Panel One of a Hearing of the Senate Judiciary Committee

January 29, 2003 Wednesday

HEADLINE: PANEL ONE OF A HEARING OF THE SENATE JUDICIARY COMMITTEE
 
SUBJECT: JUDICIAL NOMINATIONS OF: DEBORAH COOK, U.S. COURT OF APPEALS JUDGE, 6TH CIRCUIT; JOHN ROBERTS, U.S. COURT OF APPEALS JUDGE, D.C. CIRCUIT; JEFFREY SUTTON, U.S. COURT OF APPEALS JUDGE, 6TH CIRCUIT;
 
CHAIRED BY: SENATOR ORRIN HATCH (R-UT)
 

BODY:
SEN. HATCH: Our hearings are open to the public, and to the interested public. Of course, as a champion of the ADA, the Americans With Disabilities Act, I've done everything possible to accommodate the persons with disabilities who informed us yesterday that they would be attending the hearing. Now, in fact, when we received word that there would be three deaf people in attendance, we immediately arranged an interpreter for them. When were informed that up to 100 people with disabilities would be coming, we immediately began looking throughout the building for additional suitable room to accommodate all of them.

As background, the committee practices to allow the public to attend hearings on a first-come, first-served basis, and often many of the people who wait in line never get in. Rather than follow the usual practice and have most people in the hallways, we instead reserved SDG-50, a spacious first-floor room, for any guests who could not be accommodated in the hearing room.

Now, we're very disappointed that we were unable to get S-216, which would have been a bigger room, and would have allowed us, perhaps, to get everybody in.

SEN. PATRICK LEAHY (D-VT): Mr. Chairman?

SEN. HATCH: I've asked my staff to look at SDG-50 and see how full it is and see if we can accommodate everybody down there, because we could immediately move down there, if it is. But our problem is all the television is set up and everything else right now. But we'll check on it and we'll see what we can do --

SEN. LEAHY: Mr. Chairman?

SEN. HATCH: Because I'm the last person on earth who would not want to accommodate those who are suffering from—or those who are persons with disabilities. So we'll start here, and we'll check out that room. If it's capable of handling this, we'll try to accommodate, if we can move everything down there. But as of right now, I think we're going to have to proceed here until I receive back word from staff.

SEN. LEAHY: Can I say something about that, Mr. Chairman?

SEN. HATCH: And I would like your staff to work with them.

SEN. LEAHY: I would. I've already asked my staff to go down and look at SDG-50. When I went by there earlier this morning—and it's a huge room—I think it would probably accommodate. We had people standing out here for an hour waiting. And maybe one way to do it would be to have the senators who are here to make their --

SEN. HATCH: Opening statements.

SEN. LEAHY: -- statements of support do it. But I would really strongly urge that we move down there. It's a much larger room, and it would be a lot easier to accommodate some people who have not been able to get in.

SEN. HATCH: I think that's—let's see if we can do it.

(Scattered applause.)

AUDIENCE MEMBER: Don't segregate our people!

SEN. TED KENNEDY (D-MA): (Off mike) -- in terms of hearing from the presenters here. And then, as I understand as well, that SD-50 is open and is available. And it seems to me that we ought to give the opportunity for people who have an interest in these nominees an opportunity to hear them. And so I support Senator Leahy's proposal and hope that that can be --

SEN. HATCH: Well, I think I made that comment. And I think—I'm certainly amendable to that. So let's have Senator Leahy's staff and my staff go down there and see if we can accommodate us done there. If we can't, we're going to continue here. If we can, we'll move down there with dispatch, because I'm not going to waste a lot of time moving, so everybody's just going to have to move down there as quickly as they can. But I certainly want to always accommodate as many people as we possibly can, and especially those who suffer from disabilities. And we'll just do it that way.

We'll make our—we can make our two statements, and then we'll have the two senators make theirs, or any other senators who want to come at this time.

Good morning. I'm pleased to welcome all of you to the committee's first judicial confirmation hearing of the 108th Congress. I first would like to acknowledge and thank Senator Leahy for his service as chairman of this committee over the past 16 months. I also would like to extend a particular welcome to Senator Bob Dole, our former majority leader, and to Commissioner Russell Redenbaugh, the three-term U.S. Civil Rights Commissioner, who also happens to be the first disabled American to serve on that commission. It means a great deal to me that they are both here today to support Mr. Jeff Sutton's nomination. And of course, I would also like to express my deep appreciation for the members we have here, who have taken time to come and present their views on the qualifications of our witnesses today.

Our first panel features three outstanding circuit nominees who were nominated on May 9th, 2001, whose hearing was originally noticed for May 23rd, 2001.

I agreed to postpone that hearing for a week at the request of some of my Democratic colleagues, who claimed that an additional week—they needed an additional week to assess the nominees' qualifications. As we all know, control of the Senate and the committee shifted to the Democrats shortly thereafter, on June 5th, 2001, and these nominees have been languishing in the committee without a hearing ever since.

So I am particularly pleased to pick up where we left off in May of 2001, by holding our first confirmation hearing for the same three nominees we noticed back then: Justice Deborah Cook, Jeffrey Sutton and John Roberts. It is with great pleasure that I welcome these distinguished guests before the committee this morning.

We also have three very impressive district court nominees with us today: John Adams, for the Northern District of Ohio; Robert Junell, for the Western District of Texas; and S. James Otero, for the Central District of California. I will reserve my remarks about these district court nominees until I call their panel forward.

Our first nominee is Ohio Supreme Court Justice Deborah Cook, who has established a distinguished record as both a litigator and a jurist. Justice Cook began her legal career in 1976 as a law clerk for the firm now known as Roderick Linton, which is Akron's oldest law firm. Upon her graduation from the University of Akron's School of Law in 1978, Justice Cook became the first woman hired by that firm. In 1983 she became the first female partner in the firm's century of existence, and I'm proud to have her before us as a nominee who knows firsthand the difficulties and challenges that professional women face in breaking through the glass ceiling.

During her approximately 15 years in the private sector, Justice Cook had a large and diverse civil litigation practice. She represented both plaintiffs and defendants at trial and on appeal in cases involving, for example, labor law, insurance claims, commercial litigation, torts and ERISA claims.

