[Congressional Record (Bound Edition), Volume 149 (2003), Part 14]
[Senate]
[Pages 19655-19656]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    HISTORY OF JUDICIAL NOMINATIONS

  Mr. SESSIONS. Mr. President, I think it is important, in light of 
Senator Hatch's remarks and some of the criticisms we have heard of his 
leadership in the Judiciary Committee a few days ago, that we recall a 
little history here on how we have handled judicial nominations in the 
past and why we are having problems today.
  The criticism of Judiciary Committee Chairman Orrin Hatch is simply 
unfair. He has stood foursquare for fairness, for constitutionality in 
the process, and for good public policy as we go about confirmations. 
That has been his record. When he chaired or was ranking member of the 
Judiciary Committee during the 8 years of President Clinton's 
administration, 377 Clinton nominees were confirmed to the bench. Only 
one nominee was voted down. No nominee was voted down in his committee. 
No nominee was filibustered in his committee.
  When President Clinton left office, there were 41 judicial nominees 
who had not yet been confirmed by this Senate. That is a very good 
record compared to the situation when former President Bush left 
office. The Democrats controlled the Senate at that time, and 61 of 
former President Bush's judicial nominees were left unconfirmed. Those 
numbers are indisputable.
  I know the distinguished Presiding Officer, Senator Warner from 
Virginia, remembers the complaints in the Republican Conference that 
Senator Hatch had been too generous to President Clinton's nominees. 
Several Republican colleagues fussed at Senator Hatch, and Members were 
saying, ``you are moving too many,'' or, ``we need to block them,'' or, 
``let's consider a filibuster,'' or, ``let's change the blue slip rules 
on circuit nominees,'' which would give individual Senators more power 
than they historically had to block Clinton nominees.
  There was a conference set aside for the very purpose of resolving 
these issues. It was quite a battle. We discussed it for some time. 
Senator Hatch spoke passionately about the process, about what he 
thought the policy should be, about what he thought the law was, and 
about what he thought the Constitution required. We finally voted, and 
we voted not to filibuster and not to enhance the blue slip rule, 
thereby continuing the historic policies of this Senate. It was a very 
seriously contested matter. Senator Hatch argued passionately for his 
view, and at the time no one was sure how the vote would come out. But 
his arguments won the day.
  It is worth considering some other history about the confirmation 
process.
  In the entire history of the American Republic, it is indisputable 
that we have never had a filibuster of a circuit or a district judge. 
This tactic was used for the first time 2 years ago by the Democrats. 
They held a retreat not long after the 2000 election. The New York 
Times reported that a group of liberal professors met with the 
Democratic Senators, and they called on the Democrats to change the 
ground rules about confirmations, to ratchet up the partisanship. They 
had been complaining for 8 years that President Clinton's nominees 
weren't getting treated fairly. Overwhelmingly, I suggest, they were in 
error in those complaints. But in any case, instead of saying ``we are 
going to act better now that we are in charge''--they were in charge of 
the Senate for a little less than 2 years--the Democrats decided to 
change the ground rules and make it even more difficult for President 
Bush's nominees to be confirmed.
  So let me tell you what they did. President Bush announced his first 
group of judicial nominations in May 2001. He nominated 11 superbly 
qualified lawyers. As a gesture of good faith, he included 2 Democrats 
among these 11 nominees. One, an African-American, had previously been 
nominated by President Clinton. These were men and women of 
extraordinary accomplishment, with high ratings by the American Bar 
Association, and with tremendous backgrounds.
  For almost 2 years, only the two Democrats were moved promptly. 
Virtually all of the remaining nine of the eleven original nominees 
remained unconfirmed by 2002. They were not even voted out of 
committee. They were blocked in committee.
  The Democrats appeared to change the burden of proof--now, the 
judicial nominee seemed to bear the burden of proving that he or she 
was worthy of the judicial service. The chairman of the Courts 
Subcommittee then said that this would change the basic ground rules 
for confirmation.
  The Democrats also insisted on changes in the blue slip policy. The 
blue slip policy allows home State Senators certain powers to object to 
the confirmation of Presidential nominees. The Democrats wanted to 
enhance that

