[Congressional Record (Bound Edition), Volume 145 (1999), Part 16] [Senate] [Pages 23565-23570] [From the U.S. Government Publishing Office, www.gpo.gov]JUDICIAL NOMINATIONS Mr. LEAHY. Mr. President, I said Tuesday of last week that the series of votes the Senate took that day, in which we were unable to consider and vote on the nominations of Judge Richard Paez and Marsha Berzon, was unprecedented. I expressed my concern that the Senate not go so far off the tracks of our precedents that we end up creating a problem, not just for this administration, but for any future administration. Today, we at least break out of the impasse of last week, and move forward toward voting on all the judicial nominations before the Senate. Just so we understand where we are, I said last week that Democrats were prepared to vote on all of the judicial nominations pending on the Senate Executive Calendar. Today we provided additional evidence of our resolve to do so. We did that by agreeing to a debate and a confirmation vote on the nomination of Brian Theadore Stewart to the United States District Court for the District of Utah, as well as other nominees pending before the Senate. Of course, the Senate has confirmed Victor Marrero and James Lorenz. I congratulate, incidentally, Senator Schumer and Senator Feinstein and Senator Boxer, for the efforts they have made on behalf of those nominees. I thank the Democratic leader for all his efforts in resolving this impasse, in securing a vote on the nomination of Ray Fisher, and, in particular, a vote on the nomination of Justice Ronnie White. Justice Ronnie White is eventually, finally--I emphasize finally--going to get an up-or-down vote next Tuesday. Also, Ray Fisher and Mr. Stewart will be voted on next Tuesday. But our work is not complete. I look forward to working with the majority leader to fulfill the Senate's duty to vote on the nominations of Judge Richard Paez and of Marsha Berzon. These are nominations that have been pending for a very long time. This debate is about fairness and the issue that remains is the issue of fairness. For too long, nominees--judicial nominees such as Judge Paez, Ms. Berzon and Justice Ronnie White of Missouri, and executive branch nominees like Bill Lann Lee, have been opposed in anonymity, through secret holds and delaying tactics--not by straight up-or-down votes where Senators can vote for them or vote against them. They have been forced to run some kind of strange in-the-dark gauntlet of Senate confirmations. Those strong enough to work through that secret gauntlet and get reported to the floor are then being dealt the final death blow through a refusal of the Republican leadership to call them up for a vote. They should be called up for a fair vote. They may be defeated--the Republicans are in the majority; there are 55 Republican Senators; they could vote them down. But let them have a fair vote, up or down. Let all Senators have to stand up and vote aye or nay, and be responsible to their constituency to explain why they voted that way. Unfortunately, nominations are being killed through neglect and silence, not defeated by a majority vote. So I ask, again, for the Senate to fulfill its responsibility to vote on all the judicial nominations on the calendar; vote for them or vote against them. We can vote them up or we can vote them down, but after 44 months or 27 months or 20 months, let us vote. Judge Richard Paez has an extraordinary record. He was praised by Republicans and Democrats before our committee. He was nominated January 25--not January 25 of this year, 1999; not January 25 of 1998; not January 25 of 1997; but January 25 of 1996. He has been pending 44 months. Vote for him or vote against him, but do not put him in this kind of nomination limbo, which becomes a nomination hell. Justice Ronnie White, an extraordinary jurist from Missouri, an outstanding African American jurist, he was nominated on June 26--not June 26 of 1999, not June 26 of 1998, but June 26 of 1997. After more than two years, this nomination remains pending. Vote up, vote down, but do not take such an insulting and arrogant and demeaning attitude on behalf of the Senate of not allowing this good jurist to come to a vote. Marsha Berzon, again, nominated January 27, but not of this year, of last year. Her nomination has been pending for almost two years. Allow her to come to a vote. I contrast this, even though we have a Democratic President and nominations are usually the prerogative of whoever the President is, of that party, with a nomination made on behalf of a Republican Senator who happens to be a dear friend of mine. That man was nominated on July 27 this year, barely two months ago. That nomination, the nomination of Brian Theadore Stewart, will be voted on next week. Good for him, I say. He has been considered promptly and will be brought up for an up or down vote. There are some on this side of the aisle who oppose him and will vote against him. But every single Democrat, whether they are going to vote against him or for him, should allow him to be voted on and they will. That nomination has been pending 2 months. Let us have the same fairness on the other side of the aisle for Marsha Berzon, after 20 months, Justice Ronnie White after 27 months, and Judge Richard Paez after 44 months, especially--and some people may wish I would not say this on the floor, but especially after the nonpartisan report which came out last week that confirmed what I have said on this floor many a time--especially for nominees who are women and minorities. I have observed before that if you are a minority or if you are a woman, this Senate, as presently constituted, will