary Committee. I also believe that the manner in which 
Senator Thurmond was led on regarding Judge Shedd's nomination 
constituted a slight of Senator Thurmond during the final days of his 
long and distinguished Senate career. I remind Senators that we depend 
very heavily around here on comity and trust to do the vast majority of 
our business on behalf of the American people. When that trust is 
violated or misused it is hard to conduct business as usual.
  Mr. President, Dennis Shedd's nomination was finally put on the 
Judiciary Committee's agenda way back on Sept. 19, but was held over to 
the next mark-up which as it turned out was last Tuesday, October 8th. 
It is also my understanding that the normal practice is that when 
Senators in the Committee hold legislation and nominations over at a 
mark-up, the tradition and practice has always been that the items held 
over are placed on the very next mark-up.
  In this instance, the October 8th mark-up was actually postponed from 
the previous Thursday, October 3rd, so that Chairman Leahy could 
concentrate on passing the Department of Justice (DOJ) Re-authorization 
Conference Report. During the vote to invoke cloture on that bill, it 
is my understanding that Senator Thurmond was once again assured by 
Senator Leahy that Judge Shedd would be on the mark-up on October 8th.
  Unfortunately, that assurance as well as the practices and traditions 
of the Committee were violated last week because Judge Dennis Shedd's 
nomination was pulled from the committee's agenda--preventing the 
Committee from reporting him out to the full Senate. However, breeches 
in decorum regarding Judge Shedd and Senator Thurmond predate last 
week.
  On July 31st, Chairman Leahy publicly promised Senator Thurmond at a 
committee meeting that Judge Shedd would be voted on this year. When 
Shedd wasn't on the August 1st mark-up, Senator Leahy assured Senator 
Thurmond's Chief of Staff that Shedd would be voted on immediately 
after the August recess. When Shedd was not on the agenda for the first 
mark-up after the Senate returned in September--which was Sept. 5th--
Senator Thurmond then was assured that Dennis Shedd would be on the 
next mark-up on Sept. 19th.
  While Shedd was actually put on that mark-up on Sept. 19th, he was 
held over to the next mark-up--which is the right of Senators in the 
Committee to do. And then, as I said previously, contrary to tradition 
and practice, Shedd was kept off the agenda for the last mark-up of the 
year by Senator Leahy.
  Mr. President, there is no doubt about Judge Shedd's qualifications. 
He has strong bipartisan support. One of his most ardent supporters is 
the distinguished Democrat Senator from South Carolina, Senator 
Hollings. The ABA--the ``Gold Standard'' so often cited by Senator 
Leahy--gave Judge Shedd a ``Well Qualified'' rating, its highest 
rating. So, it is not Judge Shedd's qualifications which are standing 
in the way.
  He was appointed by President George H.W. Bush to the United States 
District Court for South Carolina in 1990, and has now served as a 
federal jurist for more than a decade--following nearly twenty previous 
years of public service and legal practice. In addition to his service 
on the District Court, he has sat by designation on the Fourth Circuit 
Court of Appeals on several occasions. Judge Shedd also has served on 
the Judicial Conference Committee of the Judicial Branch and its 
Subcommittee on Judicial Independence.
  From 1978 through 1988, Judge Shedd served in a number of different 
capacities in the United States Senate, including Counsel to the 
President Pro Tempore and Chief Counsel and Staff Director for the 
Senate Judiciary Committee when Senator Thurmond was the Chairman.
  Judge Shedd would bring unmatched experience to the Fourth Circuit. 
He has handled more than 4,000 civil cases since taking the bench and 
over 900 criminal matters. In fact, no judge currently sitting on the 
Fourth Circuit has as much federal trial experience as Judge Shedd, and 
none can match his ten years of experience in the legislative branch.
  Mr. President, Dennis Shedd's record demonstrates that he is a 
mainstream judge with a low reversal rate. In the more than 5,000 cases 
Judge Shedd has handled during his twelve years on the bench, he has 
been reversed fewer than 40 times (less than one percent). So, it 
should be clear that Judge Shedd is the victim of a deliberate, 
calculated, attempt by outside groups to embarrass one of President 
Bush's nominees and not any deficiency in his professional training or 
temperament.
  But Judge Shedd is not the only victim here. This is also an affront 
to Senator Thurmond in his final days as a Senator. We owe it to 
Senator Thurmond, as a sign of our respect and admiration for his 
distinguished service, to vote on the nomination of his

