Statement Of Senator Patrick Leahy
Judicial Nominations Hearing
Senate Judiciary Committee
March 12, 2003
This week the Judiciary Committee is
holding its fourth and fifth hearings this year involving a total of
20 Article III judicial nominees, three nominees to the Court of
Federal Claims and two nominees to the Sentencing Commission. This
is so much faster and more extensive than in prior years in which
the Republican majority was last in charge, it makes one’s head
spin. This week, the Republican-led Senate Judiciary Committee will
hold its sixth hearing for a circuit court nominee since January.
In all of 1996 and in all of 2000, the Republican majority did not
hold hearings on as many as six circuit nominees. In 1997 and 1999,
Republicans did not hold a hearing for as many as six circuit
nominees until September and, in 1995, this mark was not reached
until June. Never in any of their most recent six and one-half
years in the majority did Republicans hold hearings for as many as
six circuit court nominees by March, never. In addition, it was not
until the fall of 1997 that Republicans proceeded with hearings as
many as 20 Article III judicial nominees of President Clinton and in
the three other years in which they were in the majority during the
Clinton Administration, they took until the summer to reach that
benchmark. The current pace makes the editorial cartoons about
assembly line rubber-stamping of lifetime appointments to the
federal bench all too accurate. The Senate Judiciary Committee
review and hearing process has been changed overnight by the
Republican majority as have so many aspects of the confirmation
process. Their double standards are showing in the way they
approach hearings, Committee debates and floor action on judicial
nominees.
We all know
that we work better when we work together in a bipartisan manner;
when we honor traditions and rules that respect both sides of the
aisle; when there is give and take; when there is advising, as well
as consenting. I am sorry that the Bush Administration is so
resistant to those traditions, those processes and bipartisanship.
I believe that we need to uphold the
Aadvice@
prong of our advise and consent responsibilities by involving
home-state Senators, this Committee and the Senate. I continue to
hear from home-state Senators that they receive little more than
notification from this Administration and that it remains most
reluctance to consult about potential nominations. When Democrats
were in the majority in the 107th Congress, we took many
steps in good faith to repair damage done to the confirmation
process through the intransigence shown to President Clinton’s
nominees by a Republican Senate. We confirmed 100 of President
Bush’s judicial nominees in that time – including to circuits for
which Republicans had repeatedly refused to act on Clinton
nominees. The Democratic Senate acted far faster and more fairly
than the Republican-led Senate had with Clinton nominees.
This
Administration continues to resist efforts to increase the use of
bipartisan selection commissions, which have been so useful for so
many years and worked so well in previous Administrations. Such
bipartisan commissions can help us all ensure that nominees are
selected
based upon professional merit and experience. The recommendations
of such commissions have the support of members from their community
on both sides of aisle. Accordingly, these bipartisan commissions
can help preserve the independence and integrity of the judicial
branch of government and ensure the fair and equal administration of
justice and enforcement of the law.
This President’s White House Counsel has indicated publicly that he
disfavors bipartisan committees because he believes that they
Ausurp
the president=s
constitutional authority to choose judges.@
That is so unfortunate. Recommendations from bipartisan
commissions have helped me, many other Senators and many other
Presidents as we fulfill our constitutional duties in connection
with judicial appointments. Bipartisan commissions do not make
nominations in lieu of the President and do not confirm in place of
the Senate. The Administration=s
disdain for bipartisan commissions ignores past precedent and
longstanding traditions.
To their
credit, the Senators from California have persevered in their
efforts to have potential candidates for at least the federal
district courts in their State to be reviewed by bipartisan review
committees. I am pleased to see two nominees from California on
today=s
hearing who are the product of the bipartisan selection commission
established by the Senators from California and the White House.
Both of these nominees are current judges who come before us with
the support of California=s
highly-regarded selection commissions. I welcome Judge Carney and
Judge Selna and their families here today. I regret that the
President and his advisors have resisted naming other qualified
recommendations from those commissions over the last two years.
The two other
District Court nominees before us today are from Indiana. They,
too, are supported by their home-state Senators, a bipartisan
delegation. Senator Bayh supports them and Senator Lugar wrote me a
wonderful letter about the outstanding qualifications of these two
nominees. I have a great deal of respect for their judgment and I
look forward to hearing from Magistrate Judge Springman and Mr.
Simon today.
Today, we also
have before us two nominees each to the Court of Federal Claims and
the U.S. Sentencing Commission. Appointments to these two
specialized bodies have enjoyed a tradition of bipartisanship. I
fear that bipartisan cooperation is breaking down, however. The
rules are again changing and this Administration appears to be
acting unilaterally in disregard for tradition and bipartisanship in
the selection of nominees to this court and commission as it has so
far in connection with the U.S. Parole Commission. That, too, is
most unfortunate and unnecessary.
The process for nominating judges to the Court of Federal Claims has
traditionally included accommodation and compromise. For more than
two years Senate Republicans blocked President Clinton=s
appointment of Larry Baskir to the court until a compromise could be
reached. They refused to give him a hearing and refused to allow
any of the other vacancies to be filled unless the Clinton
Administration promised to keep conservative Judge Loren Smith as
the Chief Judge. Republicans also insisted on the reappointment of
another Republican appointee, Judge Christine Miller. Finally,
Senator Hatch agreed to allow five Clinton nominees to have hearings
and votes if the Administration also named a member of his staff to
the court and promised to retain Judge Smith as Chief until his
retirement into lifetime senior status at the end of his term
appointment.