take far, far longer to vote on your confirmation than if you are a white male. That is a fact. That is fact, something that started becoming evident a few years ago and has now been confirmed in a nonpartisan report. Let me repeat that. If you are a minority, if you are a woman, you will take longer to be confirmed than if you are a white male, by this Senate as presently constituted. And that is wrong. I advise Senators, I have checked on Judge Richard Paez, Justice Ronnie White, and Ms. Marsha Berzon, and nobody objects on the Democratic side of the aisle to them coming to a vote. We are prepared to vote at any time, any moment, any day. There are no holds on this side of the aisle. I said last week I do not begrudge Ted Stewart a Senate vote. I do not. He is entitled to a vote. He went through the confirmation process. The Senate Judiciary Committee voted him out. It was not a unanimous vote, but he was voted out of the committee, and he is entitled to a vote. If Senators do not want to vote for him, vote against him. If Senators want to vote for him, vote for him. I intend to vote for him. I intend to give the benefit of the doubt both to the President and to the chairman of the Senate Judiciary Committee who recommended him. But I also ask the same sense of fairness be shown to everybody else on the calendar. The Senate was able to consider and vote on the nomination of Robert Bork to the U.S. Supreme Court, as controversial as that was, in 12 weeks. The Senate was able to consider and vote on the nomination of [[Page 23566]] Justice Clarence Thomas in 14 weeks. We ought to be voting on the nomination of Judge Richard Paez, which has been pending almost 4 years, and that of Marsha Berzon, which has been pending almost 2 years. Let us have a sense of fairness. Let us bring them up and let us remove this notoriety the Senate has received, the notoriety established and emphatically proven, that if you are a woman or a minority, you take longer to get confirmed, if you ever get confirmed at all. That is wrong. We should be colorblind; we should be gender blind. Most importantly, we should be fair. I should note, in fairness to the distinguished chairman of the Judiciary Committee, in committee he did vote for Judge Paez, Justice White, and Ms. Berzon and, of course, Ted Stewart, as did I. Now I work with both he and the majority leader to bring them to a final vote by the Senate. I also want to work with those Senators who are opposed to bringing Judge Paez or Marsha Berzon to a vote. I read in the papers where we have done away with secret holds in the Senate, but apparently not for everybody. Apparently, there are still secret holds. In February, the majority leader and Democratic leader sent a letter to all Senators talking about secret holds. They said then: ``members wishing to place a hold on any . . . executive calendar business shall notify the committee of jurisdiction of their concerns.'' I serve as the ranking member on the committee of jurisdiction for these nominations. I have not been told the name of any Senator at all who is holding them up. Yet they do not go forward. The letter from the two leaders goes on to state: ``Further, written notification should be provided to the respective Leader stating their intention regarding the * * * nomination.'' Senator Daschle has received no such notification. In spite of what was supposed to be a Senate policy to do away with anonymous holds, we remain in the situation where I do not even know who is objecting to proceeding to a vote on the Paez and Berzon nominations, let alone why they are objecting. I have no ability to reason with them or address whatever their concerns are because I do not know their concerns. It is wrong and unfair to the nominees. I do not deny each Senator his or her prerogative as a Member of this Senate. After 25 years here, I think I have demonstrated--and I certainly know in my heart--I have great respect for this institution and for its traditions, for all the men and women with whom I have served, the hundreds of men and women with whom I have served over the years in both parties. But this use of secret holds for extended periods to doom a nomination from ever being considered by the Senate is wrong, unfair, and beneath us. Who is it who is afraid to vote on these nominations? Who is it who is hiding their opposition and obstructing these nominees? Can it be they are such a minority, they know that if it comes to a fair vote, these good men and women will be confirmed? So rather than to allow a fair vote, they will keep it from coming to a vote. I would bet you that the same people who are holding these nominations back from a vote will go home on the Fourth of July and other holidays and give great speeches about the democracy of this country and how important democracy is and why we have to allow people to vote and express the will of the people--except in the Senate and, apparently, except if you are a minority or a woman. If we can vote on the Stewart nomination within 4 weeks in session, we can vote on the Paez nomination within 4 years and the Berzon nomination within 2 years. Let us vote up or down. Once more I say, look where we are: There is Stewart, pending 2 months; Marsha Berzon, pending 20 months; Justice Ronnie White of Missouri, pending 27 months; Judge Richard Paez, pending 44 months. I look at those green lines of this chart showing the time that each of these nominations has been pending and I wish they could each be the short sliver that represents the Stewart nomination. With a name like Patrick Leahy, I want to see green on St. Patrick's Day; I do not want to see the long green lines on this chart that