Executive Session

EXECUTIVE SESSION

Mr. REED. Mr. President, we are here this morning to discuss the status of judges. My colleagues on the other side of the aisle have been rather adamant in claiming they may have been mistreated. I think there is a contradiction in their argument. Frankly, what I witnessed here as a Member of this body over the last several years in the Clinton administration was a process of systematically denying the nominees of President Clinton-qualified, indeed, very qualified nominees in their positions on the Federal bench-doing it not on the floor as we are doing here openly, but using what I would describe as a pocket filibuster. We are all aware of the notion of a pocket veto. The Constitution allows the President a certain number of days to exercise his veto, but at the end of a session he doesn't have to exercise that. He simply has to put the bill in his pocket and it will not become law. That is essentially what the Republican majority did here to so many of President Clinton's nominees. They refused to give these individuals hearings. They refused to take up the nominations or to seriously allow a process for the committee to deliberate and to consider and to recommend them for an up or down vote.

Today, for the majority to come and claim they are being mistreated and that the Constitution is being violated is to me a profound contradiction because they have very determinedly and consistently denied even a hearing to so many well-qualified individuals who were nominated by President Clinton.

That is not to suggest we are in any way trying to match their conduct. The fact we are here on the floor exercising our rights under the rules of the Senate and the Constitution of the United States to make a statement about judges, to make a statement about individuals who we feel for many reasons lack either the qualifications or the judicial temperament to serve successfully on the Federal bench, makes the record quite clear. That is in contrast to the pocket filibusters.

We have been very active and cooperative in moving 168 judges through the committee process to the floor of the Senate and to ultimate confirmation by the Senate. It is a remarkable record.

In the last year alone, I believe we have confirmed more judges than were confirmed under President Reagan's tenure with a Republican Senate at the time. This is not a record of evasion of our constitutional responsibilities. This is a record of meeting our constitutional responsibilities, one of which is to exercise our individual judgment as Senators as to the qualification of anyone to serve on the Federal bench. But as I mentioned before, what we saw so consistently and so persistently under the previous President was a Republican strategy of blocking judges by a pocket filibuster; not here on the floor, but off the floor, denying them right to a hearing.

Let me suggest this has a very pernicious effect on so many women who were nominated by President Clinton. This is a report of some of the judges nominated by President Clinton for consideration by this Senate:

Kathleen McCree-Lewis for the Sixth Circuit-again, my colleagues have been going on and on about the importance of the circuit judges. They are important. What happened when President Clinton nominated Kathleen McCree-Lewis to the Sixth Circuit? She never got a vote; never got around to the process of hearings, a debate in committee, a recommendation to the floor of the Senate; never got through to us for a vote. Helene White to the Sixth Circuit, never got a vote; Elena Kagan to the D.C. Circuit, never got a vote.

By the way, Ms. Kagan is today dean of the Harvard Law School. Is there anyone who would suggest she was not qualified to be a Federal judge? I think that would be quite an extreme statement. She was more than qualified to be a Federal judge, but she never got a vote.

Elizabeth Gibson to the Fourth Circuit, never got a vote; Christine Arguello to the Tenth Circuit, never got a vote; Bonnie Campbell to the Eighth Circuit, never got a vote; Patricia Coan to the District of Colorado, never got a vote; Valerie Couch to the District of Oklahoma, never got a vote; Rhonda Fields to the District Court for the District of Columbia, never got a vote; Dolly Gee to the Central District of California, never got a vote; Marian Johnston to the Eastern District of California, never got a vote; Sue Myerscough to the Central District of Illinois, never got a vote; Lynette Norton to the Western District of Pennsylvania, never got a vote; Linda Riegle to the District of Nevada, never got a vote; Cheryle Wattley to the Northern District of Texas, never got a vote; Lynee Lasry to the Southern District of California, never got a vote; Wenona Whitfield to the Southern District of Illinois, never got a vote; and Anabelle Rodriguez to the District of Puerto Rico, never got a vote.

That is the record of the pocket filibuster; nominated by the President of the United States; qualified; and, indeed one of these individuals I point out is now the dean of the Harvard Law School, but they never got a vote of any kind.

