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Statement Of Judiciary Chairman Patrick Leahy
On 100 Judicial Confirmations By The Democratic-Led Senate
November 19, 2002
As the 107th
Congress concludes, it is time to reflect on the important work we
have performed for the American people. In the past few days, the
full Senate voted on 20 of the nominees reported favorably by the
Judiciary Committee in addition to the 80 judicial nominations
previously confirmed. Since the change in majority 16 months ago, the
Senate Judiciary Committee has voted on 102 of President George W.
Bush’s judicial nominees and has held hearings on 103 judicial
nominations, some of whom have proven to be quite controversial and
divisive. We voted on 102 of them, reported 100 of them favorably and
this week the full Senate took the final step of confirming the last
of these 100 nominees. This remarkable record compares most favorably
to the 38 judicial confirmations averaged per year during the six and
one-half years when the Republican majority was in control of the
Senate.
Last week on the
Senate floor, the Democratic-led Senate confirmed more judges in just
one day that the Republican majority allowed to be confirmed in the
entire 1996 session. In that year, the Republican majority allowed
only 17 district court judges to be confirmed all year and would not
confirm any circuit court nominees, not one. In contrast, last
Thursday the Senate acted to confirm 17 district court nominations
and, in addition, another circuit court nominee. In all, the Senate
has confirmed 17 circuit court nominees and 83 district court nominees
in just 16 months. That should put our historic demonstration of
bipartisanship toward this President’s judicial nominees in
perspective.
The hard, thankless
but steady work of the Democratic members of the Judiciary Committee
have served to reduce judicial vacancies substantially during these
last 16 months. We inherited 110 vacancies. Today, after 100
district and circuit court confirmations, those vacancies number only
58–and that takes into account the additional 47 vacancies that have
arisen since the shift in majority. Without those additional
vacancies, we would have reduced our inherited judicial vacancies to
10.
When Senator Hatch
was Chairman of the Committee and a Democratic President occupied the
White House, Senator Hatch denied that even 100 vacancies was a
vacancies crisis, according to a column he wrote for the September 5,
1997 edition of USA Today. When a Democrat was in the White House,
Senator Hatch repeatedly stated that 67 vacancies was the equivalent
of “full employment” in the federal judiciary. As of today, there are
only 58 district and circuit vacancies total. By Senator Hatch’s
standards we have reached well beyond “full employment” on the federal
bench in just 16 months.
Since the summer of
2001, when they allowed the Judiciary Committee to reorganize
following the change in majority, we have moved more quickly and more
fairly. Democrats have worked hard to confirm on average 6 district
and circuit court nominees per month. The Republican rate of
confirmation was half that during their prior years of control of the
Senate, 3.2 confirmed per month in the 104th Congress, 4.25
in the 105th, and 3.04 per month in the 106th
Congress. We have moved nearly twice as fast as they did.
Partisans on the
other side of aisle interested in trying to create campaign issues
have proclaimed their disappointment that a few nominees have not yet
received votes in Committee, despite our votes on 102 judicial
nominees and our having attained results in 16 months that they did
not come close to in twice the time during their last 30 months in the
majority. I am concerned that the tone and language of hurtful
remarks against the Democrats have been destructive. In truth, only
11 of the remaining nominees who have not yet had hearings have
home-State consent and peer review ratings, and some of those peer
review ratings have come in only in the last few weeks. We have thus
given hearings to 90 percent of the nominees eligible for a hearing.
The vitriolic
rhetoric regarding Committee consideration of the most controversial
and ideologically-chosen judicial nominees is troubling to me as a
Senator and as Chairman of the Judiciary Committee. I have worked
diligently to hold a record number of 26 hearings for 103 of this
President’s circuit and district court nominees in the past 16 months
and to bring as many as we could to a vote, given all of the competing
responsibilities of the Committee and the Senate in these times of
great challenges to our Nation. We have transcended the inaction of
the prior six and one-half years of Republican control. For example,
during the six and one-half years the Republicans chaired the
Judiciary Committee, in 34 of those months there were no confirmation
hearings for judicial nominations at all. In the past 16 months, the
Senate Judiciary Committee has held 26 hearings for 103 judicial
nominees, in addition to a second hearing for one of the more
controversial nominees. I think Democrats deserve some credit for our
diligence, fairness, and bipartisanship, especially in contrast to the
prior period of Republican control of the Senate.
In particular, we
have held hearings for 20 circuit court nominees, confirmed 17 of them
in this period and reduced the circuit court vacancies from those we
inherited. By contrast, circuit court vacancies more than doubled
during Republican control, from 16 in January 1995 to 33 by the summer
of 2001 when they allowed the Judiciary Committee to reorganize
following the change in majority.
