[Congressional Record (Bound Edition), Volume 148 (2002), Part 4]
[Senate]
[Pages 4806-4808]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              NOMINATIONS

  Mr. LEAHY. Mr. President, I thank my colleagues for their unanimous 
and positive vote on the last nominee. I will bring everybody up to 
date.
  Today, the Senate is voting on the 44th judicial nominee to be 
confirmed since last July when the Senate Judiciary Committee was 
reassigned new members in connection with the reorganization of the 
Senate after the shift in majority. The confirmation of Judge Africk 
will be the third district court judgeship we have filled in Louisiana 
and the seventh judgeship filled overall in the Fifth Circuit since 
July, including the first new judge for the Fifth Circuit in seven 
years. In fact, it was this Senate's confirmation of Judge Edith Brown 
Clement last fall that created this vacancy, which we are now 
proceeding to fill without delay.
  In the past few months, the Senate has also confirmed Judge Kurt 
Engelhardt and Judge Jay Zainey to fill vacancies on the District Court 
for the Eastern District of Louisiana. The Senate has confirmed Judge 
Michael Mills to fill a vacancy on the District Court for the Northern 
District of Mississippi. The Senate has also confirmed Judge Philip 
Martinez to fill a vacancy on the District Court for the Western 
District of Texas and Judge Randy Crane to fill a vacancy on the 
District Court for the Southern District of Texas.
  Of course many of the vacancies in the Fifth Circuit are 
longstanding. Judge Clement was confirmed to fill a judicial emergency 
on the Fifth Circuit. Judge Martinez and Judge Crane likewise filled 
what had been judicial emergencies. These many vacancies and 
emergencies are the legacy of the years of inaction. For example, 
despite the fact that President Clinton nominated Jorge Rangel, a 
distinguished Hispanic attorney, to fill a Fifth Circuit vacancy in 
July 1997, Mr. Rangel never received a hearing and his nomination was 
returned to the President without Senate action at the end of 1998. On 
September 16, 1999, President Clinton nominated Enrique Moreno, another 
outstanding Hispanic attorney, to fill a vacancy on the Fifth Circuit 
but that nominee never received a hearing either. When President Bush 
took office last January, he withdrew the nomination of Enrique Moreno 
to the Fifth Circuit. The Senate has moved quickly to confirm Judge 
Armijo in New Mexico and Judges Martinez and Crane in Texas, who were 
among the very few Hispanic judicial nominees sent so far by this 
Administration to us.
  The Senate received Judge Africk's nomination the last week in 
January and his paperwork was complete on March 6. Judge Africk was 
scheduled for the very next confirmation hearing on March 19. He has 
been serving as a federal magistrate in the Eastern District of 
Louisiana for more than a decade. Judge Africk is a member of the 
Federalist society and a registered Republican. His confirmation, along 
with that of Judge Clement, Judge Wooten in South Carolina, Judge Mills 
in Mississippi, Judge Caldwell in Kentucky, Judge Granade in Alabama, 
Judge Hartz to the Tenth Circuit, and so many others, shows that the 
Senate has been very accommodating to this Administration's 
conservative nominations.
  The Senate is making progress on judicial confirmations. Under 
Democratic leadership, the Senate has confirmed more judges in the last 
nine months than were confirmed in four out of 6 full years under 
Republican leadership. The number of judicial confirmations over this 
time--44--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 nine 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 fairly to compare 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 a period more than twice as long, 
the work of previous Senates and Presidents over entire 2-year 
Congresses. They say it is unacceptable that the Democratic-led Senate 
has not yet confirmed as many judges in nine 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 little more nine months we have had since the Senate 
reorganized. After all, we have already topped their efforts for 12-
month periods and are still hard at work.
  These double standards are wrong and unfair, but that does not seem 
to matter to Republicans 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 based on the unfounded 
notion that the Senate has not kept up with attrition on the Courts of 
Appeals. This is a case of the arsonist coming forward and saying: We 
need a better fire department around here. Look at all these buildings 
that are burning down. All

[[Page 4807]]

