[Senate Hearing 107-972]
[From the U.S. Government Publishing Office]
S. Hrg. 107-972
THE DISTRICT OF COLUMBIA CIRCUIT: THE
IMPORTANCE OF BALANCE ON THE NATION'S
SECOND HIGHEST COURT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 24, 2002
__________
Serial No. J-107-104
__________
Printed for the use of the Committee on the Judiciary
______
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WASHINGTON : 2003
88-076 PDF
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
------
Subcommittee on Administrative Oversight and the Courts
CHARLES E. SCHUMER, New York, Chairman
PATRICK J. LEAHY, Vermont JEFF SESSIONS, Alabama
EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
RICHARD J. DURBIN, Illinois ARLEN SPECTER, Pennsylvania
Benjamin Lawsky, Majority Chief Counsel
Ed Haden, Minority Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 87
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 4
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 27
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky,
prepared statement............................................. 100
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 1
prepared statement and attachments........................... 133
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 8
prepared statement and attachments........................... 141
WITNESSES
Clark, Bradford R., Professor of Law, George Washington
University Law School, Washington, D.C......................... 22
Fielding, Fred F., Wiley, Rein, and Fielding, Washington, D.C.... 16
Gottesman, Michael H., Professor of Law, Georgetown University
Law Center, Washington, D.C.................................... 25
Mikva, Abner J., Professor of Law, University of Chicago Law
School, Chicago, Illinois...................................... 13
Schroeder, Christopher H., Professor of Law and Public Policy
Studies, Duke University School of Law, Durham, North Carolina. 19
QUESTION AND ANSWER
Response of Mr. Fielding to a question submitted by Senator
Sessions....................................................... 41
SUBMISSIONS FOR THE RECORD
Buckley, James L., former U.S. Senator from the State of New York
and judge emeritus, U.S. Court of Appeals for the D.C. Circuit,
statement...................................................... 42
Cass, Ronald A., Dean, Boston University School of Law, and the
Melville Madison Bigelow Professor of Law at Boston University,
Boston, Massachusetts, statement............................... 45
Chicago Tribune, Jonathan Turley, February 10, 2002, commentary.. 55
Clark, Bradford R., Professor of Law, George Washington
University Law School, Washington, D.C., prepared statement.... 57
Fein, Bruce, Attorney at Law, Washington, D.C.................... 64
Fielding Fred F., Wiley, Rein, and Fielding, Washington, D.C.,
prepared statement............................................. 68
Gottesman, Michael H., Professor of Law, Georgetown University
Law Center, Washington, D.C., prepared statement............... 74
Hispanic National Bar Association, Angel Gomez, President,
Washington, D.C., statement.................................... 93
Mikva, Abner J., Professor of Law, University of Chicago Law
School, Chicago, Illinois, prepared statement.................. 103
National Environmental Organizations, Washington, D.C., joint
statement and attachment....................................... 110
Schroeder, Christopher H., Professor of Law and Public Policy
Studies, Duke University School of Law, Durham, North Carolina,
prepared statement............................................. 119
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York and Hon. Patrick J. Leahy, a U.S. Senator from the State
of Vermont, joint letter....................................... 139
Strauss, Hon. Paul, a U.S. Senator from the District of Columbia
(shadow), Washington, D.C., statement.......................... 180
Wall Street Journal, James L. Buckley, June 13, 2002, commentary. 185
Washington Post, Abner J. Mikva, January 25, 2002, editorial..... 187
THE DISTRICT OF COLUMBIA CIRCUIT: THE IMPORTANCE OF BALANCE ON THE
NATION'S SECOND HIGHEST COURT
----------
TUESDAY, SEPTEMBER 24, 2002
U.S. Senate,
Subcommittee on Administrative Oversight and the Courts,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee convened, pursuant to notice, at 10:13
a.m., in room SD-226, Dirksen Senate Office Building, Hon.
Charles E. Schumer, Chairman of the Subcommittee, presiding.
Present: Senators Schumer, Kennedy, Sessions, Hatch, and
Kyl.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Chairman Schumer. The hearing will come to order. We are
going to start. Jeff Sessions is on his way, but we have our
Ranking Member, who can ably defend the other side. I would
rather Jeff be here.
[Laughter.]
Chairman Schumer. Which is a compliment to Orrin and to
Jeff.
I first want to thank everyone for joining us today in this
important hearing on the unique role that the D.C. Circuit
plays in our system of justice and the need for ideological
balance on this vital court.
The D.C. Circuit is often called the Nation's second
highest court, and with good reason. More judges have been
nominated and confirmed to the Supreme Court from the D.C.
Circuit than any other court in the land. The D.C. Circuit is
where Presidents often look when they need someone to step in
and fill an important hole in the lineup.
It is sort of like the bullpen court, having given us
Supreme Court Justices like Scalia, Thomas, and Ruth Bader
Ginsburg, not to mention Robert Bork, Ken Starr, and my good
friend who is here today with us, the notorious Abner Mikva.
That was supposed to be funny, Orrin.
[Laughter.]
Chairman Schumer. He laughed. He was the only one.
Senator Hatch. I did laugh.
Chairman Schumer. I thought it was pretty good myself.
All other Federal appellate courts handle just those cases
arising from within its boundaries. So, for example, the Second
Circuit where I am from takes cases coming out of New York,
Connecticut, and Vermont. The Eleventh Circuit, where Senator
Sessions is from, gets cases out of Alabama, Georgia, and
Florida.
But the D.C. Circuit doesn't just take cases brought by the
residents of Washington, D.C. Congress has decided there is
value in vesting one court with the power to review certain
decisions of administrative agencies. We have given plaintiffs
the power to choose the D.C. Circuit, and in some cases we
force them to go to the D.C. Circuit, because we have decided,
for better or for worse, that when it comes to certain
administrative decisions one court should decide what the law
is for the whole country. It seems to me that makes sense.
So when it comes to regulations adopted under the Clean Air
Act by EPA, labor decisions made by the NLRB, rules propounded
by OSHA, gas prices regulated by the Federal Energy Regulatory
Commission, and many other administrative matters, the
decisions are usually made by judges on the D.C. Circuit.
To most, this seems like an alphabet soup court, since
virtually every case involves an agency with an unintelligible
acronym--EPA, NLRB, FCC, SEC, FTC, FERC, and so on and so on
and so on. It leads to another set of letters to many, a long
line of z's. Even my eyes glaze over and roll back in my head
when you read down the list. But the letters that comprise this
alphabet soup are what make our Government tick. This court is
vital to the functioning and interpretation of how the
Government works.
These are the agencies that write and enforce the rules
that determine how much ``reform'' there will be in campaign
finance reform. They determine how clean the water has to be
for it to be safe for our families to drink. They establish the
rights workers have when they are negotiating with corporate
powers.
The D.C. Circuit is important because its decisions
determine how these Federal agencies go about doing their jobs.
And in doing so, it directly impacts the daily lives of all
Americans more than any other court in the country, with the
exception of the Supreme Court.
But we probably wouldn't be talking about this court today
if it weren't for the political maelstrom brewing over a few of
the pending nominations to it. So before any of the reporters
here get too excited, I want to be clear that the witnesses
with us today are not going to discuss Miguel Estrada or John
Roberts. Those discussions are for another day.
That said, nominations to this special circuit merit
special scrutiny. Anyone who thinks we should just blindly
confirm any President's nominees to this all-important court
needs to think again.
The goal of this hearing is to underscore what is at stake
when considering nominees to the D.C. Circuit, how their
ideological predilections will impact the decisions coming out
of the court and why it is vital for Senators to consider how
nominees will impact the delicate balance on the court when
deciding how to vote.
Perhaps more than any other court, aside from the Supreme
Court, the D.C. Circuit votes break down on ideological lines
with amazing frequency. The divide happens in cases with
massive national impact, and if anyone thinks the court's
docket isn't chockful of cases with national ramifications,
they ought to listen to this. Here are some examples.
When it comes to civil rights, the court plays a huge role.
In Hopkins v. Price Waterhouse, the D.C. Circuit enforced the
Civil Rights Act guarantee of equal treatment in the workplace
by remedying blatant sex discrimination in a case where a woman
was denied partnership at Price Waterhouse based on her gender
alone.
When it comes to communications, the court plays an
enormous role. It has exclusive jurisdiction over appeals from
FCC decisions. That is a pretty big chunk of law with massive
impact on American consumers. Just a few years ago, the Circuit
upheld the constitutionality of the Telecommunications Act of
1996, guaranteeing more competition in the local and long-
distance marketplaces, which in turn guaranteed better and
cheaper phone service for most of us.
Even when it comes to defining our post-9/11 world, the
D.C. Circuit plays a big role in interpreting and defining our
anti-terrorism laws. For instance, in the ongoing case of Holy
Land Foundation v. Ashcroft, the Circuit will be called upon to
determine whether a charitable organization is really a
charitable organization or a terrorist front whose assets can
be frozen by the Federal Government.
When it comes to privacy, the court plays a big role.
Earlier this year, the court was called upon to assess the
FTC's power to protect consumer privacy when it comes to the
private, personal information credit reporting agencies make
public.
When it comes to consumers, the court plays a big role.
Yesterday's blockbuster decision on the front pages of most of
our national papers by the FERC that a major gas and oil
company deliberately manipulated gas prices in California will
undoubtedly end up before the D.C. Circuit.
When it comes to the environment, the court plays a big
role. When Congress passed the Clean Air Act in 1970, we gave
the EPA the authority to set clean air standards--the power to
determine how much smog and pollution is too much. In 1997,
having reviewed thousands of studies, the EPA toughened the
standards for smog and soot. The decision was to have two
primary effects.
First, it was going to improve air quality. But, second, it
was going to force some businesses to spend more and to pollute
less. Industry groups appealed the EPA's decision, and a
majority-Republican panel on the D.C. Circuit reversed the
EPA's ruling.
In doing so, the court relied on an arcane and long-dead
concept known as the non-delegation doctrine. I remember
studying this in law school 25 years ago, and they said even
then it was on the way out. But it was a striking moment of
judicial activism that was pro-business, anti-environment, and
highly ideological.
While that decision ultimately was reversed unanimously by
the Supreme Court, most other significant decisions of the D.C.
Circuit have been allowed to stand without review. That is
because the Supreme Court takes fewer and fewer cases each
year, and, taking an increasingly ideological bent itself, many
feel we can't rely on the Supreme Court to right the D.C.
Circuit's wrongs.
Throughout the 1990's, conservative judges had a
stranglehold majority on this court. In case after case, during
the recent Republican domination of the Circuit, the D.C.
Circuit has second-guessed the judgment of Federal agencies,
striking down fuel economy standards, wetlands protection, and
pro-worker rulings by the NLRB.
Now, for the first time in a long time, because of the
resignation of two Republican judges, there is balance on the
Circuit--four Republican judges and four Democratic judges.
Some of us would like to keep balance on this all-important
court, not giving either side an ideological edge.
I am not going to talk about how President Clinton's
nominees were held up, Orrin.
Given the recent revelations of corporate irresponsibility,
avarice, and greed, now more than ever we need to ensure that
we will have balanced courts to ensure the law is enforced
equally against all offenders. While politics isn't always the
best predictor of how judges will vote, some recent studies of
the D.C. Circuit pretty conclusively prove that ideology plays
a big role in how the judges vote--huge differences when it is
a Republican group and a Democratic group deciding the
decision. Of course, that comes up by the way the wheel works.
One final note before I turn this over to Orrin. As always,
I am grateful to Jeff Sessions as Ranking Member on this
subcommittee. It is pleasure serving with him and his staff,
especially Ed Haden, who once again have worked with us in a
collegial and professional way to set up this hearing. We
occasionally have our disagreements. If Jeff were here, he
would probably say more than occasionally, but it is always a
pleasure to work with him.
[The prepared statement of Senator Schumer appears as a
submission for the record.]
Chairman Schumer. Now, let me turn this over to somebody
who is admired by every member of this Committee. Sometimes we
agree and sometimes we disagree, but he is always both a good
friend and a worthy adversary, our Ranking Member, Orrin Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. I feel
exactly the same way about you. I think you have brought a
great dimension to this Committee, although you are wrong on
some of these issues, and I am going to point that out in no
uncertain terms.
Chairman Schumer. I have little doubt.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. We also welcome all of our witnesses here
today. We appreciate you taking your valuable time and helping
us here on this Committee.
Since the Democrats took over the Senate and the Judiciary
Committee last June, my colleague and good friend from New York
has been arguing that we on the Committee should be up front
about our role in the advice and consent process, that we
should not engage in the slight-of-hand of talking about one
issue while voting on another. I agree with him to the extent
that we should speak and act forthrightly and we should not
stoop down to the politics of personal destruction in order to
justify a vote that is based on something else.
Unfortunately, I think that is where our agreement ends.