In 1991 Justice Cook left the private sector after winning election to serve as a judge on the 9th Ohio District Court of Appeals. During her four years on the 9th District bench, she participated in deciding over 1,000 appeals. The Ohio Supreme Court reversed only six of the opinions that she authored and eight of the opinions on which she joined.

In 1994 Justice Cook was elected to serve as a justice on the Ohio Supreme Court. She therefore brings to the federal bench more than 10 years of appellate judicial experience, which is built on a foundation of 15 years of solid and diverse litigation experience. There can be little doubt that she is eminently qualified to be a 6th Circuit jurist, and I commend President Bush on his selection of her for this post.

Our next nominee is Jeff Sutton, one of the most respected appellate advocates in the country today. He has argued over 45 appeals for a diversity of clients in federal and state courts across the country, including a remarkable number -- 12, to be exact—before the U.S. Supreme Court. His remarkable skill and pleasant demeanor have won him not only a lot of decisions but also a wide variety of prominent supporters, including Seth Waxman, President Clinton's solicitor general; Benson Wolman, the former head of the Ohio ACLU; Bonnie Campbell, a Clinton nominee to the 8th Circuit Court of Appeals; Civil Rights Commissioner Redenbaugh, the first disabled American to serve on the U.S. Civil Rights Commission; and former senator/majority leader Bob Dole, who is among the country's most powerful advocates on behalf of persons with disabilities.

I feel it necessary for me to comment briefly on some of the recent criticisms we have heard. Of course, no one familiar with the nominees—nominations process is surprised. We have the usual gang opposing Republican nominees. Well, their opposition of Jeff Sutton is for all of the wrong reasons. But as people who know me well will attest, I have always been willing to acknowledge a fair point made by the opposition, so in keeping with that principle, I want everyone to know that I found something commendable in the so-called report published by one of these groups about Jeff Sutton. That report concluded—or conceded that quote, "No one has seriously contended that Sutton is personally biased against people with disabilities," unquote.

(Chuckles.) Now, that is a very important point. It should be obvious, since Jeff Sutton has a well-known record of fighting for the legal rights of persons with disabilities. And he was raised in an environment of concern for the disabled. His father ran a school for people affected by cerebral palsy.

Since the opposition to Jeff Sutton is not personal, then what is it? It seems to come down to a public policy disagreement about some Supreme Court decisions relating to the limits to federal power when Congress seeks to regulate state governments. Those cases include the City of Boerne, Kimel, and Garrett, among others. But in those cases, it was Jeffrey Sutton's job, as the chief appellate lawyer for the state of Ohio and as a lawyer to defend his clients' legal interests. As the American Bar Association ethics rules make clear, quote, "A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities," unquote.

Now, I don't think anyone on this committee would actually consider voting against a nominee out of dislike for the nominee's clients. We had an important discussion about clients in connection with the confirmation of Marsha Berzon, now a judge on the 9th Circuit, who was born in Ohio, by the way, and this committee ultimately decided not to hold her responsible for her clients' views. Judge Berzon had been a long-time member of the ACLU, serving on the board of directors as the vice president of the Northern California Branch. She testified that, quote, "If I am confirmed as a judge, not only will the ACLU's positions be irrelevant, but the positions of my former clients and, indeed, my own positions on any policy matters will be quite irrelevant.

And I will be required to and I commit to look at the statute, the constitutional provisions and the precedents only in deciding the case," unquote. That was on July 30th, 1998. I want to remind my colleagues that that answer sufficed for Judge Berzon and she was approved by this committee with my support and confirmed by the Senate. It took longer than I would have liked it to have taken, but she was approved.

I think we all agree that anybody involved in a legal dispute has a right to hire a good lawyer, even if that person is guilty of murder. And Jeff's clients are not murderers, they are state governments defending their legal rights. So let's not beat up on Mr. Sutton because he worked for the State of Ohio. Of course, I'm not suggesting that committee members must praise the effects of the Supreme Court's rulings in City of Boerne, Kimel, and Garrett. Those decisions affected real people and then did some of the hard work on the part of Congress. I should know. A number of us on this committee, certainly Senator Kennedy and I, we did a lot of work on those cases. We put in a great deal of time and energy into drafting and passing the Religious Freedom Restoration Act, the Americans with Disabilities Act and other laws that have been declared beyond federal power, including the Violence Against Women Act, which Senator Biden spent so much time on, and myself.

I thought those laws were good for the country, and they still are. It was not easy to see them limited or struck down. Of course, I understand the powerful constitutional principles and underpinning of the Supreme Court's decisions in those cases, but I can sympathize with those who see things differently. I have no sympathy, however, for the notion that those Supreme Court decisions and the positions of the states that were Mr. Sutton's clients are somehow a legitimate reason to oppose Mr. Sutton's nomination. That's ridiculous.

So, since even the People for the American Way concedes that Jeff Sutton harbors no personal bias, and since Mr. Sutton cannot be held responsible for the Supreme court's decisions, and since we all agree that Ohio and Alabama and Florida have the right to representation in court, then I do not see any real reason to oppose this highly skilled and highly qualified and highly rated lawyer by the ABA.

I do look forward to his testimony and would only urge my colleagues and observers to keep an open mind. From the record I have observed so far, I am convinced that Jeff Sutton will a great judge and one who understands the proper role of a judge.

Our final circuit nominee today is Mr. John Roberts, who has been nominated for a seat on the D.C. Circuit Court of Appeals. He is widely considered to be one of the premier appellate litigators of his generation. Most lawyers are held in high esteem if they have the privilege of arguing even one case before the U.S. Supreme Court. Mr. Roberts has argued an astounding 39 cases before the Supreme Court.

At least that was the last count I had. It's truly an honor to have such an accomplished litigator before this committee, and one of the most well-recognized and approved appellate litigators in history.

The high esteem in which Mr. Roberts is held is reflected in a letter the committee recently received urging his confirmation. This letter, which I will submit for the record, was signed by more than 150 members of the D.C. Bar, including such well-respected attorneys as Lloyd Cutler, who was the White House counsel to both presidents Carter and Clinton; Boyden Gray, who was the White House counsel for the first President Bush; and Seth Waxman, who was President Clinton's solicitor general. The letter states, quote, "Although as individuals we reflect a wide spectrum of political party affiliation and ideology, we are united in our belief that John Roberts will be an outstanding Federal Court of Appeals judge and should be confirmed by the United States Senate. He is one of the very best and most highly respected appellate lawyers in the nation, with a deserved reputation as a brilliant writer and oral advocate. He is also a wonderful professional colleague, both because of his enormous skills and because of his unquestioned integrity and fair-mindedness," unquote.