While the opposition
party continues to inflame the public with skewed statistics, the
reality is that we have approved far more judicial nominees for this
President than past Senates did for other Presidents. This
Democratic-led Senate has confirmed 100 district court and circuit
court judges, including 17 circuit court nominees. In President
George H.W. Bush’s first two years in office, 71 judicial nominees
were confirmed by the Democratic-led Senate. When a Republican
majority was considering Senator Clinton’s nominees in their first two
years working together, 75 judicial nominees were confirmed. Even
when a Republican majority was considering President Reagan’s judicial
nominations in his first two years only 89 judicial nominees were
confirmed. Thus, we have not only exceeded the confirmations achieved
when the Senate and White House were divided by political party but
the number of confirmations when Republicans controlled both
branches. In less than two years, just 16 months, we have evaluated,
held hearings for, reported out, and confirmed 100 judicial nominees
of President George W. Bush.
While Republicans
continue to play base politics and inflame certain quarters of the
public with their skewed statistics, the reality is that the
Democratic-led Senate has acted far more fairly toward this
President’s judicial nominees than Republicans acted toward President
Clinton’s.
The raw numbers, not
percentages, reveal the true workload of the Senate on nominations and
every one knows that. Anyone who pays attention to the federal
judiciary and who does not have a partisan agenda must know that.
Democrats have moved more quickly in voting on judicial nominees of a
President of a different party than in any time in recent history.
This should be beyond dispute, but I believe that partisan advisors
told this President and the Republicans that it is a great election
issue for them to complain that not every nominee has been confirmed.
We have given hearings to 103 of the 114 judicial nominees now
eligible for a hearing (90 percent, as of today, for those focused on
percentages). The remaining 16 without a hearing either lack
home-State consent or peer reviews or both. Many of those were
nominated only recently and are being used by Republicans to skew the
percentages further because they know that the ABA is taking about 60
days to submit ratings from the date of nomination and some would not
receive ratings in time for hearings this session. The Committee has
voted on 102 of the 103 judicial nominees eligible for a vote (99
percent). And with the vote on Judge Dennis Shedd, we have cleared
the Senate calendar of all judicial nominations rather than adopt the
recent Republican practice of holding nominees over without a final
vote and forcing them to be renominated and have second hearings in a
succeeding Congress.
I ask fair-minded
people to contrast what we have achieved in the past 16 months with
the most recent period of Republican control of the Committee. In all
of 2000 and the first several months of 2001 before the change in
Senate majority, the Senate confirmed only 39 judicial nominees,
including eight to the circuits. Even if you look at the last 30
months of Republican control, they confirmed only 72 judges. In much
less time, we have confirmed 100.
If you consider the
first 24 months the Republican control instead of their last 30
months, we have accomplished far more: more hearings (26 versus 18)
for more judicial nominees (103 versus 87) and had more confirmations
(100, including 17 to the circuit courts, versus 73 with 11 to the
circuit courts). We have reached the 100 mark for Committee votes in
less than half the time it took Republicans to vote on 100 of
President Clinton’s judicial nominees (it took them 33 months to reach
that mark, while we reached that mark in just 15 months).
With these
confirmations, the Democratic-led Senate has addressed a number of
long-standing vacancies. For example, we held the first hearing for a
nominee to the Fifth Circuit in seven years and confirmed her, even
though Republicans refused to allow hearings for three of President
Clinton’s nominees to this court. We held the first hearing for a
nominee to the Tenth Circuit in six years, and confirmed three
nominees to that circuit in less than one year, even though two of
President Clinton’s nominees to that circuit were never allowed
hearings by Republicans. We confirmed the first nominee to the Sixth
Circuit in almost five years and have now confirmed two judges to that
court, even though three of President Clinton’s nominees to that court
were never allowed hearings or votes. We held the first hearing for a
nominee to the Fourth Circuit in three years, and confirmed the first
African American appointed to that court in American history, even
though that nominee and six other nominees of President Clinton to the
Fourth Circuit (for a total of seven in that circuit alone) never
received hearings during Republican control of the Senate. Today,
another of President Bush’s nominees was confirmed to that circuit.
These are just a few of the firsts we have achieved in just 16 months.
