Statement Of Senator Patrick Leahy
Hearing Before The Judiciary Committee
On The Nomination Of Claude Allen
October 28, 2003
For more than 200 years, the Constitution’s
advice and consent injunction has helped to temper partisan politics
in the judicial nomination process. It has protected the courts and
the American people from single-party domination, and it has helped
ensure that those who become federal judges are fair judges who
reflect mainstream legal thought. Historically, Democrats and
Republicans alike have guarded the protections of the advice and
consent process. They have done so because they have recognized the
seriousness of the task we perform when we confirm a judge to a
lifetime appointment, giving him or her extraordinary power --
indeed, it is power that often is unchecked. At one time or
another, both parties have sought the protections of the process.
The result has been that we have had a federal bench that has served
us extraordinarily well over the course of our republic. Our
independent federal judiciary has been the envy of the world, and
may it ever be so.
The record of the 108th Congress,
however, is a compilation of changed practices and of bent and even
broken rules. Over the last nine months, we have seen the
systematic dismantling of the protections upon which we all had come
to rely. Republicans are rushing to confirm extreme nominees that
do not reflect the mainstream values of the American people. To do
this, they have had to discard many of the protections that have
historically helped to ensure a fair and independent judiciary.
The blue slip policy is the enforcement tool to
ensure consultation by the Executive Branch with home-state senators
about judicial appointments to their states. Already the Chairman
has changed his blue slip policy, so that even a negative blue slip
from both home-state Senators is not sufficient to prevent action on
a nominee. The rule used to be that no judicial nominee would move
out of this Committee if the Chair knew that the nomination was
opposed by both home-state Senators. When this rule was used to
block President Clinton’s nominees, it was followed stringently by
the Republican majority. Indeed, it was even broadened by
Republicans so that objections by a single Republican Senator from
the circuit was sufficient cause to end a nomination without a
hearing and without a vote. As soon as the traditional practice
threatened to forestall an extreme Bush nominee, it was discarded.
The Chairman has also changed his
interpretation of Rule 4 of this Committee, which protects the
minority’s right to continue debate on any subject. This rule
allows any member of the Committee to object to a matter coming to a
vote. To override that objection, at least one member of the
minority party must vote with the majority in favor of ending debate
and moving forward to a vote. The Chairman had properly interpreted
and implemented this rule in the past. Rule 4 was an important
protection against single-party domination and extremism. Like the
blue slip, it was a protection that was best used to encourage
discussion and cooperation. It was most important to prevent
unnecessary confrontations and divisive partisanship. And like the
blue slip policy, when Rule 4 stood as a potential obstacle to a
Bush nominee, it was promptly reinterpreted.
The Chairman’s new and novel reinterpretation
of Rule 4, that it is a device to force the Chairman to call a
matter to a vote, is unsupported by the language and history of the
rule, as well as by the Chairman’s own prior interpretation. It is
also unsupported by logic. The idea that the rule was intended to
allow the Committee to force the Chairman to bring a matter to a
vote is belied by the fact that the Chairman himself controls the
agenda and therefore determines whether a matter would even be
subject to Rule 4. The only thing that the new interpretation of
Rule 4 did was to allow the Republican majority to force through the
Committee controversial nominees on an expedited basis. I am glad
that the Republican leadership worked with us to return such a
nominee to the Committee for its consideration and has provided
assurances that Rule 4 will not again be circumvented.
Today this Committee is dismantling another
critical part of the judicial nomination process. The Chairman has
decided to hold a hearing on the nomination of Claude Allen of
Virginia. Virginia is currently represented by two Republican
Senators, both whom support this nominee. I respect their views and
have worked with them when I chaired this Committee to expedite
consideration of several Virginia nominees. Roger Gregory was
confirmed to the U.S. Court of Appeals for the Fourth Circuit, Henry
Hudson was confirmed to the U.S. District Court for the Eastern
District of Virginia, and Timothy Stanceau, to the Court of
International Trade. This year, we cooperated in filling a second
vacancy on the district courts in Virginia, with the confirmation of
Glen Conrad to the Western District. So well have we worked
together that there are no current vacancies at all on the federal
courts in Virginia. None.
