[Congressional Record (Bound Edition), Volume 149 (2003), Part 22]
[Extensions of Remarks]
[Pages 30998-30999]
[From the U.S. Government Publishing Office, www.gpo.gov]




         THE POLITICIZATION OF THE JUDICIAL NOMINATION PROCESS

                                 ______
                                 

                          HON. MARK E. SOUDER

                               of indiana

                    in the house of representatives

                       Friday, November 21, 2003

  Mr. SOUDER. Mr. Speaker, I rise to address a matter of deep concern 
to every Member of Congress and to every American citizen--the judicial 
nomination process. I am chairman of the Government Reform Committee's 
Subcommittee on Criminal Justice, Drug Policy and Human Resources, 
which has responsibility for oversight of, among other things, our 
federal judicial system. I am deeply concerned by the growing 
politicization of the judicial nomination process by a handful of left-
wing groups and their advocates in Congress.
  Last week, the Wall Street Journal reported on a number of memos 
written by Congressional staff between 2001 and 2003. They illustrate 
the extreme political prejudice, crass maneuvering, and pandering to 
special interest groups that are bringing the judicial nomination 
process to a standstill. One memo actually claims that ``most of 
[President] Bush's nominees are nazis''. Another shows that action on 
nominees was delayed to allow ``the groups''--i.e., left-wing special 
interest groups--``time to complete their research,'' i.e., to dig up 
as much dirt as they could on the President's nominees. And shockingly, 
a third memo shows that action was delayed on a nominee in order to 
affect the outcome of a case before the Sixth Circuit.
  At present, no one can say for sure how the newspaper obtained the 
memos. Certainly illegal theft of any confidential materials should not 
be tolerated. I note, however, that given the large number of the 
memos, the fact that the source blacked out the names of the staff 
members who wrote and received the memos (presumably to save them from 
embarrassment), and the date of the documents (most are from 2001 and 
2002) strongly suggest that the source was a member of the Democratic 
staff, and not someone illegally stealing the memos. In any case, now 
that these memos have been distributed to the press, I believe that it 
is important for the Members of Congress and the public to see them and 
judge their contents for themselves. I am therefore submitting the 
first installment of these memos for the Record, and intend to submit 
more of them in the days to come. I hope that a full and vigorous 
debate of this important issue will help the process to move forward, 
so that the President's nominees can quickly receive the yes or no vote 
that they deserve.

                           *   *   *   *   *

       Big fight early next year. Three benefits: (1) Sends 
     message on Supreme Court; (2) Forces WH to bargain; (3) 
     encourages more moderate nominees.
       To work, need all 10 Dems on board and need commitment not 
     to go to the floor. Query: will it be possible to get all 10 
     Dems to commit before a hearing? Doubtful. There is a big 
     risk. We must choose a nominee tailored to our weakest link. 
     E.g., Pickering is bad but is he had enough? Probably not--
     finish him AFTER.
       Who to fight? Not Estrada--hard to beat, and don't want him 
     on the Supremes.
       Groups have 3 names: Kuhl, Sutton, and Owens. Kuhl seems 
     like a bad idea, b/c Boxer will never return the BS. Why 
     waste that power, freeing up another nominee to go through? 
     Similar with Sutton--he is being held up right now. Sutton 
     will be hard to beat--very strong paper record, impressive 
     credentials. GOP will carp about how only criteria should be 
     excellence (``Should Ideology Matter?'' retread.) (Same 
     problem with Estrada.) Sutton is personification of the 
     threat the New Federalism poses to Civil Rights, but his 
     defenders will muddle debate. Why not use someone else, show 
     WH we mean business, then bargain to ``release'' hold on 
     Sixth Circuit.
       I say Owens. She is from Texas and appointed to SCT by 
     Bush, so she will appear parochial and out of mainstream. She 
     is definitively anti-abortion, in ways that make her look 
     disingenuous. Pro-business. Questionable ethics. Plus can 
     craft the message: concerted campaign to pack the Courts. 
     Phase I: GOP blocks many well-qualified people--Johnson, 
     Moreno, etc. Phase II: GOP picks extremists like Owen, and 
     pushes hard. Court gets way out of wack. Focus not only on 
     numbers, but tangible outcomes--rulings striking down VAWA, 
     civil rights laws, environmental laws, etc.
       No more hearings this year. Lay the foundations for next 
     January/February. Schumer hearing on federalism, and the 
     threat it poses. Coordinate media strategy, Drop hints. 
     Schedule the hearing well in advance in January, so we don't 
     face accusations of sandbagging,
       Stress that we have cut the BS: no more anonymous holds, no 
     more years without a hearing, no more ridiculous document 
     requests, no more shutting down the Committee. Rather than 
     hold a nominee up endlessly, and ruin their career, we will 
     vote. There's a reason why they did that--most of Clinton's 
     nominees were impeachable. There's a reason why we do what we 
     do--most of Bush's nominees are Nazis. That doesn't mean we 
     will roll over and play dead. Mainstream nominees will get 
     quick turn around time. Controversial ones demand more 
     careful scrutiny.
                                  ____


                       Why Have a Hearing at All?

