[Congressional Record (Bound Edition), Volume 150 (2004), Part 7]
[Senate]
[Pages 8792-8793]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. HATCH. Madam President, over 6 weeks ago, the Senate minority 
instituted what resulted in a virtual freeze on the Senate's 
constitutional responsibility to provide advice and consent on the 
President's nominees.
  This is troubling to me for a variety of reasons. Nevertheless, I am 
slightly encouraged by the movement on a few executive nominations last 
week, even though I remain extremely concerned about the current and 
continuing freeze on judicial nominations.
  The last time the Senate confirmed a judge was on March 12, about 2 
months ago. So it is past time for a rollcall.
  Yesterday, in addition to being Mother's Day, marked the beginning of 
the fourth year since the President sent to the Senate his first 
nominations to the Federal judiciary. Back on May 9, 2001, President 
Bush nominated 11 outstanding individuals to serve on the bench. The 
Senate has confirmed eight of those nominees. One has withdrawn, and 
two are still pending.
  I commend Senator Daschle and other colleagues across the aisle, 
especially my friend the ranking Democratic member of the Judiciary 
Committee, Senator Leahy, for working with us and the administration in 
confirming to date 173 of President Bush's judicial nominations. As 
Senator Leahy frequently reminds us, 100 of those nomination 
confirmations took place during his tenure as Judiciary Committee 
chairman from mid-2001 through 2002.
  But more work can and needs to be done so that the American public 
can enjoy the benefits of a more fully staffed Judiciary. 
Unfortunately, the old saying, ``justice delayed is justice denied'' is 
true. The Senate needs to consider the judges on the calendar and give 
each one an up-or-down vote, as the Constitution requires. At present, 
there are 32 nominations for our district and circuit courts pending 
before the full Senate. Among this group are 22 men and 10 women. This 
is an outstanding group of candidates with diverse backgrounds. These 
candidates include a number of impressive minority candidates such as 
Justice Janice Rogers-Brown of the California Supreme Court, who has 
been nominated to serve on the influential Circuit Court of Appeals for 
the District of Columbia.
  The nominees being held in limbo are highly qualified. Each and every 
one of them deserves the consideration of the full Senate. They include 
sitting State supreme court justices, State and Federal trial judges, 
and distinguished members of the bar. Many have served as judicial 
clerks in our Federal trial and appellate courts and in the Supreme 
Court. Others have served at the highest levels of all three branches 
of Government. All have distinguished academic records. Twenty-four of 
these nominees received a Well Qualified rating from the American Bar 
Association. Fourteen of those Well Qualified ratings were unanimous.
  While I do not take the position that the ABA ratings are or should 
be dispositive on judicial nominations, let me remind my colleagues 
what a Well Qualified rating means. According to guidelines published 
by the American Bar Association, standing committee on Federal 
judiciary:

       To merit a rating of ``well qualified,'' the nominee must 
     be at the top of the legal profession in his or her legal 
     community, have outstanding legal ability, breadth of 
     experience, the highest reputation for integrity, and either 
     have demonstrated, or exhibited the capacity for, judicial 
     temperament.

  This rating accurately describes the nominees before the Senate. When 
votes are held, I believe we will find there is bipartisan support for 
all of the nominees pending before the Senate. Even those who have been 
previously filibustered have received an affirmative vote of support by 
a majority of the Senate and have supporters across the political 
spectrum. Yet they are being held up, for the first time in this 
country's history, by filibusters.
  As further evidence of the qualifications and support of the 
nominees, I note that 22 nominees were reported out of the Judiciary 
Committee without a single negative vote. Eighteen district judges were 
reported by voice vote and with no announced opposition. Four circuit 
nominees received a 19-to-0 Judiciary Committee vote. I see no reason 
all cannot expeditiously be acted on by the Senate. That means all of 
the 22 Judiciary Committee consensus nominees by voice vote or by 
unanimous consent, and the others, as well.
  I have been troubled by the practice in this Congress of demanding 
time-consuming rollcall votes on nominees who pass unanimously or 
nearly unanimously. I understand these positions are lifetime 
appointments, but the Senate acts on many extremely important matters 
by unanimous consent or by voice vote. I have been told that last year 
alone we took about twice as many rollcall votes on unopposed judicial 
nominees than in 8 years under President Clinton. That is just last 
year.
  Like every other Senator, I took an oath to defend and support the 
Constitution. Every Senator has his or her view on how that 
responsibility is to be exercised with respect to acting on judicial 
nominees. In my view, the Constitution requires the Senate provide its 
advice and consent regarding the judicial nominees.
  Fulfilling my oath means I have a stake in seeing that happen. As 
chairman of the Judiciary Committee, I have a special role in working 
with the leadership in seeing the nominees, once reported from the 
committee, are brought up for floor action. Vote up or down, but just 
vote. Every judicial nominee who reaches the Senate floor is entitled 
to an up-or-down vote.
  I am hopeful the votes will be held on all judicial nominees 
presently on the Executive Calendar, as well as for nominees who may 
yet be reported this year by the Judiciary Committee.
  Now, I intend for my remarks today to bring us closer together on 
considering nominations in the Senate. While I will not fully discuss 
this matter

[[Page 8793]]

today, I will note I am not persuaded by arguments that suggest that 
President Bush's exercise of his constitutional prerogative to make 
recess appointments somehow justifies this current freeze on 
nominations. Absent the refusal to allow the simple up-or-down vote on 
judicial nominees that article II, section 2, clause 2 of the 
Constitution requires, the recess appointments would not have been made 
in the first place.
  I am mindful that my colleagues across the aisle have also expressed 
an interest in seeing that minority party nominees to bipartisan boards 
and commissions be acted upon. For the last several weeks, I have 
publicly stated on a number of occasions that I understand this concern 
and that I would support qualified Democratic nominees such as Jon 
Leibowitz, a former Judiciary Committee staffer of Senator Kohl, to 
serve as a Commissioner on the Federal Trade Commission. Likewise, I am 
pleased that the White House is considering a particular Democratic 
attorney, also a former Judiciary Committee staffer, to serve on the 
Federal Sentencing Commission.
  I hope that significant and mutually satisfactory progress can be 
made on judges and other nominees. I hope such progress will be made. I 
know from my experience in this body if we work together we can usually 
find solutions to these matters, even in an election year.
  Senator Leahy and I and other members of the Judiciary Committee have 
worked hard on nominations, even as we faced other difficult issues in 
the committee this year.
  I know Senator Frist and Senator Daschle are working hard with the 
administration, and I wish them well. I simply implore them--each and 
every one of them--to accelerate the pace of these discussions. But I 
must also state I believe the time for discussions, negotiations, and 
talk is drawing to a close. At some point, the Senate must do its sworn 
duty and vote up or down on judicial nominations. That is just right. 
It is the right thing to do.
  The time for action is quickly coming upon us. Some believe that 
point has already passed. To do otherwise is unfair to this 
institution, unfair to the nominees, unfair to the President, and, most 
importantly, unfair to the American public who entrusted us with the 
responsibility to conduct the public business.
  Madam President, we can and should do a better job of considering 
judicial nominees on the Senate floor. I stand ready and willing to 
continue to work with all of my colleagues and the administration on 
this important matter.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Dole). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________