[[Page 20870]]

former staff director before Senator Thurmond's career comes to an 
end--an action the Senator feels that Senator Leahy gave him his word 
he would do.
  Mr. President, the rules of the Senate provide a motion to discharge 
a nomination. I want to do that. But I am under no illusion that I 
would be allowed to make that motion and have it succeed under any 
circumstances. That has been tried on the other side of the aisle when 
I was majority leader, and I know that it would be interpreted as a 
partisan vote and that the majority leader would have to press his 
members not to allow that to happen. But I feel so strongly about the 
unfairness of the treatment of this nominee and the way it has 
reflected on Senator Thurmond that I have to take some action.
  The Senate must be in executive session in order to move to discharge 
a nomination. That would not happen. Having said that, we feel we must 
make another effort. Therefore, I ask unanimous consent that the Senate 
proceed to executive session; that the nomination of Dennis Shedd, to 
be a Fourth Circuit judge, be discharged from the Judiciary Committee 
and placed on the calendar; further, I ask unanimous consent that at a 
time determined by the majority leader, after consultation with the 
Republican leader, the Senate proceed to a vote on the confirmation of 
the nomination, with no intervening action or debate; that following 
the vote the President be immediately notified of the Senate's action, 
and the Senate then resume legislative session.
  Finally, I ask unanimous consent that this action occur prior to the 
adjournment of the 107th Congress.
  The PRESIDING OFFICER. Is there objection?
  Mr. DASCHLE. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DASCHLE. Let me respond briefly. It has been the practice of the 
Senate, since we have been in the majority, to take up all nominations 
that have been reported out of the committee. This nomination has yet 
to be reported out of the committee. There have been a number of others 
who have sought recognition and have asked to be heard on the Shedd 
nomination, which is why the nomination was tabled.
  I hasten to add that, on that very day--I don't recall the exact 
number--a significant number of judicial nominations were passed out. I 
believe the number was 17. So there are 17 additional judicial 
nominations, which brings us close now to 100 judicial confirmations, 
if we deal with those 17 pending now on the calendar. More than 80 have 
already passed and were confirmed, and we have 17 pending and could be 
confirmed before the end of the year. That is close to an all-time 
record. I think that is all the more laudatory, given the fact that we 
have not been in the majority for the entire 2-year period of time. 
During that first 6-month period of time, the Republicans failed to 
confirm one judicial nomination; they failed on all counts to confirm 
even one. So the Shedd nomination is being reviewed. There are others 
who wish to be heard, and I respect the decision made by the chairman, 
in particular, that this nominee be given additional consideration, and 
that others who want to be heard be given that opportunity as well.
  I do object.
  Mr. LOTT. Mr. President, will the Senator yield for a question and a 
suggestion?
  Mr. DASCHLE. I will be happy to yield to the distinguished Republican 
leader.
  Mr. LOTT. Mr. President, we are in session this week--today and I 
presume tomorrow. I guess there is a possibility we will be in session 
again next week. In view of the commitments that were made that this 
nominee would be considered by the committee, is there a chance there 
would be another executive session or markup session of the Judiciary 
Committee either tomorrow or next week to further consider this 
nomination, because at least 2 weeks will have transpired between the 
last time it was supposed to be considered and when the Senate would go 
out for the election, and possibly even after the election?
  The majority leader will note my UC just asked consent that it occur 
before the adjournment of the 107th Congress. I did not say today or 
next week, although, obviously, I feel strongly it should be considered 
soon. Is there a possibility something could be worked out in this 
regard?
  Mr. DASCHLE. Mr. President, there is always a possibility, and I will 
certainly work with the Republican leader on all the nominations. He 
and I have talked on numerous occasions about how we might accommodate 
all of those nominees whose names are pending on the calendar. We have 
not yet been able to address those.
  I would like very much to clear the calendar, to do as much as 
possible to get those who have been reported out cleared and confirmed 
prior to the time we leave. Clearly, I would work with him and 
certainly with the Judiciary Committee. I cannot make any commitments 
this afternoon without consultation with the Chair. But I think the 
committee has been more than fair and more than productive in its 
effort to move out of the committee the large number of nominations, 
both at the district and circuit levels. I will certainly consult with 
the distinguished Republican leader and the Chair in the coming days.
  Mr. REID. Will the Senator yield for a question?
  Mr. DASCHLE. I will be happy to yield to the Senator from Nevada.
  Mr. REID. The Senator is aware when the Republicans were in the 
majority, we tried on a number of occasions to get a significant number 
of judges to have hearings. For example, I can remember last week 
Senator Boxer spoke to me about judges in California who waited over 4 
years to have a hearing. Does the Senator recall that?
  Mr. DASCHLE. Unfortunately, I do. I think if we go back, we would 
recognize there are a number of nominees who waited 3 and 4 years and 
never even got a hearing. Mr. Shedd was at least given a hearing. As I 
say, people are continually coming before the committee and seeking 
additional opportunities to address the committee on the Shedd 
nomination. That is far more than what a number of the nominees were 
given over the course of the Clinton administration.
  We are hoping to rectify that, which is why we have confirmed as many 
judges as we have to date. As I say, almost 100 judges will have been 
confirmed if we clear the Federal calendar prior to the time we adjourn 
sine die.
  I yield the floor.
  The PRESIDING OFFICER. The Republican leader.
  Mr. LOTT. Mr. President, I believe I still have the floor. I was 
asking the Senator to yield. He was still, I guess, proceeding under 
his objection. I take my time back. I would like to put some other 
issues into the Record.
  Mr. President, I do want to respond to the comments about the 
nominations that have been confirmed and those that are still pending. 
There have been 131 judicial nominations submitted by President Bush 
during the 107th Congress--32 U.S. circuit nominees; 98 district 
nominees, and one U.S. Court of International Trade judge. So far, 80 
of the 131 nominees have been confirmed--14 U.S. circuit court judges 
and 66 district court judges. But the key figure is that there are 
still 49 nominations pending before the Senate, without final action 49 
nominations. There are still 31 nominations pending in committee. Of 
the 16 U.S. circuit court positions that have not been confirmed--15 
are still in the committee, just one is on the floor, and that one is 
the nominee for the Sixth Circuit, Mr. John Rogers, who has been 
pending on the Executive Calendar since July.
  I thought there had been an agreement that we would move that 
nomination before the August recess. Again, that circuit court nominee 
has been pending on the Senate floor since July--almost 4 months ago. 
And there are 15 other circuit nominees in committee, some of whom have 
been waiting over 500 days without even a hearing.
  As to district court nominees, there are still 15 of them in 
committee as