That is what we saw: The rules of the Senate being used by the majority to frustrate the nominees of the President of the United States. Then to come to this floor and claim this is now unprecedented and a usurpation of the Constitution of the United States when we are simply exercising our rights on the floor under the rules of the Senate to express our opinion as to the quality and qualifications of nominees to the Federal bench is I think certainly a contradiction.

With respect to some of these judges, I think the key issue here is judicial temperament. Indeed, there is a certain degree of sensitivity about judicial temperament as one goes from the district court to the court of appeals. It is often the case that a district court judge is younger and the thought is that person will mature on the bench and maybe in future days will be of such experience and demonstrated judicial temperament that she or he would be promoted to the circuit court of appeals, and then there are direct nominees to the circuit court. But again, you have to look at someone's breadth of experience, maturity, and intellect, and again their judicial temperament.

The nominees who have been identified and have been questioned by Democrats are individuals by and large whose judicial temperament is quite questionable.

Priscilla Owen has had a long history of putting her own personal opinion above the law, of injecting political ideology into the law, rather than following precedent.

One of the things about a circuit court judge is you have to follow precedent. The Supreme Court can try to create law, but a circuit court must follow precedents of the Supreme Court. In case after case after case, there were such situations in which she just defied precedent. There is a case of medical malpractice, Weiner v. Watson, when one of our colleagues, the junior Senator from Texas, was on the Texas Supreme Court Justice, and he unequivocally rejected Judge Owen's argument, stating it was contrary to the Texas State Constitution.

Are we going to put people on courts of the United States who have a predilection to not follow the Constitution? I think not. That is one example.

You can see the same with Justice Brown who is a justice of the California courts. She has been criticized on the bench for injecting her own personal views and not following precedent. On a number of occasions, Republican colleagues have criticized her dissenting opinions for their judicial activism. In one case, Brown was "chastized for imposing a personal theory of political economy on the bench contrary to established precedent."

In another, she was chastized for refusing to accept acknowledged previous judicial precedent. That charge is extremely serious when you are dealing with a judge who is charged with following the precedent, following the Constitution, and following the law.

The same may be said about Judge Kuhl; again, ideology rather than legal temperament and legal reasoning seems to be her forte.

There is case after case after case. There are reasons, solid reasons to question these nominees. Our job as Senators is to raise those questions.

There have been 168 judges confirmed by the Senate for President Bush, a record number, a remarkable number. In fact, vacancies on the Federal judiciary are the lowest they have been in recent memory. It is because we have been working together. But that does not mean we surrender our obligation to question and challenge those judges who do not meet the test of judicial temperament, nonpartisan application of the law, and nonideological application of the law. And there are those whose nominations have failed.

That is what the Founding Fathers envisioned when they created a system of advise and consent. It is not advise and approve. It is advise and consent. The Senate plays an active role. There is no group of people who played a more active role in considering the nominees, certainly of President Clinton, than the Republican majority today. They did it persistently. They did it deliberately. They did it consciously. We are exercising constitutional powers.

One of the examples that was used and one of the judges who was an eminent jurist in California, nominated for the Ninth Circuit, is Judge Richard Paez. He was subject to cloture votes. He was subject to situations in which he was challenged. That is the rule. You get to do that. In fact, Judge Paez waited 1,500 days even to get a vote. That is not the case with these nominees. There were 1,500 days in which he was nominated to the Ninth Circuit. His nomination was in limbo. Finally, there was a vote and people rose up. Some supported a motion for cloture; others rejected it. So this notion that it is unprecedented to challenge a nominee for the Federal judiciary through the cloture process is fanciful. It has happened very recently. It happened with Judge Paez.

He is not the only one. Sixty-four of President Clinton's nominees never received a floor vote. One nominee, Ronnie White, was defeated on a floor vote.

We have a situation where the deeds and actions are not wrapped in the dim mist of history. These nominations were before the Senate 2 or 3 years ago. The deeds don't match the words we are hearing today. All of the outrage about the constitutional challenge and crisis. That outrage was certainly not manifested a few years ago when Judge Paez was waiting 1,500 days for a hearing and then was subject to a cloture vote just as these nominees are being subject to cloture votes.