This is high praise from a group of lawyers who themselves have clearly excelled in their profession, who are not easily impressed and who would not recklessly put their reputations on the line by issuing such a sterling endorsement if they were not 100 percent convinced that John Roberts will be a fair judge who will follow the law regardless of his personal beliefs.

Let me just say a brief word about Mr. Roberts' background before turning to Senator Leahy. He graduated from Harvard College summa cum laude in 1976 and received his law degree magnum (sic) cum laude in 1979 from the Harvard Law School, where he was managing editor of the Harvard Law Review.

Following graduation, he served as a law clerk for 2nd Circuit Judge Henry J. Friendly and for then-Justice William Rehnquist of the Supreme Court. From 1982 to 1986 Roberts served as associate counsel to the president in the White House Counsel's Office. From 1989 to 1993 he served a principal deputy solicitor general at the U.S. Department of Justice. He now heads the appellate practice group at the prestigious D.C. law firm Hogan & Hartson, and he has received the ABA's highest rating of unanimously well-qualified.

I have to say that this panel represents the best, and I commend President Bush for seeking out such nominees of the highest caliber.

Now, I just have a note here, and let me see what it says, and then I'll turn -- (reads note to himself). Okay, and for everybody's information, I have been advised that we can set up in another large room. We will proceed here until the other room is ready for us, at which time we will take a short recess and accommodate further the request made yesterday for additional accommodations.

So, I would prefer that, and even though it's an inconvenience to all of you, let's see if we can try and get at least these folks into that room first, because they were here first, as well as those persons with disabilities who desire to attend. And we'll -- (aside) -- does anybody know what the room is?

STAFF: It's going to be SDG-50.

SEN. HATCH: SDG-50 will be the room. So apparently, we can hold it there.

SEN. KENNEDY: We thank—can I just thank the chair for that accommodation? Appreciate it very much. (Applause.)

SEN. LEAHY: I think it was—Chairman, I think it was --

SEN. HATCH: Let me turn to the ranking member for his remarks.

SEN. LEAHY: I think it was a wise thing to do. As I said, when I walked by there, there appeared to be plenty of room.

I'm wondering, Mr. Chairman --

SEN. HATCH: (Whispering to someone.)

SEN. LEAHY: Yoo-hoo!

SEN. HATCH: Yeah?

SEN. LEAHY: I'm wondering, if we're going to be moving down there anyway—and Senator Warner and Senator Hutchison—I'd just soon withhold my statement until we go down there to give—as a courtesy to Senator Warner and Senator Hutchison, and if Senator Voinovich comes, if they want to give their statement here, and then I'll give my opening statement down there.

SEN. HATCH: No, I'd prefer for you to give your opening statement --

SEN. LEAHY: Okay.

SEN. HATCH: -- and then we'll hear from the two senators.

SEN. LEAHY: Happy to do that, Mr. Chairman.

We meet in extraordinary -- (aside) -- I tried --

SEN. HATCH: I think my colleagues understand.

SEN. LEAHY: No, I—I know they're anxious to hear my statement, anyway and -- (laughter) --

SEN. HATCH: Well, I'm certainly anxious to hear it! (Laughs.)

SEN. LEAHY: -- following the Chairman's example, it will be a little bit lengthy.

We meet in extraordinary session to consider six important nominees for lifetime appointments to the federal bench. During the last four years of the Clinton administration, this committee refused to hold hearings and committee votes on qualified nominees to the D.C. Circuit and the 6th Circuit. Today, in very sharp contrast, committee's being required to proceed on three controversial nominations to those same circuit courts and do it simultaneously. Many see this as part of a concerted and partisan effort to pack the courts and tilt them sharply out of balance.

In contrast to the president's circuit court nominees, the district court nominees to vacancies in California, Texas and Ohio seem to be more moderate and bipartisan. Today, we'll hear from Judge Otero, nominated to the U.S. District Court for the Central District of California, unanimously approved by California's bipartisan Judiciary Advisory Committee, established through the agreement between Senator Feinstein, Senator Boxer with the White House.

I wish the White House would proceed to nominate another qualified consensus nominee like Judge Otero for the remaining vacancy in California. Because too often the last two years, we've seen the recommendations of such bipartisan panels rejected or stalled at the White House.

I note that Judge Otero has contributed to the community, worked on a pro bono project for the Mexican Legal Defense and Education Fund, served as a member of the Mexican Bar Association, the Stanford Chicano Alumni Association, the California Latino Judges Association, among others.

We'll hear from Robert Junell, nominated to the U.S. District Court for the Western District of Texas, another consensus nominee who has a varied career as a litigator and member of the Texas House of Representatives, life member of the NAACP, and a former member of the Board of Directors of La Esperanza Clinic. And I spoke earlier with Representative Charlie Stenholm, who strongly supported him.

And then, of course, Judge Adams is nominated to the U.S. District Court for the Northern District of Ohio.

These are not the ones that create the controversy. And I'm disappointed the chairman has unilaterally chosen to pack so many circuit court nominees onto the docket of a single hearing. This is certainly unprecedented in his earlier tenure as chairman. And there simply is no way to consider the controversial and divisive nominations in a single hearing. It is not the way to discharge our constitutional duty to advise and consent to the president's nominees.

When I was chairman,over 17 months, we reformed the process of judicial nomination hearings. We made tangible progress repairing the damage done to the process in the previous six years. We showed how nominations of a Republican president can be considered twice as quickly in a Democratic-controlled Senate as a Republican-controlled Senate that considered President Clinton's nominees. We added new accountability by making the positions of home-state senators public for the first time, and we did away with the previous Republican process of anonymous holds.

We made significant progress in helping to fill judgeships in the last Congress. The number of vacancies on the courts were slashed from 110 to 59, despite an additional 50 new vacancies that arose during that time.

Chairman Hatch had written in September 1997 that 103 vacancies—this was during the Clinton administration—did not constitute a vacancy crisis. He also stated his position on numerous occasions that 67 vacancies meant full employment in the federal court. Even with the two additional vacancies that have arisen since the beginning of the year, there are now 61 vacancies on the district and circuit courts. Under a Democratic-controlled Senate, we went well below the level that Chairman Hatch used to consider acceptable, and the federal courts have more judges now than when Chairman Hatch proclaimed them in full employment.

