Statement Of Sen. Patrick
Leahy,
Ranking Member, Senate Judiciary Committee,
On Judicial Nominations
And National Priorities
September 5, 2006
The Senate returns
today from recess with less than four weeks left in this legislative
session. With so little time remaining, I hope that we can join
together to make real progress on the issues that have languished,
unresolved –the real issues that matter most to the American people.
I once again urge the
Administration and this Republican leadership to recognize the
failures that have set us back as a Nation, so that we might work
together to rectify them. Secretary Rumsfeld and Vice President
Cheney struck the wrong note when they recently labeled as appeasers
the majority of Americans who recognize the disastrous war in Iraq
as a distraction from winning the war on terror. Again this week
the Democratic leadership reached out to the President on this
important issue. Rather than name calling and seeking to divide
Americans, rather than fostering fear and seeking to scare Americans
into staying the disastrous course on which the Government remains
headed, I join them in urging the Republican leadership to join with
us to fight a smarter war on terror so that we can make America
safer. The cronyism and incompetence that brought us the
devastating aftermath of Hurricane Katrina cannot continue to
misguide American policy.
With more Americans
in poverty and extreme poverty and more children without health
care, we must do better. With rising interest rates, rising
mortgage rates, rising health care costs, rising insurance costs, we
must do better for America’s working families. While corporate
profits are taking a greater and greater share of our GNP, wages are
stagnant and those in charge refuse to allow a long overdue raise to
the minimum wage. We have just come through a summer of record high
gas prices, and for many families, the threat of record high home
heating prices this winter looms around the corner.
As
we approach the fifth anniversary of the attacks of September 11,
2001, we are more aware of the painful failure of the Federal
Government in neglecting to protect the Nation from those attacks.
And in these last five years, the Administration’s decision to send
hundreds of thousands of Americans into Iraq, and to divert
attention and resources from the hunt for Osama bin Laden and the
fight against Al Qaeda, looms largest among the many mistakes made
that have created a more dangerous and threatening world.
How
sad, how discouraging, how needless, and how ominous it has been in
the past five years to see the national and international unity
immediately following those horrific attacks squandered by this
Administration’s crass politics, arrogant unilateralism and
misguided policies.
It
was around the time of the second anniversary of September 11 that
Defense Secretary Rumsfeld put his finger on a key question in the
fight against terrorism, when he asked whether we were creating or
eliminating more terrorists through our actions. There can now be
little doubt what the honest answer to the question is, about the
actions taken by this Administration over the last five years. Does
anyone doubt the impact of the occupation of Iraq, the images from
Abu Ghraib, the international scandal of Guantanamo and the war
profiteering by huge defense contractors?
Our
own State Department had to revise its reports on international
terrorism in order to reflect a more honest assessment of the
growing incidents of terrorism violence. Hamas and Hezbollah are
winning elections as are hardliners in Iran and elsewhere throughout
the Middle East. Even those the Administration has supported in
Iraq are praising Hezbollah, talking of amnesty for those who have
killed U.S. soldiers, and declaring their country to have descended
into civil war. We see American soldiers trapped in the sectarian
violence in Iraq and see the situation in Afghanistan
deteriorating. Meanwhile, we have lost precious time to confront
growing threats from Iran and North Korea and the Middle East that
are more threatening than at any time in recent memory.
The
Administration resisted congressional efforts to examine what led to
the tragic events of 9/11, resisted creation of a Department of
Homeland Security, resisted formation of the 9/11 Commission,
resisted the efforts of the 9/11 Commission and failed to implement
many of its most important recommendations.
Of
course last year the Nation witnessed another sort of devastation in
the aftermath of hurricanes in the Gulf Coast and the appalling lack
of responsiveness by the Government. At another critical time, their
Government failed the American people. Eventually, even the
President acknowledged that failure of leadership, preparation,
responsiveness and competence. Four years after the Government
failed to connect the dots or demonstrate the vision needed to head
off the attack on September 11, the Government failed, again, and
its failures have still not been overcome. We have seen a
Government that could not prepare for a typical winter flu season
struggle to face up to the threat of an avian flu pandemic. We have
witnessed repeated incompetence in the Department of Veterans
Affairs as it has allowed sensitive data on our veterans and active
service forces to be compromised again and again.