Several weeks ago on the floor, I had my friend from New York
as a captive audience because he was serving as the presiding
officer, and he was very uncomfortable as I was speaking. I
explained my view that being honest and open neither requires
nor excuses the overt injection of raw politics into the advice
and consent process.
I explained then my opinion, based on 26 years of
experience, that the only way to make sense of this process is
to begin with the assumption that the President's
constitutional power to nominate should be given a fair amount
of deference, and that we should defeat nominees only where
problems are truly significant.
I believe that to the extent ideology is a question in
judicial confirmations, it is a question answered by the
American people and the Constitution when the President is
constitutionally elected. The Senate's task of advice and
consent is to advise and to query on the judicious character of
nominees, not to challenge by our naked power the people's will
in electing who will nominate.
The premise of this hearing reminds me of a nickname that
some clever college freshman gave to one of his required first-
year courses: Introduction to the Obvious. If the point of this
hearing is to show that the D.C. Circuit currently includes
four judges appointed by Republicans, then we hardly need to
convene a Senate subcommittee to figure that out.
If the further point is made that adding one Republican
appointee will result in five Republican appointees and four
Democrat appointees, then I still can't imagine the hearing
being disrupted by reporters running from the room yelling
``stop the presses.''
But I know that we are not here to explore the obvious with
a sense of discovery. So I suppose the real question is, what
should we do about this? How should the Senate act when faced
with courts that have either a balance or an imbalance between
the number of Republican and Democrat appointees?
Should we refuse to confirm any new judges to those courts
unless they belong to the right political party? Should we wait
until one of the judges steps down and then wait even longer
for there to be a President who happens to belong to the same
political party as the President who appointed that judge?
Well, these options seem to me to be perfectly ludicrous.
The only possible answer is to accept the reality that
Presidents have the power to appoint judges and that the
balance in the judiciary will change over time as Presidents
change, but much more slowly.
The variables of Presidential elections, judicial
retirements, circuit size, and many other factors will mean
that perfect balance will be achieved rarely, if ever. That is
simply how the system works, and has worked since the Judiciary
Act of 1789.
Our role of advice and consent is meaningful and we must
take it seriously, but it was never intended as a power to
second-guess the President or simply to substitute our judgment
for his, and in so doing usurping the will of the American
people.
Mr. Chairman, you know better than anyone that I am sincere
about this and that my track record proves it. Your report
issued last Friday to the press shows that I voted against only
one nominee in the last 10 years. As a matter of fact, you
could go back a lot farther than that because that is the only
one for at least the last 22 years.
And to clarify, I did so not on the basis of politics or
ideology, but rather out of respect for the traditional role of
home State Senators in the selection of district court
nominees. When both home State Senators of that nominee
informed me that they were voting no, I felt I had no choice
but to respect their judgment. And for what it is worth, I
think that vote was quite an unfortunate episode, but I
nevertheless acted in accordance with Senate practice.
In keeping with the spirit of openness and honesty, I must
say this: Although I know how this hearing is being billed, I
am left to wonder why we are not having a hearing about the
dismal Ninth Circuit, or about the procedural scandals that are
plaguing the current Sixth Circuit. Why, I ask myself, are we
having a hearing about the D.C. Circuit just 2 days before the
nomination of Miguel Estrada? Coincidence? Surely not.
When I was chairman, I ended the practice of having
witnesses lined up to eviscerate good nominees. It was clear
that the times had changed and that the base art native to the
Potomac of destroying reputations had been too well perfected.
I am glad that Chairman Leahy has concurred in this practice
and I respect him for it.
I am disappointed that we are having this hearing because,
to be frank, it strikes me that we are regressing, that this
subcommittee is just a thinly veiled attempt to lay the
foundation to oppose one of the most intelligent, accomplished,
and respected lawyers ever named to the D.C. Circuit Court. It
seems to me that it would have been more forthright to name
this hearing what it is, the Contra Estrada hearing.
Now, let me express my very real concern for the buildup
that I see happening to attempt to harm the nomination of this
brilliant young man, who came to this country at age 17 from
another country, knowing little English, and who has made his
parents very proud and all of us who know him very proud.
In one sense, I agree that there should be concern for
balance on the D.C. Circuit. As chairman and founder 12 years
ago of the non-partisan Republican Hispanic Task Force, which,
despite the name, is made up of both Republican and Democratic
members, I have long been concerned for the inclusion of
Hispanics in the Federal Government.
Without trumpeting the over-used word ``diversity,'' I have
made it my business to support the nomination of talented
Hispanics for my entire career in the Senate. I am sorry that
not even the desire for diversity will trump the reckless
pursuit of ideology in judicial confirmations.
I have a special affinity for Hispanics and for the
potential of the Latin culture in influencing the future of
this country. Polls show that Latinos are the hardest-working
Americans, that they have strong family values and a real
attachment to their faith traditions. In short, they have
reinvigorated the American dream and I expect that they will
bring new understandings of our nationhood that some of us
might not see with tired eyes.
I also know that Hispanics come in many colors and that
they have left behind countries filled with idealogues that
would chain them to particular political parties. I know that
they share a common-sense appreciation of each other's
achievements in this country without any regard whatsoever to
ideology, over which some Americans have the luxury of
obsessing.
I am concerned with balance on the Circuit Court of Appeals
for the District of Columbia, but of a real sort, not the kind
to be discussed here today. Like President Bush, I think it is
high time that a talented lawyer of Hispanic descent is
represented on the second most prestigious court in the land.
The D.C. Circuit hears Federal cases no other court hears, as
the distinguished chairman has told us, and has a special role
in the enforcement of the Voting Rights Act of 1965. Yes, I
think it is time that a Hispanic sit on that court.
I also think it is time that we unmask the way that Miguel
Estrada's nomination is being treated and the lengths that his
detractors are going to place hurdles in his path. And I do not
include the distinguished Senator from New York in that
category. I respect him. We are dear friends, but Miguel
Estrada has not been treated very fairly.
For months, I have been sounding the alarm of the influence
of the special interest groups on this Committee. I have been
increasingly ashamed of the axis of profits that demands that
judicial nominees be voted down for a palimpsest of reasons.
While the game plan is unvaried, the quarterbacks change, and
now it is the liberal Hispanic groups that are on the field.
They ought to be ashamed of themselves. They have sold out the
aspirations of their people just to sit around schmoozing with
the Washington, D.C., power elite.
I have repeatedly warned against what is going on behind
the scenes, but I have done it so often that perhaps it is time
to try it with a new word. Here is the Spanish word: the word
is ``confabular.'' Now, it means when one or more persons come
together secretly to invent falsehoods about another. I am
afraid that that is what we will see this week against Miguel
Estrada. And I am sorry, Mr. Chairman, that this hearing may be
viewed as part of that effort.
Again, the distinguished chairman of this subcommittee is
very sincere in his belief that ideology is important. I don't
quite agree with him on that, but at least I respect his
sincerity. But what is even more important is that we have
respect for the President's nominees, and unless we have very
good reasons we should confirm those nominees.
Miguel Estrada has now sat here for 16 months, almost a
year-and-a-half. Fortunately, he is going to have his hearing
this Thursday. Will we get him through before the end of this
session, and the others who also have had hearings? I think
common sense, decency, honor, and integrity mean we should do
that.
Now, I want to welcome today members of the Hispanic
community who are wearing badges saying ``Confirm Miguel.'' I
could not agree more. We are very happy to welcome all of you.
We are very happy to have you here and we hope that this
Committee will listen to you.
Thank you, Mr. Chairman.
Chairman Schumer. Thank you, Senator Hatch.
Now, let me call on Senator Sessions for an opening
statement. As I mentioned, he has been a very, very strong and
fair Ranking Member of this subcommittee. We don't agree on
certain things, but we try to work with one another as best we
can.
I thank you, Jeff.
Senator Sessions. Thank you, Mr. Chairman.
Senator Hatch. Could I just interrupt for a second? I am on
the Intelligence Committee, so I am going to have to leave, but
I am going to leave it in your trusty two hands.
Chairman Schumer. Well, thank you. I was going to mention
one thing to my good friend, Orrin, if I might, if Jeff doesn't
mind, and that is again it bolsters my view that ideology does
matter when Judge Paez was nominated, also Hispanic, of a
different ideological view than Judge Estrada, he waited 4
years before his confirmation.
I don't accuse anybody of doing that because he was
Hispanic. I accuse people of doing it--or not accuse, I just
think it is because people thought the Ninth Circuit was out of
balance and Judge Paez would have increased that lack of
balance. In fact, we heard some members say that.
Senator Hatch. If the Senator would yield on that, I was
intimately familiar with all of that and that wasn't the reason
he was held up. But I have to say that I think the Senator
realizes that I am the reason that he sits on the Ninth Circuit
today, because I overruled a whole raft of people to be able to
put Judge Paez on that court, and I am hopeful that he will do
a good job.
Chairman Schumer. Let me say this to my good friend, the
former chairman and now Ranking Member. I think if he were
solely in charge of all of this, there would be less rancor,
more fairness, and things would work out better for everybody
concerned. I truly believe that.
Senator Hatch. We are going to work on that, and hopefully
we can fulfill your prophecy here.
[Laughter.]
Chairman Schumer. When I say in charge, I was not of
majority members; I was talking of higher up than that.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. Thank you,
Senator Hatch. You have indeed given your best efforts for
quite a number of years to improve our courts, and your
leadership as chairman of the Committee was extraordinary. I
appreciate your remarks. I think I will say something about
Judge Paez, whom I felt was not a good nominee, and Senator
Hatch disagreed. It was an interesting debate and he was
confirmed.
Mr. Chairman, first let me say I appreciate you. You know,
we don't agree on this ideology question. You have said, and I
think it is true, that ``gotcha'' politics, hearings, and
trying to catch somebody with some misstep in a career of law
practice, is not a healthy way to do it. We ought to put the
matter out on the table and discuss it openly if we have got a
problem with a judge.
But, I think we need to have discipline in this approach
and not suggest that a person's politics or their political
beliefs qualify or disqualify them for the bench, whether it is
pro-life or pro-choice, or whether it is for an expanded
Government role or not an expanded Government role in the life
of America. When a judge sits on that bench and makes a ruling,
it shouldn't make a difference whether they are Republican or
Democrat, conservative or liberal, in my view. So this is an
important matter.
I think this hearing is important for three reasons. First,
it is the fourth hearing that we have had which I would
interpret as an attempt to justify the use of a person's
politics rather than their view of the proper judicial role as
a legitimate reason to vote against a nominee.
Second, this hearing should shed some light on the historic
slowdown in the circuit court confirmations that have occurred
during the first 2 years of President Bush's term, as Senator
Hatch mentioned.
Third, this hearing serves as an introduction to the
nomination hearing for Miguel Estrada, who, if confirmed this
year, would be the first Hispanic judge to sit on the D.C.
Circuit.
As an additional matter, I would like to state again for
the record that I agree with Democrats Lloyd Cutler and former
Chief Judge of the D.C. Circuit Harry Edwards, and with
Republicans Boyden Gray and retired Judge James Buckley of the
D.C. Circuit, that a nominee's political ideology should not
play a role in a judicial confirmation and should not play a
role in judging by that judge.
Instead, I believe that nominees of Democratic Presidents,
who will generally be Democrats, and nominees of Republican
Presidents, who will generally be Republicans, should be
treated the same in the hearing process. They should be
confirmed if they have integrity, if they are qualified, and if
they have a judicial temperament and appreciate that the role
of a judge is to make fair findings of fact--I have seen judges
who like to doctor the facts--and reasonable interpretations of
valid sources of law, and not step outside these sources to
advance a personal political agenda. That is when we have
crossed the boundary.
If a nominee's record indicates a problem in an area like
this, I may oppose them, Republican or Democrat, or else I will
support them. Thus, on this score I disagree with my friend
from New York's statement over the past one and-one-half years
on the question of ideology, as we have discussed.
At our first hearing in June of last year of this
subcommittee, we heard that the Senate had to reject nominees
based on their politics because the Supreme Court was, they
alleged, a right-wing court, an activist court. When we
examined the current Court's decisions, however, we found that
it had protected burning the American flag; had banned
voluntary school prayer at football games; had stopped the
police from using heat sensors to search for marijuana-growing
equipment, which, as a prosecutor, I think was a bit of an
alteration of current law in favor of civil liberties; had
reaffirmed and expanded abortion rights; and had struck down a
ban on virtual child pornography. These decisions don't
indicate to me that the Supreme Court is in the grip of some
sort of right-wing group.
At the September 4th hearing, we were told that because a
nominee's politics mattered, the Senate now, for the first
time, should shift the burden to these Republican nominees to
prove their worthiness of confirmation beyond the paper record.
When we examined recent history, though, we found that, as
Senator Hatch has consistently said, for Democratic nominees
the burden was on the Senate to reject them. And when we
examined more distant history, we found that during the first
130 years of our country's history, the Senate did not ask
nominees any questions at hearings, probing or otherwise.