That is one point. But there is a larger point. We are spending hours and hours and hours to demonstrate a supposed crisis, the fact that 4 individuals out of 172 have not been confirmed by this Senate, when in fact there are much greater problems facing this Nation. We have an unemployment rate that continues to hover around 6 percent, a budget deficit that is exploding and inhibiting appropriate action by this Senate on so many important issues-education reform, worker training, dealing with issues both large and small.

We have a crisis internationally that is costing us the lives of our soldiers and military personnel and billions of dollars from our Treasury. We are spending all night, long, precious hours conducting a demonstration, when we should be working on appropriations bills and we should be dealing with the issues that confront the families of America. I think it is really a demonstration of listen to what I say, don't watch what I do. Because when we watch what the Republicans do, the record is remarkable, the high number of President Bush's judicial nominees who have gone through. It is extraordinary compared to the treatment President Clinton received.

I would hope when we finish this exercise, we can in fact go forth and deal with the issues which are essential and should be dealt with. We have a minimum wage that has been stuck for years now. It should be increased. We have a host of other issues that need addressing. I hope we can.

I yield to my colleague, Senator Corzine.

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Mr. REED. Let me reclaim my time. I would simply say regardless of the residue of judges in the Bush administration versus the end of the Clinton administration, the point I am making is there was apparently a very consistent effort on the part of Republicans to deny votes to all manner of judges. I think 64 of President Clinton's nominees never got a vote, never got to the floor. I have the time. I think what it amounts to is a very deliberate protest, which the majority has the power to do, of using the committee process to deny hearings and to deny votes.

It is a contradiction then to come to the floor and say: We can use the rules of the Senate. We can use these rules and we can deny judges, but if the Democrats choose to use the rules of the Senate to challenge a judicial nominee of the President, Bush or otherwise, that represents a violation of the Constitution.

That is my point. The point is borne out regardless of the residue of judges of either administration. The record today, this Senate and the Senate under the leadership of TOM DASCHLE, shows we have done a remarkable job in confirming this President's nominees. That was not suggested in the treatment of President Clinton's nominees.

I yield to my colleague from New Jersey.

Mr. CORZINE. I appreciate the discussion my colleague from Rhode Island brought up. I wanted to clarify one point of questions about an individual. Did you suggest Elena Kagan is now the dean of the Harvard Law School?

Mr. REED. I suggested it because that is my understanding, that she was nominated for the District of Columbia circuit and she is now the dean of the Harvard Law School. She is a remarkable dean. I am somewhat prejudiced since I graduated from Harvard Law School, but she is a remarkable personality.

Mr. CORZINE. Was she unable to get a hearing in the Judiciary Committee when President Clinton nominated her for circuit court?

Mr. REED. Let me just say my recollection is she was not given a vote after being nominated to the court.

Mr. CORZINE. So she suffered from what you were suggesting, a pocket veto.

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Mr. REED. A question has come up about Elena Kagan's nomination. I have some information. Ms. Kagan was nominated in June of 1999. For 18 months, there was no action on her nomination. I believe her nomination was certainly available for action by the committee and by the relevant bodies of the Senate for 18 months, yet she never received a hearing and there was no floor vote.

Mr. CORZINE. I appreciate the Senator from Rhode Island helping me respond to the Senator from Pennsylvania's question: 18 months, not 2 months; no hearing; no floor vote; someone who at least some folks who look at legal capacity and qualifications thought enough of, after she was not reviewed by the Senate either with a hearing or floor vote, to become the dean of the Harvard Law School.

Again, my point is, we seem to be talking out of a sort of surreal context. One hundred sixty-eight to four is on the face of it an important statement of how there has been cooperation. I went through in New Jersey five for five on district court judges and one circuit court judge. When people work together, you can get the positive results in this whole process.

