January 25, 2002 CONGRESSIONAL RECORD — SENATE S117 MILLER), and the Senator from Florida The PRESIDENT pro tempore. The Committee for allowing me a minute (Mr. NELSON) are necessarily absent. Senator from Vermont. to simply notify the Senate that I will I further announce that, if present Mr. LEAHY. Mr. President, I under- redo my amendment and try to get 60 and voting, the Senator from North stand under the unanimous consent re- votes. It will come back and be filed Dakota (Mr. DORGAN) would vote quest I am to be recognized, but the later today. It will have a 2-year time ‘‘aye.’’ distinguished Senator from Illinois and period beginning January 1 of this year Mr. NICKLES. I announce that the the distinguished Senator from Oregon and going for 2 years, with a 30-percent Senator from New Mexico (Mr. DOMEN- are here, and I ask unanimous consent depreciation bonus, and it will also spe- ICI), the Senator from Oklahoma (Mr. it be in order first to recognize the dis- cifically include the motion picture in- INHOFE), the Senator from Arizona (Mr. tinguished Senator from Illinois for 2 dustry so that they can have the ad- KYL), the Senator from Alaska (Mr. minutes, then the distinguished Sen- vantage of this stimulus as well. MURKOWSKI), the Senator from Kansas ator from Oregon for 1 minute, and the I think it is critical we do what the (Mr. ROBERTS), the Senator from Ala- distinguished Senator from Oklahoma, the Senator from Illinois is talking bama (Mr. SESSIONS), the Senator from the Republican assistant leader, for 30 about, and it is also critical we do Alabama (Mr. SHELBY), the Senator seconds, and then we revert back to my something that is actually stimulatory from Ohio (Mr. VOINOVICH), the Senator original time. of the economy. Two years is the abso- from Arkansas (Mr. HUTCHINSON), the The PRESIDENT pro tempore. Is lute minimum, if we are serious about Senator from Arizona (Mr. MCCAIN), there objection to the several requests? this part of the stimulus bill. and the Senator from Tennessee (Mr. There being no objection, the re- I yield the floor. THOMPSON) are necessarily absent. quests are agreed to. The PRESIDENT pro tempore. The I further announce that if present The Senator from Illinois. Senator from Oklahoma, Mr. Nickles. and voting the Senator from Oklahoma The PRESIDENT pro tempore. The Mr. NICKLES. I ask unanimous con- (Mr. INHOFE) and the Senator from Ari- Senator from Illinois. sent that it be in order I ask for the zona (Mr. KYL) would each vote ‘‘aye.’’ AMENDMENT NO. 2714 TO AMENDMENT NO. 2698 yeas and nay on amendment No. 2698. The PRESIDENT pro tempore. Are (Purpose: To provide enhanced The PRESIDENT pro tempore. Is there any other Senators in the Cham- unemployment compensation benefits) there objection to the request that it ber desiring to vote? be in order? Mr. DURBIN. Pursuant to an earlier Mr. LEAHY. Reserving the right to The result was announced—yeas 81, unanimous consent request, I am send- object—I understand there is no objec- nays 0, as follows: ing to the desk an amendment being of- tion. [Rollcall Vote No. 5 Ex] fered by me on behalf of the majority The PRESIDENT pro tempore. With- YEAS—81 leader. out objection, it is so ordered. Allard DeWine Lieberman The PRESIDENT pro tempore. The Is there a sufficient second? Allen Durbin Lincoln clerk will report. There is a sufficient second. The yeas Baucus Edwards Lott The legislative clerk read as follows: and nays are ordered. Bayh Ensign Lugar The Senator from Illinois [Mr. DURBIN], for Bennett Enzi McConnell Mr. NICKLES. I thank my colleague. Biden Feingold Mikulski himself, Mr. WELLSTONE, Mr. DAYTON, Ms. The PRESIDENT pro tempore. The Bingaman Feinstein Murray LANDRIEU, and Mrs. LINCOLN, proposes an Senator from Vermont. Bond Fitzgerald Nelson (NE) amendment numbered 2714. Mr. LEAHY. Is the Senator from Breaux Frist Nickles Mr. DURBIN. I ask unanimous con- Brownback Graham Reed Vermont correct that following my Bunning Gramm Reid sent reading of the amendment be dis- statement the distinguished senior Burns Grassley Rockefeller pensed with. Senator from Utah is to be recognized? Byrd Gregg Santorum The PRESIDENT pro tempore. With- The PRESIDENT pro tempore. That Campbell Hagel Sarbanes Cantwell Harkin Schumer out objection, it is so ordered. is correct. Carper Hatch Smith (NH) (The text of the amendment is print- f Chafee Helms Smith (OR) ed in today’s RECORD under ‘‘Amend- Cleland Hollings Snowe ments Submitted.’’) JUDICIAL NOMINATIONS Clinton Hutchison Specter Cochran Inouye Stabenow Mr. DURBIN. Mr. President, this is Mr. LEAHY. I thank the distin- Collins Jeffords Stevens part of the economic stimulus package. guished Presiding Officer. Conrad Johnson Thomas It is an amendment agreed to by both Mr. President, I appreciate the fact Corzine Kerry Thurmond sides, Democrats and Republicans, to that the majority leader and the assist- Craig Kohl Torricelli Crapo Landrieu Warner extend the unemployment insurance ant majority leader moved to consider Daschle Leahy Wellstone benefits to those States which will pro- additional judicial nominations today. Dayton Levin Wyden vide protection, expanded coverage for Both Senator DASCHLE and Senator NOT VOTING—19 part-time workers who otherwise REID have been working very diligently Akaka Inhofe Roberts would not be eligible for unemploy- to clear these