Statement Of Senator Patrick Leahy
On The Nomination Of Judge Consuelo Callahan
May 22, 2003

Today, we vote to confirm Judge Consuelo Maria Callahan to serve on the United States Court of Appeals for the Ninth Circuit.  This is another judicial nominee of President Bush that Senate Democrats have strongly supported and whose consideration we had expedited through the Judiciary Committee.   

I want to thank the Democratic Leader and Assistant Leader for supporting Judge Callahan’s nomination and working out this arrangement with the Republican leadership so that this consensus nomination can be considered without further delay.  I appreciate that the Majority Leader has been willing to work with us to allow this nomination to go forward today.

I still do not know who on the Republican side delayed consideration of this consensus nominee. 

Just as Senate Democrats last month cleared the nomination of Judge Edward Prado to the United States Court of Appeals for the Fifth Circuit without delay, so, too, the nomination of Judge Callahan to the Ninth Circuit was cleared on the Democratic side promptly.  All Democratic Senators serving on the Judiciary Committee voted to report her nomination favorably.  All Democratic Senators indicated that they were eager to proceed with her nomination and, after a reasonable period of debate, vote on her nomination.  

Unlike the divisive nomination of Carolyn Kuhl to the same court, both home-state Senators support the nomination of Judge Callahan and she is expected to be confirmed by an extraordinary majority -- maybe unanimously.  Rather than disregarding time-honored rules and Senate practices, I urged my friends on the other side of the aisle to help us fill more judicial vacancies more quickly by bringing those nominations that have bipartisan support, like Judge Callahan, to the front of the line for Committee hearings and floor votes.  I noted in a statement last week to make the point that the nomination of Judge Callahan to the Ninth Circuit Court of Appeals was cleared on the Democratic side.

We still do not know who on the Republican side delayed consideration of the consensus nomination of Judge Prado for a month.  I thank the Congressional Hispanic Caucus for its support of that nomination as well as for its support of Judge Callahan, and for working with the Senate to bringing fair evaluation of these nominees and for adding their voice to the discussion of these lifetime appointments.  

It is most unfortunate that so many partisans in this administration and on the other side of the aisle insist on bogging down consensus matters and consensus nominees in order to focus exclusively on the most divisive and controversial of this President=s nominees as he continues his efforts to pack the courts.  Democratic Senators have worked very hard to cooperate with this administration in order to fill judicial vacancies.  What the other side seeks to obscure is our  effort, our fairness and the progress we have been able to achieve without much help from the other side or the administration. 

The fact is that when Democrats became the Senate majority in the summer of 2001, we inherited 110 judicial vacancies.  Over the next 17 months, despite constant criticism from the administration, the Senate proceeded to confirm 100 of President Bush=s nominees, including several who were divisive and controversial, several who had mixed peer review ratings from the ABA and at least one who had been rated not qualified.  Despite the additional 40 vacancies that arose, we reduced judicial vacancies to 60, a level below that termed Afull employment@ by Senator Hatch.  Since the beginning of this year, in spite of the Republican=s fixation on the President=s most controversial nominations, we have worked hard to reduce judicial vacancies even further.  As of today, the number of judicial vacancies has been reduced to 45 and is the lowest it has been in 13 years.  That is lower than at any time during the entire eight years of the Clinton Administration.  We have already reduced judicial vacancies from 110 to 45, in two years.  We have reduced the vacancy rate from 12.8 percent to 5.2 percent, the lowest it have been in the last two decades.  With some cooperation from the administration think of the additional progress we could be making. 

Earlier this month, we were able to obtain Senate consideration of the nomination of Judge Prado, and another distinguished Hispanic nominee, Judge Cecilia Altonaga, to be a federal judge in Florida.  We expedited consideration of that nominee at the request of Senator Graham of Florida.  I am told that she is the first Cuban-American woman to be confirmed to the federal bench.  Indeed, Democrats in the Senate have worked to expedite fair consideration of every Latino nominee this President has made to the federal trial courts in addition to the nominations of Judge Prado and Judge Callahan.

As I have noted throughout the last two years, the Senate is able to move expeditiously when we have consensus nominees to consider.  In a recent column, David Broder noted that he asked Alberto Gonzales if there was a lesson in Judge Prado=s easy approval, but that Mr. Gonzales missed the point.  In Mr. Broder=s mind: AThe lesson seems obvious.  Conservatives can be confirmed for the courts when they are well known in their communities and a broad range of their constituents have reason to think them fair-minded.@  Judge Consuelo Callahan is another such nominee.

With this confirmation, the Senate will have confirmed 126 judges, including 24 circuit court nominees, nominated by President Bush, 100 in the 17 months in which Democrats comprised the Senate majority.  The lesson that less controversial nominees are considered and confirmed more easily was the lesson of the last two years, but that lesson has been lost on this White House and the current Senate leadership.

One hundred judicial nominees were confirmed when Democrats controlled the Senate for 17 months, and 26 have been confirmed in the other 12 months in which Republicans have controlled the confirmation process under President Bush.  This total of 126 judges confirmed for President Bush is more confirmations than the Republicans allowed President Clinton in all of 1995, 1996 and 1997—the three full years of his last term.  In those three years, the Republican leadership in the Senate allowed only 111 judicial nominees to be confirmed, which included only 18 circuit court judges.  We have already exceeded that total by 13 percent and the circuit court total by 33 percent before Memorial Day and with seven months remaining to us this year. 

