[Congressional Record (Bound Edition), Volume 148 (2002), Part 4]
[Senate]
[Pages 4558-4561]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF TERRENCE L. O'BRIEN, OF WYOMING, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE TENTH CIRCUIT

  The PRESIDING OFFICER. The Senate will go into Executive session and 
proceed to the consideration of the nomination of Terrence L. O'Brien, 
which the clerk will report.
  The legislative clerk read the nomination of Terrence L. O'Brien, of 
Wyoming, to be United States Circuit Judge for the Tenth Circuit.
  Mr. LEAHY. Mr. President, today, the Senate is voting on the 43rd 
judicial nominee to be confirmed since last July when the Senate 
Judiciary Committee reorganized after the Senate majority changed. With 
today's vote on Judge Terrence O'Brien to the United States Court of 
Appeals for the Tenth Circuit, the Senate will confirm its eighth 
circuit court judge in little more than 9 months, since I became 
chairman this past summer.
  The Senate is making progress on judicial confirmations. Under 
Democratic leadership, the Senate has confirmed more judges in the last 
9 months than were confirmed in 4 out of 6 full years under Republican 
leadership. The number of judicial confirmations over these past 9 
months--43 exceeds the number confirmed during all 12 months of 2000, 
1999, 1997 and 1996.
  During the preceding 6\1/2\ years in which a Republican majority most 
recently controlled the pace of judicial confirmations in the Senate, 
248 judges were confirmed.
  Some like to talk about the 377 judges confirmed during the Clinton 
administration, but forget to mention that more than one-third were 
confirmed during the first 2 years of the Clinton administration while 
the Senate majority was Democratic and Senator Biden chaired the 
Judiciary Committee. The pace of confirmations under a Republican 
majority was markedly slower, especially in 1996, 1997, 1999, and 2000.
  Thus, during the 6\1/2\ years of Republican control of the Senate, 
judicial confirmations averaged 38 per year--a pace of consideration 
and confirmation that we have already exceeded under Democratic 
leadership over these past 9 months, in spite of all of the challenges 
facing Congress and the Nation during this period, and all of the 
obstacles Republicans have placed in our path.
  I ask myself how Republicans can justify seeking to hold the 
Democratic majority in the Senate to a different standard than the one 
they met themselves during the last 6\1/2\ years. There simply is no 
answer other than partisanship. This double standard is most apparent 
when Republicans refuse to compare fairly the progress we are making 
with the period in which they were in the Senate majority with a 
President of the other party.
  They do not want to talk about that because we have exceeded, in just 
9 months, the average number of judges they confirmed per year.
  They would rather unfairly compare the work of the Senate on 
confirmations in the past 9 months to 2 years of work of previous 
Senates and Presidents. They say it is unfair that the Democratic-led 
Senate has not yet confirmed as many judges in 9 months as were 
confirmed in 24-month-periods at other times. I would say it is quite 
unfair to complain that we have not done 24 months of work on judicial 
vacancies in the 9 months we have had since the Senate reorganized.
  These double standards and different standards are just plain wrong 
and unfair, but that does not seem to matter to Republican's intent on 
criticizing and belittling every achievement of the Senate under a 
Democratic majority.
  Republicans have been imposing a double standard on circuit court 
vacancies as well. The Republican attack is

[[Page 4559]]