There were many
other firsts in courts across the nation. For example, we held
hearings for and confirmed the first judges appointed to the federal
courts in the Western District of Pennsylvania in almost seven years,
even though several of President Clinton’s nominees to the courts in
that district were blocked by Republicans. They allowed none of
President Clinton’s nominees to be confirmed to that court during the
entire period of Republican control. They also blocked the
confirmation of a Pennsylvania nominee to the Third Circuit, among
others. Democrats confirmed the first nominees to the Third Circuit
and Ninth Circuit in two years, even though the last nominees to those
seats never received hearings during Republican control of the
Senate.
We have had hearings
for a number of controversial judicial nominees and brought many of
them to votes this year just as I said we would when I spoke to the
Senate at the beginning of the year. Of course, it would have been
irresponsible to ignore the number of vacancies we inherited and
concentrate solely on the most controversial, time consuming nominees
to the detriment of our federal courts. The President has made a
number of divisive choices for lifetime seats on the courts and they
take time to bring to a hearing and a vote. None of his nominees,
however, have waited as long for a hearing or a vote as 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 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
as was done in recent weeks. 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 following their hearings, we
never resorted to the tactics and tone used by Republican Members of
this Committee in Committee statements, in hallway discussions, in
press conferences or in Senate floor statements. 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.
The President and
partisan Republicans have spared no efforts in making judicial
nominations a political issue, without acknowledging the progress made
in these past months when 102 of this President’s judicial choices
have been given Committee votes. One indication of the fairness with
which we have proceeded is my willingness to proceed on nominations
that I do not support. We have perhaps moved too quickly on some,
relaxing the standards for personal behavior and lifestyle for
Republican nominees, being more expeditious and generous than
Republicans were to our nominees, and trying to take some of them at
their word that they will follow the law and the ethical rules for
judges.
For example, as I
noted on October 2, 2002, we confirmed a personal friend of the
President’s, Ron Clark, to an emergency vacancy in the United States
District Court for the Eastern District of Texas. Clark’s commission
was not signed and issued promptly. We learned later that Clark was
quoted as saying that he asked the White House, and the White House
agreed, to delay signing his commission while he ran as a Republican
for re-election to a seat in the Texas legislature so that he could
help Republicans keep a majority in the Texas State House until the
end of the session in mid-2003. The White House was apparently
complicit in these unethical partisan actions by a person confirmed to
a lifetime appointment to the federal bench. Clark, who was confirmed
to a seat on the federal district court in Texas, was actively
campaigning for election despite his confirmation.
These actions bring
discredit to the court to which Judge Clark was nominated by the
President and confirmed by the Senate, and call into question Judge
Clark’s ability to put aside his partisan roots and be an impartial
adjudicator of cases. Even in his answers under oath to this
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, the Chairman of this Committee, Clark promised
“[s]hould I be confirmed as a judge, my role will be different than
that of a legislator.” As the Commentary to the Code of Conduct for
United States Judges (which applies to judges and nominees) states,
“Deference to the judgments and rulings of courts depends upon public
confidence in the integrity and independence of judges [which] depend
in turn upon their acting without fear or favor. Although judges
should be independent, they should comply with the law as well as the
provisions of this Code.” The Code sets standards intended to help
ensure that the public has access to federal courts staffed with
judges who not only appear to be fair but are actually so.
Yet, he was flouting
the standards set by the Code and the promises he made to me
personally and to the Senate Judiciary Committee and, by proxy, to the
Senate as a whole. That the White House was prepared to go along with
these shenanigans reveals quite clearly the political way they
approach judicial nominations. Only after the New York Times reported
these unseemly actions, did the President sign Judge Clark’s
appointment papers. As Judge Clark hoped, he “won” the election and
so the Republican governor of Texas may be able to name a Republican
to replace him in the state legislature.
With a White House
that is politicizing the federal courts and making so many divisive
nominations, especially to the circuit courts, to appease the
far-right wing of the Republican party, it would be irresponsible for
us to turn a blind eye to this and simply rubber-stamp such appointees
to lifetime seats. Advice and consent does not mean giving the
President carte blanche to pack the courts with ideologues from the
right or left. The system of checks and balances in our Constitution
does not give the power to make lifetime appointments to one person
alone to pack the courts with judges whose views are outside of the
mainstream and whose decisions would further divide our nation.
I have worked hard
to bring to a vote the 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, like past Presidents, but, in all too
many instances, they have chosen to bypass bipartisanship cooperation
in favor of partisanship and a campaign issue. Arbitrary deadlines
will not ensure that nominees will be fairminded judges who are not
activists or ideologues. The American people have a right to 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 government, and they matter a great deal to our future. I
will continue to work hard to ensure the independence of our federal
judiciary.
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