[Congressional Record (Bound Edition), Volume 150 (2004), Part 11]
[Senate]
[Pages 14549-14550]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, today President Bush is holding a private 
fundraiser in North Carolina and complaining about the few judicial 
nominees who have not been given hearings by the Republican-led Senate, 
when he should be commending the Senate for confirming nearly 200 of 
his judicial nominees. One-hundred-ninety-eight of his judicial 
nominees have been confirmed. This number of confirmations is higher 
than the number of judicial nominees confirmed during President 
Reagan's first term, during the President's father's Presidency, and 
during the final term of President Clinton.
  With these confirmations, there are only 26 vacant seats in the 
entire Federal judiciary, which is the lowest level since the Reagan 
administration. Senate Republicans more than doubled circuit court 
vacancies and raised overall federal court vacancies to more than 100 
from 1995 through early 2001. Vacancies have been greatly reduced with 
Democratic cooperation during the last 4 years. Vacancies have been cut 
by more than 75 percent and judicial emergency vacancies have been cut 
by more than 60 percent from what they were.
  During the 1996 session, when President Clinton was seeking a second 
term, Republicans allowed only 17 of his judicial nominees to be 
confirmed all year and blocked all of his circuit court nominees from 
being confirmed. This year, the Senate has confirmed 29 of President 
Bush's judicial nominees, including five circuit court nominees.
  Democrats have acted with bipartisanship toward the judicial 
nomination process and supported the confirmation of this historic 
number of judicial nominees of this Republican president. During the 17 
months of Democratic control of the Senate, 100 of President Bush's 
judicial nominees were confirmed. Republicans had blocked the 
confirmation of more than 60 of President Clinton's judicial nominees, 
including nearly two dozen to the circuit courts.
  The situation in North Carolina illustrates this history of 
Republican obstruction and the Bush administration's determination to 
try to pack the courts. During the Clinton administration, four 
nominees from North Carolina to the Fourth Circuit were blocked by 
Republican Senators, and they never got a hearing or a vote. U.S. 
District Court Judge James Beaty would have become the Fourth Circuit's 
first African-American jurist. According to The Charlotte Observer of 
March 8, 1996:

       He is an excellent judge, partly because of admirable 
     qualities that make him an ideal candidate for judging 
     others. He rose from humble circumstances and eventually 
     graduate from the UNC-Chapel Hill School of Law. Admirers say 
     he is an ideal judge and citizen: even-tempered, hard-
     working, fair, serious, intelligent and unfailingly polite.

  Judge Beaty never got a hearing or a vote from Republicans in 1995, 
1996, 1997, or 1998. U.S. Bankruptcy Judge J. Richard Leonard also 
never got a hearing or a vote in 1995 or 1996 on his nomination to the 
Fourth Circuit, nor did Republicans give him a vote in 1999 or 2000 in 
his nomination to the District Court in North Carolina. North Carolina 
Court of Appeals Judge James Wynn never got a hearing or a vote on his 
nomination in 1999, 2000, or 2001. Had Judge Wynn been confirmed he 
would have been the first African American to sit on the Fourth 
Circuit. Law Professor Elizabeth Gibson also did not get a hearing or a 
vote.
  During Republican control of the Senate, no nominee from North 
Carolina to the Fourth Circuit was allowed to be confirmed during the 
entire Clinton administration. It is ironic that Republicans now claim 
that Judge Boyle must be confirmed because the seat is considered a 
judicial emergency by the Administrative Office of the U.S. Courts, 
when the North Carolina vacancies on the Fourth Circuit were considered 
judicial emergencies years ago when Republicans blocked Clinton nominee 
after Clinton nominee. During the Clinton administration, Republicans 
argued that these vacancies did not need to be filled because the 
Fourth Circuit had the fastest docket time to disposition in the 
country, a distinction it still holds. After three confirmations for 
Bush nominees to that court, including Judge Duncan,

