Delays in Senate Action on Judicial Nominations

June 18, 1998

Mr. LEAHY. Mr. President, just a couple of weeks ago, I commented in the Congressional Record on the Senate majority's poor record in acting on judicial nominees, especially noting those judicial nominees who are either minorities or women. I included a recent letter from the Congressional Hispanic Caucus, which calls upon the Senate Republican leadership to allow votes on the Latino judicial nominees who have languished in the Senate for far too long.

I have also spoken often about the crisis in the second circuit and the need for the Senate to move forward to confirm the nominees to that court who are pending on the calendar.

Judge Sonia Sotomayor is just such a qualified nominee, and she is one being held up by the Republican majority, apparently because some on the other side of the aisle believe she might one day be considered by President Clinton for nomination to the U.S. Supreme Court, should a vacancy arise.

Last week, a lead editorial in the Wall Street Journal discussed this secret basis for the Republican hold against this fine judge. The Journal reveals that these delays are intended to ensure that Sonia Sotomayor not be nominated to the Supreme Court, although it is hard to figure out just how that is logical or sensible.

In fact, how disturbing, how petty, and how shameful: Trying to disqualify an outstanding Hispanic woman judge by an anonymous hold. I have far more respect for Senators who, for whatever reason, wish to vote against her. Stand up; vote against her. But to have an anonymous hold--an anonymous hold--in the U.S. Senate with 100 Members representing 260 million Americans, which should be the conscience of the Nation, should not be lurking in our cloakrooms anonymously trying to hold up a nominee. If we want to vote against somebody, vote against them. I respect that. State your reasons. I respect that. But don't hold up a qualified judicial nominee.

I was asked last week by Neil Lewis of the New York Times about this circumstance. He correctly reported my response in a front page story this last Saturday. I am offended by this anonymous effort to oppose her prompt confirmation by stealth tactics. Here is a highly qualified Hispanic woman judge who should have been confirmed to help end the crisis in the Second Circuit more than three months ago.

The times Argus recently included an editorial entitled "Partisan Nonsense" on this hold. The editorial notes that Judge Sotomayor rose from a housing project in the Bronx to Princeton, Yale and a federal court appointment by President Bush, a Republican. The editorial notes that the stalling tactics are aggravating the judicial emergency faced by the Second Circuit caused by judicial vacancies for which the Republican leadership in the Senate refuses to consider her, and another worthy nominee. The editorial concludes by urging me to make "a lot of noise over this partisan nonsense."

I don't always follow the editorials in my home State. But this one I am happy to follow. I will continue to speak out on behalf of Judge Sotomayor and all the qualified nominees being stalled here in the U.S. Senate.

Judge Sotomayor in not the only woman or minority judicial nominee who has been needlessly stalled. Indeed, if one considers those nominees who have taken the longest to confirm this year, we find a disturbing pattern:

Hilda Tagle, the only Hispanic woman the Senate has confirmed this year, took 32 months to be confirmed as a district court judge for the Southern District of Texas. That is more than two-and-one-half years.

Judge Richard Paez, currently a district court judge and a nominee to the Ninth Circuit, was first nominated in January 1996. Twenty-nine months latter, Judge Paez's nomination remains in limbo on the Senate calendar.

Nor have we seen any progress on the nomination of Jorge Rangel to the Fifth Circuit or Anabelle Rodriquez to the District Court for Puerto Rico, although her nomination was received in January 1996, almost 29 months ago.

For that matter, we have seen the President's nomination of Judge James A. Beaty Jr., the first African American nominated to the Fourth Circuit, stalled for 30 months, since December 1995. The situation in the Fourth Circuit was the topic of a Washington Post editorial past Saturday. We have seen the attack on Judge Frederica Massiah-Jackson, who would have been the first African-American woman to serve on the Eastern District of Pennsylvania, but who was forced to withdraw. We have seen the nomination of Clarence Sundram held up since September 1995, almost 33 months.

In his annual report on the judiciary this year on New Year's Day, the Chief Justice of the United States Supreme Court observed: "Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote. The Senate confirmed only 17 judges in 1996 and 36 in 1997, well under the 101 judges it confirmed in 1994."

He went on to note: "The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down." Which of course is absolutely correct.