represent delay and obstruction of votes on women and minority nominees. Judge Richard Paez is an outstanding jurist, a source of great pride and inspiration to Hispanics in California and around the country. He served as a local judge before being confirmed to the Federal bench several years ago. He is currently a federal district court judge. He has twice been reported to the Senate by the Judiciary Committee, twice reported out for confirmation. He spent a total of 9 months over the last 2 years on the Senate Executive Calendar awaiting the opportunity for a final confirmation vote to the court of appeals. His nomination was first received 44 months ago, in January of 1996. Justice Ronnie White, an outstanding member of the Missouri Supreme Court, has extensive experience in law and government. In fact, he is the first African American to serve on the Missouri Supreme Court. He has been twice reported favorably to the Senate by the Judiciary Committee. He spent a total of 7 months on the floor calendar waiting the opportunity for a final confirmation vote. His nomination was first received by the Senate in June 1997--27 months ago. I am glad that finally, after all this time, the Democratic leader was able to announce a date for a vote on this longstanding nomination of this outstanding jurist. As the St. Louis Post-Dispatch noted in an editorial last week: Seven of the 10 judicial nominees who have been waiting the longest for confirmation are minorities or women. This is hardly a shock to those of us who have watched [Justice] White, an African-American, be ushered to the back of the bus. The words of the St. Louis Post-Dispatch. Marsha Berzon has been one of the most qualified nominees I have seen in my 25 years. Her legal skills are outstanding. Her practice and productivity have been extraordinary. Lawyers against whom she has litigated regard her as highly qualified for the bench. Her opponents in litigation are praising her and asking for her to be confirmed. She was long ago nominated for a judgeship within a circuit that saw this Senate hold up the nominations of other qualified women for months and years--people like Margaret Morrow, who was held up for so long; Ann Aiken, who was held up for so long; Margaret McKeown, who was held up for so long; Susan Oki Mollway, who was held up for so long. Marsha Berzon, too, has now been held up for 20 months. The Atlanta Constitution, from Atlanta, GA, noted last Thursday: Two U.S. appellate court nominees, Richard Paez and Marsha Berzon, both of California, have been on hold for four years and 20 months respectively. When Democrats tried Tuesday to get their colleagues to vote on the pair at long last, the Republicans scuttled the maneuver. The Paez case seems especially egregious. . . . This partisan stalling, this refusal to vote up or down on nominees, is unconscionable. It is not fair. It is not right. It is no way to run the federal judiciary. Chief Justice William Rehnquist is hardly a fan of [President] Clinton. Yet even he has been moved to decry Senate delaying tactics and the burdens that unfilled vacancies impose on the federal courts. Tuesday's deadlock bodes ill for judicial confirmations through the rest of [President] Clinton's term. This ideological obstructionism is so fierce that it strains our justice system and sets a terrible partisan example for years to come. That is from the Atlanta Constitution. I share that concern. I have been on the floor of this Senate when we have had Republican Presidents with Republican nominations, saying that they deserve to be brought forward for a vote one way or the other, including a couple instances of nominees I intended to vote against. I still said they deserved a vote. And they got their vote. In fact, I probably voted for 98 to 99 percent of President Ford's, President Reagan's, and President Bush's nominees--three Presidents with whom I have served. What we are currently experiencing is unconscionable and unprecedented, these kinds of delays. I think we hurt [[Page 23567]] the Senate when we do this. We will have Republican Presidents; we will have Democratic Presidents. We will have Republican-controlled Senates; and we will have Democratic-controlled Senates. I have served here twice with the Democrats in control; twice with the Republicans in control. The precedents we establish are important if we are to go into the next century as the kind of body the Senate should be. We should be the conscience of the Nation. On some occasions we have been. But we tarnish the conscience of this great Nation if we establish the precedence of partisanship and rancor that go against all precedents and set the Senate on a course of meanness and smallness. That is what we are doing with these nominations. We should establish, for future Senates, that we are above this kind of partisanship. Nobody in this body owns a seat in the Senate. Every single person serving today will be gone someday. Every one of them will be replaced by others. As I said, in the relatively short time I have been here, hundreds of Senators have gone through this body. But every one of us are guided by what previous Senates have done. Do not let us end this century and this millennium leaving, as guidance for the next century and the next millennium and the next Senate, partisanship that tears at the very fabric, not only of the Senate but of the independence of the Federal judiciary itself. So many judges, judges who are considered conservative, judges who are considered liberal, judges who have had a Republican background or a Democratic background, judges who have been appointed by Republican Presidents, judges who have been appointed by