Recently, President Bush held a press conference. He conceded that
Iraq had “nothing” to do with the attack on the World Trade Center.
He skipped quickly over the “main reason we went into Iraq”— namely
his erroneous contention that Iraq “had weapons of mass
destruction.” A growing roster of conservative Republicans, from
William Buckley on, are now acknowledging the failure of this
Administration’s strategy in Iraq. Yet even as sectarian violence
has continued to grow among Iraqis, as the losses and costs to
America continues to mount, the Administration tolerates no
criticism or fresh perspectives on a deteriorating situation and
stubbornly insists it will simply stay the course for another two
and a half years. This, from a President who, during his 2000
election campaign, argued against “nation building” and foreign
military entanglements.
Most
surprising was the President’s declaration that he is “rarely
surprised.” His justification for turning from fighting Al Qaeda to
concentrating our forces, resources and efforts in Iraq was
nonexistent weapons of mass destruction. His vice president assured
the American people that our troops would be greeted as liberators.
His vice president assured us long ago that the insurgency was it
its “last throes” and refuses to acknowledge that he has been wrong
about Iraq from the start and at every step along the way, as the
violence and divisions have continued to wreak tragic costs.
It
is difficult to come together on a way forward when the
Administration will not acknowledge its historic miscalculations
that led to the current situation. When they are not ignoring the
past, they are excusing it. Their excuses for their failures are
mockingly the same:
-- In May 2002, the
National Security Advisor said: “I don’t think anybody could have
predicted that these people would take an airplane and slam it into
the World Trade Center . . . that they would try to use an airplane
as a missile, a hijacked airplane as a missile.” Of course, that
was not true and the 9/11 Commission detailed many of the pre-9/11
warnings.
-- In September 2005,
President Bush responded to the destruction of New Orleans by
saying: “I don’t think anybody anticipated the breach of the
levees.” Of course, that was wrong and the local papers and
professors had discussed this hurricane disaster scenario for years.
-- Earlier this summer,
Vice President Cheney, said: “I don’t think anybody anticipated the
level of violence that we’ve encountered.” And just last month a
military spokesman was sent out to proclaim: “I don’t think anyone
could have anticipated the sectarian violence.” Of course, neither
of those statements was accurate since sectarian violence was a
known risk – even a predicted one -- from the outset.
How
are we to account for these catastrophic developments during this
Administration’s watch when the President now says that he is
“rarely surprised?” Just as the Administration’s justifications for
U.S. involvement in Iraq have continued to shift from one to the
next, its excuses ring hollow when they refuse to acknowledge their
errors and instead claim infallibility. “Just trust us” long ago
proved its failure as a Bush Administration policy.
Ours
is the strongest and best military in the world, but there are
limits to military power. The President’s father knew that.
General Powell knew that. President Eisenhower, the military hero
of World War II and a Republican President, knew that. This
Administration is having to learn that in what has proven to be a
disaster of historic proportions.
Imagine how different our situation would be today if we had not
shifted our elite forces from Afghanistan to Iraq at the critical
moment when we were close to finding Osama bin Laden. In the years
since then the Iraq war has stretched our military to the breaking
point, sapped hundreds of billions of dollars, and preoccupied our
attention. The White House has even disbanded the intelligence unit
that for years was dedicated to tracking down Osama bin Laden. The
diversion to Iraq has only succeeded in creating a new breeding
ground for terrorists and in emboldening the rogue states that
harbor and supply them. Starting an unnecessary war in Iraq has
made us all less secure.
We
need to adjust our course in order to effectively meet the threat of
terrorism. We need honesty and determination. We need not just
conventional military might but better intelligence, stronger
alliances and better information sharing. We need to use our
resources for homeland security, to protect our ports, our planes,
our industrial plants and our vital resources. Let us function as a
constitutional democracy and act within a moral framework and
legitimate legal rules. Let us be that democratic model to the
world that America should be. Let us show the strength and resolve
of a free people not a fearful people. Let us set a new direction
to counter terrorism on our own terms, with American skill and with
American values.
