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* Judiciary
Committee Votes On 100th Bush Judicial Nomination; 98 of
100 approved
* The Shedd Nomination
* The Scandal Involving Confirmed Judicial Nominee Ron Clark of Texas
Statement Of Chairman Patrick Leahy
Congressional Record
The Judiciary Committee’s
100th Vote In 15 Months
On Judicial Nominations
October 10, 2002
Today marks the
15-month anniversary of the reorganization of the Senate Judiciary
Committee following the change in the Senate majority last summer.
This week also became another milestone as the Judiciary Committee
voted on the 100th judicial nominee of President George W.
Bush. This historic demonstration of bipartisanship toward this
President’s judicial nominees has been overshadowed by partisan
attacks in this very chamber and in the press.
I have worked
diligently along with the other Democratic Senators on the Judiciary
Committee to hold a record number of hearings for this President’s
district and circuit court nominees during the past 15 months and to
bring as many as we could to a vote this year. Given all of the
competing responsibilities of the Committee and the Senate in these
times of great challenges to our Nation, hearings for 103 judicial
nominees, voting on 100, and favorably reporting 98 is a record of
which the Judiciary Committee and the Senate can be proud. We have
transcended the relative inaction of the prior six and one-half years
of Republican control by moving forward on judicial nominees twice as
quickly as our predecessors did. Indeed, the Senate has already
confirmed more judicial nominees in 15 months than the
Republican-controlled Senate did during its last 30 months. More
achieved, and in half the time.
The raw numbers, not
percentages, reveal the true workload of the Senate on nominations and
everyone knows that. Anyone who pays attention to the federal
judiciary and who does not have a partisan agenda must know that. In
addition, Democrats have moved more quickly in voting on judicial
nominees of a President of a different party than in any time in
recent history. Led by Majority Leader Daschle, the Democratic
majority in the Senate has confirmed 80 judicial nominees, including
14 circuit court nominees, for a President of a different party, in
just 15 months since the reorganization of the Judiciary Committee.
In comparison, in the first two full years of President George H.W.
Bush's Administration, the Democratic-led Senate confirmed 71 judicial
nominees. In fact, during the first 15 months of the first Bush
Administration, only 23 judges were confirmed, with eight to the
circuit courts. Our confirmation of 80 of President George W. Bush's
judicial nominees in just 15 months is historic progress for a
President and a Senate led by different parties.
Apparently, however,
Republicans believe that there is partisan hay to be harvested in
complaining that every single judicial nominee has not yet been
confirmed. The fact is that we have proceeded with hearings for 103
of the 110 judicial nominees eligible for hearings – 94 percent, for
those focused on percentages. The other 17 judicial nominees who have
not participated in a hearing either lack home-state consent or peer
reviews or both. Thus, when partisans harp on the nominations of
Terrence Boyle and Carolyn Kuhl and other nominees without home-State
Senator support, they know they are being misleading. Senator Hatch
never proceeded on a nomination without home-State Senator support and
acknowledges that this is the Senate’s tradition. At least six of the
President’s circuit court nominees fall into this category and, for
many if not all of them, the White House knew about the lack of
home-State Senator support before the nominations were made.
The Committee has
voted on 100 of the 103 judicial nominees eligible for votes – 97
percent. Of those voted upon, 98 – 98 percent – have been reported
favorably to the Senate. In addition to the 80 judges already
confirmed, another 18 approved by the Judiciary Committee await Senate
action on the Senate Executive Calendar.
It is disappointing
that the Republican Leader and others are reported to have said that
they will not be allowed Senate votes before we adjourn. Earlier this
year the Majority Leader had to work through a problem caused by the
Administration’s failure to work with Senators on Executive Branch
appointments. The Majority Leader was required by Republican
objection to invoke cloture in order to vote on President Bush’s
judicial nominations. Whether there is time left in this session to
overcome Republican objections to action on the roster of President
Bush’s judicial nominations currently on the calendar is problematic.
To date, and unlike
the recent past, every judicial nominee who participated in a hearing
has been considered and voted upon by the Judiciary Committee but for
the three controversial circuit court nominees we continue to
consider.