Today’s confirmation makes the seventh Court of Appeals nominee confirmed by the Senate just this year.  That meets the annual average achieved by Republican leadership from 1995 through the early part of 2001.  The Republicans have now achieved as much in less than five months for President Bush as they used to allowed the Senate to achieve in a full year with President Clinton.  They are moving two to three times faster for this President’s nominees, despite the fact that the current appellate court nominees are more controversial, divisive and less widely-supported than President Clinton’s appellate court nominees were.

Understand that if the Senate did not confirm another judicial nominee all year and simply adjourned today, we would have treated President Bush more fairly and would have acted on more of his judicial nominees than Republicans did for President Clinton in 1995-97.  In addition, the 45 vacancies on the federal courts around the country are significantly lower than the 80 vacancies Republicans left at the end of 1997.  Of course, the Senate is not adjourning for the year and Chairman Hatch continues to hold hearings for Bush judicial nominees at between two and four times as many as he did for President Clinton’s.

Unfortunately, far too many of this President's nominees raise serious concerns about whether they will be fair judges to all parties on all issues.  Those types of nominees should not be rushed through the process.  I regret the administration=s refusal to work with us to end the impasse it has created in connection with the Estrada nomination.  The partisan politics of division that the administration is practicing with respect to that nomination are not helpful and not respectful of the damage done to the Hispanic community by insisting on so divisive a nominee.

I invite the President to work with us and to nominate more mainstream individuals like Judge Prado and Judge Callahan with proven records and bipartisan support.   In connection with the unexplained Republican delay before consideration of the nomination of Judge Prado, some suggested that Judge Prado had been delayed because Democratic Senators were likely to vote for him and thereby undercut the Republican=s shameless charge that opposition to Miguel Estrada is based on his ethnicity. 

We all know that the White House could have cooperated with the Senate by producing Mr. Estrada=s work papers.  This would have enabled the Senate to have voted on the Estrada nomination months ago.  The request for his work papers was sent last May 15 and has been outstanding for more than a year.  Rather than respond as every other administration has over the last 20 years and provide access to those papers, this White House has stonewalled.  Rather than follow the policy of openness outlined by Attorney General Robert Jackson in the 1940's, this administration has stonewalled.  And Republican Senators and other partisans could not wait to claim that the impasse created by the White House=s change in policy and practice with respect to nominations was somehow attributable to Democrats being anti-Hispanic.  The charge would be laughable if it were not so calculated to do political damage and to divide the Hispanic community.  That is what Republican partisans hope is the result.  That is wrong.

Unfortunately, in the case of Mr. Estrada, the administration has made no effort to work with us to resolve the impasse.  Instead, there has been a series of votes on cloture petitions in which the opposition has grown and from time to time the support has waned.  Recently, there have been press reports indicating that Mr. Estrada asked the White House months ago to withdraw his nomination.  I understand his frustration.  If this administration is not going to follow the practice of every other administration and share with the Senate the government work papers of the nomineeB the very practice this administration followed with its own EPA nominee in 2001B then I can understand him not wanting to be used as a political pawn by the administration to score partisan, political points.  That the administration has not acceded to his reported request but has plowed ahead to force a succession of unsuccessful cloture votes and to foment division in the Hispanic community for partisan gain is another example of how far this administration is willing to go to politicize the process at the expense of its own nominees. 

Judge Callahan is a fine candidate for elevation to the appeals court.  She has years of experience serving on the bench in the state of California, first on the California Superior Court and then on the California Court of Appeal.  She enjoys the full support of the Congressional Hispanic Caucus.  Not a single person or organization has submitted a letter of opposition or raised concerns about her.  No controversy.  No red flags.  No basis for concern. No opposition.  This explains why her nomination was voted out of the Judiciary Committee with a unanimous, bipartisan vote on an expedited basis.

During President Clinton=s tenure, 10 of his more than 30 Latino nominees, including Judge Rangel, Enrique Moreno, and Christine Arguello to the circuit courts, were delayed or blocked from receiving hearings or votes by the Republican leadership.  Republicans delayed consideration of a well-qualified Hispanic nominee to the Ninth Circuit, Judge Richard Paez for over 1,500 days, and 39 Republicans voted against him.  The confirmations of Latina circuit nominees Rosemary Barkett and Sonia Sotomayor were also delayed by Republicans.  Judge Barkett was targeted for delay and defeat by Republicans based on claims about her judicial philosophy, but those efforts were not successful.  After significant delays and an unsuccessful Republican filibuster, 36 Republicans voted against the confirmation of Judge Barkett.  Additionally, Judge Sotomayor, who had received the ABA=s highest rating and had been appointed to the district court by President George H.W. Bush, was targeted by Republicans for delay or defeat when she was nominated to the Second Circuit.  She was eventually confirmed, although 29 Republicans voted against her.       

The fact is that the Latino nominations that the Senate has received from this administration have been acted upon in an expeditious manner.  They have overwhelmingly enjoyed bipartisan support.  Under the  Democratically-led Senate, we swiftly granted hearings for and eventually confirmed Judge Christina Armijo of New Mexico, Judge Phillip Martinez and Randy Crane of Texas, Judge Jose Martinez of Florida, U.S. Magistrate Judge Alia Ludlum, and Judge Jose Linares of New Jersey to the district courts.  This year, we also confirmed Judge James Otero of California, and we would have held his confirmation hearing last year if his ABA peer rating had been delivered to us in time for the scheduling of our last hearing.  As I have noted, we also have recently confirmed Judge Cecilia Altonaga and Judge Edward Prado with unanimous Democratic support. 

Judge Callahan=s nomination was delayed on the Senate executive calendar unnecessarily in my view.  I am pleased to see that – at the urging of the Democratic leadership -- the Republican majority has agreed to bring up this uncontroversial Latina nominee for a vote.  I congratulate Judge Callahan and her family on her confirmation.   

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