Statement Of Senator Patrick Leahy
Senate Judiciary Committee
Judicial Nominations Hearing
November 19, 2003
Today, the
Committee is holding its 23rd judicial nominations hearing this
year. This pace stands in sharp contrast to the way President
Clinton’s nominees were treated by the Republican majority from 1995
through 2000. In those years, there were far fewer hearings for far
fewer nominees.
This afternoon we will hear from this
President’s latest nominee to the Court of Appeals for the Fourth
Circuit. Actually, there is no existing vacancy on the Fourth
Circuit from Virginia, although an active judge may leave.
Over the course of Senate debate last week
Republicans tried to rewrite history by claiming that filibusters of
judicial nominees were unprecedented in the Senate. That is simply
not correct. Contemporaneous and historical documents show that
Senators, including Republican Senators led by Senator Robert
Griffin, successfully filibustered President Johnson’s 1968
nomination of Justice Abe Fortas to be Chief Justice of the Supreme
Court.
The Senate’s own website contains an article
entitled “Filibuster Derails Supreme Court Appointment,” which notes
that: “Although the [Judiciary] committee recommended confirmation,
floor consideration sparked the first filibuster in Senate history
on a Supreme Court nomination.” Congressional Quarterly’s Guide
to Congress (1995) contains a similar account of the events and
no amount of partisan rhetoric can alter the historical fact that
Justice Fortas’ nomination was filibustered in the Senate. In
addition to the filibusters of one, mounted through anonymous
Republican holds on President Clinton’s nominees, filibusters of his
nominees also reached the floor and prompted cloture votes by the
Senate on other nominees to the federal bench.
Having recently had occasion to revisit the
Fortas filibuster, I was reminded that the reason given by some
Senators for that filibuster and for their opposition was their
concern that Justice Fortas was too close to the White House to be
an independent arbiter. There were concerns that his coziness with
the President and that Administration would inhibit Justice Fortas’
independence to uphold the Constitution and protect against
overreaching by the Executive Branch.
Alexander Hamilton wrote that the Senate was to
be concerned about judicial candidates that were “in some way or
other personally allied” with the Executive. The framers gave the
Senate an important role to play in ensuring that the federal bench
would not simply be an arm of the Executive Branch nor, as I have
said through the years, should the courts be an arm of either
political party. We honor the brilliant design in our Constitution
when we take our role seriously.
When considering nominees who have worked for
the President and advocated his policy choices, the Senate reviews
the nominations to make certain that cronyism is not involved and
that the nominees will demonstrate independence. The Senate has
been highly accommodating in already confirming Judge Bybee, Judge
Chertoff and many others nominated from positions within this
Administration. Now we are confronted with the nomination of Mr.
Haynes, who as general counsel at the Defense Department has been
intimately involved in President Bush’s controversial policies
regarding the detainment of designated individuals and with the
Administration’s unilateral determinations with regard to military
tribunals.
In letters to the Senate the Department of
Justice has indicated that “the Department of Defense is responsible
. . . for determining whether a particular individual is an enemy
combatant over whom the armed forces should take control.” As
General Counsel of the Department of Defense, Mr. Haynes has been a
key architect of the treatment of detainees and the prosecution of
enemy combatants. He himself has noted the “unprecedented
relationship” developed at the Department of Defense and the
Department of Justice with regard to the Executive Branch’s
litigation strategies.
Some have suggested that Mr. Haynes, who until
recently resided in the District of Columbia, was hand-picked for
the 4th Circuit by the President’s advisors because of his intimate
knowledge of this Administration’s plans with respect to military
tribunals and treatment of detainees. The 4th Circuit is
the circuit which hears appeals from the Moussaoui case and the
Hamdi detention case among others. The Administration has shown its
interest in making the 4th Circuit, its circuit of choice
for detentions and policy determinations regarding Americans’ civil
liberties and for its efforts to avoid substantive review of
Administration actions. We will all be interested whether Mr.
Haynes intends to be involved in cases that involve the policy and
legal work he has been doing for the Administration while at
Defense.
Another nominee at today’s hearing, Mr. Karas
is currently serving on the prosecution team in the Moussaoui case.