Democratic Presidents, have been united in saying: Stop this. Do not go on with this. Because you are tearing at the very core of our independent judiciary, the most independent judiciary on Earth, a judiciary whose very independence allows us to maintain a balanced country, a country that is the most powerful on Earth, but a country that is also the most free and the most respected democracy. And a main factor guaranteeing that freedom and that democracy is our independent judiciary. So, against this backdrop, I, again, ask the Senate to be fair to these judicial nominees and all nominees. For the last few years the Senate has allowed one or two or three secret holds to stop judicial nominations, and that is not fair. Let me tell you what the Chief Justice of the U.S. Supreme Court wrote, a man who is widely considered a conservative Republican, also a man who, as we saw when he presided over the Senate earlier this year, is a man of fairness, of integrity and of great learning. He wrote in January of last year: Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote. . . . The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. I could not agree more with Chief Justice Rehnquist. We should follow his advice. Let the Republican leadership schedule up-or-down votes on the nominations of Judge Paez and Marsha Berzon so that the Senate can finally act on them. Let us be fair to all. The response to the Senate action last week was condemnation of the Republican leadership's refusal to proceed to vote on the nominations of Judge Paez, Justice White, and Ms. Berzon. A Washington Post editorial characterized the conduct of the Republican majority as ``simply baffling'' and noted: [T]he Constitution does not make the Senate's role in the confirmation process optional, and the Senate ends up abdicating responsibility when the majority leader denies nominees a timely vote. All the nominees awaiting floor votes, Mr. Stewart included, should receive them immediately. The editorial speaks to the responsibility of the Senate, and it is right. On our side of the aisle, we have lived up to the responsibility. Again, I tell all Senators, no matter how an individual Democratic Senator may vote on any one of the pending nominees, no Democratic Senator has a hold on any judicial nominee. We are all prepared to vote. It is October 1, and the Senate has acted on only 19 of the 68 judicial nominations the President has sent us this year. We have only 4 weeks in which the Senate is scheduled to be in session for the rest of the year. By this time last year, the committee had held 10 confirmation hearings for judicial nominees and 43 judges had been confirmed. By comparison, this year there have been only 4 hearings and only 19 judges have been confirmed. We are at less than half the productivity of last year and miles behind the pace of 1994, when by this time we had held 21 hearings and the Senate had confirmed 73 judges. The Florida Sun-Sentinel said last Monday: The ``Big Stall'' in the U.S. Senate continues, as Senators work slower and slower each year in confirming badly needed federal judges. . . . This worsening process is inexcusable, bordering on malfeasance in office, especially given the urgent need to fill vacancies in a badly undermanned federal bench. . . . The stalling, in many cases, is nothing more than a partisan political dirty trick. For the last several years, I have been urging the Judiciary Committee and the Senate to proceed to consider and confirm judicial nominees more promptly, without the months of delay that now accompany so many nominations. Moreover, in the last couple weeks, as I said earlier, independent studies have verified the basis for many of my concerns. According to the report recently released by the Task Force on Judicial Selection of Citizens for Independent Courts, the time it has taken for the Senate to consider nominees has grown significantly, from an average of 83 days in 1993 and 1994 during the 103rd Congress, to over 200 days for the years 1997 and 1998 during the last Congress, the 105th. In fact, if we look at the average number of days from confirmation to nomination on an annual basis, we would see that the Senate has broken records for delay in each of the last 3 succeeding years, 1996, 1997, and 1998. In fact, in 1998, the average time for confirmation was over 230 days. That independent report also verifies that the time to confirm women as nominees is now significantly longer than to confirm men as nominees. That is a difference that defies any logical explanation except one, and that one explanation does not shed credit on this great institution. They recommend that ``the responsible officials address this matter to assure that candidates for judgeships are not treated differently based on their gender''--because they know that today they are. I recall too well the obstacle course that such outstanding women nominees as Margaret Morrow, Ann Aiken, Margaret McKeown, and Susan Oki Mollway were forced to run. Now it is Marsha Berzon who is being delayed and obstructed, another outstanding woman judicial nominee held up, and held up anonymously because everybody knows that if she had a fair up-or-down vote, she would be confirmed. I am angered by this, quite frankly, Mr. President. I think how I would react if this was my daughter being held up like this, or the daughter of someone I knew. The report of Citizens for Independent Courts recommends the Senate should eliminate the practice of allowing individual Members to place holds on a nominee. We ought to consider that. This summer, Prof. Sheldon Goldman and Elliot Slotnick published their most recent analysis of the confirmation