based on the unfounded notion that the Senate has not kept up with 
attrition on the Courts of Appeals. Well, the Democratic majority in 
the Senate has more than kept up with attrition and we are seeking to 
close the vacancies gap on the Courts of Appeals that more than doubled 
under the Republican majority.
  The Republican majority assumed control of judicial confirmation in 
January 1995 and did not allow the Judiciary Committee to be 
reorganized after the shift in majority last summer until July 10, 
2001. During that period from 1995 through July 2001, vacancies on the 
Courts of Appeals increased from 16 to 33, more than doubling.
  When I became chairman of a committee to which Members were finally 
assigned on July 10, we began with 33 Court of Appeals vacancies. That 
is what I inherited. Since the shift in majority last summer, five 
additional vacancies have arisen on the Courts of Appeals around the 
country. Prior to today's vote on Judge O'Brien, the 7 circuit judges 
confirmed had reduced the number of circuit vacancies to 31. With 
today's confirmation, there will be 30 vacancies.
  Rather than the 38 vacancies that would exist if we were making no 
progress, as some have asserted, there are now 30 vacancies, that is 
more than keeping up with the attrition on the circuit courts. Since 
our Republican critics are so fond of using percentages, I will say 
that we will have now reduced the vacancies on the Courts of Appeals by 
almost 10 percent in the last 9 months.
  While the Republicans' Senate majority increased vacancies on the 
Courts of Appeals by over 100 percent, it has taken the Democratic 
majority 9 months to reverse that trend, keep up with extraordinary 
turnover and, in addition, reduce circuit court vacancies by almost 10 
percent.
  Alternatively, Republicans should note that since the shift in 
majority away from them, the Senate has filled more than 20 percent of 
the vacancies on the Courts of Appeals in a little over 9 months. This 
is progress.
  Rather than having the circuit court vacancy numbers skyrocketing, as 
they did overall during the prior 6\1/2\ years more than doubling from 
16 to 33--the Democratic-led Senate has reversed that trend and the 
vacancy rate is moving in the right direction, down.
  It is not possible to repair the damage caused by longstanding 
vacancies in several circuits overnight, but we are improving the 
conditions in the 5th, 10th and 8th Circuit, in particular. Judge 
O'Brien will be the second judge confirmed to the 10th Circuit in the 
last 4 months.
  With today's vote on Judge O'Brien, in a little more than 9 months 
since the change in majority, the Senate has confirmed eight judges to 
the Courts of Appeals and held hearings on three others. In contrast, 
the Republican-controlled majority averaged only seven confirmations to 
the Courts of Appeal per year. Seven.
  In the last 9 months, the Senate has now confirmed as many Court of 
Appeals judges as were confirmed in all of 2000 and more than were 
confirmed in all of 1997 or 1999. It is eight more than the zero 
confirmed in all of 1996.
  We have confirmed eight circuit court judges and there are almost 3 
months left until the 1-year anniversary of the reorganization of the 
Senate and the Judiciary Committee and we have already exceeded the 
annual number of Court of Appeals judges confirmed by our predecessors.
  Overall, in little more than 9 months, the Senate Judiciary Committee 
has held 16 hearings involving 55 judicial nominations. That is more 
hearings on judges than the Republican majority held in any year of its 
control of the Senate. In contrast, one-sixth of President Clinton's 
judicial nominees--more than 50--never got a committee hearing and 
committee vote from the Republican majority, which perpetuated 
longstanding vacancies into this year.
  Vacancies continue to exist on the Courts of Appeals in part because 
a Republican majority was not willing to hold hearings or vote on more 
than half--56 percent--of President Clinton's Court of Appeals nominees 
in 1999 and 2000 and was not willing to confirm a single judge to the 
Courts of Appeals during the entire 1996 session.
  Despite the newfound concern from across the aisle about the number 
of vacancies on the circuit courts, no nominations hearings were held 
while the Republicans controlled the Senate in the 107th Congress last 
year. No judges were confirmed during that time from among the many 
qualified circuit court nominees received by the Senate on January 3, 
2001, or from among the nominations received by the Senate on May 9, 
2001.
  The Democratic leadership acted promptly to address the number of 
circuit and district vacancies that had been allowed to grow when the 
Senate was in Republican control. The Judiciary Committee noticed the 
first hearing on judicial nominations within 10 minutes of the 
reorganization of the Senate and held that hearing on the day after the 
committee was assigned new members.
  That initial hearing included a Court of Appeals nominee on whom the 
Republican majority had refused to hold a hearing the year before. We 
held unprecedented hearings for judicial nominees during the August 
recess. Those hearings included a Court of Appeals nominee who had been 
a Republican staff member of the Senate. We proceeded with a hearing 
the day after the first anthrax letter arrived at the Senate. That 
hearing included a Court of Appeals nominee.
  In a little more than 9 tumultuous months, the Senate Judiciary 
Committee has held 16 hearings involving 55 judicial nominations 
including 11 circuit court nominees and we are hoping to hold another 
hearing soon for half a dozen more nominees, including another Court of 
Appeals nominee. That is more hearings on judges than the Republican 
majority held in any year of its control of the Senate. The Republican 
majority never held 16 judicial confirmation hearings in 12 months.
  The Senate Judiciary Committee is holding regular hearings on 
judicial nominees and giving nominees a vote in committee, in contrast 
to the practice of anonymous holds and other obstructionist tactics 
employed by some during the period of Republican control. The 
Democratic majority has reformed the process and practices used in the 
past to deny committee consideration of judicial nominees.
  We have moved away from the anonymous holds that so dominated the 
process from 1996 through 2000. We have made home state Senators' blue 
slips public for the first time.
  I do not mean by my comments to appear critical of Senator Hatch. 
Many times during the 6\1/2\ years he chaired the Judiciary Committee, 
I observed that, were the matter left up to us, we would have made more 
progress on more judicial nominees.
  I thanked him during those years for his efforts. I know that he 
would have liked to have been able to do more and not have to leave so 
many vacancies and so many nominees without action.
  I hope and intend to continue to hold hearings and make progress on 
judicial nominees in order to further the administration of justice. In 
our efforts to address the number of vacancies on the circuit and 
district courts we inherited from the Republicans, the committee has 
focused on consensus nominees for all Senators. In order to respond to 
what Vice President Cheney and Senator Hatch now call a vacancy crisis, 
the committee has focused on consensus nominees.
  This will help end the crisis caused by Republican delay and 
obstruction by confirming as many of the President's judicial nominees 
as quickly as possible.
  Most Senators understand that the more controversial nominees require 
greater review. This process of careful review is part of our 
democratic process.
  It is a critical part of the checks and balances of our system of 
government that does not give the power to make lifetime appointments 
to one person alone to remake the courts along narrow ideological 
lines, to pack the courts with judges whose views are outside of the 
mainstream of legal thought, whose decisions would further divide our 
Nation.