I look forward to hearing his testimony regarding how he will make
the transition from prosecuting that case to presiding over cases,
should he be confirmed.
Also at today’s hearing is Virginia Hopkins,
nominated to the U.S. District Court for the Northern District of
Alabama. Ms. Hopkins has over 25 years experience in private
practice, handling a range of cases including intellectual property
and tax and estate planning issues. She is the fourth nominee of
President Bush to this court and the seventh nominee for the
district courts in Alabama to come before this Committee since July
2001. She is supported by her home-state Senators. Consideration
of her nomination is being expedited as a courtesy to Senator Shelby
and, of course, to Senator Sessions.
Magistrate Judge Louis Guirola is nominated to
the Southern District of Mississippi. It is my understanding that
he is the first Hispanic individual to be nominated to the federal
bench in Mississippi. Democrats have long supported diversity on
our federal judiciary. We have looked forward for some time to the
nomination of an African American to serve the people of
Mississippi, as well.
I welcome the nominees and their families to
the hearing this morning. Both we and they are proceeding on short
notice and little time for preparation. Democratic Senators on the
Committee should be praised for their willingness to cooperate in
expediting Committee hearings of these recent nominations,
especially given the personal and partisan attacks they are being
subjected to by Republican partisans.
This 23rd hearing for judicial
nominees this year is in stark contrast to the way President
Clinton’s nominees were treated by the Republican majority from 1995
through 2000. For example, I recall that during the entire year of
1996, when judicial vacancies were far higher and rising, the
Committee held a mere six hearings all year. During that 1996
session, not a single judge was confirmed to the Circuit Courts --
not one, in contrast to 12 circuit court confirmations this year.
During those years, when judicial vacancies
were much higher and more than doubling while the Senate was under
Republican leadership, it was easy to go three years without this
many confirmation hearings for this many judicial nominees. In
fact, Republicans have now held more hearings for President Bush’s
judicial nominees in less than 11 months than they held in all 24
months of 1999 and 2000 -- combined -- for President Clinton’s
judicial nominees. During the entire year of 2000, only eight
judicial nominations hearings were held.
In 1999, the Committee did not have a hearing
to consider a single judicial nominee until June 16th,
and during the rest of 1999, it held only seven hearings to consider
judicial nominees. That was the third year of President Clinton’s
second term. Like 1999, this year, 2003, is the third year of this
President’s term, and Republicans have held more than twice as many
hearings for President Bush’s judicial nominees as for President
Clinton’s that year. The Republican double standard is prominently
on display.
The number of
nominees who have been considered so far this year is at a record
high for this Republican leadership, as well. With another four
nominees included at this hearing, we will now have held hearings
for 85 Article III judicial nominees this year. That is almost 30
more than the highest total in any one year of the Clinton
Administration and nearly two times higher than their annual average
of 44 nominees considered per year.
Of course during the
Clinton years, having a hearing was no guarantee of anything. A
number of nominees who participated in hearings were never listed on
a Committee agenda for Committee attention and were never considered
by the Senate. Among those nominees were Bonnie Campbell of Iowa,
Allen Snyder of the District of Columbia, Fred Woocher of
California, Clarence Sundram of New York and many more.
With a Republican in
the White House, the Senate Republican majority has gone from the
restrained pace it had insisted was required for reviewing judicial
nominations to overdrive for President Bush’s judicial nominees.
The Committee has already
reported 78 judicial nominees this year, which is far in excess of
any year total and almost double the average during the years 1995
through 2000 when a Democratic President’s nominees were being
reviewed. Of course, the Senate has already confirmed 168 judges,
including 68 this year. That is more confirmations this year than
in any year from 1995 through 2000 and, in fact, almost double the
annual average during those years.
A handful of the Administration’s most divisive
and extreme nominees have been denied approval by the Senate. So
while 168 judges have been confirmed in less than three years and
the Senate has already topped President Reagan’s four-year total, a
handful of those chosen for ideological and political reasons have
not been granted consent.
This Committee has its confirmation conveyor
belt cracked up to full speed with respect to the nomination of a
Republican President as the Republicans’ double standard affects
their practices and the important work of this Committee.
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