We also worked well to fill vacancies all over
the Fourth Circuit, not just in Virginia. Of the five circuit court
nominees President Bush has sent to the Senate, three have been
confirmed to date. Roger Gregory is one, but also Dennis Shedd,
from South Carolina, and Allyson Duncan from North Carolina. This
stands in stark contrast to the way the Republican Senate treated
President Clinton’s nominees to this circuit, when three
African-American nominees were blocked. Two, Judge James Beaty and
Judge James Wynn, were from North Carolina, and were never even
given a hearing. The third, Judge Andre Davis, was a Marylander who
was given the same shabby treatment. I am proud that we did better
for the Fourth Circuit while I was Chairman, and pleased that
Senator Edwards was able to come to an agreement with the White
House on Judge Duncan.
Working with this Administration has not been
so simple for the Maryland Senators. The seat for which Mr. Allen
has been nominated is a Maryland seat, last held by Judge Francis
Murnaghan of Baltimore. Senators Sarbanes and Mikulski will tell
the Committee more about him, but I can say that Judge Murnaghan was
a brilliant and compassionate jurist. He practiced law for 30
years, including as Assistant Attorney General and as Assistant to
the General Counsel to the High Commissioner for Germany, before
being named to the federal bench. The Baltimore Sun said of
Judge Murnaghan after his death in 2000: “[I]f a theme runs through
Francis D. Murnaghan’s career, it is using the law to realize the
American people’s constitutional freedoms.” Judge Murnaghan was a
fair jurist with mainstream views. He was also a lifelong
Marylander.
In 2000 President Clinton nominated another
Marylander, Andre M. Davis, an African-American district court judge
from Baltimore, to fill Judge Murnaghan’s seat. This Committee,
under Republican control, refused to act on the nomination. At the
time, Republicans claimed that the Fourth Circuit did not need any
more judges, even though there were five vacancies on the 15-member
court. As soon as President Bush was elected, however, the
Republican majority reversed its position.
The White House originally recognized that
Judge Murnaghan’s seat was rightfully a Maryland seat. After the
name of a non-Marylander was floated and rejected by the Maryland
Senators, however, the White House apparently decided that it would
rather work with Republican Senators from Virginia than have to
reach consensus with the Senators from Maryland. Thus, a Virginian
who works in D.C. and who used to staff a Republican Senator from
North Carolina has been nominated to fill a Maryland seat on the
Fourth Circuit.
This seat has traditionally been a Maryland
seat and it should remain so. Maryland accounts for approximately
20 percent of the population of the Fourth Circuit. By this
traditional measure for the allocation of judgeships, Maryland
should have three seats on the Fourth Circuit. If this judgeship is
allowed to be uprooted to Virginia, Maryland will be left with only
two and this Committee will have acquiesced in the White House ploy
to move circuit vacancies around to avoid having to allow balance or
to have to consult with Democratic home-state Senators. These are
among the dangers that advice and consent protect against.
On the merits, this nominee could not be more
different from Judge Murnaghan. Claude Allen is a conservative
political operative with little litigation experience and extreme
views. He has practiced law for a total of six and one-half years.
This is much less than the minimum 12 years suggested by the
American Bar Association. This may be one reason why the ABA’s peer
review rating of this nomination included partially “not
qualified.” He is among the more than two dozen judicial nominees
with “not qualified” or partially “not qualified” ratings.
Where Mr. Allen has had substantive experience,
he has shown himself to be extreme with a reputation for
recalcitrance and an unwillingness to work with others of differing
views. A judge needs to be able to consider facts and legal
arguments that might contradict the outcome he would personally
like. I have a number of questions about Mr. Allen’s actions,
including when he served at the Virginia Department of Health and
Human Resources and apparently refused to promote the Children’s
Health Insurance Program, and whether he used audits of safe-sex
programs to strike out at critics and at programs with which he
personally did not agree.
This is not a
consensus nomination. Rather this is one that the White House has
gone out of its way, with cold, politically motivated calculation,
to inject all of the elements necessary to produce an impasse, at
the expense of the independence of two other parts of our
government, the judiciary, and United States Senate. As one
journalist put it, Mr. Allen has infuriated “liberals and
moderates of both parties who say he is at best an unresponsive
manager and at worst an executive who is trying to dismantle
longstanding programs for women and children. . . [m]any lawmakers,
including those in his own party, said they do not trust Allen to
provide data and insight.”