I know that Senator
Thurmond is very disappointed that we could not bring his choice for
the Fourth Circuit to a vote this week. I regret that he is upset.
The nomination of his former aide for a promotion to the Court of
Appeals has grown more controversial. On our committee, as on all
committees, controversy takes a toll in the time needed for action on
a bill or on a nomination. Members of the Committee need time to
fully evaluate the merits of concerns about this nomination raised by
hundreds if not thousands of citizens from throughout the Fourth
Circuit and the Nation. In accordance with our responsibilities under
the Constitution to evaluate these nominations for lifetime
appointments, the members of the Committee continue to work diligently
on simultaneously evaluating three controversial circuit court
nominations.
As much as I
personally would have liked to resolve this nomination by now at the
request of the distinguished Senior Senator from South Carolina, and
as hard as I have worked to resolve the problems with it, we were not
able to vote on it this week. I worked hard to try to move the
nomination of his former aide forward to a vote up or down but, with
war resolutions pending before the Senate and limited time for debate
this Tuesday, I had to make a difficult decision. Seventeen
relatively noncontroversial judicial nominations were ready for
Committee votes this week. I decided to try to bring some relief to17
vacant seats in district courts across our country rather than begin
what promised to be a lengthy and inconclusive debate about Judge
Shedd’s record as a federal district court judge and whether he should
be elevated. That was a tough decision for me, personally, but the
rising tide of citizen distress over the Shedd nomination made
bringing that vote to a conclusion an impossibility this week.
Republican efforts
to gain some political advantage for this difficult situation are
especially unfounded given the stark contrast between what we have
achieved in the past 15 months compared with the most recent period of
Republican control of the Committee. In the 15 months before the
reorganization of the Judiciary Committee after the shift in Senate
majority, the Senate confirmed only 32 judicial nominees, including
three to the circuits. Under Democratic leadership, we have already
confirmed 80, including 14 to the circuit courts, in just 15 months.
Even if we compare our record with a period of Republican control that
is twice as long -- the last 30 months of Republican control – our
predecessors confirmed only 72 judges, while in half the time, we have
confirmed 80. Alternatively, if we go back and compare the
Republicans’ first 15 months of Senate control in 1995 and 1996, we
have accomplished far more: more hearings (26 versus 14), for more
judicial nominees (103 versus 67), with more Committee votes (100
versus 61), for more confirmations (80 versus 56). We have reached
the century mark for Committee votes in less than half the time, 15
months, while it took our predecessors 33 months to vote on 100
judicial nominees.
In another departure
from the past, we have had hearings even for several controversial
judicial nominees and brought them to votes this year. Most were
voted out of Committee despite their controversy. Given the number of
vacancies that we inherited – 110 – concentrating on the most
controversial, time-consuming nominations would have been to the
detriment of the courts. The President has made a number of divisive
choices – divisive to the American people and divisive to the Senate –
for these lifetime seats on the courts, and they take more time to
bring to hearings and votes. None of these nominees, however, have
waited as long for hearings or votes as did some of President
Clinton’s judicial nominees, such as Judge Richard Paez, who waited
1,500 days to be confirmed and 1,237 days to get a final vote by the
Republican-controlled Senate Judiciary Committee, or Judge Helene
White, whose nomination languished for more than 1,500 days without
ever getting a hearing or a Committee vote.
As frustrated as
Democrats were with the lengthy delays and obstruction of scores of
judicial nominees in the prior six and one-half years of Republican
control, we never attacked the Chairman of the Committee in the manner
Republicans chose this week. Similarly, as disappointed as Democrats
were with the refusal of Chairman Hatch to include Allen Snyder,
Bonnie Campbell, Clarence Sundram, Fred Woocher and other nominees on
an agenda for a vote by the Committee for months following their
hearings, we never resorted to the tactics and tone used by
Republicans in Committee statements, in hallway discussions, in press
conferences or in Senate floor debate. We never tried to override the
Chairman’s prerogative to set the agenda for consideration of judicial
nominees by trying to manipulate the Committee’s cloture rule. We did
not try to use the Committee rule to hold off consideration of an
agenda item for at least a week to force either legislation or
nominations to be voted on in one week’s time. During Republican
rule, even some uncontroversial nominees like Judge Kim Wardlaw were
held over more than once. We also never sought to invoke Senate Rule
26.3 to make an end-run around Chairman Hatch – even when weeks and
months passed without a single nominee on the agenda or when nominees
who had hearings went for months without being placed on the agenda.