process in President Clinton's second term in Judicature magazine. They note the ``unprecedented delay at both the committee and floor stages of Senate consideration of Clinton judicial nominees'' and conclude: It is impossible to escape the conclusion that the Republican leadership in the Senate is engaged in a protracted effort to delay decisionmaking on judicial appointments whether or not the appointee was, ultimately, confirmable. In fact, I can think of a number of these people, having been held up month after month after month, who finally got a vote and ended up being confirmed overwhelmingly. Margaret Morrow is an example of that. She was held up for so long that it became a national disgrace that a woman so qualified, backed by both Republicans and [[Page 23568]] Democrats in California, was held up apparently because she was a woman. And when finally the shame of it would not allow her to be held up any longer, she came to a vote on the floor and was confirmed overwhelmingly. In spite of efforts last year in the aftermath of strong criticism from the Chief Justice of the United States, the vacancies facing the Federal judiciary remain at 63, with 17 on the horizon. The vacancies gap is not being closed. We have more Federal judicial vacancies extend longer and affecting more people. There will be more in the coming months. Judicial vacancies now stand at approximately 8 percent of the Federal judiciary. If you went to the number of judges recommended by the judicial conference, the vacancy rate would be over 15 percent and total over 135. Nominees deserve to be treated with dignity and dispatch, not delayed for 2 and 3 years. We are talking about people going to the Federal judiciary, a third independent branch of Government. They are entitled to dignity and respect. They are not entitled automatically for us to vote aye, but they are entitled to a vote, aye or nay. How do we go to other countries and say: You need an independent judiciary; you have to have a judiciary that people can trust; you have to treat it with respect; when we are not doing that in the Senate? They deserve at least that. No nominee gets an automatic ``aye'' vote, but every nominee ought to be heard and at least voted on one way or the other. One of our greatest protections as Americans is an independent judiciary, one the American people can respect and whose decisions they can respect. We have built in all kinds of counterweights: the district court, the courts of appeal, the Supreme Court. We have this to make sure that there is this independence and balance. Yet we seem to be putting a break on it. The Senate's actions undermine our independent judiciary by the way we mistreat judicial nominations and perpetuate unnecessary vacancies. We are seeing outstanding nominees nitpicked and delayed to the point that good men and women are being deterred from seeking to serve as Federal judges. Some excellent lawyers are being asked to serve as Federal judges and they say: No, I do not want to go through that. Why should I? In private practice, it is announced they are going to be nominated to be a Federal judge. All their partners will come in and say: This is wonderful, congratulations. We are going to have a great party for you Friday. And when are you going to move out of that corner office, because we want to move in? We realize you cannot take on any new clients. We would be a little bit better off if you were out of the office now so that we do not have any conflicts of interest. Then, for 2 or 3 years, they sit there, no income, no practice, neither fish nor foul. In a Senate that is constantly voting to say we are in favor of family values--as though anybody is against them--maybe we ought to also consider the families of nominees, who might want to plan, and who need to know where that nomination is headed without unnecessary delay. I have been here with five Presidents--I respected and know them all--President Ford, President Reagan, President Carter, President Bush, and President Clinton. I have been on the Judiciary Committee during that time. I know for a fact that no President, Republican or Democrat, has ever consulted more closely with Senators of the party opposite from his on judicial nominees. No other President has consulted as much with members of the other party as President Clinton has, and that has greatly expanded the time it takes to make these nominations. But he has done that. Having done that, the Senate at least should go about the business of voting on confirmation for the scores of judicial nominations that have been delayed for too long without justification. This summer, in his remarks to the American Bar Association, the President again urged us to action. He said: We simply cannot afford to allow political considerations to keep our courts vacant and to keep justice waiting. We must redouble our efforts to work with the President to end the longstanding vacancies that plague the Federal courts and disadvantage all Americans. That is our constitutional responsibility. I continue to urge the Republican leadership to attend to these nominations without obstruction and proceed to vote on them with dispatch. I urge that they schedule a vote on Judge Paez and Marsha Berzon without further delay. Again, I note for the record that no Democratic Senator objects to them going forward for a vote--none. We are prepared to go forward with a vote on the shortest of notice at any time. So the continuing delays on both Judge Paez and Marsha Berzon, are on the Republican side. I do appreciate what the distinguished Republican leader and the distinguished Democratic leader worked out today. And I appreciate the