U.S. SENATOR PATRICK LEAHY

Statement Of Senator Patrick Leahy
On The Nomination Of Claude Allen
Executive Business Meeting Of The Judiciary Committee
July 8, 2004

[WASHINGTON (Thursday, July 8) – The Senate Judiciary Committee delayed a vote Thursday on the controversial nomination of Claude Allen to the Fourth Circuit Court of Appeals.  Despite objections from Senator Patrick Leahy (D-Vt.), the Democratic ranking member of the panel, and other Democratic members, Chairman Orrin Hatch (R-Utah) said the committee would reconvene Friday to take a vote.  Leahy’s remarks on the Allen nomination from the panel’s meeting this morning follows.]

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For more than 200 years, advice and consent 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, bestowing on him or her what is often unchecked power.  Democrats and Republicans also have -- at one time or another -- 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 is the envy of the entire world.    

The history of the 108^th Congress, however, is a history of changed practices and broken rules.  Over the last year and a half, we have seen the systematic dismantling of the protections upon which we all had come to rely.  Republicans have rushed to confirm extreme nominees who 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 Chairman has changed his blue slip policy so that even two negative blue slips from both home-state Senators no longer are sufficient to prevent action on a controversial nominee.  The longstanding rule had been that no judge 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 faithfully by the Republican majority.  Indeed, it was extended by Republicans so that an objection by a single Republican Senator 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 unfortunate decision of the Chairman to go ahead with the nominations of Carolyn Kuhl, Henry Saad, David McKeague and Richard Griffin is proof of that. 

The Chairman also changed his interpretation of Rule 4 of this Committee, which protects the minority’s right to a 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.  In the past, the Chairman had properly interpreted and implemented this rule.  Rule 4 was an important protection against single-party domination and extremism.  Like the blue slip, it was a protection that was best utilized to encourage discussion and cooperation.  It was most important to prevent unnecessary confrontations and divisive partisanship.  But, like the blue slip policy, when Rule 4 stood as a potential obstacle to a Bush nominee, it was promptly reinterpreted.  And now – today -- this Committee is dismantling another critical part of the judicial nomination process.  The Chairman has decided to hold a Committee vote on the nomination of Claude Allen of Virginia to the U.S. Court of Appeals for the Fourth Circuit.  Virginia is currently represented by two Republican Senators, both of 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 two more vacancies on the district courts in Virginia with the confirmation of Glen Conrad to the Western District and the approval in Committee of Walter Kelley to the Eastern District.  So well have we worked together that there are no vacancies at all on the federal courts in Virginia.  None.

We worked well to fill vacancies all over the Fourth Circuit, not just in Virginia.  Of the five nominees to the Fourth Circuit President Bush has sent to the Senate, three have been confirmed to date.  Roger Gregory is one, but also Dennis Shedd, a highly controversial nominee from South Carolina, and Allyson Duncan, from North Carolina.  I know that now the President and his campaign want to make a political issue out of a few nominees from North Carolina, but the truth is that Senator Edwards deserves much credit for breaking the logjam with respect to North Carolina seats on the Fourth Circuit.  His successful efforts to bring someone like Judge Duncan to the bench stand in stark contrast to the way the Republican Senate treated President Clinton’s nominees to this circuit, when four African-American nominees were blocked.  Two, Judge James Beaty and Judge James Wynn, were from North Carolina, and were never even given a hearing.  I don’t think the President bothered to meet with them yesterday and explain why they never received any consideration.  A third, Judge Andre Davis, was a Marylander who was given the same shabby treatment.  I am proud that Senator Edwards sought to be constructive and did better than Senator Jesse Helms, and I am proud that we did better for the Fourth Circuit as a whole while I was Chairman.  Unfortunately, cooperation is in short supply these days when it means trying to get any from the current Administration.  This President would rather divide the Senate and the American people and use judicial appointments as a wedge political issue. 

Working with this Administration has been difficult for the Maryland Senators as well.  The seat for which Mr. Allen has been nominated is a Maryland seat, pure and simple.  It was last held by Judge Francis Murnaghan of Baltimore, about whom Senators Sarbanes and Mikulski have spoken so movingly in this Committee.  I know 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.  But, true to form, as soon as President Bush was elected, the Republican majority reversed its field. 

The White House originally recognized that Judge Murnaghan’s seat was rightfully a Maryland seat.  There were no charts about the distribution of the Fourth Circuits seats by states, no recalculations based on new statistics, no argument at all that the seat should be filled by someone who at the very least lived in Maryland.  There were, however, two nominees -- one only marginally a Marylander, not even a member of the Maryland Bar -- and the other a very controversial and political choice whose eventual nomination to the D.C. Circuit has proved so problematic. 