Nominees did not appear regularly before the Judiciary
Committee until John Marshall Harlan, II, in 1955. It would be
difficult indeed for a nominee to bear some historical burden
if they were not even coming to the hearing to submit to
examination.
In the May 9th hearing, we heard about how bad the
Republicans were for confirming circuit court nominees. Upon
close examination, it was discovered that two of the four
proffered examples of unfairly treated nominees lacked support
from their home State Senators.
One was nominated approximately 4 months before the
Presidential election, and the final judicial nominee had never
tried a case in a courtroom, which isn't absolutely
disqualifying, but in my view it takes some compensating
factors of significance to overcome that lack.
Indeed, my colleagues across the aisle deemed the home
State Senator support rule so important that now they have
sought to guarantee the rule as part of our original
negotiations to set how we were going to handle nominations.
So I shouldn't expect my Democratic colleagues to complain
that when a home State Senator objected to a few nominees and
they did not go forward, because they are, in fact, if
anything, asking that the rule be strengthened now when they
deal with President Bush's nominees.
Within the last few days, we have been treated to a press
release with an accompanying chart purporting to offer new
proof that the political ideology of nominees is routinely
taken into account by the Senate. The chart, however, contains
several errors.
First, the chart purports to count only the ``no'' votes of
current members of the Senate Judiciary Committee, both
Republicans and Democrats, who served on the Committee for at
least 2 years of the Clinton administration. This is the chart,
I believe, we have been presented with.
Chairman Schumer. You changed the color.
Senator Sessions. It is a pretty color there.
The chart excludes, however, the ``no'' votes of current
Committee members Edwards and Cantwell, who did not serve on
the Committee during the Clinton years. The chart includes,
however, the ``no'' votes of current Committee members
Brownback and McConnell, but Senators Brownback and McConnell
did not serve on the Judiciary Committee while President
Clinton was in office during the 105th and 106th Congresses.
Thus, by its terms, the chart erroneously includes 25 ``no''
votes that should have been excluded.
Second, the chart displays an artificial disparity in the
Republican ``no'' votes and Democratic ``no'' votes by showing
four full years of Republican votes involving President
Clinton's nominees, but only one-and-one-half years of
Democratic votes against President Bush's nominees; thus, the
visual misperception that Republicans vote against Democratic
nominees more often than vice versa.
I think, Mr. Chairman, you need to get your math right on
this chart.
By looking at the percentages of ``no'' votes over the
number of total votes of Committee members for nominees on the
floor, a rough approximation on a percentage basis removes the
mismatch of time periods.
I won't go into more of the mathematical argument on that,
but I really think that chart is a bit off. This is where we
think the numbers are, and it does appear that the Democrats
have concerted their ``no'' votes on single nominees to defeat
them on party-line votes, which was not done during the 8 years
of President Clinton's presidency. Not one single nominee, to
my knowledge, was killed in Committee, unless they perhaps had
background problems or----
Chairman Schumer. That is because the ones you didn't like
never got votes.
Senator Sessions. Well, Mr. Chairman, most of those that
did not have votes either had a serious ethical problem,
virtually all of them, or they had objections from home State
Senators, a position you don't intend to give up on, I
understand, but want to strengthen the power of a home State
Senator to keep the Committee from voting.
I would ask you, you don't propose, do you, that if Senator
Feinstein objects to a nominee that that nominee have a
hearing?
Chairman Schumer. Let me just say no, of course not. But of
the first ten who were ``well qualified'' by the bar
association who were not given hearings, five of those, there
were no objections from their home State Senators. And of
relevance here, two of those were from the D.C. Circuit. There
was a particular effort not to bring forward members of the
D.C. Circuit who were nominated, including, I believe it was,
Snyder and Kagen. And then the third who was confirmed had to
wait a long time, Garland.
Senator Sessions. Well, I will tell you why we had a
problem with those two judges for the circuit, and it accounts
for the ``no'' votes. It is because the circuit had as a
caseload about one-fourth the average caseload per judge. And
the chief judge of the circuit said 10 judges is enough,
instead of the 12. And actually I thought that was too many. I
thought ten was too many.
The D.C. Circuit has the lowest caseload by far in the
country per judge, and as a result of that I think it does not
need as many judges. Now, we are below ten, so I think it is
appropriate to move the court to ten. But I will oppose going
above ten unless the caseload is up. In fact, it continues to
drop. It dropped 15 percent the year before last. So that is
why we had a problem with those nominees, Mr. Chairman.
Chairman Schumer. Would it be logical to make it even lower
right now, if it is even a lower caseload than it was when you
said it shouldn't get more than ten?
Senator Sessions. Well, when President Clinton was in
office and I studied the issue, as this Committee did, because
we studied caseloads throughout the country, I agreed that ten
would be an appropriate number, Mr. Chairman, and I think we
ought to be consistent with that. I don't think we should go
above 10, although the court is authorized 12.
Well, it is an interesting debate we are having.
Chairman Schumer. We have a good time debating it.
Senator Sessions. You are such a skilled advocate and a
knowledgeable and fine lawyer and a fine, fine Senator. It is a
pleasure to be with you.
The court process is something I have been involved with
for a number of years since I have been in the Senate, almost 6
years, and had a prior involvement of unpleasantness with that
process a number of years ago.
Chairman Schumer. Let the record show I was not on the
Committee at that point in time. I maybe would have voted
differently.
Senator Sessions. Well, I would hope so.
At any rate, we have a great country. Mr. Chairman, maybe
it is good that we bring all this out and continue these kinds
of hearings and debate. I just want to say to you it is nothing
personal, but I really, as you know, am troubled by the thought
of a political litmus test on judges, and so it is a very
important issue to me. So let's have a great debate about it.
Chairman Schumer. Well, I want to sincerely thank my
colleague, Jeff Sessions. We are from different parts of the
country, and not only different parties, but clearly different
ideologies, but he is always a gentleman. And we have come to
agreement, I think, that these kinds of debates are very
healthy, a lot better, as he mentioned earlier, as did Orrin,
than the ``gotcha'' politics which just demeaned everything--
the nominees, the Committee, the courts, the country.
I hope we can continue these debates in the spirit in which
we have had them, which is sincere disagreements on these
roles. Maybe this is overstating it, but if the Founding
Fathers and those who thought about the judiciary--and we will
probably even debate what they thought; we have before--looked
down on this room, they would say this is what they wanted the
Congress to do. So I appreciate that.
We have 6 minutes for the vote. We have great witnesses
here, but I think rather than just starting and rushing our
first witness, we will go vote and come right back, if that is
OK with our witnesses here. I hope you have enjoyed a little
bit of our interchange, as well, because we are going to enjoy
yours. Thank you.
The hearing is recessed for--just one vote, so we are only
going to recess for 10 minutes. Thanks.
[The subcommittee stood in recess from 10:51 a.m. to 11:14
a.m.]
Chairman Schumer. The hearing will resume and we will go
right to our witnesses.
Let me introduce our first witness, and I think I will
introduce the witness, let each witness speak, and then
introduce the next. We don't have to do it seriatim.
Abner Mikva has had one of the most interesting careers in
public service that anyone has had in modern American history.
He has had a stellar career in all three branches of
Government, having served as a United States Representatives in
1970's, Chief Judge of the D.C. Circuit Court of Appeals in the
1980's, and White House Counsel in the 1990's. He is currently
a visiting professor at his alma mater, the University of
Chicago Law School.
There are few more knowledgeable, erudite, and articulate
witnesses who appear before this Committee. He obviously has
more than a passing familiarity with our subject today.
Judge Congressman, Counsel Mikva, thank you for being here
today. Your entire statement will be read into the record and
you may proceed as you wish.
STATEMENT OF ABNER MIKVA, PROFESSOR OF LAW, UNIVERSITY OF
CHICAGO LAW SCHOOL, CHICAGO, ILLINOIS
Mr. Mikva. Thank you very much, Mr. Chairman. I very much
appreciate the invitation to appear before this subcommittee to
talk about the Court of Appeals for the District of Columbia
and the special need for ideological balance on that court.
I spent 15 years as a judge on that court, including almost
4 years as its Chief Judge. When I was practicing law, I did
administrative law and I had considerable dealings with that
court. When I was a member of the House Judiciary Committee, I
helped to fashion some of the laws that account for some of the
uniqueness of the D.C. Circuit. As White House Counsel, I
helped in the nominating process of judges to that court, and
teaching the legislative process and the law of the executive
branch to law students, I spend a lot of time talking about the
D.C. Circuit and its jurisdiction and its precedents. So I have
looked at that court from just about every angle and it is very
special, and the need for an ideological balance on that court
is very special.
I guess every judge on every court would argue that his
court is special, and they are, but the D.C. Circuit has some
very special characteristics. The chairman has already
referenced some of them and I will try not to repeat it, but it
is rightly known as the ``government court,'' not just because
of that 10-square-mile geographical area that is its physical
jurisdiction, but almost every Congress passes laws that
produces cases for this circuit, sometimes, as you mentioned,
in the case of the FCC, exclusive jurisdiction in this circuit.
Perhaps one of the most important areas where this circuit
has a special role is where the two branches end up fighting
with each other. The Nixon tape cases and other challenges to
executive privilege come to mind. The D.C. Circuit is an
important battle ground for those kinds of cases.
With all deference, I think one of the problems with
measuring caseload for that circuit is that sometimes those
cases are so huge--Federal Energy Regulatory cases or executive
privilege cases--that they occupy an enormous amount of time
and energy and resources. And to compare a caseload for the
D.C. Circuit to a caseload for a circuit like my home circuit,
the Seventh Circuit, which has a lot of diversity cases,
fender-benders and others, is comparing apples and oranges. I
have no particular views as to how many judges there ought to
be on the court, but I am simply saying that caseload is not a
very good measuring stick.
Now, obviously, the D.C. Circuit doesn't have any more
finality than any of the other intermediate courts, the
inferior courts that the Constitution describes should be
established by the Congress. But frequently that circuit ends
up teeing up the important questions for the Supreme Court that
it finally determines.
Not surprisingly, because so many of these questions are on
the cutting edge of the law, the Supreme Court sometimes
decides the question differently than the D.C. Circuit. I don't
think our record matches that of the Ninth Circuit, but we have
been reversed on numerous occasions. Our clerks used to sport
t-shirts which said on the front ``D.C. Court of Appeals,''
with the year of their service, and then on the back it would
say ``Reversed, U.S. Supreme Court'' the following year.
Anyway, those are some of the reasons, and the chairman has
referred to others, why the court is a unique one, and why it
is especially important that the judges on that court avoid
carrying a political agenda to the court. I claim a special
qualification to speak to that subject, and I am sorry that
Senator Hatch had to leave. He was the one member of the
subcommittee that was here when I had my difficulties with
confirmation when I went on that court.
There were some who said that because I had been a
political activist as a Congressman, I would carry my
unfinished causes to the court. The National Rifle Association
was particularly active in the opposition, insisting that would
try to effect gun control from the bench, even though I had
failed in the Congress.
In fact, they acknowledged that they spent over $1 million,
which was a lot of money in those days, to defeat my
nomination. When my wife heard about that, she said, you know,
if they were going to talk that kind of money, they could have
talked settlement.
Well, it turned out that during the 15 years I was on the
court, I had one case involving the National Rifle Association
and gun control, and I ruled in favor of the NRA, to their
surprise. But I had my share of critics who insisted that I was
an activist judge. And all I can tell you is that I was
conscious of that concern and tried to remember that I was
neither elected nor anointed, or even final, and that my role
was to apply the laws that Congress passed and Supreme Court
precedents without regard to my personal views, whether it was
on the death penalty or interpretations of the Fourth Amendment
or criminal law.
Now, I don't suggest that the Senate only confirm judges
that have never had any views on any important subjects of the
day. Such a requirement for a tabula rasa, as Chief Justice
Rehnquist once referred to it, would probably make for good
little league umpires, but they hardly would bring the
experience that is necessary to be a good judge.
But there is a difference between people who have views on
a subject and those who have become zealots. I remember a
political analyst once described one of the nominees who failed
Senate confirmation some years ago as someone who felt he had a
mission to educate the Senate to his point of view.
Well, I think that nominees who have missions to educate
the political branches or the public or their colleagues should
stay on the lecture circuit or should run for public office,
because such missionaries don't represent the balance the
discipline necessary to be a good judge on any court, and
especially the D.C. Court of Appeals.
Balance and discipline will reflect how well the court
shapes up and tees up those sharp questions for the Supreme
Court to decide. If the D.C. Circuit is anticipating the role
of the Supremes, as it has on occasion, or rejecting the
answers that it gets to those hard questions, as it does on
occasion, then there is an overload.
That is particularly true when the court is being asked to
resolve some of the conflicts that arise between the two
political branches in executive privilege cases. That is
particularly true when one of the divisive questions
confronting the courts and the Congress is the extent of
congressional power under the Commerce Clause or under the
Tenth and 11th Amendments to the Constitution.