We made the extraordinary progress we did by holding hearings on consensus nominees with widespread support and moving them quickly, but by also recognizing that the president's more divisive nominees would take time. We urged the White House to consult in a bipartisan way and to keep the courts out of politics and partisan ideology. We urged the president to be a uniter, not a divider, when it came to our federal courts. We were rebuffed on that.

All Americans need to be able to have confidence in the courts and judges, and they need to maintain the independence necessary to rule fairly on the laws and rights of the American people to be free from discrimination, to have our environmental and consumer protection laws upheld.

Under Democratic leadership in the Senate, we confirmed 100 of President Bush's nominees within 17 months. Two others were rejected by a majority vote of this committee. Several others were controversial. They had a number of negative votes, but they were confirmed. And given all the competing responsibilities of the committee and the Senate in these times of great challenges to our nation, especially after the attacks of September 11th, then later the anthrax attacks directed at Senator Daschle and myself, attacks that killed several people and disrupted the operations of the Senate itself, hearings for 103 judicial nominees, voting on 102, and favorably reporting 100 in 17 months is a record we can be proud of and one that I would challenge anybody to show, certainly in recent years, to be matched.

During the 107th Congress, the committee voted on 102 of the 103 judicial nominees eligible for votes. That's 99 percent. Of those voted upon, 98 percent were reported favorably to the Senate. Of those, 100 percent were confirmed.

Incidentally, we completed hearings on 94 percent of the judges that had their files completed.

Now, this 103 judges heard in 17 months is contrasted to less than 40 a year that the Republicans had when they had President Clinton as president. Indeed, they failed to proceed on 79 of President Clinton's judicial nominees in the two-year Congress in which they were nominated. More than 50 of them were never even given a hearing.

Indeed, the Senate confirmed more judicial nominees in our 17 months than the Republican-controlled Senate did during 30 months. More achieved in half the time, achieved responsibly. We showed how steady progress can be made without sacrificing fairness.

But in contrast, this hearing today portends real dangers to the process and to the results, all to the detriment of our courts and to the protections they're intended to afford to the American people. The Senate, in this instance, and the Congress in many others is supposed to act as a check on the executive and add balance to the process. Proceeding as the majority has unilaterally chosen today is unprecedented. It's wrong. It undercuts the ability of this committee and the Senate to provide balance.

Three controversial circuit nominations of a Republican president for a single hearing; that is something the chairman—current chairman—is something he never did for the moderate and relatively noncontroversial nominees of a Democratic president just a few years ago. One has to think it's a headlong effort to pack the courts. And, notwithstanding our efforts not to carry out the same obstructionism as we saw with a Democratic president, we seem to be going back to different rules for different presidents.

Jeffrey Sutton's nomination has generated significant controversy and opposition. I have questions about his efforts to challenge and weaken, among other laws, the Americans with Disabilities Act, the AIDS Discrimination Employment Act, the Violence Against Women Act, and his perceived general antipathy to federal protection for state workers. I am concerned that more than 500 disability rights groups, civil rights groups and women's groups are opposed to his confirmation, because they feel he will act against their interests and not protect their rights. I am concerned about a reputation among observers of the legal community that he's a leading advocate for the states' rights revival.

This is a nomination that deserves serious scrutiny and which ought to be considered—it has been the practice—has been the practice for decades in this committee—as the only circuit court nominee in this hearing. The process imposed by my friends on the other side of the aisle is cheating the American people of the scrutiny these nominees should be accorded.

We're also being asked to simultaneously consider the nomination of Deborah Cook. She's one of the most active dissenters on the Ohio Supreme Court. She comes to the committee with a judicial record deserving of some scrutiny, and it's also generated a good deal of controversy and opposition as well.

And I note that these two difficult nominations are both in judgeships on the 6th Circuit Court of Appeals. Now that is a court to which President Clinton had a much harder time getting his nominees considered. Republicans fail to acknowledge that most of the vacancies that have plagued the 6th Circuit arose during the Clinton administration, when President Clinton had nominated people to this court and they were never even given a hearing. The Republicans closed the gates. They refused to consider any of the three highly qualified moderate nominees President Clinton sent to the Senate for those vacancies. Not one of the Clinton nominees for those current vacancies on the 6th Circuit received a hearing by the Judiciary Committee, under Republican leadership, from 1997 through June of 2001.

Now in spite of that history, when the Democrats took over, we gave committee consideration and we confirmed two of President Bush's conservative nominees to that court last year. We did not play tit for tat. With the confirmations of Judge Julia Smith Gibbons of Tennessee, Professor John Marshall Rogers of Kentucky, Democrats confirmed the only two new judges to the 6th Circuit in the past five years.

Regrettably, despite our best efforts, the White House rejected all suggestions to address the legitimate concerns of senators in that circuit. The qualified moderate nominees were blocked by the Republicans when they were in charge.

The Republican majority refused to hold hearings on the nomination of Judge Helene White, of Kathleen McCree Lewis, Professor Kent Markus. One of those seats has been vacant since 1995, the first term of President Clinton.

Judge Helene White of the Michigan Court of Appeals was nominated in January 1997. She did not receive a hearing on her nomination during the more than 1,500 days her nomination was before this committee. It's probably set a record—four years; 51 months, in fact—no hearing. She was one of 79 Clinton judicial nominees who did not get a hearing during the Congress when she was first nominated, and she was denied a hearing after being renominated a number of times, including January 2001.

Actually, the committee under Republican control had only about eight court of appeals nominees a year that they heard. In 2000 they only held five. Let's contrast it today with a Republican president, they'll hold three in one day.

We have Kathy McCree Lewis, a distinguished African-American lawyer from a prestigious Michigan law firm, who was never accorded a hearing on her 1999 nomination to the 6th Circuit, and that nomination was finally withdrawn by President Bush.