For some unexplained reason, judicial nominees who are women or racial or ethnic minorities seem to take the longest in the Senate. Of the 10 judicial nominees whose nominations have been pending the longest before the Senate, eight are women and racial or ethnic minority candidates. A ninth has been delayed in large measure because of opposition to his mother, who already serves as a judge. The tenth is one who blew the lid off the $1.4 million right-wing campaign to "kill" Clinton judicial nominees.

Pending on the Senate calendar, having been passed over again and again, are Judge Sonia Sotomayor, Judge Richard Paez, Susan Oki Mollway and Ronnie White. Held up in committee after two hearings is Clarence Sundram. Still without a hearing are Anabelle Rodriquez, Judge James A. Beaty Jr., and Jorge C. Rangel. What all these nominees have in common is that they are either women or members of racial or ethnic minorities.

Acting to fill judicial vacancies is a constitutional duty that the Senate--and all of its member--are obligated to fulfill. In its unprecedented slowdown in the handling of nominees in the 104th and 105th Congresses, the Senate is shirking its duty. The Senate majority's choices as they stall Hispanic, women and minority nominees is wrong and should end.

Mr. President, I have served here for nearly 24 years. I know Members of the Senate. I have enormous respect for so many of them, Republicans and Democrats alike. The vast majority of Senators I have served with do not have any bias or ethnic bias against people. They do not have a religious bias. They do not have a gender bias. But somehow ethnic and gender biases have crept into the stalling of these nominations.

If Senators are opposed to any judge, bring them up and vote against them. But don't do an anonymous hold, which diminishes the credibility and respect of the whole U.S. Senate.

I have had judicial nominations by both Democrat and Republican Presidents that I intended to oppose. But I fought like mad to make sure they at least got a chance to be on the floor for a vote.

I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty.

If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators.

With that, Mr. President, I see Senators have come back to the floor for their debate. So I ask unanimous consent that copies of the editorials of the Times Argus and the Washington Post, and the report from the New York Times, which I referred to, be printed in the Record.

Mr. LEAHY. Mr. President, if I have time left, I yield it back. I yield the floor.

There being no objection, the material was ordered to be printed in the Record, as follows:

From The Times Argus, June 15, 1998

"Partisan Nonsense"

You may never have heard of a federal district judge named Sonia Sotomayor, and it appears that several key Republicans are hoping you never will. They'd like her to simply vanish from the nation's political radar screen, but Vermont's Sen. Patrick Leahy is among those who stand in their way.

It appears these political foes of President Clinton are afraid that if they confirm Judge Sotomayor's nomination to the 2nd District U.S. Circuit Court of Appeals, as Clinton has proposed, her next stop will be a seat on the United States Supreme Court.

Although Sotomayor grew up in the sprawling housing projects of the Bronx, where success stories are less than commonplace, she managed to graduate with high honors from Princeton, become editor of the Yale Review and earn a reputation as an effective federal prosecutor.

In 1992, she was appointed to the federal bench by then-President George Bush. That would seem to suggest she had bipartisan support, but that was before some nervous Republicans began to fear there may soon be an opening on the Supreme Court. That opening, they worried, would allow Clinton to nominate Sotomayor, a woman and an Hispanic.

Of course there is no vacancy on the high court, nor has there been any clear signal that there will be one any time soon. Justice John Paul Stevens, who many believe will be the first of the present batch of justices to retire, has already hired his clerks for the next court session. In addition, Sotomayor's name was not on a list of recommended nominees the Hispanic National Bar Association submitted to Clinton.

But even if there was a pending vacancy, what is it about Judge Sotomayor that would make Republicans so worried? Is it that she's Hispanic? Is it that she's too liberal, or too much a judicial activist?

For the record nobody is saying, but off the record, some Senate aides concede their bosses are worried she would, indeed, be an activist. Interestingly, conservative supporters of Judge Sotomayor's nomination vehemently disagree with that assessment.

Enter Sen. Leahy, the senior Democrat on the Judiciary Committee. In blunt terms, Leahy has criticized the Republicans who, behind the scenes and not for attribution, are seeking to scuttle Sotomayor's nomination.

"Their reasons are stupid at best and cowardly at worst," Leahy told a New York Times reporter. "What they are saying is that they have a brilliant judge who happens to be a woman and Hispanic and they haven't the guts to stand up and argue publicly against her on the floor. They just want to hide in their cloakrooms and do her in quietly."