[[Page 20871]]

well, and the 17 that are on the floor for consideration were just 
reported last week. I hope we will at least confirm those nominations 
before we leave, although on many occasions, we had to have recorded 
votes to move even district judges. I wonder if that means we are going 
to have to have 12, 14, 16, 17 recorded votes in the Senate on district 
judges to get them confirmed before we adjourn for the year. And, of 
course, the one USIT position is still pending in Committee and has 
been since December of last year.
  The key point is the alarming number of vacancies on the federal 
courts--77, which is almost 10 percent of federal judgeships. I 
understand from the Judicial Council and from the Chief Justice, that 
over 30 of these nominations are for seats that are considered 
emergency vacancies that need to be filled.
  We can always talk about percentages and numbers, Mr. President. For 
example, so far only 43 percent of this President's circuit nominations 
in his first 2 years have been confirmed. President Clinton got over 86 
percent of his circuit nominees confirmed in his first 2 years in 
office, the first President Bush got 96 percent and President Reagan 
got 95 percent. Only 43 percent of circuit court judge nominations have 
been confirmed in this Congress compared to almost 90 percent for other 
Presidents over the past 20 years. That is a problem.
  I know there have been disagreements in the past about nominations 
when I was majority leader, but we did move large blocks of 
nominations. We had some approved that were very controversial and 
others were not moved in the final analysis.
  The problem with this particular nomination is not only the 
exceptional qualifications of the nominee and his history as a former 
judiciary committee staffer, but more importantly, the way Senator 
Thurmond has been treated in the process. Judge Shedd is eminently 
qualified for the job. He is a former staff director of the Judiciary 
Committee. And he has been a sitting Federal district judge for over a 
decade, confirmed by the Senate, probably unanimously. Nevertheless, 
after Senator Thurmond was given the word that he would have this 
nomination voted on before the year was out, this nomination was pulled 
from the calendar of the committee's last markup.
  Mr. President, that is simply a tragic conclusion to an almost five-
decade career in the Senate. It is also in my view a violation of the 
unwritten rules of civility about which we all talk and aspire to in 
the Senate. That is why I will make a continued effort to find a way 
for this nominee to be considered by the committee and confirmed by the 
Senate in this Congress before Senator Thurmond retires. Senator 
Thurmond, Judge Shedd, and the American people deserve better. Senator 
Thurmond as an icon of this institution in his final days deserves 
better. And the honor and traditions of the U.S. Senate deserve better.
  I yield the floor.