Professor Ken Marcus (sp), another outstanding nominee to a vacancy in the 6th Circuit, never received a hearing on his nomination. And while his nomination was pending, his confirmation was supported by individuals of every political stripe, including 14 past presidents of the Ohio State Bar Association, and more than 80 professors, and groups like the National District Attorneys Association, and virtually every newspaper in the state. Now, Professor Marcus (sp) did say in testimony, at another hearing, how—what happened to him. Here's some of the things he said:

"On February 9, 2000, I was the president's first judicial nominee in that calendar year. And then the waiting began. At the time my nomination was pending, despite lower vacancy rates in the 6th Circuit, in calendar year 2000 the Senate confirmed circuit nominees to the 3rd, 9th and Federal Circuit. No 6th Circuit nominee was given a hearing. More vacancies -- (inaudible). Why, then, did my nomination expire without even a hearing?"

And then, to quote him, "To their credit, Senator DeWine and his staff, and Senator Hatch's staff and others close to them were straight with me. Over and over again they told me two things. There will be no more confirmations to the 6th Circuit during the Clinton administration. This has nothing to do with you personally. It doesn't matter who the nominee is, what credentials they may have, or what support they may have, they're not going to be heard."

Well, as Professor Marcus (sp) identified, some on the other side of the aisle held these seats open for years for a Republican president to fill, instead of proceeding fairly. That's why there are now so many vacancies on the 6th Circuit. Had Republicans not blocked President Clinton's nominees to the 6th Circuit, if the three Democratic nominees had been confirmed, and President Bush appointed the judges to the other vacancies on the 6th Circuit, that court would be almost evenly balanced between judges appointed by Republican and Democratic presidents. And that's why the Republicans blocked it; they do not want balance. The same is true of a number of other circuits.

The former chief judge of the 6th Circuit, Judge, Gilbert Merritt, wrote the Judiciary Committee chairman years ago to ask that these nominees get hearings. He predicted by the time the next president is inaugurated, there will be six vacancies on the court of appeals; almost half the court will be vacant. But no 6th Circuit hearings were held in the last three full years in the Clinton administration, almost the entire second presidential term, despite these pleas.

And when I scheduled the April 2001 hearing on President Bush's nomination, Judge Gibbons to the 6th Circuit, it was the first hearing on a 6th Circuit nomination in almost five years, even though there had been three pending for President Clinton that never got heard. And we confirmed Judge Gibbons by a vote of 95 to nothing. But we didn't stop there. We proceeded to hold a hearing on a second 6th Circuit nominee just a few short months later—Professor Rogers. He too was confirmed.

This is very similar to what had happened in the Circuit Court of Appeals for the District of Columbia—the nation's circuit. It plays a significant role in environmental areas, OSHA, National Labor Relations Board. There again, President Clinton's nominees were not allowed to be heard, although we did hold a hearing for one of President Bush's last year.

Allen Snyder was a law partner of Mr. Roberts, a former clerk to Chief Justice Rehnquist. He was never allowed a committee vote. Republicans refused to give Professor Elena Kagan, another D.C. Circuit nominee, a hearing during the 18 months she was pending.

Today's nominee to the D.C. Circuit, John Roberts, worked in the Reagan Justice Department, the Reagan White House, was associate to former Solicitor General Kenneth Starr. It's obvious the Bush administration feels far more comfortable with him.

Also, home state senators have not—I understand have not been consulted in these judges—we've not—certainly not received any blue slips back. I think the American—what we're doing is we're appointing people to the highest courts in the land—little more attention and scrutiny than we paid to appointees for a temporary federal commission. It's a disservice to the American people. The American people can be excused for sensing that there is smell of an ink pad in the air, rubber stamps already out of the drawer.

Thank you, Mr. Chairman.

SEN. HATCH: Thank you, Senator Leahy. (Light applause.) We'll have order in the room.

SEN. CHARLES SCHUMER (D-NY): (Off mike.)

SEN. HATCH: Yes, sir?

SEN. SCHUMER: Thank you, Mr. Chairman. I know we don't have opening statements, and I don't want to get into any of the substance here. But I would ask that a letter that a number of us signed to you --

SEN. HATCH: Yeah, we'll put both your letter --

SEN. SCHUMER: -- be added to the record.

SEN. HATCH: Yeah.

SEN. SCHUMER: And I just make this point. We received notice of who the witnesses would be at 4:45 yesterday. That does not give anyone any chance to prepare. The committee hasn't organized; we don't have rules; you're changing the rule of the tradition of the blue slip, but we don't know what it is. This is just being rushed beyond—aside from the fact which Senator Leahy dealt with in terms of the three nominees, now we've received notice for a hearing next Tuesday. We don't know who's going to be on the hearing, and there's a rule in the committee of a one-week notice.

And so, there's just a tremendous rush to judgment here that is just not fair. We know we have differences on these nominees. But all the procedures seem to be being ripped up in an effort to rush things through, and I would just ask that you give the letter that we sent you some consideration. It is not fair to tell us at 4:45 last night as to who the witnesses were going to be. On important judges like this, it is important that we get a chance to prepare. And I would just urge that in the future, this be—this policy or whatever it is be reexamined. We have no chance—no chance—to adequately prepare. And if the impression that Senator Leahy said that we're just trying to rush things through without thorough examination is rankling some people, it's no wonder, because of all these things. It's just not right for us.

And I would ask you really give consideration to the letter as you were generous enough to move the room, as well.

Because we're going to have an awful time over the next year if we are not going to get an adequate chance to prepare, to ask questions fully, et cetera. And that's not—I know it's not been your way in the past. You've always tried to be fair.

SEN. HATCH: Well, I appreciate the senator's remarks. Certainly your letter will go into the record and our response to your letter will go into the record as well. And I intended to put them in the record.

Also, I've been announcing for two weeks who the witnesses are. They've been waiting 630 days. I think that's adequate time to prepare. But on the other hand, if there is a problem here, I'm going to solve it for you. We'll give you—we'll try and give better notice. But our obligation is to give notice of the hearing. Sometimes it's very difficult to adjust and get people, you know, prepared and there. But I'll certainly take your comments into consideration.

Let's turn to Senator Warner and then Senator Hutchison and then Senator Voinovich. And then, of course, we have Senator DeWine, who also, along with Senator Voinovich, has two Ohio state judges. And then Senator Feinstein, if you'd care to make your remarks about your judge here today, or we could do it right before they are called --

SEN. FEINSTEIN: (Off mike.)

SEN. HATCH: I'll accommodate you. I'll accommodate you.

SEN. FEINSTEIN: I'll be happy to -- (inaudible) -- I'll be happy to -- (inaudible).

SEN. HATCH: And then wait until your judge is called up. That'll be fine. Senator Warner.