efforts of the distinguished senior Senator from Utah. It is my hope that the example the four of us have set today will move the Senate into a new productive chapter of our efforts to consider judicial nominations. We took the action of initiating the calling up of a judicial nominee last week to demonstrate where we were. We have urged the taking up of a judicial nominee today whom some Democratic Senators oppose in order to demonstrate our commitment to fairness for all. There is never a justification to deny any of these judicial nominees a fair up-or-down vote. There is no excuse for the failure to have a vote on Judge Paez and Marsha Berzon. I ask unanimous consent that copies of the recent editorials from the Florida Sun-Sentinel, the Atlanta Constitution, the St. Louis Post- Dispatch, the Denver Post, and the Washington Post be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: [From the Sun-Sentinel, South Florida, Sept. 20, 1999] Pace of Judicial Confirmations Lags The ``Big Stall'' in the U.S. Senate continues, as senators work slower and slower each year in confirming badly needed federal judges. More than eight months into 1999, the Senate has only confirmed 14 of President Clinton's judicial nominees. By this time in 1998, 39 judges had been confirmed. In 1997, it was 58 judges. This worsening process is inexcusable, bordering on malfeasance in office, especially given the urgent need to fill vacancies on a badly undermanned federal bench. Even after three new judges were confirmed Sept. 8, 11 nominations are still pending before the Judiciary Committee and 35 before the full Senate. The president has not yet nominated candidates to fill 24 other vacancies. The vacant seats, 70 of 846, represent 8.3 percent of all federal judges. The stalling, in many cases, is nothing more than a partisan political dirty trick. Judiciary Committee Chairman Orrin Hatch, R-Utah, has inexcusably delayed several confirmation hearings and refused to hold others. Conservatives like Hatch hate the idea of Clinton continuing to put his stamp on the federal judiciary with more lifetime appointments. One of the newest people winning confirmation is Adalberto Jose Jordan of Miami, who will join the bench on the U.S. District Court for the Southern District of Florida. This is the first time in many years that the court will be operating at full strength. At one time, it had four empty spots, with some vacancies going unfilled four years. Jordan's nomination process moved much faster than most. The Senate got his nomination on March 15, held a confirmation hearing July 13 and confirmed him Sept. 8. That's still on the slow side; three months should be more than enough. Miami Judge Stanley Marcus won confirmation to the 11th U.S. Circuit Court of Appeals in only 33 days. Senate stalling on confirmations came under deserved attack from Sen. Patrick Leahy of Vermont, the senior Democrat on the Judiciary Committee. ``Nominees deserve to be treated with dignity and dispatch, not delayed for two or three years,'' Leahy said. ``We are seeing outstanding nominees nitpicked and delayed to the point that good women and men are being deterred from seeking to serve as federal judges.'' Leahy called it a scandal and a shame that one nomination has been stalled 3 years and 8 months, despite two Judiciary votes to confirm. Many vacancies have been unfilled 18 months or more. Senators should heed the request of U.S. Supreme Court Justice William Rehnquist, who urged them to expedite confirmation [[Page 23569]] hearings and votes. A good bill by Florida Sens. Bob Graham and Connie Mack requires a Judiciary Committee vote within three months, then allows any senator to bring the matter to the Senate floor. The full Senate would have to vote one month after Judiciary action. ``We are not doing our job,'' Leahy told his colleagues. ``We are not being responsible. We are really being dishonest and condescending and arrogant toward the judiciary. It deserves better and the American people deserve better.'' Empty judicial benches and the Senate's Big Stall cause severe problems. They worsen an already high judicial caseload, burning out overworked current judges. They put off many civil lawsuits for years, delaying and thus denying justice to litigants. They force a hurry-up in criminal cases that can lead to reversible error on appeal. They force some talented nominees to drop out, or not even apply. They cripple urgent efforts to get tough on crime. And they weaken an important branch of government. ____ [From the Atlanta Constitution, Sept. 23, 1999] GOP Won't Warm Jurists' Benches President Clinton struck a bad bargain two months ago. He caved in to an insistent Sen. Orrin Hatch (R-Utah) and nominated a Hatch buddy with no judicial experience to be a U.S. judge in Salt Lake City. Clearly, Clinton hoped Hatch, chair of the Senate Judiciary Committee, and other Republicans would appreciate the gesture and reciprocate in kind--let's say, by finally freeing some of the multitude of Clinton judicial nominees stranded in the upper chamber. Surprise, surprise. Clinton's peace offering has sparked no such magnanimity. His partisan foes want to have their cake and eat the president's lunch, too. The issue came to a head Tuesday when Republicans attempted to confirm Hatch's chum and right-wing soulmate, Ted Stewart. Democrats blocked the procedure, contending justifiably that Stewart had been pushed to the front of the line for Senate consideration when other Clinton appointees have waited in vain for a confirmation vote--some for years. That's right, years. Two U.S. appellate court nominees, Richard Paez and Marsha Berzon, both of California, have