[[Page 19656]]

blue slip policy in order to block President Bush's nominees. They 
complained about it when President Clinton was in office and said it 
was wrong to use it as Republicans were properly doing. But when 
President Bush sent up nominees, they wanted to enhance the power of an 
individual Senator to block the President's nominees.
  And then, of course, the Democrats started filibustering. They have 
already filibustered Priscilla Owen and Miguel Estrada. Both of those 
extraordinarily qualified nominees languish on the floor today. Both 
were given a unanimous well-qualified rating by the American Bar 
Association--a man and a woman of extraordinary achievement, great 
legal experience, superb legal ability, and unquestioned integrity. Yet 
the Democrats chose to filibuster each--the first filibusters in the 
history of this country for a circuit judge nominee.
  Now, we have begun to see slowdowns in committee. The Democrats 
effectively have begun to try to filibuster in committee. They 
misinterpreted Rule IV of the Judiciary Committee rules, saying the 
chairman could not call a matter up for a vote unless at least one 
member of the Democratic minority agreed.
  That rule was put in to make sure that a chairman had to bring a 
matter up for a vote, whether the chairman wanted to do so or not, when 
there were ten overall votes in favor, including at least 1 member of 
the other party. This rule is a limit on the power of the chairman. It 
did not stand for the novel proposition that, if the Democrats stuck 
together, no Republican nominee could be brought up for a vote.
  To say that rule IV should be interpreted the way the Democrats on 
the committee are now complaining would mean the chairman couldn't 
bring any matter up for a vote without minority support--that a 
minority in committee could block any nomination moving out of 
committee. This interpretation is a recipe for disaster: a chairman has 
to be able to get a matter up for a vote, or the committee cannot do 
business.
  Senator Hatch interpreted the rule as he is empowered to do. The 
majority of the committee, not to mention two parliamentarians, 
supported him on that. We should not and are not going to have 
filibusters in the Judiciary Committee that keep judges from even 
having a vote in the Judiciary Committee.
  I just want to say to my fellow colleagues that it is not correct 
that Chairman Hatch is acting unfairly. Chairman Hatch has acted with 
principle in this matter. He brought Clinton nominees to the floor, and 
he moved them forward, even when some of us objected. Even when Senator 
Hatch himself may have objected on the merits, those nominees got 
votes.
  Take, for example, the Richard Paez nomination, which I opposed. 
Several people had holds on that nomination. Some wanted to see if we 
could work with President Clinton to get some more mainstream nominees 
for the Ninth Circuit Court of Appeals. We were hoping to negotiate 
with him on that, as we tried to do with other things. Finally, the 
Republican Majority Leader, Trent Lott, said: It is time for this man 
to have an up-and-down vote. File for cloture. He filed for cloture, 
and I supported cloture. Orrin Hatch supported cloture. Trent Lott 
supported cloture. When Paez was voted on, I am pretty confident that 
Trent Lott voted against him, just as I voted against him. Several 
dozen votes were cast against him.
  I note parenthetically that now-Judge Paez was part of a panel of the 
Ninth Circuit that overturned the ``three strikes'' law in California. 
That panel was overruled by the U.S. Supreme Court earlier this year. 
Judge Paez was also part of the panel that declared the Pledge of 
Allegiance unconstitutional because it had the words ``under God'' in 
it.
  Notwithstanding indications of such judicial activism during his 
confirmation hearing and process, Judge Paez was confirmed. He got his 
up-or-down vote. The Republican leadership moved the nomination 
forward.
  That is all we are asking of the Democratic leader, Tom Daschle, with 
respect to Miguel Estrada and Priscilla Owen. Instead, it looks like we 
may be heading toward more filibusters. I certainly hope not.
  Of the many reasons why we shouldn't have a filibuster, an important 
one is Article I of the Constitution. It says the Senate shall advise 
and consent on treaties by a two-thirds vote, and simply ``shall advise 
and consent'' on nominations.
  Historically, we have understood that provision to mean--and I think 
there is no doubt the Founders understood that to mean--that a treaty 
confirmation requires a two-thirds vote, but confirmation of a judicial 
nomination requires only a simple majority vote. That is why we have 
never had a filibuster. People on both sides of the aisle have 
understood it to be wrong. They have understood it to be in violation 
of the Constitution.
  As Senator Hatch has said, the complaint suggesting there was a 
filibuster on the Fortas nomination is not really correct. They had 
debate for several days. Apparently, when the votes were counted, it 
was clear that considering those who were absent, there were enough 
votes to defeat the nomination, and the nomination was withdrawn.
  So there has never really been a filibuster of a judicial nominee in 
the Senate until now, when our Democratic colleagues have decided to 
change the ground rules on confirmation. They have said so and done so 
openly, and seem to be little concerned that the Constitution may be 
violated in the process.
  Mr. President, these nominees are entitled to an up-and-down vote. If 
a Member does not like them, he or she can vote against them. But it is 
time to move these nominees. How can they defend voting against 
nominees of the quality of Priscilla Owen or Miguel Estrada? How can 
they justify opposing a man of such integrity, ability, patriotism, and 
courage as Attorney General Bill Pryor, a man of faith and integrity? 
These are questions that should be answered on the floor. Let us 
discuss these nominees' records here. And then, let us just vote. That 
is what the Constitution and Senate tradition demand of us.
  I think the American people are getting enraged, and they are telling 
us ``we are tired of obstructionism,'' ``we are tired of delays,'' and 
``we believe these nominees deserve an up-and-down vote.'' I could not 
agree more.
  I yield the floor.

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