SEN. WARNER: Chairman Hatch, Senator Leahy and members of the committee, I'll ask to submit my statement for the record.

SEN. HATCH: Without objection, -- (inaudible).

SEN. WARNER: Three reasons: First, as a courtesy to the committee and to our guests who have been very patient; secondly, this nominee, John Roberts, is indeed one of the most outstanding that I've ever had the privilege of presenting on behalf of a president in my 25 years in the United States Senate. His record needs no enhancement by this humble senator, I assure you.

So I ask that the committee receive this nomination. He is accompanied by his wife Jane, his children, Josephine and John, who have been unusually quiet -- (laughter) -- we thank you very much; patient—his parents and his sisters.

Mr. Chairman, members of the committee, if I may indulge a personal observation, Mr. Roberts is designated to serve on the circuit court of appeals for the District of Columbia. Exactly one half-century ago, 50 years, I was a clerk on that court. And so I take a particular interest in presenting this nominee.

Also, the nominee is a member of the firm of Hogan & Hartson, one of the leading firms in the nation's capital. Fifty years ago, I was a member of that firm. And I just reminisced with the nominee. I was the 34th lawyer in that firm, which was one of the largest in the nation's capital. Today there are 1,000 members of that law firm, to show you the change in the practice of law in the half-century that I've been a witness to this.

Mr. Chairman, you covered in your opening remarks every single fact that I had hopefully desired to inform the committee. So, again, for that reason you have most courteously, Mr. Chairman, stated all the pertinent facts about this extraordinary man, having graduated form Harvard summa cum laude in '76.

Three years later he graduated from Harvard School magna cum laude, where he served as managing editor of the Harvard Law Review. Those of us who pursued the practice of law know that few of us could have ever attained that status. Even if I went back and started all over again, I couldn't do it.

He served as law clerk to Judge Friendly on the United States court of appeals for the second circuit and worked as a law clerk to the current chief justice of the Supreme Court, Judge Rehnquist, Justice Rehnquist.

So I commend the president. I commend this nominee. I'm hopeful that the committee will judiciously and fairly consider this nomination and that the Senate will give its advice and consent for this distinguished American to serve as a part of our judicial branch.

I thank the chair and members --

SEN. HATCH: Thank you, Senator Warner. We appreciate it. Senator Hutchison.

SEN. HUTCHISON: Thank you very much, Mr. Chairman. I'm very pleased to introduce my friend, Rob Junell, who's been nominated to serve as a district judge for the western district in Midland, Texas. This court is identified as a judicial emergency by the Judicial Conference of the United States.

Rob has brought his wife Beverly with him today, and I know he will introduce her later. But I want to say that Rob and Beverly are real friends of mine. Sometimes we nominate people that are great on the merits but we don't know them. Well, Rob is great on the merits and I know him well.

He served seven terms in the Texas House of Representatives, retiring voluntarily last year. He was chairman of the House Appropriations Committee and the House Budget Committee. And I worked with him when I was state treasurer.

And just a little vignette about the kind of person he is: I was elected to a four-year term as state treasurer and introduced a very complicated piece of legislation to limit our state debt to the legislature; asked Representative Junell to carry that bill since he was chairman of the Appropriations Committee.

And I thought, since it was so complicated, that I would put it out there, talk about it, let the members have a chance to really look at it and study it. And then, in my second year, second part of my term, after the fourth year, I thought we would try to pass it.

Well, Representative Junell did such a terrific job of carrying the bill that he passed it the first session that I had given it to him. And we do have a limit now on general-obligation debt in Texas, which has served us very well throughout the ups and downs of the economy of our state.

Rob graduated from NMMI, then graduated from Texas Tech and Texas Tech Law School with honors. He received a master's degree from the University of Arkansas. He's very active in his local community of San Angelo, including service on the boards of the United Way of the Concho Valley, the San Angelo AIDS Foundation and Shriner University in Kerrville, Texas. He's a lifetime member of the NAACP.

He also has received numerous honors and awards recognizing his leadership in serving the people of Texas. He's earned the distinction as legislator of the year, given by the Texas Public Employees Association, the Vietnam Veterans Association and the Greater Dallas Crime Commission. The Dallas Morning News named him one of the best of the best in the Texas legislature in 1995.

In addition to Rob's legislative service, he has continued to maintain a law practice. In Texas, the legislature only meets five months every other year, a practice that I would recommend to the United States Congress. So these are people who have real jobs in the real world. He has been a practicing lawyer, very well-respected in the San Angelo and West Texas communities, and has a wide range of clients, including hospitals, small businesses, school districts and individuals.

I recommend my friend, Rob Junell, highly to you and hope that we can have an expeditious confirmation of his nomination.

SEN. HATCH: Well, thank you, Senator Hutchison. And we're sorry you had to wait this long, but it's just the way it is on this committee. So we appreciate your patience.

SEN. LEAHY: I appreciate you being here, too. You've mentioned him before with the same kind of (glowing?) -- he should know that even when he's not in the room, you've always said such nice things about him. And as I said, Congressman Stenholm called me, too, to say similar things. And I do appreciate it.

SEN. HUTCHISON: Yes. Thank you very much.

SEN. HATCH: We'll turn to Senator Voinovich first and then we'll wind up with Senator DeWine.

SEN. VOINOVICH: Thank you, Mr. Chairman, members of the committee. I thank you for allowing me to speak on behalf of three deserving attorneys from the state of Ohio. I'm anxious to express my strong recommendations for Justice Deborah Cook, Jeffrey Sutton, both of whom the president nominated to serve on the United States court of appeals for the sixth district, as well as Judge John Adams, who's been nominated to serve on the U.S. district court for the northern district of Ohio.

Judge Cook and Mr. Sutton were members of the original group that the president of the United States nominated for the federal judiciary, and I am very pleased that this committee is finally having a hearing on their nominations.

I've known Judge Cook for over 25 years. I know her to be a brilliant lawyer, a wonderful person. She graduated from the University of Akron law school in 1998 -- or '78 -- and immediately went to work for the law firm of Roderick, Myers & Linton, Akron's oldest law firm. She was the first female lawyer to be hired by this firm, and in 1983 she became its first female partner.

Deborah remained at Roderick Myers until '91, when she was elected to Ohio's ninth district court of appeals. She remained on this bench until '95, when she was elected to the supreme court of the state of Ohio, an office which she continues to hold.