Those are strong words, particularly for the United States Senate, but Leahy's anger is genuine and justified. The campaign against Judge Sotomayor began on the editorial pages of the ultra-conservative Wall Street Journal and was given much wider exposure when it was taken up by Rush Limbaugh, the right wing radio talk show host.

The Journal was upset with Sotomayor's ruling that a coalition of New York businesses promoting a program for the homeless had violated federal law by not paying the minimum wage. This, in the Journal's opinion, constituted "judicial activism."

But a well-known conservative, Gerald Walpin, has rushed to Sotomayor's defense and his message is worth heeding.

"If they had read the case they would see that she said she personally approved of the homeless program but that as a judge she was required to apply the law as it exists," Walpin commented. "She wrote that the law does not permit an exception in this case. That's exactly what conservatives want a non-activist judge who does not apply her own views but is bound by the law."

What's particularly aggravating by the stalling tactics of Clinton's foes is that they come at a time of major judicial delays caused by the existing vacancies on the bench Judge Sotomayor would fill. The chief judge of the circuit, a conservative Republican, has written about having to declare "judicial emergencies" because of these vacancies.

We hope Sen. Leahy makes a lot of noise over this partisan nonsense.

From the New York Times, June 13, 1998

G.O.P., Its Eyes On High Court, Blocks a Judge

by Neil A. Lewis

Washington, June 12--Judge Sonia Sotomayor seemed like a trouble-free choice when President Clinton nominated her to an appeals court post a year ago. Hers was an appealing story: a child from the Bronx housing projects who went on to graduate summa cum laude from Princeton and become editor of the Yale Law Journal and then a Federal prosecutor.

Moreover, she had been a trial judge since 1992, when she was named to the bench by the last Republican president George Bush.

But Republican senators have been blocking Judge Sotomayor's elevation to the appeals court for a highly unusual reason: to make her less likely to be picked by Mr. Clinton for the Supreme Court, senior Republican Congressional aides said in interviews.

The delay of a confirmation vote on Judge Sotomayor to the United States Court of Appeals for the Second Circuit, based in New York, is an example of the intense and often byzantine political maneuverings that take place behind the scenes in many judicial nominations. Several elements of the Sotomayor case are odd, White House officials and Democrats in Congress say, but the chief one is the fact that there is no vacancy on the Supreme Court, and no firm indication that there will be one soon. Nor is there any evidence of a campaign to put Judge Sotomayor under consideration for a seat if there were a vacancy.

Judge Sotomayor's nomination was approved overwhelmingly by the Senate Judiciary Committee in March. Of the judicial nominees who have cleared the committee in this Congress, she is among those who have waited the longest for a final vote on the floor.

Senate Republican staff aides said Trent Lott of Mississippi, the majority leader, has agreed to hold up a vote on the nomination as part of an elaborate political calculus; if she were easily confirmed to the appeals court, they said, that would put her in a position to be named to the Supreme Court. And Senate Republicans think that they would then have a difficult time opposing a Hispanic woman who had just been confirmed by the full Senate.

"Basically, we think that putting her on the appeals court puts her in the batter's box to be nominated to the Supreme Court," said one senior Republican staff aide who spoke on the condition of anonymity. "If Clinton nominated her it would put several of our senators in a real difficult position."

Mr. Lott declined through a spokeswoman to comment.

Judge Sotomayor sits on Federal District Court in Manhattan, and the aides said some senators believe that her record on the bench fits the profile of an "activist judge," a description that has been used by conservatives to question a jurist's ability to construe the law narrowly. It is a description that Judge Sotomayor's supporters, including some conservative New York lawyers, dispute.

Senator Patrick Leahy of Vermont, the senior Democrat on the Judiciary Committee, was blunt in his criticism of the Republicans who are blocking a confirmation vote. "Their reasons are stupid at best and cowardly at worst," he said.

"What they are saying is that they have a brilliant judge who also happens to be a woman and Hispanic. and they haven't the guts to stand up and argue publicly against her on the floor," Senator Leahy said. "They just want to hide in their cloakrooms and do her in quietly."

The models for the strategy of putting candidates on appeals courts to enhance their stature as Supreme Court nominees are Judge Robert H. Bork and Judge Clarence Thomas. Both were placed on the Court of Appeals for the District of Columbia Circuit in part to be poised for nomination to the Supreme Court. Judge Bork was denied confirmation to the Supreme Court in 1987 and Judge Thomas was confirmed in 1991, in both cases after bruising political battles.