The 168 to 4 shows we can have a positive result. Ninety-five percent of all judicial positions are filled. That, by the way, is in contrast with only 75 percent at the end of the Clinton administration, because there had been such a limited number of folks who had been able to actually get a hearing and ultimately a floor vote.

There is also the statement that we are somehow or another being far more restrictive. I do want to review that it is 10 times the number of nominees blocked by the technique of not giving hearings or allowing for nominations to be reported to the floor that occurred in the Clinton administration. It was 63 nominees blocked in the 1995-to-2000 period, against 2 percent so far in the 2001-to-2003 period of Bush nominees. There is something about the raw numbers of this that don't make sense and wouldn't to anyone if they actually focused on them in a commonsensical way.

I want to get to the circuit court judge issue. If you look back to the Carter administration on through, we heard it is roughly 10 circuit court judges a year per individual. This is sort of like figuring out when the best rate of return in the market is over the last 50 years. You can pick certain sections and everything looks wonderful. I would just like to look in this 1995-to-2000 period when Clinton nominees were languishing in the hearing room. Hearings held for judicial nominees averaged for the Clinton administration 9 versus 22 with respect to what is going on in the current situation. Judicial nominees given hearings, 43 versus 81. Circuit court judges, nominees given hearings, 9 under President Clinton, 19 circuit court. That is on average. The confirmation is 68 judges confirmed on an annual basis versus 38 in the Clinton years. That is 1995 to 2000. Circuit court judges, it was only 7, not 10 as we heard before, if you look at that 1995-to-2000 period. It is 12 judges under the current administration.

We can pick these numbers, any number you want, to try to make cases. But the fact is, we are approving more judges, we are dealing with the situation on a much more legitimate basis, on an ongoing basis than what occurred in the previous administration.

I just happen to have the yearbook of those folks who were left out in 1995 to 2000. There could be four we would have here supposedly under the current situation.

By the way, I happen to know one of these judges, Stephen Orlofsky, a district judge in New Jersey who was unanimously confirmed for district court judge and then never got a hearing. I happened to know the specifics of that because it was closer to home. Ultimately we just filled this position with Michael Chertoff who seems to me to be a fine appointment, one I recommended, stood by and pushed very hard for because people worked together. They cooperated, the White House, the folks in the Judiciary Committee, and the Senators from the area. I think this can be done. I think 168 to 4 shows it is being done. I would contrast that with the over 50 nominees, 1995 to 2000, who never got a hearing.

I am just going to point out two of these. Judge Helene White of Michigan was nominated to the Sixth Circuit, waited in vain 4 years, 1,454 days for a hearing. It may not be a filibuster on the floor, but for 1,454 days she couldn't get a hearing. I think it gets to the same result. We are not dealing with Presidential nominations. The fact is, there were 55 of these folks. In fact, we have only identified four who seemed to be so far out of the mainstream that a number of us are concerned about how that fits.

I could go through this. There is a James Beatty from North Carolina nominated to the Fourth Circuit. He didn't get a hearing either, waited 3 years, 1,033 days, never got a hearing. This went on. You could get on down into the weeds on a whole series of these folks. But these people never got a hearing. It is just a different technique. We are talking about four people. There is a legitimate view that their actions were outside the mainstream. Maybe they got votes once they got to the floor, but they never got out of committee. I think that is a major issue.

The other thing I will segue off into is the issue the Senator from Rhode Island talked about. What is really hard about this is there is an incredible agenda for America to be discussing. I think we could afford to spend 30 hours talking about how we put 9 million Americans back to work. I think it is pretty hard to understand how we got the priorities. We have 168 positive elements with regard to our judicial nominations accepted and only 4 turned down, but we have had 3 million lost jobs, 2½ million manufacturing jobs. We have had the deficit go from a $236 billion surplus to a $304 billion deficit. We have seen a $500 billion plus negative cashflow because we are managing the economy poorly. We have seen it hurt and bite real individuals, 9 million. Two million people have been unemployed longer than their unemployment benefits would allow; 4 million people have dropped off the rolls.

It is an incredible misprioritization, in my view, that we are talking about four judges when there are 9 million people that we ought to be figuring out how to get back to work.