Rather than work
with the distinguished Senators from Maryland to find a consensus
nominee to fill this vacancy, someone like Roger Titus who is about
to be confirmed unanimously to the federal court in Maryland, this
nomination is another example of the Administration seeking to
divide and insinuate partisan politics into the judicial nominations
process.
When the Administration has been
willing to work with the Senate, we have made progress. Indeed,
last night the Senate confirmed the 167th judicial
nominee of this President.
In less than three years’ time, President George W. Bush has
exceeded the number of judicial nominees confirmed for President
Reagan in all four years of his first term in office. Senate
Democrats have cooperated so that this President has now exceeded
the record in his entire four-year first term of the President
Republicans acknowledge to be the “all time champ” at appointing
federal judges. Since July 2001, despite the fact that the Senate
majority has shifted twice, a total of 167 judicial nominations have
been confirmed, including 29 circuit court appointments. One
hundred judges were confirmed in the 17 months of the Democratic
Senate majority and now 67 have been confirmed during the
comparative time of the Republican majority.
One would think that the White House and the Republicans in the
Senate would be heralding this landmark. One would think they would
be congratulating themselves for putting more lifetime appointed
judges on the federal bench than President Reagan did in his entire
first term and doing it in three-quarters of the time. But
Republicans have a different partisan message, and this indisputable
truth is not consistent with their efforts to mislead the American
people into thinking that Democrats have launched widespread
obstruction of this President’s judicial nominations. Only a
handful of the most extreme and controversial nominations have been
denied consent by the Senate.
Not only has President Bush been accorded more confirmations than
President Reagan achieved during his entire first term, but he has
also achieved more confirmations this year than in any of the six
years that Republicans controlled the Senate when President Clinton
was in office. Not once was President Clinton allowed 67
confirmations in a year when Republicans controlled the pace of
confirmations. Despite the high numbers of vacancies and
availability of highly qualified nominees, Republicans never
cooperated with President Clinton to the extent Senate Democrats
have. President Bush has appointed more lifetime circuit and
district court judges in 10 months this year than President Clinton
was allowed in 1995, 1996, 1997, 1998, 1999, or 2000.
Last year, the Democratic majority in the Senate proceeded to
confirm 72 of President Bush’s judicial nominees and was savagely
attacked nonetheless. Likewise in 1992, the last previous full year
in which a Democratic Senate majority considered the nominees of a
Republican President, 66 circuit and district court judges were
confirmed. Historically, in the last year of an administration,
consideration of nominations slows, the “Thurmond rule” is invoked
and vacancies are left to the winner of the presidential election.
In 1992, Democrats proceeded to confirm 66 of President Bush’s
judicial nominees even though it was a presidential election year.
By contrast, in 1996, when Republicans controlled the pace for
consideration of President Clinton’s judicial nominees only 17
judges were confirmed and not a single one of them was to a circuit
court.
In fact, President Bush has now already appointed more judges in
his third year in office than in the third year of the last five
presidential terms, including the most recent term when Republicans
controlled the Senate and President Clinton was leading the country
to historic economic achievements. That year, in 1999, Republicans
allowed only 34 judicial nominees of President Clinton to be
confirmed all year, including only 7 circuit court nominees. Those
are close to the average totals for the six years 1995-2000 when a
Republican Senate majority was determining how quickly to consider
the judicial nominees of a Democratic President. By contrast, with
today’s confirmation, the Senate this year will have confirmed 67
judicial nominees, including 12 circuit court nominees, almost
double the totals for 1999.
These facts stand in stark contrast to the false partisan
rhetoric that demonize the Senate for having blocked all of this
President’s judicial nominations. The reality is that the Senate is
proceeding at a record pace and achieving record numbers. Time
after time after time, the good faith that Democrats have shown this
President, despite the egregious treatment of his predecessor’s
nominees, has been met with cynical political calculation to
undermine the rules not only of this committee, but even the rules
of the United States Senate itself. We have worked hard to balance
the need to fill judicial vacancies with the imperative that federal
judges need to be fair. In so doing, we have reduced the number of
judicial vacancies to 41. More than 95 percent of the federal
judgeships are filled. After inheriting 110 vacancies when the
Senate Judiciary Committee reorganized under Democratic control in
2001, I helped move through and confirm 100 of the President’s
judicial nominees in just 17 months. With the additional 67
confirmations this year, we have reached the lowest number of
vacancies in 13 years. There are more federal judges on the bench
today than at any time in American history.
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