This
summer we expressed our gratitude to British authorities for
disrupting a plot that reportedly endangered the citizens of both
our countries. That episode and the fifth anniversary of the
attacks of 9/11 are reminders that there is little margin for error
in countering terrorism. We need to refocus our attention and
resources from the divisions that plague Iraq to eliminating the
misdirection and mismanagement that still divert us from an
effective international strategy to protect the American people from
terrorism. We need to be smarter and stronger to make America
safer. For almost five years, since the Government failed to
protect us from 9/11, Bush Administration officials in charge of
security have been saying that it is not a question of whether al
Qaeda will attack us again but when. We need to do better.
Americans Deserve Progress On Our Nation’s
Real Priorities
The full agenda
before us as we enter the final weeks of this legislative session
reflects how little this Republican leadership has accomplished,
even with control of the White House and both Houses of Congress. A
steady course of misguided priorities including weeks spent on
constitutional amendments to restrict Americans’ rights and the
misuse of Congress’s time and authority to interfere in a court
battle over the medical treatment of Terri Schiavo have cost
Americans progress on real issues that matter most.
These failures to focus on our real priorities have left America
less secure. I look forward to a representative Congress that
focuses on the Nation’s real priorities. The Republican-controlled
Congress has yet to enact a federal budget. We are in violation of
the statutory deadline of April 15. We have passed but one
appropriations bill, and we are required by law to pass 13. We have
yet to reconcile and enact lobbying reform and ethics legislation.
We have yet to deal with the skyrocketing cost of gasoline and
health care. We have yet to reconcile and enact a bipartisan and
comprehensive immigration reform bill. On that issue in particular,
all agree that real presidential leadership will be needed. And for
the second year in a row the Republican-led Senate will not even
take up the annual intelligence authorization bill.
As we commemorated
the one-year anniversary of Hurricane Katrina last week, we were
reminded that the situation in the Gulf Coast remains a tragedy with
serious human consequences. We need to commit ourselves and our
resources to helping our fellow citizens who are still in need after
the appalling lack of responsiveness by this Administration. We
need to provide the assistance to that region of our country where
rubble remains a fixture of the landscape one year later. Many
residents still do not have homes to return to or jobs waiting for
them when they get there.
We must also prepare
for the threat of an avian flu pandemic so that we do not see a
repeat of last winter when the government was unprepared for a
typical winter flu season. We should take action to preserve and
improve rather than pollute the environment. Protecting our
environment has become a pressing issue that has public safety and
health consequences for all Americans, today and tomorrow, and it
demands immediate attention. We cannot ignore the destruction
already wrought by this Administration’s ill-advised
head-in-the-sand policies. We must provide resources needed that
our returning veterans need at home.
Re-Nominations of Controversial Nominees
Americans would be
better served if we used our remaining time in this Congress to
address these vital issues than to focus on political fights over a
handful of divisive and failed nominations. The President has
chosen to renominate five of the most controversial judicial
nominations. They pose a dangerous distraction.
The President
re-nominated Judge Terrence Boyle to the Fourth Circuit despite the
fact that, 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. The President should
have heeded the call of North Carolina Police Benevolent
Association, the North Carolina Troopers’ Association, the Police
Benevolent Associations from South Carolina and Virginia, the
National Association of Police Organizations, the Professional Fire
Fighters and Paramedics of North Carolina, as well as the advice of
our former colleague, Senator John Edwards, to withdraw this
ill-advised nomination. Law enforcement officers from North
Carolina and across the country oppose the nomination. Civil rights
groups oppose the nomination. Those knowledgeable and respectful of
judicial ethics oppose this nomination. This nomination had been
pending on the calendar in the Republican-controlled Senate since
June of last year when it was forced out of the Committee on a
party-line vote. The Senate did the President a favor by returning
this nomination to the White House before the summer recess. The
President should not have re-nominated Judge Boyle.
