[Congressional Record (Bound Edition), Volume 150 (2004), Part 10]
[Senate]
[Pages 12658-12659]
[From the U.S. Government Publishing Office, www.gpo.gov]




 NOMINATION OF ROGER T. BENITEZ TO BE UNITED STATES DISTRICT JUDGE FOR 
                  THE SOUTHERN DISTRICT OF CALIFORNIA

  The PRESIDING OFFICER. The clerk will report the next nomination.
  The assistant legislative clerk read the nomination of Roger T. 
Benitez, of California, to be United States District Judge for the 
Southern District of California.
  Mr. LEAHY. Mr. President, today the Senate considers the nomination 
of Roger Benitez to the Southern District of California. Judge Benitez 
is being considered for the last of 5 new seats in the Southern 
District of California that were created by statute on November 2, 
2002, as part of a package of judgeships created for border districts 
that have a massive caseload and that needed more Federal judges. I 
worked hard with Senator Feinstein to help create these new positions 
under Democratic Senate leadership. By doing so, we did what the 
Republican majority refused to do in the years 1995 through 2000 when 
there was a Democratic President. We did so under Senate Democratic 
leadership knowing that the appointments would be made by a Republican.
  Unlike many other nominees who have come before this Committee, Roger 
Benitez comes before us with judicial qualifications, having had 
experience serving as a judge both in State and Federal courts. He 
served for 4 years as a California Superior Court Judge for Imperial 
County and 3 years as a U.S. Magistrate Judge for the Southern District 
for California.
  However, like many nominees of this President, concerns have been 
raised about this nominee's fitness to serve. Judge Benitez is one of 
28 of President Bush's nominees who have received a partial or majority 
rating of ``Not Qualified'' from the ABA Committee that conducts a peer 
evaluation of judicial nominees. Of those, 18 have already been 
confirmed and another has been recess appointed.
  Before President Bush ejected the ABA from the process of providing 
an informal rating prior to a nomination, temperament or ethics 
concerns would have been raised at the early stage of a nominee's 
consideration and in time for the White House to make a decision 
whether to proceed with that nominee, with knowledge of such 
determinations and the opportunity to conduct follow-up inquiry. The 
change in the role of the ABA has led to ABA ratings being less 
helpful. In Judge Benitez's case, based on interviews with 23 judges 
and 44 attorneys, more than 10 members of the ABA committee concluded 
that, based on his temperament, he is not qualified to serve a lifetime 
appointment on the Federal bench.
  Despite these concerns, Judge Benitez is supported by both of his 
home-State Senators and is the product of the bipartisan commission 
that Senators Feinstein and Boxer have worked so hard to maintain. I 
will honor their support of this nominee and support him, as well. With 
this confirmation, the Senate will have confirmed 14 nominees to the 
district courts in California.
  Judge Benitez is the 17th Latino confirmed to the Federal courts in 
the past three years. With the exception of Mr. Estrada, who failed to 
answer many questions and provide the Senate with his writings and 
views, we have pressed forward to confirm all of the other Latinos 
whose nominations have been reported to the floor. Democrats will now 
have supported the swift confirmation of 17 of President Bush's 21 
Latino nominees. Unfortunately, Republicans have been delaying Senate 
consideration of a number of Hispanic nominees and passed over several 
of the numbers would be even better.
  While President Clinton nominated 11 Latino nominees to Circuit Court 
positions, 3 of those 11 were blocked by the Republican Senate and 
never given a vote. President Bush has only nominated 4 Latino nominees 
to Circuit Court positions, three of whom have been confirmed with 
Democratic support. President Bush's 21 Latino nominees constitute less 
than 10 percent of his nominees, even though Latinos make up a larger 
percentage of the U.S. population. It is revealing that this President 
has nominated more people associated with the Federalist Society than 
Hispanics, African Americans and Asian Pacific Americans, combined. 
While President Clinton cared deeply about diversity on the Federal 
bench, this President is more interested in narrow and slanted judicial 
ideology.
  I congratulate Judge Benitez and his family on his confirmation.
  Mr. HATCH. Mr. President, I rise today to express my unqualified 
support for the nomination of Robert Benitez to the District Court for 
the Southern District of California and to urge my colleagues to 
confirm this fine nominee.
  Born in Havana, Cuba, Judge Benitez's life embodies the spirit and 
strength of this Nation. After coming to this country, he obtained a 
law degree from the Western State University College of Law in 1978, 
and then distinguished himself in a diverse and successful law 
practice. The people of California recognized his obvious ability and 
appointed him to the Superior Court in 1997. He was re-elected to that 
court in 1998, and served with distinction until 2001. Since that time, 
Judge Benitez has served as a Federal magistrate judge in the Southern 
District of California.
  Mr. Benitez is an exceptional nominee. I fully expect him to serve 
with distinction on the Federal bench in California.
  Mr. DURBIN. Mr. President, I oppose the nomination of Roger T. 
Benitez to be a United States District Judge for the Southern District 
of California because this nominee received a rating by the American 
Bar Association of ``substantial majority Not Qualified.'' More than 10 
members of the 15-member ABA evaluation committee agreed that 
Magistrate Judge Benitez is unqualified for this position. The ABA 
conducts thorough background investigations of all of the President's 
Article III judicial nominees.
  At the February 25, 2004 nomination hearing of Judge Benitez, ABA 
officials made the following statements on the record:

       Judge Benitez is ``arrogant, pompous, condescending, 
     impatient, short-tempered, rude, insulting, bullying, 
     unnecessarily mean, and altogether lacking in people 
     skills.''
       Judge Benitez ``would often become irrationally upset and 
     outraged if an attorney who had been appointed to represent a 
     defendant had a scheduling conflict and asked another equally 
     competent and prepared attorney to appear before the 
     nominee.''
       Interviewees had ``grave doubts about Judge Benitez' 
     ability to competently handle the more demanding docket 
     caseload of a Federal district judge and efficiently manage a 
     district courtroom, based on their perception of his very 
     slow and rigid manner of handling his current court 
     calendar.''
       ``Based on their exposure to the nominee's mode of relating 
     professionally to others in his official capacity as a judge, 
     interviewees expressed doubt over Judge Benitez's ability to 
     become an accommodating and collegial member of the Federal 
     district court.''
       ``[T]he nominee's temperament problems are compounded by 
     the fact that Judge Benitez fails to appreciate the depth of 
     concern by the bench and bar regarding his temperament and 
     has not demonstrated that he is willing or able to address 
     those concerns.''
       ``Our committee members, after reviewing my report on the 
     nominee, were particularly concerned about the clear, 
     consistent pattern to the criticisms that emerged from the 
     interview.''

  These statements are highly troubling, and they strongly suggest that 
Judge Benitez is not prepared for this important lifetime position.
  I am also concerned about the ABA's discovery that Judge Benitez has 
a practice of limiting the number of guilty pleas that he accepts on a 
given day. The ABA said that this practice was ``highly unusual 
compared to most other Federal judges, who will typically hear several 
matters in a day of the kind Judge Benitez has on his docket.''
  The ABA did not make these allegations or reach the rating of Not 
Qualified lightly. The ABA investigator, Richard M. Macias, conducted 
interviews with 23 judges and 44 attorneys,

[[Page 12659]]

and two-thirds of those interviewed raised concerns, including a 
majority of both judges and lawyers. The comments were based on first-
hand knowledge or observation. The ABA reports that ``[t]he negative 
comments about Judge Benitez' temperament reflected a consistent 
pattern over the years up to the present time.''
  Mr. Macias, a respected member of the legal profession and an 
experienced ABA investigator, said that he has never received so many 
negative comments about a judicial nominee in the 10 years he has been 
conducting background investigations. Mr. Macias was supported in his 
testimony by Thomas Z. Hayward, Jr., a respected Chicago attorney and 
chair of the ABA's Standing Committee on Federal Judiciary.
  When he took office, President George W. Bush abolished the historic 
practice--dating back to President Eisenhower--of seeking the views of 
the ABA, the Nation's largest association of attorneys, before making 
an Article III judicial nomination. One of the main reasons that 
presidents waited for the ABA evaluation was to avoid nominating 
unqualified nominees and prevent situations like the one we face today 
with Judge Benitez. Past Presidents often decided not to nominate 
individuals who received ABA ratings of Not Qualified. President Bush 
would be wise to reinstate the ABA's traditional role in the judicial 
nomination process.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Roger T. Benitez, of California, to be 
United States District Judge for the Southern District of California?
  Mr. REID. I ask for the yeas and nays?
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 1, as follows:

                      [Rollcall Vote No. 127 Ex.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                                NAYS--1

       
     Durbin
       

                             NOT VOTING--1

       
     Kerry
       
  The nomination was confirmed.

                          ____________________