                               Exhibit 1


                           shedd's background

       Appointed by President George H.W. Bush to the United 
     States District Court for South Carolina in 1990, Dennis W. 
     Shedd has served as a federal jurist for more than a decade 
     following nearly twenty years of public service and legal 
     practice.
       In addition to his service on the District Court, he has 
     sat by designation on the Fourth Circuit Court of Appeals on 
     several occasions. Judge Shedd also has served on the 
     Judicial Conference Committee of the Judicial Branch and its 
     Subcommittee on Judicial Independence.
       From 1978 through 1988, Judge Shedd served in a number of 
     different capacities in the United States Senate, including 
     Counsel to the President Pro Tempore and Chief Counsel and 
     Staff Director for the Senate Judiciary Committee.
       Judge Shedd is well-respected by members of the bench and 
     bar in South Carolina. According to South Carolina 
     plaintiff's attorney Joseph Rice, ``Shedd--who came to the 
     bench with limited trial experience? has a good understanding 
     of day-to-day problems that affect lawyers in his courtroom . 
     . . He's been a straight shooter.'' [Legal Times, May 14, 
     2001.]
       According to the Almanac of the Federal Judiciary, 
     attorneys said that Judge Shedd has outstanding legal skills 
     and an excellent judicial temperament. A few comments from 
     South Carolina lawyers: ``You are not going to find a better 
     judge on the bench or one that works harder.'' ``He's the 
     best federal judge we've got.'' ``He gets an A all around.'' 
     ``It's a great experience trying cases before him.'' ``He's 
     polite and businesslike.''
       Plaintiffs lawyers commended Shedd for being even-handed: 
     ``He has always been fair.'' ``I have no complaints about 
     him. He's nothing if not fair.'' [Almanac of the Federal 
     Judiciary, Vol. 1, 1999.]
       Judge Shedd would bring unmatched experience to the Fourth 
     Circuit. He has handled more than 4,000 civil cases since 
     taking the bench and over 900 criminal matters. In fact, no 
     judge currently sitting on the Fourth Circuit has as much 
     federal trial experience as Judge Shedd, and none can match 
     his ten years of experience in the legislative branch.
       Shedd's record demonstrates that he is a mainstream judge 
     with a low reversal rate. In the more than 5,000 cases Judge 
     Shedd has handled during his twelve years on the bench, he 
     has been reversed fewer than 40 times (less than one 
     percent). Since taking his seat on the Fourth Circuit in 
     2001, Judge Roger Gregory (a Democrat appointed by President 
     Bush) has written opinions affirming several of Judge Shedd's 
     rulings.

  Mr. SANTORUM. Mr. President, will the Senator from Mississippi yield?
  Mr. DASCHLE. Mr. President, what is the regular order?
  The PRESIDING OFFICER (Mr. Carper). Under the previous order, the 
Senator from Maryland, Ms. Mikulski, is recognized for 5 minutes. The 
Senator from Maryland.

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