It is not for the intermediate courts, and especially not
for the government court, to either ignore or extend the
balance that the Supreme Court is striking on those hot issues.
That is a drama that has to be played out between the main
actors, the Congress and the Supreme Court, and it does not
call for any understudies to take center stage.
Some academics recently wrote a letter to this Committee
extolling the virtues of a nominee who is a law professor, and
I would like to quote just briefly from that letter. They said
that that particular nominee, quote, ``exhibits respect,
gentleness, concern, rigor, integrity, a willingness to listen
and to consider, and an abiding commitment to fairness and the
rule of law,'' end of quote.
Now, obviously those are good attributes for any judge, but
they are especially needed for the D.C. Circuit. The barn-
burners, the crusaders, the zealots are counterproductive to
the task of maintaining that delicate balance that the chairman
referred to.
Some believe that the best way to achieve that balance is
to advocate bipartisan appointments. I confess when I was White
House Counsel I did unsuccessfully urge the appointment of
several Republican nominees, including one to the D.C. Court of
Appeals. I didn't get past first base; it didn't pass the
Presidential test.
It is not an easy advocacy at any time. Presidents as
recently as Truman and Eisenhower did appoint persons of the
opposite political party to the Supreme Court, but it is not a
common occurrence to an appellate court, and it is not even
common to the Supreme Court anymore. And as you elected
officials know better than anybody, the words ``liberal'' and
``conservative'' vary from issue to issue and are in the eye of
the beholder.
I think that the better way to find a balance on any court
is to seek moderation within each judge. The words used to be--
and I think Senator Sessions used them--``judicial
temperament.'' They mean that the judge could hear with both
ears, had not decided the case before hearing the evidence,
could remain reasonable even when the juices were flowing all
around. I hope those are the kinds of judges that the President
nominates and the Senate confirms for the D.C. Circuit.
Thank you.
[The prepared statement of Mr. Mikva appears as a
submission for the record.]
Chairman Schumer. Thank you. We very much appreciate your
testimony.
Now, we will go to another distinguished member who has
served in Government with great distinction, and that is Fred
Fielding. Fred Fielding is a senior partner and the head of
governmental affairs, business, finance, litigation and crisis
management, and white collar crime practice--that is a lot to
do--at the law firm Wiley, Rein, and Fielding.
Mr. Fielding was counsel to President Reagan from 1981 to
1986, after first serving as an associate and deputy counsel
for 4 years. He was also clearance counsel in the Bush-Cheney
Presidential transition. Mr. Fielding served for 6 years on the
ABA Standing Committee on Federal Judiciary, so he knows a
little bit about nominating judicial nominees. He also serves
on C. Boyden Gray's Committee for Justice, a group that is
working to get all of the administration's judicial nominees
confirmed.
Thank you very much for being here, Mr. Fielding. As with
the other witnesses, your entire statement will be read into
the record and you may proceed as you wish.
STATEMENT OF FRED F. FIELDING, WILEY, REIN, AND FIELDING,
WASHINGTON, D.C.
Mr. Fielding. Thank you, Mr. Chairman and members of the
subcommittee. I am very grateful to have the opportunity to
appear before the subcommittee. I sought the opportunity
because the announced subject of this hearing, which is the
D.C. Circuit and the importance of balance on the Nation's
second highest court, implies a conclusion that I find
inconsistent with my own experience and the strong feelings in
regard to the nomination and confirmation process for the
Federal judiciary in this circuit, in particular, and the
Federal judiciary in general.
Mr. Chairman, I have been a practicing attorney for over 38
years now, and I have been admitted to practice and I am a
member of this circuit for some 30 years and a member of the
Judicial Conference of this circuit for over 25 years. In
addition to that, as you have mentioned, I have some
familiarity with the Federal judicial selection process, for
the first five-and-a-half years of Ronald Reagan's presidency.
Also, in that regard, I chaired that Administration's judicial
selection panel within the Administration.
Second, as you mentioned, I did get a different perspective
on the process, serving as the D.C. Circuit's representative on
the ABA Standing Committee on the Federal Judiciary for 6
years. My service covered four-and-a-half years of the Clinton
administration and a year-and-a-half of the present Bush
administration.
Last, I served on the Miller Commission, of which I am sure
the Committee is aware. That commission was co-chaired by
former Attorney General Katzenbach, former Deputy Attorney
General Howard Tyler, and its members included Howard Baker,
Birch Bayh, Lovida Coleman, Lloyd Cutler, Judge Higginbotham,
Judge Lacey, Judge Kimba Wood, and Professor Dan Meador. The
study, reported in 1996, dealt with the issue this subcommittee
is dealing with today and I will make reference to that later,
if I may.
I give you this foregoing litany of experience, in addition
to being a member of the bar of the circuit, only to emphasize
the single point which I wish to make to the Committee today,
and that is from each perspective which I was able to view the
process, I strongly feel that probing a candidate's political
ideology has no constructive place in the process. In my
experience, it has not been a part of an administration
selection process or the review process of the ABA.
For the Senate to now seek to use a test of political
ideology in evaluating the merits of a nominee to the D.C.
Circuit in order to effect this elusive standard of balance
would be a step beyond any role played by any other party in
the process. It would be a step that, in fact, is avoided by
every other participant in the selection process because of the
very serious implications and consequences that ideological
screening would have on the independence of the Federal
judiciary.
I would argue that the independence of our judiciary is
what sets it apart from the political branches in the eyes of
our citizens. Citizens need to know that the laws that are
passed and enforced by the political branches will be
adjudicated by an independent body of jurists.
Now, that is not to say for one moment that no inquiries
should be made of the views of any nominee either by the
President, the White House, the Judiciary Committee, or
individual Senators. But such an inquiry should be directed to
an evaluation of the nominee's integrity, abilities, and
temperament, which are also the standards for the ABA analysis,
and also his or her judicial philosophy.
Nor should anyone assume that a judicial candidate comes to
the bench without some personal philosophical beliefs about
certain issues. Former Chief Judge Irving Kaufman of the Second
Circuit addressed this point in a letter in 1981 which we all
had to study and read very carefully, which was entitled ``An
Open Letter to President Reagan on Judge-Picking.''
If I can quote from him, he said, ``I am not cautioning you
against recommending candidates with a demonstrated commitment
to issues of public importance or individuals who have taken
sides in national debates on pressing issues. Participation in
those debates does not augur bias, but rather a dedication to
the commonweal that should be encouraged in all public
officials, judges included.'' That is the end of the quote.
In addition to satisfying oneself that a nominee possesses
the legal skills, temperament and integrity to face each case
with an open mind, it is certainly legitimate to also inquire
as to the individual's views of the role of the Federal
judiciary, his or her conception of the judiciary's role in the
separation of powers, if you will. But that inquiry is far
different from seeking to determine if such a candidate brings
a certain political ideology to the bench on a particular issue
or issues, for the purpose of effecting a balance on that
court, or for that matter an over-balance on any court.
I earlier mentioned the Miller Center report, and I would
adopt as my own testimony the comments that are contained in
that report on the role of ideology in the judicial selection
process. If I may share them with you, ``The Commission
believes that it would be a tragic development if ideology
became an increasingly important consideration in the future.
To make ideology an issue in the confirmation process is to
suggest that the legal process is and should be a political
one. That is not only wrong as a matter of political science;
it also serves to weaken public confidence in the courts. Just
as candidates should put aside their partisan political views
when appointed to the bench, so too should they put aside
ideology. To retain either is to betray dedication to the
process of impartial judging. Men and women qualified by
training and experience to be judges generally do not wish to
and do not indulge in partisan or ideological approaches to
their work. The rare exception should not be taken as the
norm.''
Inquiring about an evaluation of a nominee's political
ideology has no historic place in the evaluation process
either. To the extent that it may have taken place in the past
in isolated cases doesn't make it acceptable. In fact, as I
have mentioned before, I don't believe it was practiced by past
or present administrations, Republican or Democratic, and it
certainly has no proper role in executive branch screening.
Likewise, this Committee's own questionnaire to judicial
nominees asks, and I quote, ``Has anyone involved in the
process of selecting you as a judicial nominee discussed with
you any specific case, legal issue or question in a manner that
could be reasonably interpreted as asking or seeking a
commitment as to how you would rule on such case, issue or
questions,'' end of quote.
Thus, I must conclude that this Committee historically
found such questioning to be unacceptable as well, and if this
Committee now seeks this sort of probing of one's ideology in
order to effect such a balance on the D.C. Circuit, it is
destroying that precedent and, I fear, will be planting seeds
that will bear bitter fruit in years to come.
It is my belief that if such a question is asked, shame on
the questioner. And if it is answered, I must also seriously
question the potential independence, and therefore the
suitability, of the candidate who would be answering that
question.
Such screening and selection of judges signifies that it is
acceptable for judges as a pre-condition of their confirmation
that they reveal how they would in the future decide a
particular case or cases. That should be fear by all across the
entire breadth of the political spectrum.
In conclusion, Mr. Chairman and members of the Committee, I
would like to make two other observations. First, to the
argument that ideological differences are a divisive element
and a deterrent to the decisionmaking on the D.C. Circuit, and
hence the need for the balance, may I respectfully direct the
Committee's attention to an essay published in October 1998 in
the Virginia Law Review by then-Chief Judge Harry Edwards.
Chief Judge Edwards, who was a Democratic appointee, debunks--
and that is his term--that myth, and also notes that over 90
percent of the cases in that court were decided unanimously.
My second observation is that when I was on the ABA
Standing Committee, in addition to evaluating hundreds of
candidates from all around the country over those 6 years--and
they were the nominations of both Democratic and Republican
Presidents--I also personally conducted the interviews of nine
nominees to the courts of this circuit. In each investigation,
I interviewed 35 to 55 individuals, judges, members of the bar,
practicing attorneys within the circuit.
I can advise you that in all those interviews, there was
never a complaint expressed to me by members of the bench or
the bar of this court and this circuit as to the ideological
balance or imbalance of the court. To the contrary, members of
the bench and bar of the D.C. Circuit are quite proud of the
special reputation this court has for excellence and for its
reputation as a principled body of jurists who rule on the law
and the facts of a case and not on a personal set of political
or ideological preferences.
I respectfully urge that in your deliberation you take care
to avoid the unintended consequence of interjecting ideology
into this court, and thereby destroying that pride and that
reputation of this fine court.
Thank you.
[The prepared statement of Mr. Fielding appears as a
submission for the record.]
Chairman Schumer. Thank you very much, Mr. Fielding, for
your very thoughtful testimony.
We are now going to go to our third witness. We are running
a little late here in time. I would ask each of the next
witnesses to limit themselves not to the usual five, but to 7
minutes, if they could. I let the first two go as long as they
wished. But if you could, it would be helpful to the
subcommittee.
The next witness is Christopher Schroeder. He is Professor
of Law and Public Policy and Director of the Program in Public
Law and Co-Chair of the Center for the Study of Congress.
Professor Schroeder has previously served as Acting Assistant
Attorney General in the Office of Legal Counsel at the
Department of Justice and as chief counsel to the Senate
Judiciary Committee under Senator Biden's leadership. He
coauthored a leading environmental law casebook entitled
Envirommental Regulation: Law, Science and Policy, and he is
editor of a forthcoming resources for the future book
evaluating the performance of the environmental Protection
Agency.
Your entire statement, Professor Schroeder, will be read
into the record and you may proceed as you wish.
STATEMENT OF CHRISTOPHER H. SCHROEDER, PROFESSOR OF LAW AND
PUBLIC POLICY STUDIES, DUKE UNIVERSITY SCHOOL OF LAW, DURHAM,
NORTH CAROLINA
Mr. Schroeder. Thank you very much, Mr. Chairman, Senator
Sessions, Senator Kennedy, and thank you for the invitation to
testify today.
I am going to be speaking about the impact of judges on the
D.C. Circuit who come to this court with strong partisan and
ideological commitments as it affects just a particular part of
that court's docket, that is the administrative law part of the
docket, and in particular the part of the docket that reviews
decisions by the Environmental Protection Agency.
The bottom line of my testimony is simply that it appears
that we have good evidence to believe that one of the
consequences of staffing the D.C. Circuit with judges who have
strong partisan or ideological commitments is a relative shift
in the making of envirommental policy away from the elected
branches of Government, away from the Congress and the
executive branch, and to the courts, because there is a
tendency by judges, whether they be strongly partisan and
ideological on the left or strongly bipartisan and ideological
on the right, to supplant the decisions of the democratically
elected branches of Government with greater frequency than I
think would otherwise be the case.
Mr. Fielding referred to Judge Edwards' article in the 1998
Virginia Law Review. That was a response to a piece of work by
now Dean Ricky Revesz at the NYU School of Law who analyzed
environmental judicial decisionmaking on the D.C. Circuit and
found some of the marked disparities that you mentioned in your
opening statement, Mr. Chairman, between the outcomes of cases
involving the Environmental Protection Agency when the panel
was majority Republican versus when the panel was majority
Democrat.