[[Page 4560]]

  The committee continues to try to accommodate Senators from both 
sides of the aisle. The Court of Appeals nominees included at hearings 
so far this year have been at the request of Senators Grassley, Lott, 
Specter, Enzi and Smith of New Hampshire five Republican Senators who 
each sought a prompt hearing on a Court of Appeals nominee who was not 
among those initially sent to the Senate in May.
  In contrast to past practices, we are moving expeditiously to 
consider and confirm Judge O'Brien, who was nominated in September, 
2001. The committee did not receive his ABA peer review until the end 
of October. He participated in a hearing in March, was reported by the 
committee on April 11th and is today being confirmed.
  Judge O'Brien comes to the Senate highly recommended by friends and 
colleagues. I was pleased to have him participate in a confirmation 
hearing at the request of Senator Enzi. Judge O'Brien has more than 20 
years of experience as a State court judge, has served on his home 
state's judicial ethics commission, and has a record of community 
service with organizations such as the United Way and the Rotary Club. 
I congratulate his family on his confirmation to the Circuit Court.
  I am extremely proud of the work this committee has done since the 
change in the majority. I am proud of the way we have considered 
nominees fairly and expeditiously and the way we have been able to 
report to the Senate so many qualified, non-ideological, consensus 
nominees to the Senate.
  Mr. HATCH. Mr. President, I rise today to speak in favor of the 
Senate's confirmation of Terrence O'Brien to serve on the United States 
Court of Appeals for the Tenth Circuit.
  I am glad that today we have voted on Terrence O'Brien to serve the 
people of the West in the United States Court of Appeals for the Tenth 
Circuit. I am proud to say that Judge O'Brien began his career of 
public service in the United States Army, rising to the rank of 
Captain.
  I might also point out that Judge O'Brien was first appointed to the 
Wyoming State bench by a Democrat Governor, once again showing that, 
despite what Senator Democrats and their special interest groups would 
have the American people think, President Bush is nominating diverse 
and non-partisan men and women who reflect all the American people, not 
just some.
  I am proud of this nomination. The President has done right by the 
states that make up the Tenth Circuit, including my state of Utah.
  Terrence O'Brien comes to this nomination after a distinguished 20 
years of public service as a State district judge in Wyoming. In that 
capacity, he has heard approximately 13,000 cases and has also managed 
to find time to serve on task forces and commissions to help develop 
the practices and laws of Wyoming in areas which are of great interest 
to me, including the use of drug courts, child support, judicial 
ethics, and split sentencing.
  A majority of the American Bar Association's Standing Committee has 
rated Judge O'Brien ``well qualified.'' He is a distinguished former 
State court judge with decades of legal experience. He sat for 20 years 
on the District Court for the Sixth Judicial District in Campbell 
County, WY, and on occasion by designation to the Wyoming Supreme 
Court.
  First appointed by merit selection to the State bench in 1980 by 
Democrat Governor Edward Herschler (D), he was retained by the voters 
in 1982 and every 6 years thereafter until his retirement in 2000. 
Judge O'Brien is not just a distinguished jurist. He is the kind of 
civic leader we like in my part of the country. He has been an active 
in local civic and philanthropic affairs, having served on the Wyoming 
Community College Commission, the Campbell County Corrections Board, 
the Board of Directors of the United Way of Campbell County, and the 
Board of Directors of the Campbell County Health Care Foundation.
  This nominee is just one of the several excellent jurists nominated 
by President Bush, and I am pleased that we have confirmed him today.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Terrence L. O'Brien, to be United States 
Circuit Judge for the Tenth Circuit? The yeas and nays have been 
ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from New Jersey (Mr. 
Torricelli) is necessarily absent.
  Mr. NICKLES. I announce that the Senator from Alabama (Mr. Sessions) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                       [Rollcall Vote No. 68 Ex.]

