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Judicial Confirmations

Floor Speech

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Location: Washington, DC


JUDICIAL CONFIRMATIONS -- (Senate - May 22, 2008)

Mr. McCONNELL. Mr. President, in the final year of President Clinton's final Congress, two of his circuit court nominees, Richard Paez and Marsha Berzon, were pending in the Judiciary Committee. Frankly, they were quite controversial. For example, Judge Paez had openly defended judicial activism. He said if the Democratic branch has failed to act on a political matter, it was incumbent on judges to do so, even if the matter properly belonged to the legislature.

Not surprisingly, conservative groups and many Republican Senators opposed the Paez and Berzon nominations. The Chamber of Commerce, a business association, not an ideological group, was so troubled by the prospect of Judge Paez's confirmation that it broke its policy of staying out of nomination disputes and opposed his nomination.

I ask unanimous consent to have printed in the Record the release by the Chamber of Commerce opposing Judge Paez.

There being no objection, the material was ordered to be printed in the RECORD as follows:

U.S. Chamber Announces Opposition to Paez Judicial Nomination

WASHINGTON, D.C.--The United States Chamber of Commerce today announced its opposition to the elevation of district court judge Richard Paez to the 9th Circuit Court of Appeals. The 9th Circuit Court reviews federal court decisions in California, Arizona, Washington, Oregon, Idaho, Nevada and Montana.

In taking the unusual step of opposing a judicial nominee, Chamber senior vice president Lonnie Taylor said, ``Judge Paez' lower court rulings demonstrate an alarming degree of judicial activism that must not be rewarded.''

Taylor specifically cited Paez' ruling in John Doe I v. Unocal, saying the decision ``represents an unconstitutional judicial intrusion into foreign policy with dangerous implications for the U.S. economy and world markets.''

In the Unocal case--which concerns the construction of an offshore drilling station and natural gas pipeline--Judge Paez held that U.S. companies doing business overseas were liable for the actions of foreign governments. The ruling opened the door to environmental activists and others to use similar class action lawsuits as an avenue of attack on disfavored business projects, Taylor charged.

``Judge Paez' ruling, if upheld, could cripple international commerce and establish a far-reaching precedent of holding U.S. companies hostage to the actions of foreign governments,'' said Taylor.

Improving the ability of American businesses to compete in the global marketplace is a top priority of the Chamber. As part of the Chamber's efforts to advance free trade, it will oppose any attempts to undermine international competitiveness. The U.S. Chamber notified Senators of its opposition to Judge Paez in a letter yesterday.

The U.S. Chamber of Commerce is the world's largest business federation representing more than three million businesses and organizations of every size, sector and region.

Mr. McCONNELL. The California Senators, to their credit, were tireless advocates for Judge Paez and Judge Berzon. Their nominations became the California Senators' cause, and their ultimate confirmations were due to our colleagues' tireless advocacy.

Their confirmations, though, were also due to then-Majority leader Trent Lott ensuring that his commitment regarding the Paez and Berzon nominations was, in fact, kept. On November 10, 1999, Majority Leader Lott placed a colloquy between himself and then-Democratic Leader Daschle in the Congressional Record. In it, Senator Lott committed to proceed to Paez and Berzon by March 15 of the following year, which of course was a Presidential election year, as this year is.

Majority Leader Lott also stated he did not believe that filibusters of judicial nominations are appropriate, and that if they were to occur, he would file cloture on their nominations and he would himself support cloture if necessary.

He noted then-Judiciary Chairman Hatch was consulted on that commitment. Given that many in our conference and over 300 groups opposed those nominations, it would have been easier in many respects for Senator Lott not to fulfill his commitment. He could have taken a hands-off approach, shrugged his shoulders, put the onus on Chairman Hatch to make good on the majority leader's commitment. After all, Senator Lott was not the Judiciary Committee Chairman, Senator Hatch was. He could simply have said he did not control what happened in the Judiciary Committee, Chairman Hatch did. But Senator Lott understood that commitments in this body are not to be taken lightly, especially when they are made by the majority leader himself.

So true to his word, Majority Leader Lott worked to ensure that his commitment was kept. The Paez and Berzon nominations were reported out of the committee. The majority leader, Senator Lott, filed cloture on both. On March 8, 2000, a week ahead of schedule, he and I and Chairman Hatch and a supermajority of the Republican conference voted to give Judges Paez and Berzon an up-or-down vote.

Most of those Republicans, myself included, then voted against them because of concerns about their records. But Judges Paez and Berzon were then, of course, confirmed and have been sitting on the Ninth Circuit for 8 years because Senator Lott honored his commitment.

Unfortunately, a similar commitment made to my conference was not honored today. Last month, my good friend from Nevada, the majority leader, acknowledged that the Democratic majority needed ``to make more progress on'' circuit court nominations.

To that end, he committed to do his ``utmost;'' ``to do everything'' possible; to do ``everything within [his] power to get three [more] judges approved to our circuit [courts] before the Memorial Day recess.''

``Who knows,'' he even suggested, ``we may even get lucky and get more than that [because] we have a number of people from whom to choose.''