That study actually finds the most marked differences in
cases that are somewhat different than the ones that we have
been, I think, implicitly referring to so far, not the cases in
which the D.C. Circuit reaches out to make some bold holding of
law, but the cases in which the D.C. Circuit, as it must under
our rules of administrative law and procedure, is trying to
resolve disputes that raise questions of law that are much more
vague, indeterminate, and lack sharp edges and clear, objective
criteria for decisionmaking, such as the requirement that the
Supreme Court announced in the State Farm decision of nearly 20
years ago that an agency has to have demonstrated a rational
connection between the findings in the record and the
conclusions it reaches in its regulation, or the requirement
that if an agency is interpreting a statute that it develop a
permissible or a reasonable construction of that statute, or
whether there is adequate record evidence to support a
conclusion that the agency has reached.
In these kinds of areas where the objective criteria for a
legal determination are open-ended and require judgment and
discretion, there is room for a judge, in all good faith, to
come to those questions and resolve them or have a tendency to
resolve them in the direction of their partisan and ideological
commitments with respect to the outcome. And I mean in no way
to attack the integrity of any judge on the D.C. Circuit or any
other circuit when I make that claim.
I think the legal realists who were an important part of
our American legal intellectual heritage 50 or 60 years ago had
a theory of law that postulated that judges first figured out
what outcome they would like and then they looked around for
legal doctrine to justify that outcome.
That system of lawmaking, if you will, that model of
lawmaking is always ridiculed whenever you talk to any sitting
Federal judge or anybody who has clerked for any Federal judge,
and frankly I think it doesn't reflect the way the judges make
the vast majority of their decisions.
There is, however, a way in which ideology and commitment
as to outcome can influence a judge's decision while that judge
is exercising complete good faith, and I sketched a little bit
of the approach in my written testimony and it is largely work
that has been developed by people who study how we all reason
and think.
The guts of it is that when you are dealing with questions
of reasoning that have a number of decision junctures in them
where you could go one way or another and reasonable people
could disagree about which way is the right one to go, where
you want to come out ultimately has an influence on which
choice you find more persuasive than the other.
So, for instance, if you have a general tendency to be
skeptical that the Federal Government has gone too far in
environmental policy and that any new rule or regulation from
the Environmental Protection Agency, without knowing anything
more about it, raises a certain skeptical gleam in your eye,
you will tend to be more persuaded by the decisions you have to
make in reviewing a record that will seem legally compelling to
you that lead to the result that vindicates that skepticism.
Similarly, if you think the Federal Government hasn't gone
too far in environmental policy, you will have a tendency to
look more favorably at decisions that come to you where, say,
EPA has lowered a standard and less favorably at decisions
where, for instance, EPA has deregulated or raised a standard.
That is not to say you are figuring out the result first
and reasoning backward to the conclusion. It is to say that in
all good faith, in looking through the record trying to figure
out what the right answer is, that motivation or direction that
the cognitive theorists talk about will have or tends to be one
of the contributing factors in what kinds of reasons you find
compelling and what kinds of reasons you don't.
Now, I am not a cognitive theorist and I just wanted to
warn you that I am sketching work that has been done by others.
Unfortunately, they have never been able to work on judges, so
all of this theory has been worked out in the context of other
kinds of individuals doing other kinds of reasoning.
But there is no obvious reason to suppose that they haven't
reached a kind of general explanation of the way we think
through problems. This simply means that our partisan
commitments, our values, if you will, are inevitably going to
influence how it is we come out some of the time. It doesn't
mean they will dictate it, but it will be a contributing
influence.
Let me close simply by saying I think that asking what
party a candidate belongs to is an awfully crude way at getting
at the kinds of values and partisan commitments that may matter
in trying to predict the general tendencies of a judge on the
bench. It unfortunately is one of the more obvious ways, and so
it is very often leaned on.
But if what you are really worried about is trying to
figure out what a person's general political, philosophical
orientation is and what his or her general judicial philosophy
is, those are two questions that I think are entirely within
the competence and responsibility of the Committee to ask
about. They have an influence on the way people decide cases
and they have actually been inextricably linked in our country
from the beginning.
The first person to use political ideology as an aspect of
their decisions as to whom to appoint on the Supreme Court was
George Washington. There was a critical constitutional struggle
just after the Constitution was ratified over how strongly or
weakly the Constitution was going to be interpreted.
Now, he knew the people he was appointing intimately, or
his colleagues did, and so they didn't have to have
questionnaires and they didn't have to have a lot of questions.
But it is no accident that the Marshall Court was staffed with
strong nationalists.
In fact, political parties started as a result of the
debate over constitutional interpretation. The famous debate
between Thomas Jefferson and Andrew Hamilton over the first
national bank was a debate over the scope of Federal power, and
it was Thomas Jefferson's defeat in that debate that led to his
desire to create the Federalist Party, the first, nascent
political party in the United States. So these two ideas have
been part and parcel of our jurisprudence, our politics, and I
think the confirmation process from the very beginning.
Thank you.
[The prepared statement of Mr. Schroeder appears as a
submission for the record.]
Chairman Schumer. Thank you, Professor Schroeder, for your
fine testimony.
We are now going to turn to Professor Clark. Professor
Bradford Clark is currently a Professor of Law at George
Washington University Law School. Before coming to George
Washington in 1993, Professor Clark began his legal career
clerking for Judge Bork and Justice Scalia. So he too knows
something about the D.C. Circuit.
Professor Clark then worked as an attorney-advisor in the
Department of Justice's Office of Legal Counsel before joining
the law firm of Gibson, Dunn, and Crutcher.
Professor Clark, your entire statement will be read in the
record, as with the other witnesses. You may proceed as you
wish and if you can stay to the 7-minutes, which no one has so
far, I must say, we would appreciate it.
STATEMENT OF BRADFORD R. CLARK, PROFESSOR OF LAW, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, D.C.
Mr. Clark. Thank you, Mr. Chairman, and Senator Sessions,
Senator Kennedy. Thank you for inviting me to participate in
this hearing today.
I teach in the areas of Federal courts and constitutional
law, and I think the question raised by today's hearing is
important, particularly because this idea of balance on the
courts, and the D.C. Circuit in particular, raises a very
delicate question of constitutional law and separation of
powers--namely, what is the role of the President and the
Senate in the appointments process and to what extent should
these actors consider ideology in nominating or confirming
judges?
With all due respect, I think this focus on ideology has
the capacity to threaten the independence of Federal judges in
the constitutional framework, and also to undercut public
confidence in the judiciary.
Now, I should say at the outset that it is certainly
appropriate for the President and the Senate to inquire into
the general judicial philosophy of nominees. I think that has
been standard practice for a number of years. Particularly, you
will want to know is a nominee capable of performing his or her
duties as a judge. Can the nominee approach the law fairly and
decide according to the law, the Constitution, and judicial
precedents?
As Lloyd Cutler testified before your subcommittee last
year, this is the inquiry into judicial temperament. He defined
that inquiry as asking whether a nominee ``is even-handed,
unbiased, impartial, courteous yet firm, and dedicated to a
process, not a result.'' I think all of that is fine when the
President and the Senate are looking at judicial nominees.
On the other hand, for either the President or the Senate
to go beyond these general inquiries threatens judicial
independence. Let me explain. The Constitution goes to great
lengths--and this is a great innovation of our Constitution
over others in the rest of the world and throughout history--to
separate the Congress, the President, and the judicial branch.
The judges of the Federal judiciary are appointed for life,
with salary protection. By design, they are to be independent
of the political branches.
In particular, there is another provision that we sometimes
overlook, the Incompatibility Clause of Article I, Section 6,
clause 2, and this is the provision that provides ``No person
holding any office under the United States''--and that includes
judges--``shall be a member of either House during his
continuance in office.'' There, we have a specific separation,
prohibition if you will, on commingling the legislative branch
with the Federal judiciary. So this was a very important idea
at the time of the Founding that goes to our constitutional
structure.
Now, given that, I think it is important to conclude that
potential judges should not be asked about their political
ideology and they should not be asked to give specific
representations as to how they would rule in particular cases.
That would go too far into the area of judicial independence.
A nominee cannot answer these types of questions without
effectively giving the political branches a pre-commitment
inconsistent with judicial independence. And these political
commitments would prevent judges from deciding important
questions in their proper setting. Judges are supposed to
decide these important questions in the context of deciding a
case--that is, with adversary parties, full briefing and
argument, considering the views of their colleagues on the
court, and reconsidering initial views in light of experience,
new arguments, and changed circumstances. Making judges pre-
commit to the Senate or to the President would undermine their
ability to perform their judicial role.
Now, in addition to undermining judicial independence, the
Senate's attempt to question judicial nominees about political
ideology could erode public confidence in the Federal
judiciary. The public generally accepts decisions by unelected
Federal judges precisely because Federal judges were designed
to be independent and are perceived to be independent of the
political branches.
If the Senate makes ideology a central focus of its
confirmation hearings, the public might well conclude that
judges no longer are above partisan politics. They may think
that they are, as Judge Mikva once wrote, simply a Congress in
black robes, and this shift could threaten our constitutional
framework.
What, then, is the proper role of the Senate in considering
judicial nominees? Well, Alexander Hamilton suggested an answer
in Federalist 76. According to Hamilton, the requirement of
Senate confirmation was meant to be a ``check upon a spirit of
favoritism in the President, and would tend greatly to prevent
the appointment of unfit characters,'' he said, through State
preference or other improper favoritism. That should be the
standard that the Senate uses to evaluate nominees. Is the
nominee fit to sit on the bench? Do they have the experience,
the background, the temperament to be an objective and fair
Federal judge?
Now, the D.C. Circuit, in particular, presents a special
question, I suppose. We have heard today how important the
court is and I certainly wouldn't quarrel with that, having
been a law clerk there. It is a very important court and it
does hear a disproportionate number of administrative law
cases, which I am sure are important to everyone here today.
But these types of cases are governed by a complex mix of
constitutional, statutory, and judicial precedents developed
over many, many years. We have heard reference to the essay by
Judge Harry T. Edwards, of the D.C. Circuit, refuting the
charge of political or ideological bias on the D.C. Circuit.
This is particularly important, I think, because Judge
Edwards is there. He has been there for many years; he has been
there for probably 25 years and he has great experience on the
court. He says that in over 97 percent of the cases the court
disposes of, ideology does not play a role.
This accords with my experience as a clerk on the D.C.
Circuit, and I think Judge Mikva is a very good example of this
because as he testified, he was perceived to be potentially an
ideological nominee, but he worked very hard and I think
succeeded in being a very excellent circuit judge.
One last point, since I don't want to go over my time.
Pursuing ideological balance on the D.C. Circuit would
necessarily misrepresent the work of the court and cast its
decisions in ideological terms. As Judge Edwards warned,
``giving the public a distorted view of judges' work is bad for
the judiciary and the rule of law.'' The Senate should not risk
undermining the legitimacy of the judicial branch by
encouraging such false perceptions. I think the Senate should
stick with the traditional view of evaluating nominees based on
judicial temperament and general judicial philosophy.
Thank you.
[The prepared statement of Mr. Clark appears as a
submission for the record.]
Chairman Schumer. Thank you, Professor Clark. You came the
closest of anybody. You win the prize. Congratulations.
Our final witness is Professor Michael Gottesman. He served
as an adjunct professor at Georgetown Law School from 1978 to
1988 and then joined the faculty as a full-time professor in
1989. Previously, Professor Gottesman practiced law with the
Washington, D.C., firm Bredhoff and Kaiser from 1961 to 1988.
He has written broadly on labor and civil rights law--some
subjects of interest to us today--and has appeared as a
practitioner on numerous occasions on the D.C. Circuit.
Like the other witnesses, Professor, your entire statement
will be read into the record and you may proceed as you wish.
STATEMENT OF MICHAEL H. GOTTESMAN, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER, WASHINGTON, D.C.
Mr. Gottesman. Thank you, Mr. Chairman. I am bound to win
that prize. I am going to finish in that 7 minutes, I promise.
Congress works very hard to assure that the administrative
agencies are themselves ideologically balanced. In many of the
statutes that create these agencies, you have specifically
directed that there be balance between the parties. And as you
all know, I am sure, in your deliberations when you are
confirming, you are very conscious of having slates of
candidates who are going to fill these agencies who are
balanced.
Now, there is a reason why you want that. You want
balanced, mainstream administrative decisions. But all of that
effort comes to naught if those decisions are then reviewed by
a court that does not have ideological balance and that is
prepared to aggressively overturn those agency decisions.