As frustrated and disappointed as we were that the Republican
majority refused to proceed with hearings or votes on scores of
judicial nominees, we never sought to override Senator Hatch’s
judgments and authority as chairman of the Committee.
Some in the other
party have spared no efforts in making judicial nominations into a
partisan, political issue, all the while refusing to acknowledge the
progress made in these past 15 months when 100 of President Bush’s
judicial choices have had Committee votes. We have perhaps moved too
quickly on some, relaxing past standards, being more expeditious and
generous than Republicans were to a Democratic President’s nominees,
and trying to take some of them at their word that they will follow
the law and the ethical rules for judges.
Just last week, on
October 2, 2002, we confirmed Ron Clark to an emergency vacancy in the
United States District Court for the Eastern District of Texas. Two
other judicial nominees, Larry Block and Judge James Gardner, were
confirmed the very same day. The commissions for Judge Block and
Judge Gardner were signed by the President on October 3, but the judge
for the emergency vacancy in the President’s home state was not. Just
this week we learned that Mr. Clark was quoted as saying that he asked
the White House to delay signing his commission while he runs as a
Republican candidate for re-election to a seat in the Texas
legislature. The White House apparently has been complicit in these
unseemly political actions by a person confirmed to the federal
bench. Mr. Clark, who the Senate has confirmed to a seat on the
federal district court in Texas, has been actively campaigning for
election despite his confirmation.
These actions call
into question Mr. Clark’s ability to put aside his partisan roots and
be an impartial adjudicator of cases. In his answers under oath to
the Committee, he swore that if he were “confirmed” he would follow
the ethical rules. Canon 1 of the Code of Conduct for United States
Judges explicitly provides that the Code applies to “judges and
nominees for judicial office,” and Canon 7 provides quite clearly that
partisan political activity is contrary to ethical rules. In his
answers to me, Mr. Clark promised: “[s]hould I be confirmed as a
judge, my role will be different than that of a legislator.” Yet now
that he is confirmed, he has been flaunting his written statements to
me personally and to the Senate Judiciary Committee and, by proxy, to
the Senate as a whole. That the White House would go along with these
partisan ploys reveals much about the political way this
Administration approaches judicial nominations.
Senators Kennedy and
Schumer have written a letter of complaint to the Fifth Circuit
Judicial Council, which has jurisdiction over ethical complaints
arising in that jurisdiction. I ask unanimous consent that the letter
and a newspaper report of the Clark scandal be included in the
Record. Tonight, only after this scandal came to the Nation’s
attention in today’s news account in the New York
Times, the President has apparently signed Mr. Clark’s commission.
With a White House
that is politicizing the federal courts and making so many
nominations, especially to the circuit courts, to appease the
far-right wing of the Republican Party, it would be irresponsible for
us to simply rubber-stamp these nominations for lifetime appointments
to our independent federal judiciary. Advice and consent does not
mean giving any President carte blanche to pack the courts with
ideologues from the right or the left.
I have worked hard
to bring to a vote an overwhelming majority of this President’s
judicial nominees, but we cannot afford to make errors in these
lifetime appointments out of haste or sentimental considerations,
however well intentioned. To help smooth the confirmation process, I
have gone out of my way to encourage the White House to work in a
bipartisan way with the Senate, as past Presidents have, but, in all
too many instances, the White House has chosen to bypass bipartisan
cooperation in favor of partisanship.
The American people
expect the federal courts to be fair forums and not bastions of
favoritism on the right or the left. These are the only lifetime
appointments in our whole system of government, and they matter a
great deal to the future of each and every American. I will continue
to work hard to ensure the independence of our federal judiciary.
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