nominations which were Boxer Kennedy Sessions ment compensation, and expand cov- put on the Executive Calendar as we Carnahan Kyl Shelby erage to low-wage and recent hires who went out of session prior to the new Dodd McCain Thompson year. They have worked very hard to Domenici Miller Voinovich are also out of work and cannot be cov- Dorgan Murkowski ered by unemployment. It also in- return the Senate’s consideration of ju- Hutchinson Nelson (FL) creases benefit levels under unemploy- dicial nominations to a more orderly The nomination was confirmed. ment compensation by 15 percent or $25 and open process. I compliment the Senator from South Dakota and the f per week, whichever is greater. These proposals are temporary. All of the Senator from Nevada for their efforts LEGISLATIVE SESSION funding comes from Federal funding and thank them for their leadership. The PRESIDENT pro tempore. Under sources from the unemployment insur- Along with our Senate leaders, many the previous order, the Senate will re- ance fund. The amendment costs about Senators have been working to move turn to legislative session. $15 billion in one year, but it will pro- away from the anonymous holds and f vide direct, immediate relief to unem- inaction on judicial nominations that ployed people across America. When we characterized so much of the period HOPE FOR CHILDREN ACT— return next Tuesday, I will speak to from 1996 through the year 2000. Since Continued this amendment at length. the change in majority last summer, The PRESIDENT pro tempore. The I hope my colleagues will join me in we have already made a difference in clerk will report the title. supporting it on a bipartisan basis. terms of both the process and its re- The assistant legislative clerk read I yield the floor. sults. The number of vacancies and the as follows: The PRESIDENT pro tempore. The number of confirmations have finally A bill (H.R. 622) to amend the Internal Rev- Senator from Oregon. begun to move in the right directions. enue Code of 1986 to expand the adoption Mr. SMITH of Oregon. Mr. President, As we begin this new session, I will credit, and for other purposes. I thank the chairman of the Judiciary take a moment to report where we are

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\A25JA6.020 pfrm01 PsN: S25PT1 S118 CONGRESSIONAL RECORD — SENATE January 25, 2002 in the handling of judicial nominations the first new judge for the Fourth Cir- The Judiciary Committee simulta- and to outline the road ahead. The dis- cuit in 3 years, and the first new judge neously, during those last 5 months of tinguished Presiding Officer knows for the Tenth Circuit in 6 years. last year, held 16 confirmation hear- more of the history of this body than Of course, more than two-thirds of ings for executive branch nominees. We any of the nearly 260 or 270 Senators the Federal court vacancies continue sent to the Senate nominees who were with whom I have served—I suspect to be on the district courts, and the ad- confirmed for 77 senior executive more than a lot of others with whom ministration has been slow to make branch posts, including the Director of he has served. I hope he will not feel it nominations to the vacancies in these the FBI, the head of the Drug Enforce- presumptuous if I take a few minutes trial courts. In the last 5 months of ment Administration, the Commis- to touch on the history and legacy of last year, the Senate confirmed a high- sioner of the Immigration and Natu- the last 6 years as it relates to judicial er percentage of the President’s dis- ralization Service, the Director of the nominations. trict court nominees than a Republican U.S. Marshals Service, the Associate Those last 6 years have left a residue majority had allowed the Senate to Attorney General, the Director of of problems that I think are going to confirm in the first session of either of ONDCP, the Director of the Patent and take a continuing effort to purge. We the last two Congresses with a Demo- Trademark Office, 7 assistant attor- are not going to do it in 1 day or 1 cratic President. neys general, and 59 U.S. attorneys. weekend, but it is going to have to be Last year, the White House did not Senators may recall that soon after a continuing effort of both parties, Re- make nominations to almost 80 percent the Senate confirmed Judge Roger publicans and Democrats, and the of the current trial court vacancies. Gregory as the first new Federal judge White House. When we came back to session, we nominated by this President last July, After going through that history, I began with 55 out of the 69 vacancies the White House counsel said in an am going to offer the steps that we in without nominees. interview that he did not expect the the majority will take in good faith to Since the change in majority last Senate to confirm more than five undo the damage of the last 6 years. summer, we have acted in the Senate judges before the end of 2001. Just Then I am going to call on the White to build better practices into the con- think about that: The White House House to help us take similar steps to firmation process for Federal judges said last July that they did not expect help move the process forward. I do and to make it more orderly. We made the Senate to confirm more than five this both in my capacity as the Sen- some progress at the end of last