The foundation for the Republicans's strategy is based on two highly speculative theories: that Mr. Clinton is eager to name the first Hispanic person to the Supreme Court and that he will have such an opportunity when one of the current justices, perhaps John Paul Stevens, retires at the end of the current Supreme Court term next month.

Warnings about the possibility of Judge Sotomayor's filling Justice Stevens's seat was raised by the Wall Street Journal's editorial pages this month, both in an editorial and in an op-ed column by Paul A. Gigot, who often reflects conservative thinking in the Senate.

Although justices often announce their retirements at the end of a term, Justice Stevens has not given a clue that he will do so. He has, in fact, hired law clerks for next year's term. The Journal's commentary also criticized Judge Sotomayor's record, particularly her March ruling in a case involving a Manhattan business coalition, the Grand Central Partnership. She rules that in trying to give work experience to the homeless, the coalition had violated Federal law by failing to pay the minimum wage.

Gerald Walpin, a former Federal prosecutor who is widely known in New York legal circles as a staunch conservative, took issue with the Journal's criticism. "If they had read the case they would see that she said she personally approved of the homeless program but that as a judge she was required to apply the law as it exists," he said. "She wrote that the law does not permit an exception in this case. That's exactly what conservatives want: a nonactivist judge who does not apply her own views but is bound by the law." Mr. Bush nominated Judge Sotomayor in 1992 after a recommendation from Daniel Patrick Moynihan, New York's Democratic Senator.

It also remains unclear how some Senate Republicans came to believe that Judge Sotomayor was being considered as a candidate for the Supreme Court. Hispanic bar groups have for years pressed the Clinton Administration to name the first Hispanic justice, but White House officials said they are not committed to doing so. The Hispanic National Bar Association has submitted a list of six candidates for the Supreme Court to the White House.

But Martin R. Castro, a Chicago lawyer and official of the group, said Judge Sotomayor's name is not on the list. The only Republicans to vote against her in March were Senator John Kyl of Arizona and Senator John Ashcroft of Missouri. The committee's other conservative members, including Orrin G. Hatch of Utah and Strom Thurmond of South Carolina, voted in her favor. Mr. Kyl and Mr. Ashcroft both declined to comment today.

From the Washington Post, June 13, 1998

Unpacking the Court

The saga of the North Carolina seats on the U.S. Court of Appeals for the 4th Circuit is a caricature of the power individual senators have to hold up judicial nominations. In 1990 Congress added some seats to the 4th Circuit, including one for North Carolina. to this day--7 1/2 years later--that seat remains vacant. The reason is a byzantine power play by Sen. Jesse Helms.

The first nomination to the ghost seat was made by President Bush in 1991. He picked a conservative district court judge and Helms favorite named Terrence Boyle. That nomination was dropped--much to Mr. Helm's fury--when Mr. Bush subsequently lost the 1992 election. Since then Mr. Helms has stymied President Clinton's efforts to fill the seat. When President Clinton named Rich Leonard to it late in 1995, Mr. Helms blocked the nomination, and the Senate never acted on it. With no prospect of success, the nomination was not resubmitted in the next Congress. What's more, since Judge Dixon Phillips Jr. took senior status in 1994 and thereby opened another North Carolina slot on the court, Mr. Helms has also blocked the administration's attempts to fill that seat. As a result, the president's choice--U.S. District Judge James Beaty Jr: has been in limbo for 2 1/2 years without getting even a hearing. Mr. Helms has not even indicated to the administration what sort of nominees might be acceptable.

Mr. Helms has argued in talks with the administration that the court needs no more judges--a point on which he is, ironically, supported by the 4th Circuit's own conservative chief judge, Harvie Wilkinson III. Mr. Helms, however, was making no such argument when Judge Boyle was up for the slot. And it's a bit difficult to imagine him making the same point now were the president's nominees not likely to add a little ideological--and, for that matter, ethnic--diversity to one of the most conservative courts in the country. Mr. Clinton's nominees would, indeed, change the 4th Circuit--which covers Maryland, Virginia, South Carolina, West Virginia and North Carolina--and the arch-conservative senator cannot be required to relish this prospect.

But ultimately the Constitution gives the president, not individual senators, the power to name judges. And Mr. Helms's effort to keep the court conservative by keeping it small is an improper aggrandizement of his own rule.