     Memorandum: June 21, 2002
     To: Senators Kennedy, Schumer, Durbin, and Cantwell
     From:------
     Subject: Strategy on Judges
       In advance of the Judiciary Democrats' meeting on Tuesday 
     at 2:15, below is the strategy regarding judges that we 
     recommend that you suggest to Senator Leahy.
       1. Cancel or Reschedule Deborah Cook, 6th Circuit nominee. 
     Senator Leahy is suggesting that a hearing for Deborah Cook 
     be scheduled for August 1st, and, Senator Leahy may have 
     promised Senator DeWine that he will hold a hearing for Cook 
     this year. Cook is extremely controversial on labor, employee 
     rights, and right to jury issues and should not have a 
     hearing this year. If Senator Leahy has indeed promised 
     DeWine a Cook hearing, we suggest that he schedule Cook for 
     after the November elections. Given our schedule of 
     controversial nominees (see below), it will be difficult to 
     mount any effective challenge to Cook if she is scheduled for 
     early August. We recommend that Reena Raggi (2nd Circuit) be 
     scheduled for early August instead of Deborah Cook.
       2. Limit the Number of Hearings. Senator Leahy has promised 
     hearings for Priscilla Owen, Miguel Estrada, and Michael 
     McConnell. Other than these nominees, and the two remaining 
     noncontroversial nominees Reena Raggi (2nd Circuit) and Jay 
     Bybee (9th Circuit), no additional judges should be 
     scheduled.
       3. Timing of Hearings:
       Owen. The consensus is to make Priscilla Owen the big fight 
     for July 18th, as Senator Leahy has suggested, with the hope 
     that we will succeed in defeating her.
       Estrada. Miguel Estrada will be more difficult to defeat 
     given the sparseness of his record. We agree with Senator 
     Leahy that Estrada should be scheduled for September 19th. 
     This will give the groups time to complete their research and 
     the Committee time to collect additional information, 
     including Estrada's Solicitor General memos (see below).
       McConnell. McConnell will also be difficult to defeat. 
     While he has a clear anti-choice record, he has the strong 
     support of some Democrats and progressives. McConnell's clear 
     anti-choice record, however, makes him a good nominee to 
     bring up before the November elections. While Senator Leahy 
     has suggested that a hearing for McConnell be scheduled on 
     October 3rd, we would suggest October 10th, to provide enough 
     time for preparation after the difficult Estrada hearing.
       Suggested Schedule, July 18th: Priscilla Owen--5th Circuit; 
     August 1st: Reena Raggi--2nd Circuit (non-controversial)--
     instead of Cook; September 5th: Jay Bybee--9th Circuit 
     (supported by Reid); September 19th: Miguel Estrada--D.C. 
     Circuit; October 10th: Michael McConnell--10th Circuit.
       4. Obtaining Estrada's Solicitor General's Memos. Senator 
     Leahy took the important first step of asking for Memoranda 
     that Estrada produced while working at the Solicitor 
     General's Office. Unfortunately, the Department of Justice 
     has refused to turn over the memos, and Senator Leahy has 
     been harshly criticized for this in the Press (two pieces in 
     the Washington Post alone). We expect the Administration will 
     continue to fight any attempt to turn these over, but there 
     is precedent for getting these Memos--it was done for the 
     Bork nomination and three other lower court nominations. We 
     suggest that you encourage Senator Leahy to continue fighting 
     the Administration for these Memos and, if possible, that one 
     of you help him in this fight.
                                  ____


                          U. Michigan Scandal

     Memorandum: April 17, 2002
     To: Senator (Kennedy)
     From: ------
     Subject: Call from Elaine Jones re Scheduling of 6th Circuit 
         Nominees
       Elaine Jones of the NAACP Legal Defense Fund (LDF) tried to 
     call you today to ask that the Judiciary Committee consider 
     scheduling Julia Scott Gibbons, the

[[Page 30999]]

     uncontroversial nominee to the 6th Circuit at a later date, 
     rather than at a hearing next Thursday, April 25th. As you 
     know, Chairman Leahy would like to schedule a hearing next 
     Thursday on a 6th Circuit nominee because the Circuit has 
     only 9 active judges, rather than the authorized 16. (These 
     vacancies are, as you know, the result of Republican inaction 
     on Clinton nominees). Senator Leahy would also like to move a 
     Southern nominee, and wants to do a favor for Senator 
     Thompson.
       Elaine would like the Committee to hold off on any 6th 
     Circuit nominees until the University of Michigan case 
     regarding the constitutionality of affirmative action in 
     higher education is decided by the en banc 6th Circuit. This 
     case is considered the affirmative action case most likely to 
     go to the Supreme Court. Rumors have been circulating that 
     the case will be decided in the next few weeks. The thinking 
     is that the current 6th Circuit will sustain the affirmative 
     action program, but if a new judge with conservative views is 
     confirmed before the case is decided, that new judge will be 
     able, under 6th Circuit rules, to review the case and vote on 
     it.
       LDF asked Senator Leahy's staff yesterday to schedule 
     Richard Clifton, an uncontroversial nominee to the 9th 
     Circuit, before moving Gibbons, but they apparently refused. 
     The decision has to be made today (or by early Thursday 
     morning) since the hearing will be noticed on Thursday.
       ------ and I are a little concerned about the propriety of 
     scheduling hearings based on the resolution of a particular 
     case. We are also aware that the 6th Circuit is in dire need 
     of additional judges. Nevertheless we recommend that Gibbons 
     be scheduled for a later hearing: the Michigan case is 
     important, and there is little damage that we can foresee in 
     moving Clifton first. (It should be noted that Clifton was 
     nominated three months before Gibbons and that Clifton's 
     seat, and not Gibbons', has been designated a judicial 
     emergency.) Elaine will ask that no 6th Circuit nominee be 
     scheduled until after the Michigan case is decided. This may 
     be too much to promise: we only have three uncontroversial 
     circuit court nominees left and two of these are from the 6th 
     Circuit.
       Recommendation: Let Elaine know that we will ask Senator 
     Leahy to schedule Gibbons after Clifton. Given the dearth of 
     uncontroversial nominees, however, the Committee will 
     probably have to hold a hearing for Gibbons on May 9th even 
     if there's yet no decision in the Michigan case.

                          ____________________