these vacancies were there because Republicans refused to hold hearings 
on the Court of Appeals nominees. We are now holding such hearings.
  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.
  Just this week, the Senate confirmed Judge Terrence O'Brien to the 
United States Court of Appeals for the Tenth Circuit by a vote of 98 to 
zero. His confirmation was the eighth circuit court nominee to be 
confirmed in the little more than nine months since I became Chairman 
this past summer.
  We have already confirmed eight Court of Appeals nominees and held 
hearings on 11 Court of Appeals nominees. In comparable periods at the 
beginning of the Clinton administration, with a Senate majority of the 
same party as the President, the confirmations numbered only two and 
hearings were held on only three. In the comparable period during the 
administration of George H. W. Bush, within the first 10 months the 
Senate had confirmed only three Court of Appeals judges and had 
hearings on only four.
  The facts on what Republicans are now calling the judicial vacancies 
crisis in our Courts of Appeals are important and startling. The 
Republican majority assumed control of judicial confirmations 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 more than doubled, increasing from 16 to 33!
  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. With this week's confirmation of Judge O'Brien, we have 
reduced the number of circuit court vacancies to 30.
  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 nine months. In other words, by 
confirming three more nominees than the five required to keep up with 
the pace of attrition, we have not just matched the rate of attrition 
but surpassed it by 60 percent.
  While the Republican Senate majority increased vacancies on the 
Courts of Appeals by over 100 percent, it has taken the Democratic 
majority nine months to reverse that trend, keep up with extraordinary 
turnover and, in addition, reduce circuit court vacancies by almost 10 
percent overall. 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 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.
  That is not to say that our job is completed, but a fair review of 
our efforts should acknowledge the progress we have made. 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 Circuits, in particular. The confirmation of Judge 
O'Brien this week made the second judge confirmed to the 10th Circuit 
in the last 4 months.
  With this week's vote on Judge O'Brien, in a little more than nine 
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 Appeals per year. Seven. We have 
confirmed eight circuit 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. The Senate in 
the last nine months has confirmed as many Court of Appeals judges as 
were confirmed in all of 2000 and more than were confirmed in 1997 or 
1999, and eight more than the zero from 1996.
  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 Court of Appeals during 
the entire 1996 session.
  Despite the new-found 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 nine 
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.

[[Page 4808]]

  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, and whose decisions would 
further divide our Nation.
  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 Senator Grassley, Senator 
Lott, Senator Specter, Senator Enzi and Senator Smith from 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 2001. Each of the previous 43 nominees confirmed by 
the Senate has received the unanimous, bipartisan backing of the 
Committee.
  The confirmation of Judge Africk makes the 44th judicial nominee to 
be confirmed since I became chairman last July, and I hope to confirm 
our 50th nominee by the end of this month. 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 supported the nomination of Lance Africk 
to be U.S. District Judge for the Eastern District of Louisiana.
  I have had the pleasure of reviewing Judge Africk's distinguished 
legal career, and I have concluded that he is a fine jurist who will 
add a great deal to the Federal bench in Louisiana.
  Judge Lance Africk has an impressive record in the private and public 
sectors. Upon graduation from the University of North Carolina School 
of Law in 1975, Judge Africk clerked for the Louisiana Fourth Circuit 
Court of Appeal before joining the New Orleans firm of Normann & 
Normann as a civil attorney. In 1977, he moved to the Orleans Parish 
District Attorney's Office in New Orleans and became director of the 
Career Criminal Bureau, where he prosecuted criminal cases. From late 
1980 to mid-1982, Judge Africk worked in private practice, representing 
plaintiffs and defendants in personal injury cases and serving as 
corporate counsel. In August 1982, he joined the U.S. Attorney's Office 
in New Orleans as an assistant U.S. attorney and served with 
distinction as chief of the Criminal Division until 1990. As a State 
and Federal prosecutor, Judge Africk became an expert in drug and 
public corruption matters. During his legal career, he tried to 
judgment or verdict approximately 40 cases. Since 1990, Judge Africk 
has served as U.S. Magistrate Judge for the Eastern District of 
Louisiana, bearing responsibility for often complex civil and criminal 
matters assigned from the U.S. District Court.
  I have every confidence that Lance Africk will serve with distinction 
on the Federal district court for the Eastern District of Louisiana.
  Ms. LANDRIEU. Mr. President, I am proud that the Senate today 
confirmed Lance Africk for Federal District Judge for the Eastern 
District of Louisiana. Again, I must commend President Bush for this 
nomination. He has chosen an exceptional man with a fantastic 
reputation for the Federal Bench.
  I cannot say enough about Lance. Lance brings over 25 years of legal 
experience to this job, and for the past 12 years, he has served as the 
U.S. Magistrate for Civil and Criminal Matters. His commitment to 
community and country has permeated his career as an Orleans Parish 
District Attorney, a United States Attorney and most recently as a 
Federal Magistrate. I know that he looks forward to continuing his 
service. He presents a true model of honor and professionalism to the 
bar.
  Numerous letters of support have poured into my office praising 
Lance's qualities. Everyone who has ever talked to me about Lance has 
used the same words: fair, courteous, and intelligent. Not only does 
Lance possess these values, but he has instilled them in his family. 
His wife Diane and his four children mean the world to him and inspire 
his service. Today's action in the Senate only confirmed what I and 
everyone in Louisiana already knew; that Lance Africk will be an asset 
to the Federal Judiciary.
  We need more people like Lance Africk on the Federal Bench. He is a 
true patriot who desires to serve his country to the best of his 
ability. He recognizes the importance of our judicial system and has 
dedicated his life to the system of laws that makes our country so 
unique. It is for these reasons that I wholeheartedly supported his 
nomination and am elated by the action of the Senate today.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  The Senator from Georgia.

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