She's married to her husband, Robert Linton, and Deborah has always exhibited a love of her family and community. And I'm glad that her brother and her nephews are here today for this hearing. It's an historic day for their family.

As a long-time resident of Akron, Deborah has demonstrated her commitment to her community, involved in the Akron Women's Network, the Akron Bar Association, the Akron Volunteer Center, Summit County United Way and the Akron Art Museum, just to name a few.

Throughout these 25 years, I have found Deborah to be a woman of exceptional character and integrity. Her professional demeanor and thorough knowledge combine to make her truly an excellent candidate for appointment to the sixth circuit. Deborah has served with distinction on Ohio's supreme court since her election in '94 and re- election in the year 2000.

My only regret is the confirmation to the sixth district that we will lose an outstanding judge on our supreme court. however, I'm confident that she will be a real asset to the federal bench. With the combined years of 10 years of appellate judicial experience on the court of appeals and the supreme court, she uniquely combines keen intellect, legal scholarship and consistency in her opinions.

She is a strong advocate of applying the law without fear or favor and not making policy towards a particular constituency. She is a committed individual and trusted leader, and it's my pleasure to give her my highest recommendation.

I'd just like to mention, in closing, that newspapers from Ohio have endorsed her on two occasions. And recently, on January 6, 2003, the Dispatch, Columbus Dispatch, said, "Since 1996, she has served on the Ohio supreme court, where she has distinguished herself as a careful jurist with a profound respect for judicial restraint and the separation of powers between the three branches of government."

The Plain Dealer, the largest newspaper in Ohio, said, "Cook is a thoughtful, mature jurist, perhaps the brightest on the state's highest court." And in May of 2000, the Beacon-Journal, the Akron paper, stated that "Deborah Cook's work has been a careful reading of the law, buttressed by closely-argued opinions and sharp legal reasoning." I think that Deborah is someone that's very ideal for the federal bench.

Jeffrey Sutton, another nominee. I'm pleased to speak on behalf of Jeffrey, a man of unquestioned intelligence and qualifications, with vast experience in commercial, constitutional and appellate legislation—litigation. Jeffrey graduated first in his law school from the Ohio State University, followed by two clerkships with the United States Supreme Court, as well as the second circuit.

Because he was the solicitor general of Ohio when I was governor, I worked with him extensively when he represented the governor's office. And in my judgment, he never exhibited any predisposition with regard to an issue. He has contributed so much with his compassion for people and the law. In my opinion, Jeffrey Sutton is exactly what the federal bench needs—fresh, objective perspective, fair and eminently qualified.

His qualifications for this judgeship are best evidenced through his experience. He has argued nine cases before the United States Supreme Court, including Hahn (sp) versus the United States, in which the court invited Mr. Sutton's participation, and Becker versus Montgomery, in which he represented prisoners' interests pro bono.

It is worthy to note that when I recently visited the Supreme Court to move the admission of some of my fellow Ohio State University graduates, that the clerk of the court himself commented favorably on Jeff's abilities. I'll never forget it. We were moving him through, and he went out of the way.

In addition to the U.S. Supreme Court, Jeff has argued 12 cases in the Ohio supreme court and six in the sixth circuit. While his unwillingness to shy away from challenging or controversial issues has in some instances led critics to question his qualifications and accomplishments, I believe such comments don't accurately reflect Jeff Sutton's heart.

What these detractors fail to mention is how he argued pro bono on behalf of a blind student seeking admission to medical school, how he filed an amicus curiae brief with the Ohio supreme court in support of Ohio's hate-crimes law on behalf of the Anti-Defamation League, the NAACP and other human rights bar associations, or his work on behalf of the Equal Justice Foundation, arguing on behalf of the poor. You don't hear that much about Jeff.

Jeff Sutton has also been—should not be criticized on assumptions that past legal positions reflect his personal views. Instead he should be lauded for always zealously advocating his clients' interests, no matter what the issue.

In fact, the letters I received in support of Jeff's nomination are some of the best evidence of his overwhelming across-the-board support in the state of Ohio. And I'm going to ask if these letters that I've got be submitted for the record, Mr. Chairman.

SEN. HATCH: Without objection, we'll put them in the record.

SEN. VOINOVICH: But I'd like to just read an excerpt from Benson Wolman. Benson Wolman and I have known each other since we were in law school together. He was probably the most liberal member there at the Ohio State University. He's a former executive director of the ACLU of Ohio, a self-proclaimed liberal Democrat.

And here's what he said: "Jeff's commitment to individual rights, his civility as an opposing counsel, his sense of fairness, his devotion to civic responsibilities and his keen and demonstrated intellect all reflect the best that is to be found in the legal profession."

Greg Myers, chief counsel in the death-penalty division of the Office of the Public Defender, remarked, "Jeff's integrity, respect, tolerance and understanding, not only for the lawyers who advocate different positions but for the legal ideas that stand in opposition to his."

Mr. Chairman, I could go on praising Jeff for the outstanding—he is one of the brightest—he may be the brightest lawyer we've got in the entire state. I've questioned his sense of wanting to serve on the federal bench at his young age with the family that he has, but you'll see from his testimony, he's an unbelievably qualified individual that really wants to serve his country.

He's been active in his community. I'm glad that his wife and his children are here today with him and members of his family. And I want to thank them for the sacrifice that they're willing to make to allow him to serve in the judiciary.

So, Mr. Chairman, I've worked with Deb and with Jeff, and they're wonderful people and they'll be real assets to the court.

The last individual—and I'll try to make it short—is John Adams. John is a native of Orrville, Ohio. He's a very qualified candidate for the U.S. district court for the northern district. Judge Adams received his degrees from Bowling Green and his doctorate from the University of Akron.

He currently is a judge in the court of common pleas in Summit County. The court of common pleas is the primary state court, having original jurisdiction in all criminal felony cases and all civil cases where the amount in controversy is over $15,00. And prior to that, the judge worked as a partner in the law firm of Kaufman (sp) & Kaufman (sp) in Akron as a Summit County prosecutor and as an associate with the law firm of Germoner (ph), Rodney (ph) & Ciccolini.