been on hold for four years and 20 months respectively. When Democrats tried Tuesday to get their colleagues to vote on the pair at long last, the Republicans scuttled the maneuver. The Paez case seems especially egregious. He has been kept in limbo this long, Democrats contend, because his GOP foes would rather not cast a recorded vote against a Hispanic jurist. This partisan stalling, this refusal to vote up or down on nominees, is unconscionable. It is not fair. It is not right. It is no way to run the federal judiciary. Chief Justice William Rehnquist is hardly a fan of Clinton. Yet even he has been moved to decry Senate delaying tactics and the burdens that unfilled vacancies impose on the federal courts. Tuesday's deadlock bodes ill for judicial confirmations through the rest of Clinton's term. This ideological obstructionism is so fierce that it strains our justice system and sets a terrible partisan example for years to come. ____ [From the St. Louis Post-Dispatch, Inc., Sept. 24, 1999] Confirm Ronnie White Missouri Supreme Court Judge Ronnie White, in limbo more than 800 days awaiting his confirmation hearing, saw his long road to the federal bench take its most bizarre turn yet this week. Senate Republicans resorted to a highly unusual cloture vote to try to force Democrats to vote on the nomination of Ted Stewart, a friend of Republican Sen. Orrin Hatch who was nominated, at Mr. Hatch's personal request, just two months ago. The motion failed by five votes. The irony of Democrats stalling their President's nominee was plain, as they have been pleading for years for votes on candidates. In a political deal gone wrong, President Bill Clinton nominated Mr. Stewart--an environmentalist's nightmare--in the apparent belief this would jump-start the long-stalled confirmation process. The world record holder in this wait-a-thon is Richard A. Paez (more than four years), followed by Marsha L. Berzon (three years) and Mr. White (more than two years). Instead of bringing these nominations to the floor, the maneuver resulted in Mr. Stewart being moved to the head of the line. Democrats refused to consider him, and are digging in their heels until they are assured their top three limbo inmates will be freed. Cloture is a dramatic, desperate maneuver that has been used only a handful of times. Even the hotly contested nominations of Robert H. Bork and Clarence Thomas did not require such hostile arm-twisting. It is unthinkable that Republicans would resort to this over people like Mr. Paez. But Democrats now fear Republicans would stall the process until after the 2000 elections rather than vote on Mr. Paez. Democrats say Republicans don't like Mr. Paez, but don't want to be cast as voting against a Hispanic. Gosh, who would ever get that impression? Seven of the 10 judicial nominees who have been waiting the longest for confirmation are minorities or women. This is hardly a shock to those of us who have watched Mr. White, an African-American, be ushered to the back of the bus. The Limbo Three are political prisoners. They are unquestionably qualified. If anything, Mr. Stewart--chief of staff to Utah Gov. Mike Leavitt--is the one who looks thin on courtroom credentials. Even if it delays the process further, Democrats should not give in to this ridiculous double- dealing and wave Mr. Stewart through until they are assured Republicans will allow the process to go forward. Believe it or not, we're getting tired of saying this: Confirm Ronnie White. ____ [From the Denver Post Corp., September 26, 1999] Erase Judicial Backlog Confirmation of federal judges has become slower than molasses and more contentious than a thicket of barbed wire, turning judicial nominees into pawns in a political process that has become a national disgrace. Colorado's vacancy of U.S. District Court is frozen since President Clinton named Patricia Coan at the recommendation of Rep. Diana DeGette and other state Democrats, but Sen. Wayne Allard of Colorado refused to back Coan and sent Clinton a list of his five nominees instead. Even uglier was last week's battle in the Senate Judiciary Committee, where Chairman Orrin Hatch, R-Utah, tried to push his nominee, Ted Stewart, through a Senate vote after leaving Democrats' nominees twisting in the wind for years. Would-be California appeals judges Richard Paez and Marsha Berzon have waited four and nearly two years, respectively, for a Senate vote. Ronnie White, the first African-American state Supreme Court Justice in Missouri, has been on hold for more than a year. But Hatch, who won Clinton's appointment of Stewart by freezing action on the others, then tried to slip his man through without a vote on those who have waited so long. Democrats retaliated by filibustering Stewart's nomination, and all progress had come to a complete halt as of this writing. While Hatch's conduct was unconscionable, there is plenty of blame to go around here. Clinton has taken an average of 315 days--the most of any president ever--to choose nominees to fill judgeships. By comparison, President Carter averaged 240 days. The Senate also is taking far longer than ever, from 38 days, in 19777-78 to 201 in 1997-98. Ideally, senators name a candidate, whom the president can accept or reject. If accepted, the nominee's name goes to the Senate Judiciary Committee and, if approved, then to the full Senate. The Senate should be able to vote within two months after the president's nomination. These days, it takes years. Even U.S. Supreme Court Chief Justice William Rehnquist has criticized the Senate for moving too slowly. Almost one in 10 positions weren't filled at the end of 1997. Today, 63 of the 843 federal judgeships are