True, the majority leader gave himself an out. He could not ``guarantee'' his commitment because ``a lot of things can happen in the Senate.'' But when the Senate majority leader commits to do everything in his power to honor a commitment, that should mean choosing a path that likely will yield a result.

Well, today we learned we are not going to get three more circuit court confirmations by the Memorial Day recess, let alone the four or more the majority leader thought might be possible. No, we are going to get one. Only one.

Given my friend's clear commitment and the numerous nominees the Democratic majority had to choose from, the question my Republican colleagues and I are asking is this: Did the majority do its ``utmost''? Did it do ``everything'' possible? Did it do ``everything within [its] power''?

In fact, we are asking did it do anything at all to realistically ensure the commitment would be kept?

When my friend made his commitment, he noted that we had circuit court nominees from all over the country in the Judiciary Committee who could be processed. He listed the States they were from. Most have been pending for a long time, and the Judiciary Committee has had ample time to study their records. Indeed, some have already had hearings; others have already been favorably reported by the committee to other important positions. These nominees were, in effect, on the two-yard line, and could easily have been picked and confirmed.

People like Peter Keisler; he has been pending for almost 700 days. He has had a hearing. He has been rated unanimously well-qualified by the American Bar Association. He has earned accolades from Republicans and Democrats alike, including an endorsement from the Washington Post. His paperwork is complete, and he is ready to go.

Or people like Chief Judge Robert Conrad; he has been pending for over 300 days. The Senate has already confirmed him, on two separate occasions, to important Federal legal positions, first as the chief Federal law enforcement officer in North Carolina and then to a life-time position on the Federal trial bench. He, too, has received the ABA's highest rating, and has earned praise from Republicans and Democrats alike. He has the strong support of both home-State senators and is ready for a vote.

During our colloquy, my friend did not reference the nomination of Michigan State Judge Helene White as an option. That is because her nomination to the Sixth Circuit did not yet exist. It wasn't here. It arrived here later that day, at which point there were only 5 1/2 weeks until the Memorial Day recess. Or, put another way, her nomination arrived 700 days after Mr. Keisler's, 300 days after Judge Conrad's.

Thirty-five days is not much time to process a nominee who, by her own admission, has participated in 4,500 cases, half of which are completely new since her last nomination. Indeed, the average time for confirming a judicial nominee in this administration is 162 days. The majority decided to try to run Judge White through the process in just 35 days. It scheduled a hearing for her that was only 22 days after her nomination. I respect the abilities of members on the Judiciary Committee, but even they cannot review 4,500 cases in 22 days.

In addition, when the majority scheduled her hearing, the ink was barely dry on the FBI's background investigation, which had come up only the day before, and the committee had yet to receive her ABA report. In fact, today as I speak, it still is not here.

This matters because Chairman LEAHY has made it abundantly clear that the receipt of the ABA report is a precondition for him to allow a vote on a judicial nominee, saying: ``Here is the bottom line. ..... There will be an ABA background check before there is a vote.'' He reiterated that his rule will be observed with respect to the White nomination.

So to honor the majority leader's commitment, did our Democratic colleagues choose someone whom the committee had ample time to vet, whose paperwork has been done for a long time, and who, in the case of Judge Conrad, the Senate had already confirmed--twice? No, they decided to rush through Judge White, someone whom several members of the committee are completely unfamiliar with, and whose record for most of the last decade the entire committee is completely unfamiliar with, including thousands of her cases.

In essence, the majority decided to throw a confirmation ``hail Mary'' to satisfy its own Democratic membership, instead of taking a bi-partisan path that had every indication of success and would have fulfilled the commitment, like finally processing Mr. Keisler or Judge Conrad.

If the majority were serious about keeping its commitment all this should have been avoided. My friend from Nevada has said he consulted fully with Chairman LEAHY before making his commitment. Chairman LEAHY has been the lead Democrat on the Judiciary Committee for over a decade. He, perhaps more than anyone, is aware of the logistical requirements for processing nominees.

We assume he would have advised the majority leader of the near-certain impossibility of confirming Judge White in time to keep the commitment. Even if he didn't, the ranking member and I did just that almost a month ago, when we wrote to him and the Chairman, expressing our serious concerns about this very situation arising.

I ask unanimous consent that a copy of the letter be printed in the Record.

BREAK IN TRANSCRIPT

Mr. MCCONNELL. The reasons for our concern a month ago have proven to be correct. Anyone could have seen this problem coming--anyone, except evidently, our Democratic colleagues who must have chosen not to.

Which brings me back to the question I and my Republican colleagues are asking: Is it consistent with a commitment to do ``everything within your power'' to confirm three more circuit nominees by Memorial Day, to then choose the one nominee who, for logistical reasons alone, is the least likely to be confirmed in time to keep the commitment? Mr. President, chasing the impossible, and then blaming others or expressing surprise when it eludes your grasp is not a good excuse, and will be remembered for a long, long time.

So today is a sad and sobering day for me and my colleagues. There are now well-founded questions on our side about the majority's stated desire to treat nominees fairly and to improve the confirmation process. And there is frustration that will manifest itself in the coming days, and will persist until we get credible evidence that the majority will respect minority rights and treat judicial nominees fairly.


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