Judge Adams has demonstrated a commitment to the community he lives in. He's a member of the Akron Bar Association, Ohio Bar. He received a volunteer award in 2000 for the dramatic brain-injury collaborative. He has memberships in the Summit County Mental Health Association, the NAACP, Summit County Criminal Justice Coordinating Council, Summit County Civil Justice Commission. I sincerely hope that the committee acts favorably on Judge Adams' nomination and sends this qualified nominee to the Senate floor as soon as possible.

Mr. Chairman, I'd like to say one other thing. I know there's been a lot of controversy about the sixth district and who did what, and so on and so forth, whether it was during the Clinton administration, now the Bush administration. The sixth district is in need of more judges. They are in a crisis situation.

And I would ask this committee to expeditiously move on those two nominees, either up or down. But let's get on with it. It's important. We have—I mean, it's just unbelievable to me that this has gone on as long as it has. And I'm hopeful that maybe somehow all of you can work together to move forward to fill those two vacancies on that court.

Thank you very much for giving me a chance to be here.

SEN. HATCH: Thank you.

SEN. SCHUMER: Would my colleague yield?

SEN. HATCH: Just for a comment, certainly.

SEN. SCHUMER: It's been a long time and we want to fill them. But it would work a lot better if the White House consulted with some of the senators in the area involved, such as Senators Levin and Stabenow, who had nominated people for years. They weren't even given a hearing.

There's a way to move things along, but it's not simply saying, "This is who we pick after we blocked everybody you wanted. Now you must do those." That's all I'd say to my good friend, who I know is a very fair-minded person.

SEN. HATCH: Well, let me just say this, that the administration has consulted with the in-state senators from Ohio on this matter, which is their obligation. And I expect them to consult with senators from the other states when they have nominees that are up from their states. And I've demanded that they do, and I believe they are doing that. Now, I think they've met the requisite consultation here, without question, and both senators are for all three of these Ohio nominees. But your statement, Senator, is high praise indeed, with the experience that you've had in the state of Ohio. I think you've made a terrific statement for these nominees from Ohio, and I commend you for it, and sorry you had to wait so long, but we're grateful to have had you here.

Now—now let me just say this --

SEN. LEAHY: One thing before he leaves, I have one --

SEN. HATCH: Yeah, go ahead, Senator.

SEN. LEAHY: I—I think it's fair to say that the two senators from Ohio—I think it's fair to say that the two senators from Ohio are well-liked by everybody on this committee, on both sides of the aisle, and I have certainly appreciated serving with them. I was struck, though, by something that Senator Voinovich said about the delays in getting vacancies filled in the Sixth Circuit. I wish that, frankly, George, I wish there had been more in your party who had expressed the same concern when there were several moderate nominees, including one from your own state and is strongly supported in your state, during the Clinton administration there had been more effort to get them to at least have a hearing so they might have been put on there. I'd contrast that with when I became chairman, we moved two people to the Sixth Circuit within a relatively short time. From the time of their hearing to the time they were voted on the floor, it was a matter of weeks at best. And I think that you would not see the vacancies had there been more of a bipartisan effort to get those nominees of President Clinton's to get them through rather than to be held up by Republican holds.

SEN. HATCH: Senator Feinstein has asked to be able to go now, and then I'm going to give Senator DeWine—we understand the room is available downstairs now and prepared, so Senator DeWine, if you would prefer to go here or down there, we'll give you that choice.

SEN. MIKE DEWINE (R-OH): It doesn't matter, Mr. Chairman.

SEN. HATCH: Well, then we'll wait --

SEN. VOINOVICH: Thank you very much, Mr. Chairman.

SEN. HATCH: Thank you, Senator Voinovich.

SEN. HATCH: Then, if you don't mind --

SEN. DEWINE: No, it doesn't matter --

SEN. HATCH: -- we'll wait until we get down there, and then you can finish your statement. And Senator Feinstein, if you'd care to make yours now, I'd be happy to accommodate you.

SEN. DIANE FEINSTEIN (D-CA): Thank you very much, Mr. Chairman. I'm very pleased to introduce Judge James Otero to the committee. He's nominated for the Central District of California. He is the sixth candidate to come before this committee as a product of California's bipartisan screening committee, which the White House, Senator Boxer and I have set up. He received a unanimous 6-0 vote from this screening committee.

He is joined at the hearing today by his wife Jill, his son Evan, and his daughter Lauren. Jill is a special education teacher in the Los Angeles Unified School District. She's been that for 28 years. Evan is a junior at my alma mater, Stanford, where he is majoring in political science, and Lauren, a high school senior, just got accepted to Stanford University. I'd like to ask them to stand and be acknowledged by the committee. Thank you very much for being here.

Judge Otero is a native Californian. He spent his entire legal career in the state. He graduated from California State University, Northridge, in 1973, and Stanford Law School in 1976. Immediately out of law school, he joined the Los Angeles city attorney's office. He practiced there for 10 years. He held a number of important assignments, including assistant supervisor for the city's criminal division, where he was in charge of 35 trial deputies. In '87, he entered private practice as a lawyer for Southern Pacific Transportation Company. His time in private practice was brief, as he was appointed to the municipal court of Los Angeles in 1998. Two years later, he was elevated to the superior court.

His 13-year career on the state bench has been distinguished. Notably, from '94 to '96, he served as a supervising judge of the northern district in Los Angeles. In 2002, he was named assistant supervising judge for the court's civil division, and he's earned a reputation as one of the top judges in Los Angeles city.

I can give you many quotes from Judge Gregory O'Brien, attorney Tom Girardi, Los Angeles superior court judge, Chris Conway, who has described him as one of the best judges on the court.

He's active in professional and civic activities. He's secretary of the California Latino Judges Association and previously served as vice president of the California Judges Association. He's a board member of the Silesian Boys and Girls Club, and the Silesian Family Youth Center.

I could also note he's a fitness buff, and over the past years, he's run in over 100 races, including 10 marathons.

I think it's fair to say that I strongly recommend Judge Otero. And I thank you, Mr. Chairman.

SEN. HATCH: Well, thank you, Senator Feinstein.

Now, here's what we're going to do. We're going to move down to SDG 50. We would like all of you in this room—we're trying to accommodate you by having the sergeant of arms and his people accompany you downstairs so you can get seated down there. So, we would like you, row by row, after the dais is cleared, to come through this door. Just come up through there, through that door, and we'll try and get this started. We're going to recess for 10 minutes, and hopefully we can get set up in that time down there.

(RECESS.)