open--23 in appellate courts, 38 in district courts and one in international trade courts. `Vacancies cannot remain at such high levels of indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary,' Rehnquist said. `Fortunately for the judiciary, a dependable corps of senior judges has contributed significantly to easing the impact of unfilled judgeships.' That isn't fair to overworked senior judges or to those whose cases gather dust on backlogs. Both are common in Colorado. And it is an injustice to the nominees whose careers are frozen as they await appointment or rejection. The president and senators should make the selection of judges a high priority and stop staging delays as strategic moves. The federal judiciary is at stake. ____ [From the Washington Post, Thurs., September 23, 1999] A Vote for All the Judges The nomination of Ted Stewart to a federal district judgeship in Utah has been a strange affair from the beginning. Tuesday it turned into a circus. Mr. Stewart, a favorite of Judiciary Committee Chairman Orrin Hatch, was nominated by President Clinton after Sen. Hatch essentially froze consideration of the nominees to force his appointment. When the White House finally gave in, hoping to free some long-waiting appeals court judges, Mr. Hatch moved Mr. Stewart through committee within days--even though other nominees have waited years to get confirmed. Now Mr. Stewart is awaiting a floor vote, as are several nominees who should have had one long ago. Yet on the Senate floor last week, Majority Leader Trent Lott announced that he planned to move Mr. Stewart to a vote without also holding votes for Richard Paez or Marshal Berzon, two of the [[Page 23570]] most abused administration nominees. Mr. Stewart, if Mr. Lott had his way, would be confirmed a few weeks after his nomination, while nominees who have waited around endlessly will continue to wait. Democrats understandably balked at this, so on Tuesday they took the extraordinary step of filibustering a judicial nomination from the Clinton White House--not in order to prevent his confirmation but rather to ensure that other nominees get votes. Afterward, Democrats sought to force consideration of Judge Paez and Ms. Berzon, but Republicans stopped this in two more party-line votes. The result is that nobody is getting considered, though all of the nominees on the floor likely have the votes for confirmation. The filibuster of a judicial nomination is a very bad precedent, one we suspect Democrats will come to regret, but it's hard to see what choice they had. The conduct of the Republican majority here is simply baffling--and the rhetoric equally so. Mr. Hatch pleaded with the Senate Tuesday evening to ``stop playing politics with this nomination and allow a vote expeditiously''--as though he had not himself played games to get Mr. Stewart nominated in the first place. Trent Lott last week expressed dismay that a minority of only 41 senators would be able to block a nomination. But as Sen. Patrick Leahy pointed out in response, there is a deep irony in fretting about the ability of a minority of 41 senators to stop a nomination when Judge Paez has been held up for more than three years by a tiny group of senators who do not even have to give their names to keep his nomination from coming to a vote. Mr. Lott's other comments were worse still. He made it clear that confirming judges is something he would rather not do at all. ``There are not a lot of people saying: Give us more federal judges,'' the majority leader said on the floor last week. ``I am trying to help move this thing along, but getting more federal judges is not what I came here to do.'' The honesty of this comment, at least, is refreshing. But the Constitution does not make the Senate's role in the confirmation process optional, and the Senate ends up abdicating responsibility when the majority leader denies nominees a timely vote. All the nominees awaiting floor votes, Mr. Stewart included, should receive them immediately. Mr. LEAHY. Mr. President, again, I make this heartfelt plea. I have made the same plea in private to the Republican leader, the Democratic leader, and others. I love the Senate for what it can and should do. I know that, like everybody else my time here is only as long as the voters and my health allow. I also know that someday I will be gone and somebody else from Vermont will fill this seat. I look at the Senate as the conscience of this great Nation. It is a body moving by precedence, moving sometimes by what some would say is an overformalized ritual, but moving in a way that the country can respect and in which the best of the country can be reflected, a body that is built on precedence. A famous Thomas Jefferson story spoke of the Senate as the saucer that allows cooling of passions, the Senate also allows us to step above partisan politics because of our 6-year terms. We have not done that with the judiciary. We have a duty to protect the Senate, but also, because of our unique role in the confirmation process, we have a duty to protect the integrity and independence of the Federal judiciary. We are failing both in our duties as Senators and we are failing in our duty to the Federal court. Let us all take a deep breath and think about that and go back to doing what we should--not for this President or any past incident, but for all Presidents, present and future, and for all Senates, present and future, and for the American people, and for the greatest Nation on Earth, present and future. Mr. President, I yield the floor and suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. LOTT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. ____________________