Statement Of Sen. Patrick Leahy
Ranking Member, Judiciary Committee
On Judicial Nominations
May 1, 2006

This evening the Senate will consider another lifetime appointment to the federal judiciary, Michael Barrett of Ohio.  Mr. Barrett has the support of his home-state Senators and bipartisan support from within his State.  When the Senate proceeds to confirm him, we will bring the number of judicial nominations confirmed since January 2001 to 238, including the confirmations of two Supreme Court Justices and 43 circuit court judges. 

When the White House works with Senators to identify qualified, consensus nominees, Democrats in the Senate have demonstrated our willingness to act promptly.  In fact, 100 judges were confirmed during the 17 months I chaired the Judiciary Committee.  This compares quite favorably to the 138 judges confirmed during the other 45 months of the Bush Administration when the Senate has been controlled by a Republican majority.

Unfortunately, as demonstrated by the recent withdrawals of several nominees, all too often this White House seems more interested in rewarding cronies and picking political fights than in selecting lifetime appointments after thorough vetting.  Sadly, the Republican Senate has proceeded to rubber stamp these important nominations and failed in its role as a constitutional check on the President.

The controversial nominations of Judge Terrence Boyle and Brett Kavanaugh are contemporary cases in point.  With the extreme right-wing and special interest groups agitating for a fight over judicial nominations, the Republican leader of the Senate is answering their demands by seeking to force Senate debate on these controversial nominees.  Rather than focus on proposals to end the subsidies to big oil and rein in gas prices, rather than devote our time to immigration reform legislation, rather than completing a budget, the Republican leader came to the floor last week to signal a fight over controversial judicial nominations is in the offing.  Such a controversial maneuver serves only to divide and distract us from America’s real problems.  During this President’s administration, gas prices have more than doubled and undocumented immigrants have doubled, but judicial vacancies have been cut in half from the time when Republicans in the Senate were stalling President Clinton’s judicial nominations.   Despite the real problems that confront Americans with respect to security, health insurance, rising health costs, rising energy costs, and spiraling deficits and debt, some would rather pick an election year fight over judicial nominations. 

One of the nominations on which the Republican leader wants to focus attention is that of Judge Terrence Boyle to the United States Court of Appeals for the Fourth Circuit.  According to recent reports, as a sitting United States District Judge and while a circuit court nominee, Judge Boyle ruled on multiple cases involving corporations in which he held investments.  In at least one instance, he is alleged to have bought General Electric stock while presiding over a lawsuit in which General Electric was accused of illegally denying disability benefits to a long-time GE employee.  Two months later, he ruled in favor of GE and denied the employee’s claim for long-term and pension disability benefits.   Whether or not it turns out that Judge Boyle broke federal law or canons of judicial ethics, these types of conflicts of interest have no place on the federal bench. 

This is not the first judicial nominee to engage in these kinds of apparent ethical lapses.  Less than two months ago, the President withdrew the nomination of Judge James Payne to the Court of Appeals for the 10^th Circuit after information became public about that nominee’s rulings in a number of cases in which he appears to have had conflicts of interest.  Those conflicts were pointed out not by the Administration’s screening process or by the ABA, but by journalists.

During the last few months, President Bush also withdrew the nominations of Judge Henry Saad to the Court of Appeals for the 6^th Circuit and Judge Daniel P. Ryan to the Eastern District of Michigan.  And we saw the arrest of another Bush Administration official and former judicial nominee to the Court of Appeals for the 4^th Circuit, Claude Allen, who had earlier withdrawn as a nominee and more recently resigned his position as a top domestic policy adviser to the President.  When we are considering lifetime appointments of judicial officers who are entrusted with protecting the rights of Americans, it is important to be thorough.  Unfortunately, all too often this White House seems more interested in rewarding cronies.

They add to the long list of nominations by this President that have been withdrawn.  Among the more well known are Bernard Kerik to head the Department of Homeland Security and Harriet Miers to the Supreme Court.  It was, as I recall, reporting in a national magazine that doomed the Kerik nomination.  It was opposition within the President’s own party that doomed the Miers nomination.  

Over the weekend we heard that this Administration’s former FDA director is under investigation and its political director testified, again before a federal grand jury.  Of course, Mr. Libby remains under indictment, and Messrs. Safavian, Scanlon, Abramoff and a number of House Republicans are caught up in another criminal probe.

In light of this long list of failures of the White House to fulfill its commitments to the American people to be above reproach and its lackluster vetting process, it is more important than ever that the Senate and the Senate Judiciary Committee afford nominees the kind of careful scrutiny that will yield enough information to decide on a nominee’s fitness for an important appointment.  In Judge Boyle’s case, not only were his answers to the Committee’s questions evasive, but he failed to produce even the unpublished opinions he issued from the bench.   

I am also concerned that the Senate Judiciary Committee is being required to consider the nomination of Brett Kavanaugh to the United States Court of Appeals for the D.C. Circuit without a complete record.  The Democratic Members of the Committee have twice asked for another hearing in connection with his nomination.  Mr. Kavanaugh failed to provide meaningful and substantive responses to many of the questions posed to him at his first hearing and he delayed for seven months before providing evasive and incomplete answers to written questions. 

In addition, a new hearing is warranted because several troubling issues have come to light since his initial nomination.  As Associate White House Counsel and staff secretary, Mr. Kavanaugh has served in the inner circle of the White House at a time when many controversial policies and decisions were being considered.  Senators have not had a chance to question him about his role in connection with those matters.  For example, what was Mr. Kavanaugh’s  role in connection with the warrantless spying on Americans?  What was his involvement in the policies affecting detainee treatment and interrogation?  What was his involvement in connection with military tribunals, torture, and rendition of prisoners to other countries?   Given the scandals now plaguing the White House, it is important to know whether Mr. Kavanaugh has had a role in connection with the actions of Jack Abramoff, Michael Scanlon, David Safavian, the matters being investigated in connection with the Plame matter, and many other matters. 

The wall of secrecy that the Administration has maintained is no environment in which carefully to consider an Administration insider for a lifetime appointment to an important federal judicial position. 

I hope the Republican leadership will reconsider its plans to force confrontation.  I urge them, instead, to work with us to identify and confirm qualified nominees to these important positions.   

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