Upon Chief Judge Smith's
Aretirement,@
President Clinton named Judge Baskir the Chief Judge. Shortly after
his inauguration, President George W. Bush summarily removed Judge
Baskir as Chief Judge and installed Judge Damich as the Chief Judge.
Last fall when the Democrats were in the majority, we took the
exceptional action of quickly moving the nomination of Larry Block
to the Court of Federal Claims at the request of the Ranking
Republican, Senator Hatch. At that time, I noted that we would
expect fairness and consideration in return, including true
bipartisan consultation with respect to Federal Court of Claims
nominations. Despite our accommodation on Judge Block=s
nomination, the White House refused to act on the nomination of
Judge Sarah Wilson, who up until a few months ago was already
serving with distinction on the Court of Federal Claims. Judge
Wilson is a well‑respected and talented lawyer who graduated from
Columbia Law School, clerked for a federal judge, was a fellow with
the Administrative Office of the Courts, and served in the
Department of Justice and in a prior White House. Yet the
Administration and the Senate Republicans refused to accommodate our
request to consider her nomination for a continued position on the
court. Indeed, none of this Administration’s nominations to the
Court of Federal Claims are being made at the suggestion of the
Senate’s Democratic Leader.
It
troubles me that despite a long history of compromise and
accommodation regarding appointments to this court, there has been
no consultation with the Democratic leadership regarding the
remaining nominations to the Court of Federal Claims. Instead, the
White House proceeds as it does with most thingsB
unilaterally.
It
is unfortunate that this Administration has adopted the same approach
with respect to the Sentencing Commission. As my colleagues well
remember, President Clinton worked long and hard at reaching a
compromise with Senate Republican leaders on a slate of nominees to
this important Commission. Seats went unfilled for too long while a
Democratic White House negotiated with Majority Leader Lott and
Chairman Hatch. Finally, in late 1999, we were able to get agreement
from the Republican caucus and nominations went forward. Instead of
honoring this tradition and doing what President Clinton had done,
President Bush did not consult with Senate Democrats. Thus, with
respect to the nominations before us today for the Sentencing
Commission, they are not based on recommendations of the Senate’s
Democratic Leader or leadership. That is certainly not consistent
with the traditions and understandings so long adhered to between
White Houses and Senate leaders. It is just another example of the
serious lack of consultation between the White House and Senate
Democrats on nominations of all sorts.
Mr.
Victor Wolski is one of the President’s nominees to the Court of
Federal Claims. In 1999,
Mr.
Wolski
told
the National Journal that
Aevery
single job [he has] taken since college has been ideologically
oriented, trying to further [his] principles.@
Mr. Wolski has dedicated his brief legal career to expanding property
rights and restricting the power of government. I am concerned that
Mr. Wolski has been moved to the front of the list of nominees to the
Court of Federal Claims because of his ideology. His has advocated
for property rights at the expense of environmental protection. The
Court of Federal Claims has jurisdiction for many so-called “takings”
cases that seek large monetary damages from the government. I fear
that Mr. Wolski was selected for this particular nomination to
implement an ideological agenda from the bench.
I am
also concerned that this particular court has no pressing need for
additional judges in light of its caseload. My
friends on the other side of the aisle repeatedly asserted when a
Democratic President occupied the White House that we should not be
confirming nominees to courts where the caseload is especially light.
Senators Sessions and Grassley have both argued that vacancies on
courts such as the D.C. Circuit should remain open due to the enormous
costs that are involved in filling positions. Senator Grassley told
us that it costs U.S. taxpayers about a million dollars per judge. A
recent law review article by Professor Schooner at the George
Washington Law School has issued a comprehensive report on the Court
of Federal Claims. In this report, he compiles data on the
surprisingly light caseload of the 24 judges who currently serve on
the Court of Federal Claims. We will need to consider whether there
is a sufficient need for additional judges on this specialized court.
If
we decide that additional positions are necessary on the Court of
Federal Claims, I urge the White House and Chairman Hatch to work with
us to assemble the type of bipartisan panel that Senator Hatch helped
assemble in 1997 and 1998 to fill the justified vacancies on the Court
of Federal Claims in a way that respects the tradition of
bipartisanship that has been required for appointments to this
court.
It
is one thing for a President to appoint members of his Cabinet to
carry out his political agenda, but it should be different with
respect to judicial appointments. When a President makes nominations
for positions to a co-equal branch of government, he should not be
able to tip the scales of justice by packing the courts with
ideologues who are selected to implement his political agenda.
Recently, Walter Dellinger noted that the President=s
Aslate
of nominees, considered as a whole, . . .[ is] a list tilted to the
right and from which any other views have been carefully culled.@
I agree that we need to broaden the slate. Working together on the
Court of Federal Claims, traditional bipartisan commission, through
bipartisan judicial selection commissions and in other ways are
important places to continue our traditions of bipartisanship on which
Republicans were so insistent during the Clinton Administration.
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