The President also
re-nominated William Myers to the Ninth Circuit. This is another
Administration insider and lobbyist whose record has raised serious
questions about his ability to be a fair and impartial judge. I
opposed this nomination when it was considered by the Judiciary
Committee in March 2005. This was a nomination that the so-called
“Gang of 14” expressly listed as someone for whom they made no
commitment to vote for cloture, and with good reason. Mr. Myers’
anti-environmental record is reason enough to oppose his
confirmation. His lack of independence is another. If anyone
sought to proceed to this nomination, there would be a need to
explore any connections to the lobbying scandals associated with the
Interior Department and Republican lobbyist Jack Abramoff.
It is particular
troubling to see Mr. Myers re-nominated because the President missed
an opportunity to be a uniter. I had suggested that he re-nominate
Norman Randy Smith for the vacancy created by the retirement of
Judge Thomas G. Nelson from Idaho. Instead, the President has again
nominated Judge Smith to a California seat on the Ninth Circuit,
effectively stealing California’s seat. That is wrong. I support
Senators Feinstein and Boxer in their opposition to this tactic. I
again urge President Bush to resolve this impasse and turn Idaho’s
vacancy into a judge by withdrawing the tainted Myers nomination and
nominating Judge Smith for the Idaho vacancy to which he could be
easily confirmed.
It is distressing
that the President chose to re-nominate William James Haynes to the
Fourth Circuit despite bipartisan concern about this nomination. As
General Counsel at the Defense Department, Mr. Haynes has been
deeply involved in shaping this Administration’s now discredited
policies on the treatment of enemy combatants, the interrogation and
torture of detainees, and the creation of military commissions. In
two hearings, Mr. Haynes has refused to answer questions from
Committee members about these policies despite disturbing
developments that have come to light that relate to those policies,
including the Abu Ghraib scandal and scores of other incidents of
detainee abuse in Afghanistan, Iraq, and Guantanamo Bay. In
addition, new press reports, declassified memoranda and letters from
former high ranking military officials have detailed Mr. Haynes’s
disregard for legal concerns raised by senior military and civilian
lawyers within the Armed Services about his policies and his efforts
to subvert their advice. It is deeply concerning that Mr. Haynes
ignored the policy concerns raised by military officers about the
effect of his policies on the safety of American troops and American
credibility around the world.
I have found
inconsistencies between Mr. Haynes’ testimony and that of the
uniformed JAG’s relating to the level of JAG involvement in the
development of detainee interrogation policies to be particularly
troubling. Although Mr. Haynes sought at his hearing in July to
allay some of these concerns regarding his disregard of the advice
of uniformed JAGs, his statements regarding consultation with them
were flatly contradicted by several JAGs who testified before the
Senate Armed Services Committee. Subsequently, Mr. Haynes sought to
reconcile his testimony with that of the JAGs in a letter to the
Committee. Unfortunately, even this letter turned out to be
inaccurate, as set forth in a subsequent letter from Daniel
Dell’Orto, Mr. Haynes’ deputy. This re-nomination is a poke in the
eye to anyone who wants to close this disgraceful chapter in our
nation’s history. The President had an opportunity to move beyond
this controversy by sending the Senate a more qualified, consensus
nominee. Unfortunately, he squandered that opportunity with this
re-nomination.
Finally, the
President has re-nominated Michael Wallace to a vacancy on the Fifth
Circuit even though he received the first ABA rating of unanimously
“not qualified” that I have seen for a circuit court nominee in 25
years. The hearing on his nomination scheduled for July 19 was
cancelled, though not before the Committee received written
testimony from the ABA regarding his rating. This testimony, which
was confidential until leaked to a conservative website, details the
significant concerns raised by numerous jurists around the country
regarding Mr. Wallace’s judicial temperament, lack of commitment to
equal justice for the poor and minorities, lack of tolerance, and
open-mindedness. The report details concerns from judges and
lawyers that Mr. Wallace “may not follow the law.” and is driven by
his “personal agenda” and that he lacks common courtesy. Of course,
the troubling issues raised in the ABA’s testimony echo significant
concerns about Mr. Wallace’s terrible record on civil rights, his
opposition to the Voting Rights Act, his support for tax exemptions
for Bob Jones University, his opposition to prison safety
regulations, and his attempt as President Reagan’s director of the
board of the Legal Services Corporation to undermine efforts to
provide legal services to low-income clients.