Sadly, that has been the case with the D.C. Circuit for
roughly the two-decade period 1980 to 2000. It was an
ideologically unbalanced court, and as I am going to suggest
with a few statistics, it generated decisions overturning
administrative agencies that were way out of the mainstream, as
compared to the other circuit courts of appeals.
It wasn't always that way. If you go back--and I am going
to use the Labor Relations Act as my example, although my
statement has some others as well. If you look at the
performance of the various circuit courts in 1980, the D.C.
Circuit's rate of approving Labor Board decisions was virtually
identical to that of the overall percentage for all of the
circuit courts.
But if you then roll forward, as the appointments of what I
would suggest were strongly ideological judges occurred, if you
look at the period 1985 to 1989, less than a decade later, here
is what the statistics show. The Labor Board's decisions were
affirmed in full--if you look at all the circuits, they were
affirmed in full 78 percent of the time.
Now, look at just those cases that came to the D.C.
Circuit. The Labor Board was affirmed in full only 53 percent
of the time--78 percent; more than three-quarters versus 53.
And even that doesn't state the full extent of the disparity
because the 78 includes the D.C. Circuit. If you took them out,
the rate in all the other circuits was well over 80 percent
affirming the National Labor Relations Board.
Well, that is just 1 circuit of 11, right? So we get skewed
decisionmaking in 1 circuit out of 11. But the stark reality is
that the D.C. Circuit controls the fate of administrative
rules, and it does so because it is the one circuit that
anybody unhappy with an administrative agency's ruling can come
to, and this is true of virtually every administrative agency.
So let's just take hypothetically a Labor Board rule that
says employers are not allowed to do ``x.'' Eleven circuits may
agree with the Labor Board and say that is well within your
authority. But if the D.C. Circuit disagrees, the Labor Board
is going to get reversed a hundred percent of the time on that
issue. Why? Because the employers know they can come to the
D.C. Circuit.
And, indeed, that is what they have been doing. Here, to
me, is the most interesting statistic. The employers have a
choice between the D.C. Circuit and other circuits. Back in
1980, when the D.C. Circuit's approval rate was the same as all
the other circuits, only 3 percent of the appeals from Labor
Board decisions came to the D.C. Circuit. In the year 2000, 18
percent--six times as many--came to the D.C. Circuit. Why?
Because employers knew this is where we can get the Labor Board
reversed and we can't do that in the other circuits because
they still approve the Labor Board decisions.
Now, my statement describes similar phenomena in the areas
of civil rights and environmental law, but to stick to my time,
I won't mention those. The rate of Labor Board success in the
D.C. Circuit has gotten somewhat better in recent years because
as there have been retirements of some of those most
ideological judges, the court has come into somewhat more
balance.
In 1998, when we weren't yet at the balance we have today,
the difference, which had been 25 percent between the D.C.
Circuit and all the other circuits in affirming the Labor
Board, had been reduced to 13 percent, half as much imbalance.
I would assume that if we had statistics for the last year
or two, it would be even closer because the court is now more
of a mainstream court. And it would be sad, now that it has
become a mainstream court, and given its unique position as the
universal recipient for anybody who is unhappy with an
administrative agency--it would sad if it now fell out of
balance, as well.
Now, there are, of course, two ways to assure that if there
are going to be more appointments that this current state of
balance be achieved. One would be to appoint by looking at the
parties of the various candidates, and indeed there is a recent
article in the Washington Lawyer quoting a former general
counsel of the Republican National Committee who has suggested
that that is something to be considered.
The other way is to allow Presidents to do what they
normally do, appoint members of their own party, but insist
that those people be mainstream judges who are not going to be
skewed. And this involves, it seems to me, attention not only
to what their ideology is--that is, how would they vote if they
were on an administrative agency--but also to what extent do
they respect the Supreme Court's command that courts are
supposed to give broad deference to the rulings of
administrative agencies.
It is absolutely clear that the D.C. Circuit has not been
giving deference over the past 20 years if it is only affirming
the Board half the time. That is what anybody would expect to
get. That doesn't show deference.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Gottesman appears as a
submission for the record.]
Chairman Schumer. Well, not only have you given excellent
testimony, Professor, but you have indeed won the prize.
Congratulations.
I want to thank all five witnesses. Actually, every one of
you has won a prize in the sense that your testimony was
excellent, obviously conflicting. That is what we would like on
this subcommittee and we thank you.
What I am going to do is delay my time in questioning.
Senator Kennedy was nice enough to come to the hearing and has
another engagement, and so I am going to give my time to
Senator Kennedy. Then I will call on Senator Sessions and I
will go last.
Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Senator Schumer, and
thank you for having this hearing. I welcome all of our
panelists. I particularly want to welcome Ab Mikva. I was
listening to the references to Ab Mikva's confirmation and I
remember very clearly all those--the NRA--who were gunning for
Ab Mikva at that time. And now to find out from his own
testimony that he decided for the NRA, after all this time, it
is too late to have reconsideration.
[Laughter.]
Senator Kennedy. I want to thank him for his very
distinguished career. Many of you have, but I know in
particular of his past history and commitment and the good work
he does with young people out in Chicago, too. We had an
opportunity to meet with a number of these young people fairly
recently, and it is a wonderful thing that you continue to do.
I was having difficulty in listening to our discussion
about appointing judges with political philosophy and idealogy
because we have a President of the United States who said that
he wants to appoint judges in the line of Scalia and Thomas. If
you ask the average American, that is sending a pretty clear
message of the type of individual they are trying to support on
this.
So the mark has been out there and the statements by the
White House are clear. I agree myself that we obviously are not
looking for narrow partisanship, but when the administration
has indicated that that is going to be narrow in their
criteria, it is a disappointment.
I think we have a responsibility to make sure that people
are going to have a core commitment to the fundamental values
of the Constitution. I think that that is a perfectly
reasonable test to take, because we have seen over the period
of time where nominees have been coached and tested. We have
had nominees who have been up before this Committee who gave
the exact same answers to questions because they were told by
the Justice Department, if you give that same answer, you are
not going to get in trouble. So we have to use our own
judgment.
With all respect to our history, the appointment power,
until the final weeks of the Constitution, was in the Senate of
the United States. It was only decided later that it was going
to be a shared power, so we are not a rubber stamp. We have a
real responsibility to go ahead.
Former Judge Mikva mentioned two excellent recommendations:
moderation and judicial temperament. Just very quickly because
I have limited time, judicial temperament, I imagine, is even
more important in the circuit court because it is smaller,
would you say, Judge Mikva? The collegiality and the ability to
work together to try and work through various issues--of
particular importance and relevancy?
Mr. Mikva. It is very important. It is a small court and it
is all in one place; it is all in Washington. Many other courts
are diffused all over the map. This court sits only in
Washington, D.C. The colleagues have a lot to do with each
other and there can't be the intercourse that is necessary to
find moderation if somebody comes in with a strong agenda and
says it is going to be my way, I want to be in such-and-such an
image.
Senator Kennedy. It has been mentioned here about the NLRB
and the cases that have been now brought to the circuit court.
I saw a chart here about the NLRB cases that were brought and
heard, and the small percentage number going back to 1980 and
how that has escalated.
As you correctly pointed out, in 1980 83 percent were
affirmed, and now it is 50 percent affirmed and the numbers
have really skyrocketed. I think you stated that one of the
reasons you believe that to be so is because now the district
court is giving less adherence to the time-honored concept of
supporting administrative agencies and are now using different
judgments in terms of reaching conclusions.
Do you think this is true? This is the chart which sustains
that position. What about OSHA, what about EPA? There is the
notorious case obviously of American Trucking and EPA. But do
you find that this has been true on OSHA? Has it been true in
other regulatory agencies? Can you reach the same kinds of
conclusions when it is in regard to workers' rights and
protection of consumers?
Mr. Gottesman. I haven't personally studied them all. One
of the problems we have with the environmental statutes is that
the D.C. Circuit's jurisdiction is exclusive. So we can't
compare its performance to that of other circuits because
people can only come to this circuit.
With OSHA, that is not the case; that is, employers can go
to other sectors or to the D.C. Circuit. The fact that the D.C.
Circuit generates such a large percentage of the review cases
of OSHA standards, and has, is a reflection, I think, that when
people want to challenge an OSHA standard, they believe that
the D.C. Circuit is going to be a more sympathetic forum for
them.
While I don't have statistics--there aren't as many of
those cases as there are labor cases because there is a finite
number of OSHA standards that have been challenged--but
certainly my sense of it from having some experience in this
field, having been a labor lawyer in a prior life, is that
indeed the D.C. Circuit was one that we, the people who were
supportive of the OSHA standards, feared.
It was a court that we thought we were less likely to get
affirmance of the agency than others, but I can't cite
statistics on the comparative performance because there are, I
think, just too few cases of OSHA standard review.
Senator Kennedy. Well, there has been a constant effort to
dismantle OSHA since its enactment and it continues.
Let me ask a question. Maybe you would comment, Professor
Schroeder, on EPA and American Trucking and its conclusions. As
I understand it, in arriving at its holding the panel
resurrected the non-delegation doctrine which was used in the
1930's. We are talking about being able to set health standards
for air pollution.
Everyone obviously is interested in making sure that their
children are going to breathe clean air. Its health
implications are profound. As one who is the father of a
chronic asthmatic, I see it in spades. The fact is we are
doubling the number of children actually that are dying from
asthma today. It is one of the areas of children's diseases
that is going right through the roof. It is up to 18,000
children a year that are dying. This is enormously important.
The court reached the decision in its holding and
resurrected the non-delegation doctrine which was used in the
1930's to limit the power of Federal agencies during the New
Deal. Cass Sunstein called the court's ruling a remarkable
departure from precedent which, if taken seriously, brings much
of the activity of the Federal Government into question.
Fortunately, the Supreme Court overruled the decision in a
unanimous holding.
Your views, Professor Schroeder? Was this a reach? How did
this come to pass, and if that holding had stood, what would
have been its implications in terms of health standards and
other protections that are there in the agency?
Mr. Schroeder. Well, Senator Kennedy, you are right. It was
a resurrection of a theory that hasn't been used to strike down
an Act of Congress since the 1930's. Not only that, but it was
an application in a manner that no court had ever attempted in
the United States.
In other words, the D.C. Circuit did not hold the Clean Air
Act unconstitutional, which is what you would expect if it
actually was a violation of Congress actually delegating
legislative authority to the agency without any standards. The
remedy for that is to strike down the Act that you have passed,
but that is not what the court did.
The court said the problem is that the agency hasn't given
us a clear understanding as to how it reached the decision it
did in a way that we can replicate and test. In other words,
what it wanted was a kind of objective formula where you could
plug in health, uncertainty of the medical research, number of
people affected, costs, and then just read out the answer at
the end.
EPA has never done its standards in that way. Eventually
and ultimately, the Administrator has an awesome responsibility
to make a judgment because this is a matter of public health
protection, but it is also a matter that we all realize is
terribly expensive to implement.
This was the tenth or eleventh ambient air quality standard
change that we have made since the 1970 Act was passed. None of
them would have survived what the D.C. Circuit did. If the D.C.
Circuit opinion were law, all of those ambient air quality
standards and very many of all the other standards that EPA
writes would be invalid until such time as an administrative
agency makes a decision like what is the value of a human life,
or what is the value of an asthma attack avoided, what is the
value of emphysema and how is that to be evaluated in terms of
when do you have enough medical evidence to make the judgment
that that is the health effect that is going to be suffered.
And tell me how you are going to decide that question in
advance so that I know exactly what to look for when you
ultimately do make the judgment.
That is the kind of complex social public health judgment
that we have always trusted the agency, with professional
guidance, with testimony by all interested parties, with
medical evidence, to make, trying to figure out what the wisest
thing to do at the time is.
Then Congress has the opportunity, if it disapproves of the
action or thinks that the agency now has found a way to do its
job that it disapproves, to interject its own evaluation of the
agency's work. But to place that responsibility on the court
and say that unless you can come up with a formula in which we
can put all of these different and complicated considerations
together and read out the answer at the end or you can't
implement a standard at all would have worked a really radical
change in the law.
In a unanimous opinion authored by Justice Scalia, the
Supreme Court said to the D.C. Circuit you have got this all
wrong, this is not the way our law works. It is about as
pregnant an example of the D.C. Circuit reaching out for a
novel theory of law as you can find, I think.
Senator Kennedy. Mr. Chairman, my time is up. I thank you
for having these hearings. As we have seen, the implications of
this court and its impact in terms of real people and their
lives are often missed. I think we have highlighted the
importance of this court, and I am very grateful for the
hearing and I thank the Chair for having it.
Chairman Schumer. Thank you for coming, Senator Kennedy.
Senator Sessions?
Senator Sessions. Thank you.
Judge Mikva, you have been someone I have admired. You have
been a real advocate. I think if we applied Senator Schumer's
standard of moderation, you may not have made it on the bench,
but you proved that you could be a good judge.