The Maryland Senators, as is their right when protecting the interests of their State, rejected these proposals and asked the White House to find a better, more qualified candidate.  They did not ask for a Democratic appointee.  They have explained to this Committee that they understood it would be a Republican, even a conservative Republican.  All they asked was that the candidate be well respected, have years of experience, and have strong ties to Maryland and its legal community.  This was not an unreasonable request.  It is what any one of us would ask for our state.  It is what the Maryland State Bar Association asked of the President.  But it was a request that was ignored.

Instead of choosing from among the many outstanding Republican lawyers in Maryland, the White House decided it would rather work with Republican Senators from Virginia than to have to reach consensus with the Senators from Maryland.  Only this White House could go so far afield as to propose a Virginian who works in Washington and who used to staff a Republican Senator from North Carolina, 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.  We use the yardstick of population because it accounts for the impact of the law on all of the people of the circuit, regardless of how many lawsuits happened to originate in their states.  The idea of proportional representation on the circuit courts is only meaningful if counted this way.  Otherwise it runs counter to our belief that each state has distinct interests and concerns that require a presence on each of the circuit courts.     

The White House, as Senator Hatch’s chief counsel showed us in his chart at our last business meeting, now contends that it is following some new kind of formula that, according to the caseload distribution of the Fourth Circuit, requires another Virginia seat.  This formula was nowhere in evidence when they tried to force unacceptable Marylanders on the Maryland Senators, but it conveniently surfaced when they came up with the idea of going around them by nominating a Virginian.  Unfortunately for the supporters of taking the Maryland seat away, their numbers, even based on faulty assumptions, do more to prove our point than theirs.  According to these numbers, any inequity among the states in the Fourth Circuit should not be addressed by giving a Maryland seat to Virginia, but by adjusting the numbers of judges between South Carolina and North Carolina.  That is where we see the most pronounced inequity.  If you believe that the current slight under-representation of Virginia also needs correction, the numbers further show that the change should come at the expense of a West Virginia seat, not a Maryland seat.  Based on the chart we were given at the last markup, Maryland is actually the least overrepresented state, and therefore the least deserving of having a seat taken away from it.

The formula Senator Hatch advocates would have an interesting affect on a number of other circuits as well as the Fourth.  In the Second Circuit, it would take a seat from Connecticut and give it to New York; in the Third Circuit, Delaware would give a seat to Pennsylvania, and in the Fifth, Texas would gain two from Louisiana.  In the Tenth Circuit, Senator Hatch’s standard would have Utah, which is overrepresented, giving a seat to Oklahoma, which is far more underrepresented according to these caseload statistics than Virginia.  And in the Eleventh Circuit, this method of judge distribution would benefit Florida, which would gain one seat from Alabama and another from Georgia.  

All this is really to say that the numbers presented to us last week are an attempt at an after-the-fact justification for the nomination of a Virginian to a Maryland seat on the Fourth Circuit, and are really only a smokescreen for the real motivation, which is this Administration’s craven campaign to make the federal judiciary a wholly owned subsidiary of the Republican Party.  If we allow this judgeship to move to Virginia, this Committee will have acquiesced in the White House ploy to move circuit vacancies around to avoid having to allow balance or to consult with home-state Senators.  There will be nothing to stop them from rearranging any circuit at will.  These are among the dangers that the power of advice and consent was designed to protect against. 

In addition to these procedural difficulties, this nomination has many problems on the merits.  This nominee could not be more different from the man he would replace.  Claude Allen is a conservative political operative with little litigation experience and extreme views.  He has practiced law for a total of six and a 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 sent to the Senate by this President.   

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 chosen with calculation, knowing it would divide the Senate and create an impasse.  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 was confirmed unanimously to the federal court in Maryland, this nomination is another example of this 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.  President George W. Bush has exceeded the number of judicial nominees of President Reagan confirmed in all four years of his first term, the number of judicial nominees of President Clinton confirmed in all four years of his second term, and the number of judicial nominees of his father during his four-year presidency.  As of two days ago, the Senate had confirmed 198 of President Bush’s judicial nominees.   One hundred judges were confirmed in the 17 months of the Democratic Senate majority and now 98 more have been confirmed in the 26 months of Republican leadership.   

One would think that the White House and the Republicans in the Senate would be heralding these landmarks.  One would think they would be congratulating themselves for putting more lifetime judges on the federal bench than President Reagan -- the all-time champ -- for placing nearly 200 judges on the bench.  But Republicans have a different partisan message and truth is not consistent with their efforts.  It does not serve their political aims to note that only a handful of the most extreme and controversial nominations have been denied consent by the Senate.  It will not help them with their conservative base to acknowledge the reality that the Senate has proceeded at a record pace and achieved record numbers of judicial confirmations, or that we have reduced the number of judicial vacancies to record lows.  Distortions and distractions are what they prefer.

I have repeatedly noted that the Democratic minority does not consent to proceeding on this nomination at this time.  Before the 108^th Congress, under our long-established rules and practices as we all have understood them before, this nomination would not have proceeded to a vote.  But because the majority has changed them, and because of the President’s unfortunate decision to persist with this nomination, I will be forced to vote against the nomination of Claude Allen. 

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