[[Page 14550]]

the Fourth Circuit has fewer vacancies today--three--than it did when 
Republicans claimed no more judges were needed--5 vacancies.
  Republicans used every argument they could muster to stop Democratic 
nominees from being confirmed to the Fourth Circuit, particularly in 
North Carolina, and now they flip flop to claim that Republican 
nominees must be confirmed.
  When Senator John Edwards was elected, he sought out the middle 
ground on judicial nominations, after years of North Carolina nominees 
being blocked by Republicans. For example, he should be commended for 
working with the President on the nomination of Judge Allyson Duncan, 
an African-American women who had served as the President of the North 
Carolina Bar Association, for a seat on the Fourth Circuit. Senator 
Edwards fully supported her confirmation. She was a Republican who had 
testified in favor of Clarence Thomas' confirmation, but she had a 
reputation of fairness. With Senator Edwards' support, Judge Duncan was 
confirmed. He broke through the Republican logjam in this circuit. 
Senator Edwards also acted with bipartisanship in supporting the 
confirmation of two Bush nominees to the district court, Judge Brent 
McKnight and Judge Louise Flanagan.
  Senator Edwards has sought out compromise with his fellow North 
Carolina Senators on judicial nominations, but they have, by and large, 
refused to help find a middle ground. He has supported the proposal of 
the North Carolina Bar Association that the State establish a 
bipartisan merit selection commission to propose nominees to the 
President, Republican or Democratic, to create a long-term solution to 
impasses that are created by any Senator's insistence on his choice 
alone, with no compromise, for these lifetime seats of trust on the 
Federal bench. Unlike President Bush, Senator Edwards understands what 
it means in reality to be a uniter and not a divider. He comes from a 
part of the country that understands deeply how important it is that 
leaders seek to unite people across racial, economic and political 
lines rather than to divide them.
  Senator Edwards has stood up to efforts by this President to pack the 
courts with people whose records do not demonstrate that they will be 
fair judges to all who come before them, rich or poor, Democrats or 
Republicans, or any race or background. He has expressed concerns about 
Bush nominees Judge Boyle as well as James Dever, a 40-year-old 
Federalist Society member and Republican Party activist. President Bush 
has repeatedly claimed that he is opposed to judicial activism while he 
has simultaneously nominated activists for judicial positions.
  He would not support the confirmation or recess appointment of a 
judicial nominee who violated judicial ethics to reduce the sentence of 
a convicted cross burner, as President Bush did over the holiday 
celebrating the birth of Dr. Martin Luther King. Senator Edwards 
opposed other Bush judicial nominees whose record demonstrate 
insensitivity or hostility toward the civil rights and the blessings of 
liberty guaranteed to all Americans. Just yesterday, President Bush 
nominated Keith Starrett to the vacancy created by Judge Pickering's 
recess appointment and by his resignation from the district court. This 
nomination shows again the President's insensitivity to the wishes of 
so many in the South District of Mississippi by passing over qualified 
African-American candidates for that powerful district court seat. In 
act, this President has chosen narrow ideological purity over diversity 
by nominating more people involved with the Federalist Society than 
African Americans, Hispanics and Asian Americans combined.
  The biggest problem in the judicial nominations process is not with 
the Senate but with the White House. The judicial nominations process 
begins with the President, and President Bush has chosen to divide the 
Senate and the American people with his judicial nominations, instead 
of to unite us. The administration is intent on undermining the 
independence of the Federal judiciary and on making it a clone of the 
Republican Party. The President and his aides have shown the same 
unilateralism and arrogance to the Senate in their handling of judicial 
nominations that they have shown in so many other important policy 
areas.
  I commend Senator Edwards for breaking through the Republican logjam 
on appointments from North Carolina to the Court of Appeals for the 
Fourth Circuit. He has sought out the middle ground while also standing 
firm in his efforts to protect the right of the people to fair judges 
in our Federal courts. The American people deserve an independent 
judiciary with fair judges who will enforce their rights and uphold the 
law.

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