I remember one person that wanted me to consider them for a
Federal judgeship said, you know, I don't even give
contributions to candidates and I am not a Republican or a
Democrat. And I said, well, I don't know that this is
necessarily a high advantage on being a judge if you don't care
enough about the political process to even be involved and take
positions. I tend to respect people who do take positions, who
love the law and respect the system, care about it, have views
about it, advocate and debate. But when you put on the robe, we
need to know that they can call it fairly.
I know Lloyd Cutler, who also served for a time as
President Clinton's White Counsel, as you did, stated before
this subcommittee not too long ago, quote, ``It would be a
tragic development if ideology became an increasingly important
consideration in the future. To make ideology an issue in the
confirmation process is to suggest that the legal process is
and should be a political one.''
In 1985, you wrote, and appeared to be consistent with Mr.
Cutler and Judge Edwards, who is also a Democratic appointee--
you wrote in 1985, ``What the Senate ought not to do is
determine through questioning a nominee's views on emerging
issues of constitutional doctrine or on issues likely to face
the court in the future. Why? Because these questions are
really a signal to the nominee that he will become a judge only
if he promises to be obsequious, to be a 'yes' man to the
powers that be.''
You have said some other things along that same line. I
won't go into them, but I think you are warning us that we need
not politicize this process, are you not?
Mr. Mikva. That is what makes your job so hard, Senator
Sessions, because it is wrong, as I think everyone up here
would agree, for you to try to exact a commitment from a
nominee about how he is going to vote on a future case.
You can ask congressional candidates how they are going to
vote on a bill, but it is wrong to ask a judge how he is going
to vote on a case that he has not yet heard, where the facts
have not been presented, where the legal arguments have not
been presented.
But what makes it hard is not those 97 percent of the cases
on which there is unanimity on the court, but those 3 percent
that are the cutting edge. How do you find out where a
nominee's general philosophy is, what his judicial temperament
is, how much of a cause is he carrying with him on some of
these issues?
Let me be specific: the issue of what the breadth and
extent of the Commerce Clause power is in Congress. This is an
emerging issue. Obviously, if you ask a nominee how are you
going to vote on whether or not a statute that allows control
of guns near schools is constitutional or not, that is asking
for a commitment that you shouldn't do. But shouldn't you want
to know, as one of the oversees of the judiciary--and you are
that--what a nominee's general philosophy is about deference to
Congress, about deference to the agencies?
Two of the most collegial colleagues that I had on the
court--I can say this because neither of them are there as
active judges anymore--were Judge Buckley and Judge McKinnon.
The reason I found them so collegial is that we had one thing
in common. We had all served in the Congress and we had a
deference for the way you reach decisions. We had a deference
for the process by which Congress comes to decisions--and none
of us voted to strike down laws because we didn't approve of
the way you did your work. Those, it seems to me, are
legitimate concerns that you as the oversees have to have when
you confirm. How you reach that balance I don't know, Senator.
Senator Sessions. I was going to ask Mr. Clark and he had
to go, but I think it is quite appropriate, particularly if a
nominee has demonstrated strong convictions in a given area, to
inquire to determine whether or not those convictions might
influence their objectivity on the bench. I mean, you would
agree with that.
Mr. Mikva. Absolutely.
Senator Sessions. So I think that is perfectly appropriate.
I remember I was criticized after I had voted for quite a
number of ACLU members, some of which were officers and board
members of the American Civil Liberties Union. I took to asking
them did they agree with the ACLU board position for
legalization of drugs, that child pornography could not be
controlled under the Constitution, and several of those
positions that I thought were extreme.
They either said they personally did not or assured me it
would not influence their decision, that they would enforce a
different law in existence, and I think I voted for virtually
all of them. When I am voting for an ACLU person as a
prosecutor who disagrees with some of their views on drug and
child pornography, in particular, I am asking and confident
that they are going to enforce the law even if they disagree
with it.
Isn't that the real test?
Mr. Mikva. Yes, absolutely, absolutely.
Senator Sessions. With regard to this Revesz study,
Professor Schroeder, let's talk about it a little bit. It dealt
only with the judge's rulings on procedural environmental
issues. Is that correct?
Mr. Schroeder. Senator, that is right. With respect to the
figures that we have been discussing today, those refer to
cases in which--the cases excluded are statutory interpretation
cases.
Senator Sessions. So it was environmental cases. It didn't
deal with agriculture or the IRS or the Trade Commission or
criminal cases.
Mr. Schroeder. Exactly.
Senator Sessions. And they found no significant difference
in Republican and Democratic voting patterns on statutory
environmental cases.
Mr. Schroeder. That is correct.
Senator Sessions. And they found no favoritism by
Republicans in procedural environmental cases in seven of the
ten time periods investigated. Isn't that correct?
Mr. Schroeder. Senator, you have me there. I don't have the
studies sufficiently memorized to recall, but that sounds right
to me.
Senator Sessions. Also, my staff's review of the study
finds that they found no group favoritism for the activist
plaintiffs in these cases by Democrat judges in procedural
environmental cases in four out of the ten time periods
involved. So it seems to me that this is a pretty thin reed.
I know liberals believe in civil liberties and First
Amendment rights. Procedure is as utterly important as
substance almost. Procedure is a big part of the law, and I
think that agencies need to follow the procedures. So I don't
know that that is very much proof of any kind of bias here.
You talk about the legal realist school. We also have the
critical legal studies school that seems to believe that law is
just a way to oppress the poor by those in power.
Mr. Schroeder. I don't agree with them either, Senator.
Senator Sessions. I don't either, but that has some basis
in this country, in the law schools of America, which I am not
favorable to.
Mr. Gottesman, I am not surprised. You indicated you were a
labor lawyer, but the Labor Board can overreach, also. With
regard to these cases, isn't it essential that an unelected
agency be able to articulate what they are doing and that their
actions be consistent with the regulations that Congress has
passed?
Could the fact that the Labor Board was having problems in
court indicate that they had been overreaching? Isn't it just
as logical that that is so as that the court had overreached?
Mr. Gottesman. Well, Senator, sure. Any agency can
overreach, but it seems that it is only the D.C. Circuit that
finds that they have overreached so often because as I
mentioned, the Board is affirmed only 53 percent of the time by
the D.C. Circuit. Of all the other 11 circuits, the next one up
after the District of Columbia was 72 percent during that same
period. So why is it, if the Labor Board is overreaching so
much, that only the D.C. Circuit is noticing it?
Senator Sessions. Well, I don't know that that is a huge
difference. It depends on how the cases come out.
Mr. Gottesman. But this pattern reveals itself over a 20-
year period. It is always the D.C. Circuit that is overturning
the Labor Board most, whereas the other circuits are approving
the Labor Board most often. No circuit is approving them a
hundred percent of the time. Sure, agencies sometimes issue
decisions that courts think are out of line, but the D.C.
Circuit thinks the Labor Board is out of line 50 percent of the
time. That is a fairly stunning reversal rate.
Senator Sessions. I would just say that ultimately they are
answerable to the Supreme Court. In the last 4 years, 1997
through 2001, the D.C. Circuit reversal rate is only 26
percent, whereas the Ninth Circuit has a 67-percent reversal
rate. I don't think this circuit is out of step at all.
Mr. Fielding, on March 16, 2001, the chairman of the full
Committee and the chairman of this subcommittee sent a letter
to President Bush in which they stated, quote, ``ABA evaluation
has been the gold standard by which judicial candidates are
judged,'' close quote.
In examining a nominee's qualifications, does the ABA look
at their temperament? Is that one of the factors?
Mr. Fielding. Yes, there are three areas that we look at.
Temperament is one of them.
Senator Sessions. And when the ABA examined Mr. Estrada--
and they interview numerous lawyers that know them, do they
not, in that process, and they interview judges and people that
have worked with them? They would have examined the nominee's
temperament, would they not?
Mr. Fielding. Yes. The purpose of the investigation is to
review potential judicial temperament which, of course, is
temperament, legal ability, and competence. And in each
investigation and in the Estrada investigation, there were some
45 to 55 people interviewed. They were people that were judges,
they were people that were coworkers with him in all aspects--
practitioners, people that had cases with him, people that
worked in the trenches with him in Government.
Senator Sessions. And, of course, it is no secret that
Republicans and President Bush have felt that the ABA has
tilted somewhat to the left in their evaluation of nominees. I
have respected the ABA a lot and feel like they ought not to be
given power to say yea or nay, but I believe the ABA does
deserve respect.
Is it a Committee of 15 that does the final vote? Is that
what it is?
Mr. Fielding. There is a representative for each circuit.
There are two for the Ninth Circuit because of the diversity
and the travel in Hawaii and all the other issues there. And
they are the ones that vote. That includes the Federal Circuit
as well.
Senator Sessions. Well, when they voted, how did they vote
on Mr. Estrada?
Mr. Fielding. I think it has been announced publicly that
it was a unanimous ``well qualified'' vote.
Senator Sessions. Which is unanimously voted the highest
possible rating, and that includes evaluation of temperament.
Thank you, Mr. Chairman.
Chairman Schumer. Thank you, Jeff. Let me go to my
questions, again thanking the panel.
Over the course of the last year, I have spoken out about
my belief that we should have more open, honest, and legitimate
discussions about judicial nominees. My argument has boiled
down to this: ideology. You can call it judicial philosophy,
you can call it what you will. It is not what party you are a
member of; it is your views on the big issues, not on specific
cases--I couldn't agree more with the panel--but on the big
views.
You don't want to ask about schools and guns in a specific
case, but you might want to ask how far the Second Amendment
goes. Is it a right to bear arms? Is it militia-related? That
is my obligation in terms of these, and I think as Professor
Schroeder pointed out, the first judge--we talking about the
Founding Fathers; I think Professor Clark did. But those very
same Founding Fathers turned down Judge Rutledge, I believe it
was, for the Supreme Court because of his views on the Jay
Treaty, a pretty specific view.
So this idea that ideology, philosophy, even specific views
on specific issues was not intended by the Founding Fathers is
simply belied by history.
But I want to talk a little bit about the D.C. Circuit
here, again this idea that both Mr. Fielding and Professor
Clark seem to profess all of a sudden, and that is that, well,
everyone will see the law once they look at it in exactly
similar ways that ideology shouldn't matter. Well, if that is
the case, then when there are three Democrats on the D.C.
Circuit panel or three Republicans or two and one, you should
get about the same spread of the rulings because you are just
examining the law as a priest of the law.
We all know that is hogwash. That has never happened, and
it doesn't, and I think people cloak it. So let me just ask for
this chart here. These are some environmental cases, and I
don't know who put together these rulings, but these were
rulings in favor of industry challenges.
When you get all-Republican panels, 3 judges, 80 percent in
favor of the industry. Professor Sunstein, of Chicago, who has
testified here and is very well-respected--in fact, he was
quoting by my Republican friends in his support of Mr.
McConnell at the McConnell hearing--made up this chart.
Majority-Republican panels, 48 percent; minority-Republican
panels, 27 percent; all-Democratic panels, 20 percent in favor
of industry.
So who are we kidding? Ideology doesn't matter? Philosophy
doesn't matter? Then you would get 50, 50, 50, 50, or at least
the average of all those panels spread equally out. So, of
course, it makes a difference.
Let me show you another one, the same type of thing. This
is on the Chevron cases, very important. They are charged with
upholding agency interpretations of the law so long as they are
reasonable. I think some of my friends here would like us to
say, well, ``reasonable'' has nothing to do with ideology;
``reasonable'' should just be a legal standard.
So that would mean that a Democrat and a Republican, or a
liberal and a conservative if you don't want to look at party,
should interpret ``reasonable'' exactly the same way, right?
Again, a huge disparity. An all-Republican panel upholds the
agency action in only a third of the cases. For a two-to-one
Republican panel, it is 62 percent. Evidently, the Democratic
nominee has some leavening there, whether you like the
leavening or not.
A three-zero Democratic panel, 71 percent. Actually, a two-
to-one Democratic panel is 86 percent. How do you explain that
little anomaly? I think one way to explain it, the way the
professor who put this together, Sunstein, said that when you
had three of the Democrats on, they tended to be more moderate
and didn't do much differently than when one Republican was
added on the panel. But that is small.
Of course, ideology mattered in the D.C. Circuit cases. So
I would like to ask the panel--I wish Professor Clark were here
so you are not alone, Mr. Fielding--what do you have say about
numbers like this? I don't have to ask Professor Schroeder or
Professor Gottesman because their testimony was pretty much
along those lines.
If we are not supposed to look at any views on anything,
why is it that there is such disparity of the views of the
people once they get to the courts? If we are all priests of
the law and it doesn't matter if we are on the far left or far
right and we would interpret it the same way--we don't. Do you
want to say anything to that?
Mr. Fielding. Yes. The point I was trying to make is that I
don't think that this panel at this Committee should be making
judgments that are based upon somebody's personal ideology. I
also am troubled, to repeat my testimony, that there is an
objective of finding a finite balance which is elusive. We know
historically a lot of times somebody goes on a bench and
doesn't turn out to be the way everyone thought they would
anyway.