Senate Should Not
Rubberstamp Lifetime Judges
The Senate can make
progress, but it requires working together. Today, the Senate
considers the nomination of Kimberly Ann Moore for a lifetime
appointment to the Court of Appeals for the Federal Circuit. In the
weeks before recess, we confirmed several nominees to the Nation’s
important circuit courts. Working together, the Senate confirmed
two circuit nominees and two federal trial court nominees in a
matter of minutes in one afternoon. That is the kind of progress we
can make when the President nominates qualified consensus nominees.
When she is
confirmed, Ms. Moore will be the seventh Circuit Court nominee and
the 30th judge overall confirmed this year. Compare this
with those left unconfirmed in the 1996 congressional session, when
Republicans controlled the Senate and stalled the nominations of
President Clinton. In the 1996 session, Republicans would not
confirm a single appellate court judge -- not one -- and moved
forward on only 17 district court judges all session. That is the
only session of the Senate I can remember in which the Senate simply
refused to consider appellate court nominations. That was part of
their pocket filibuster strategy to stall and maintain vacancies so
that a Republican President could pack the courts and tilt them
decidedly to the right.
Judge Arthur Gajarsa,
one of President Clinton’s well-qualified nominees to the Federal
Circuit, the court to which Ms. Moore has been nominated, was among
the many circuit court nominees that the Republican-controlled
Senate refused to confirm in 1996. President Clinton first
nominated Judge Gajarsa on April 18, 1996, but he was not confirmed
until July 31, 1997, despite the support of both home-state Senators
and a growing backlog of cases created by the extended vacancy.
Another one of President Clinton’s nominees to the Federal Circuit,
Timothy Dyk, was nominated April 1, 1998, but was not confirmed
until May 24, 2000, over two years later. The slow pace of these
nominations stands in stark contrast to the speed with which Ms.
Moore’s nomination has proceeded. She was nominated on May 18 and
she stands to be confirmed after only two and a half months.
Democratic nominees to the same court were stalled for more than two
years. With her confirmation, Ms. Moore will bring the total of
Republican-appointed judges on the Federal Circuit to 8, double the
number appointed by Democratic presidents.
During the last two
years under Republican control, the Senate will have confirmed 52
judges. Of course, during the 17 months I was Chairman of the
Judiciary Committee and the Senate was under Democratic control, we
confirmed 100 of President Bush’s nominees. The fact that the
Senate has now confirmed more nominees in the past five-and-a-half
years, 257, than in the last five-and-a-half years of the Clinton
Administration is due in no small part to the faster pace of
confirmations of this President’s nominees when Democrats controlled
the Senate.
Given the claims by
the Bush-Cheney Administration to nearly unfettered Government
power, it is imperative that the other two branches of government
serve as an effective check and balance. I have urged that we
exercise effective oversight of the Executive branch, and I have
supported efforts to get to the bottom of the NSA’s unprecedented
program of domestic spying on Americans without warrants. However,
I am concerned that we are far away from restoring accountability
and checks and balances in our government. The Senate must not
rubberstamp judicial nominees who will fail to act as a
constitutional check on the Administration’s unprecedented power
grab.
The court to which
Ms. Moore has been nominated, the Federal Circuit, is a unique and
important court with nationwide jurisdiction in a variety of subject
areas, including international trade, government contracts, patents,
trademarks, certain money claims against the United States
Government, federal personnel, and veterans' benefits. Because the
Supreme Court takes up only a small number of appeals, the Federal
Circuit is often the court of last resort making decisions in those
areas. I hope that she will take her responsibility seriously and
act judiciously. I congratulate Ms. Moore on her confirmation today
and hope that she will be the kind of judge who will apply the law
fairly and protect the rights of all litigants appearing in her
courtroom.
# # # # #