                                YEAS--98

     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
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--2

     Sessions
     Torricelli
       
  The nomination was confirmed.
  Mr. THOMAS. Mr. President, today is a very proud day for the State of 
Wyoming and Terrence L. O'Brien. Just a moment ago, the full Senate 
confirmed Mr. O'Brien for Wyoming's vacant seat on the U.S. Court of 
Appeals for the Tenth Circuit by a vote of 98-0.
  As Wyoming's senior Senator, the responsibility of forwarding 
judicial nominees to the President is a job that I take very seriously. 
I am honored to have had the opportunity to assist in the filling of 
Wyoming's seat on the court. In May of 2001, Wyoming's previous judge 
on the Tenth Circuit, Wade Brorby, announced his move to senior status.
  Following that announcement, I quickly formed a selection committee 
in my home State to review qualified candidates. After an extensive 
process, the selection committee presented me with three candidates all 
with exceptional backgrounds to serve on the Tenth Circuit. Terrence 
O'Brien was one of the three candidates I forwarded to President Bush.
  On August 3, 2001, President Bush formally nominated Terrence O'Brien 
to the Tenth Circuit and the President's decision reaffirmed what I 
believed all along--that Judge O'Brien is an outstanding selection to 
fill Wyoming's seat on the court.
  For 20 years, 1980-2000, Mr. O'Brien served with distinction as a 
State district court judge in Wyoming. During his tenure he earned 
tremendous respect from those who argued cases before him. I cannot 
imagine a finer individual who will join other notable Wyoming jurists 
on the U.S. Court of Appeals for the Tenth Circuit, including; Wade 
Brorby, James E. Barrett, John Jay Hickey, and John C. Pickett, who by 
the way, was Wyoming's first judge to sit on the Court.
  I also want to thank Senate Judiciary Committee Chairman Leahy and 
fellow ranking Republican Senator Hatch for their work in reporting Mr. 
O'Brien's nomination. While our Federal judiciary currently has 95 
vacancies, today's confirmation of Terrence O'Brien is a step in the 
right direction. I look forward to the Senate's consideration of other 
article III U.S. Circuit and U.S. District Court judges.
  If the mark that Terrence O'Brien left in Wyoming as a district court 
judge is any indication of his resolve and sharp judgment--our Nation 
can expect great things from a man who's

[[Page 4561]]

appreciation and respect for the rule of law are without question. 
Without reservation, I know that Mr. O'Brien will serve with honor and 
distinction on the Court of Appeals for the Tenth Circuit.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is laid upon the table, and the President shall be 
immediately notified of the Senate's action.

                          ____________________