Chairman Schumer. That occasionally happens, but we know it
to happen.
Mr. Fielding. My concern is that once you talk about
balance in the way that it has been discussed, in all candor,
it politicizes this whole process.
Chairman Schumer. Well, I would say that this chart argues
that the process has politics in the warp and woof of it from
start to finish, not politics, but ideology--I think the two
words are different--from the start. That is what it is; it is
there.
Let me ask you another question. I would ask this to Mr.
Fielding. Here is what we think we are faced with, those of us
on this side. We think we are faced with a President, as
Senator Kennedy said, who has injected ideology into his
selections. He said it, judges in the mold of Scalia and
Thomas.
Senator Sessions. That is not ideology.
Chairman Schumer. OK, philosophy. We can quibble about
words, but it is not about judicial temperament because it is
not that Scalia and Thomas represent different judicial
temperament in how they get along with their colleagues than
the others. They are neither more popular nor less popular.
They are the most conservative. I would say ideological, I
would say way out there, but let's just say conservative, not
to be confrontational of those two people. The President is
looking for conservative nominees.
I guess what I would ask Mr. Fielding is if the President
isn't doing this, can you name me five liberals that Ronald
Reagan nominated when you were--forget whether they were
Democrat or Republican--that Reagan nominated when you were
counsel?
Mr. Fielding. I hope not.
[Laughter.]
Chairman Schumer. There you go. I agree with you and I
appreciate your candor, and you are a fine man, but of course
he didn't. I would argue, even though maybe philosophically he
is not as conservative as President Reagan, that judges
nominated by President Bush are the most far over of any we
have had. I don't see many moderates.
I would argue, and some might disagree with me--and Jeff is
right; this depends on where you look at it. But I would argue
that President Clinton did not nominate as many to the far left
as President Bush is nominating to the far right. President
Clinton tended to go not for ACLU lawyers. Those were small.
Senator Sessions. There were quite a number of them.
Chairman Schumer. Well, not too many. It was mostly
partners in law firms, prosecutors, et cetera.
But in any case, that is the point. The point is it is not
Chuck Schumer, Patrick Leahy, or the ten Democrats on this
Committee who started making ideology count here. It is not
even President Bush, although he is more ideological than we
are, I would argue in this. It has been part of the warp and
woof of it, and we ought to just come clean about it,
particularly on the D.C. Circuit.
Fred Fielding was honest. If we were just looking at
judicial temperament, as Professor Clark seemed to indicate--
how they get along with their colleagues, how they conduct
themselves on the bench--then each President should nominate an
equal number of Democrats and Republicans or an equal number of
liberals and conservatives, unless you have the view, which I
don't, that one side or the other tends to have better judicial
temperament. It doesn't happen.
All we are trying to do here is seek some balance, and so I
am going to let any of you have the last word here. I have said
my piece and I think the argument is virtually unassailable,
and I think those arguing against it are not admitting the
truth, which is the President is being every bit as
ideological, if not more, than anyone on this panel when he
makes nominations, and it is our job to bring the balance.
Judge Mikva?
Mr. Mikva. Senator, I think that is what makes your job so
hard, is that we don't have the proper vocabulary to describe
what is the Senate's role. I fought that Senate role because I
was a semi-victim of it. I had a protracted confirmation battle
and, sitting as a nominee, I thought the Senate was being very
political at the time, and they were. They were voting on what
they thought my ideology was.
Chairman Schumer. Were they voting on your judicial
temperament?
Mr. Mikva. No.
Chairman Schumer. Did the Republicans think you were a less
nice guy or less distinguished?
Mr. Mikva. No. There was a certain member, still of the
Senate, who told me how much he liked me as he voted no, and
what a great temperament I had.
Chairman Schumer. He was voting about your ideology,
whether they admit it or not?
Mr. Mikva. Absolutely, and I think what makes it so hard is
that, as you pointed out, historically that has always been the
Senate's role. When they voted down Mr. Rutledge for the
Supreme Court, they were voting politically. You are a
political body, you are elected as a political body.
The difficulty arises, as it does currently, where the
Senate has a majority of one political party persuasion and the
President is of the other, and it has been that way since the
beginning of the Republic. Now, maybe it is important somehow
to disguise what the Senate is doing, as they sometimes have
done.
But I have to say I admire the candor with which you have
viewed this difficult task, Senator Schumer.
Unfortunately, this President isn't going to nominate many
Democrats. As Fred Fielding very candidly said, they didn't
during the Reagan administration, and Bill Clinton didn't
during his administration.
Chairman Schumer. Bill Clinton didn't nominate many
Republicans.
Mr. Mikva. Right. As I said, I tried on two occasions to
get him to consider Republicans. It was rejected.
Chairman Schumer. You know, Judge, I would say something
else. When Clinton did nominate people, we can argue where they
were, but it is clear, especially during the times when the
Republican Party controlled the Senate, they tried to be a
moderating force, and I didn't see anything wrong with that.
Mr. Mikva. I had many conversations with members of this
Committee during that period.
Chairman Schumer. Right. Our chart over there doesn't talk
about total nominations, but it talks about when you vote no.
Why is it, if ideology doesn't matter, Democrats are always
voting no, whether it is 63 or 87? Democrats are always voting
no on Republican judges, not on most--Jeff Sessions, to his
credit; Democrats, maybe to our credit. We only vote against a
small number, but when we vote no, when we use that significant
and large power to block a President's nominee, ideology is a
big factor on both sides.
Senator Sessions. Well, Mr. Chairman, that chart there is
so bogus, you really ought to take it down.
Chairman Schumer. Why? Tell me why it is bogus.
Senator Sessions. The one on the other side of it is more
accurate than that one.
Chairman Schumer. Let's take not this one, because this to
me has no relevance. Both parties vote no on a small number. It
is when they vote no. Let's just assume it is 63; it still
makes our case.
Senator Sessions. This is 4 years. This is just less than
two.
Chairman Schumer. Double ours. It is still the same. Make
them four and two.
Senator Sessions. Fifty-four to 63 was what that would say.
Chairman Schumer. No, no, no. You have got to make four and
two. That is what you double.
Senator Sessions. That chart is bogus.
Chairman Schumer. OK. I would respectfully beg to differ.
Any other comments on what I said? Then I am going to let
Jeff have the last word, since I was so vehement here.
Mr. Fielding. Mr. Chairman?
Chairman Schumer. Yes, Mr. Fielding.
Mr. Fielding. I would again just say to you I think it has
become very obvious in our discussion that a lot of the
problems we have are definitional, because where you sit is
where you stand a lot of times.
Of course, President Reagan didn't appoint any liberals to
the bench, nor did President Clinton appoint any conservatives
to the bench.
Chairman Schumer. Correct.
Mr. Fielding. I don't think there is an evil in that. My
concern, and I will repeat it again at the risk of becoming ad
nauseam, is that for the Senate to announce and specifically
try to balance by rejecting people that a President sends up on
that basis--not an extreme person, not a zealot, but somebody
who happens to be a Republican or happens to be a
conservative--is wrong and it is dangerous and it is
deleterious to this court.
Chairman Schumer. I would agree with you on that. I would
just say this: first, I don't think you have heard anyone here,
when the nominees come up, inquire about their party or care
about their party. We voted for--I don't know how many judges I
voted for, 60-some-odd. My guess is the vast majority, if not
all of them, are Republicans. So I wouldn't ask that.
Second, we don't ask about specific cases. I think that is
a very accurate and right thing to do, but we do ask about
views to determine if they are out of the mainstream. You know,
some might say Justice Scalia is bringing America back to the
mainstream and others might say that he is taking America out
of the mainstream.
But that is why we have a Senate and that is why we elect a
Senate, and I think those are relevant questions to ask. But I
appreciate very much your saying ideology is different than
party, and I think that is what we are looking at here.
Did you want to say something, Professor Gottesman?
Mr. Gottesman. Yes.
Chairman Schumer. Then I am going to turn to Jeff Sessions
and then we will have to conclude.
Mr. Gottesman. When the Founding Fathers decided to give
the confirmation power, they didn't give it to a body of
psychiatrists to judge people's temperaments. They didn't give
it to law professors to judge their credentials. They gave it
to a political body, and it seems to me that the practice in
those early years simply confirms what the plan was, which is,
of course, this is a political process and that we don't want
the President's views about ideology to go unchecked. We want
the people's elected representatives in the Congress to have a
voice, as well, in making sure that the people chosen have an
acceptable ideology to all.
Chairman Schumer. I would just say one thing. There have
been times in our history where it has mattered less, when
there have been moderate Presidents. In the Eisenhower era,
they sort of got away from ideology because he really did
nominate sort of moderates. He nominated people of both
parties.
Then what happened is some of those moderates became very
liberal--Earl Warren--and the conservative movement said, wait
a minute, they are taking it away from the people and away from
us. I had sympathy with that. I mean, I remember arguing in
college during the radical days of the 1960's that it should be
the Congress that ought to make most of these decisions, not
the courts. So I understood where they were coming from.
It is just that since maybe 1970, we have not had that
moderation and ideology has mattered both to Presidents on whom
they nominate and to the Senate. The only thing--and Jeff and I
agree on this--when we didn't do ideology, for a period we
devolved into the ``gotcha'' politics which I talked about for
a while, and that was awful and it has been done to Democrats
and Republicans.
When you go ask if somebody smoked marijuana 30 years ago,
all the Democrats thought that was horrible and disqualifying
and all the Republicans thought that was forgivable. And then
you asked if somebody went and got the wrong kind of movie out
of the movie shop, and all the Democrats thought that was
terrible and the Republicans--or vice versa. It was all code.
Code is bad. The public likes us to say what we think.
With that, I am going to let Jeff Sessions have the last
word, as excited and eager as I am to talk about this subject
on and on and on.
Senator Sessions. You know, Mr. Chairman, as we go along
and we get right down to it, we are probably not as far apart
as our words make us sound to be.
I would note Senator Grassley has a statement for the
record, and Senator Kyl did come by when we had a recess and he
had the Intelligence Committee that he is on that is doing
important work now, and so he apologized.
Chairman Schumer. Does he have a statement, as well?
Senator Sessions. I don't think he did, but he is prepared
to offer one consistent with my views.
Chairman Schumer. We will still allow the record to stay
open for Senator Kyl's views. We ask unanimous consent that
Senator Grassley's statement be added to the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Schumer. Why don't we let the record stay open for
a week so that others can submit their statements?
Senator Sessions. Just in summation, I think Mr. Clark had
it right that if we tell the people of the United States that a
Federal judge is nothing more than a political product, that we
don't respect the fact that they have to make legal decisions,
and that we somehow believe that their decisions are
consistently political, which some do--in fact, Laurence Tribe
when he testified here said that we need to abandon the, quote,
``Olympian ideal'' of non-political justice. That is what I am
concerned about.
I believe, having practiced law in Federal courts for many,
many years, that consistently, day after day, Republicans and
Democrats, liberals and conservatives, if they are good lawyers
and men and women of integrity who are committed to the law,
come out pretty close to the same thing.
Now, you might find on procedural matters and environmental
cases some class in which a person might be a little different
than another one. But, fundamentally, we ought not to send a
message, I would say, that would suggest that.
Judge Mikva left the bench and went to be the White House
Counsel to President Clinton, one of the most skilled
politicians, I guess, of the century. You helped him, from just
reading the newspapers and things that I saw, and gave him good
advice. But you also did a good job on the bench. Because a
person has strong political views does not mean they can't be a
good person on the bench.
I would repeat Mr. Cutler's comments. Mr. Fielding, the
Miller Commission report that we had a hearing on--and I
believe Lloyd Cutler talked about it then--was really a
classical study of the proper relationship. I think your
conclusion of a bipartisan commission and the conclusion they
reached about how we ought to evaluate judges was sound.
I do believe it would be a tragedy to make ideology an
increasing part of our confirmation, and I would quote Mr.
Cutler, President Clinton's counsel: ``To make ideology an
issue in the confirmation process is to suggest that the legal
process is, and should be, a political one.'' That would be a
dangerous message for us to send.
So as we talk about it, yes, I think we have a right to ask
them about their views, particularly if they have written or
talked or advocated certain views, just like it would be fair
to ask Judge Mikva--you have spoken on gun control--will you
follow existing law. That is appropriate. But if they answer
and we believe them, and we believe they are men and women of
integrity and they will follow existing law, they ought to be
given the benefit of the doubt and be confirmed.
Chairman Schumer. With that, we will close the hearing, but
only after thanking our witnesses for what I thought was an
excellent discussion. Thank you.
We will insert into the record a letter and a paper
submitted by various environmental groups into the record.
The hearing is adjourned.
[Whereupon, at 12:52 p.m., the subcommittee was adjourned.]
[A question and answer and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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