year judges before the end of 2001. ator from Vermont—a position I honor, when, after many months, the White Of course, that estimate of 5 was ac- and I am always thankful to the people House and our Republican colleagues tually an upward revision. Initially of my great and beautiful State for let- finally agreed to limited steps to up- some on the other side of the aisle, ting me be here—but also carrying the date and to simplify the committee after the midyear change of majority, responsibility my caucus has given me questionnaire, which seemed to have had proclaimed that the Democratic by allowing me to be chairman of the grown like Topsy over the years. majority would not confirm a single Senate Judiciary Committee. And we have opened up the process as judge. The White House, I think, trying One of the lessons I learned early on never before. For the first time, the Ju- to appear more bipartisan, upped the in this body from the distinguished diciary Committee is making public estimate from zero to 5. Of course, we Presiding Officer is that if you are the the blue slips sent to home State Sen- achieved much more than that and chairman of a committee, you have a ators. Until last summer these matters confirmed more than 5 times the num- responsibility to that committee, to were treated as confidential materials. ber of judges that the White House your caucus, but also to the Senate, They were restricted from public view. counsel had predicted. One might have thought from the the whole Senate. I respect that. We have moved nominees with less So let me talk about the Judiciary time from hearings to the committee’s constant barrage of partisan criticism Committee. In a span of less than 6 business meeting agenda, and then that 2001 resembled 1996, a year in which a Senate Republican majority months, and in a year that was tumul- onto the floor, where nominees have re- confirmed only 17 judges, none of them tuous for the Nation and the Senate, ceived timely rollcall votes and con- appellate-level nominees. firmations. Over the preceding 61⁄2 the Judiciary Committee, between The worst fear of some, it has been years, at least eight judicial nominees July and the end of the session in De- clear, is that Democrats would treat cember, held hearings on 34 judicial who completed a confirmation hearing Republican nominees as poorly as nominees. We reported 32 and the Sen- were never considered by the com- Democratic judicial nominees were ate confirmed 28. As of today, we add 2 mittee and were simply abandoned treated by a Republican Senate. That more and the Senate has now approved without any action. Before my chair- is not what has happened. In just 5 30 of those judicial nominations. manship, there were at least eight judi- months we went on to confirm 28 addi- They are conservative Republicans, cial nominees who got a hearing but tional judges, as I have said, more than but nearly all were unanimously ap- never even got a vote—not a vote on five times the number the White House proved by Democrats, Republicans and the floor, Mr. President, they never got predicted we would confirm. Think of Independent alike on the Judiciary a vote in committee. that, Mr. President—five times what Committee and by the Senate, in a Also, the past practices of extended the White House was telling the Amer- democratically-controlled Senate. unexplained anonymous holds on nomi- ican people we would confirm. We reported more judicial nominees nees after a hearing were not evident The Senate can be proud of its record after the August recess than in any of in the second half of last year, as they in the first session of the 107th Con- the preceding 6 years, and more than in had been in the recent past. gress of beginning to restore steadiness any similar period over the preceding By the time the Judiciary Committee in its handling of judicial nominees. I 61⁄2 years. The Senate Judiciary Com- was reorganized and began its work want to build on that record in the sec- mittee during the time I have been last summer, the vacancies on the Fed- ond session of the 107th. chairman did not have and has not yet eral courts were peaking at 111. That is Yesterday the Judiciary Committee had a year in which to work. Last ses- what I faced as the Committee began held another hearing for judicial nomi- sion we had less than 6 months. Still, its work—111 vacancies. Since then, 25 nees. That was the 12th since July. in the last 5 months of last year, the additional vacancies have arisen. This morning the Senate is confirming Senate confirmed almost twice as Through hard work in the limited time the first two judges of this session and many judges as were confirmed in the available to us, we were able to out- the 29th and 30th since the change in first year of the earlier Bush adminis- pace this high level of attrition. By majority last summer. tration. We also confirmed more contrast, when my friends on the other The legacy of strife over the filling of judges, including twice as many judges side of the aisle took charge of the Sen- judicial vacancies that we all must to the courts of appeals, as in the first ate in January 1995, until the majority work to overcome began in 1996, when year of the Clinton administration. shifted last summer, judicial vacancies months went by without the Repub- The Senate confirmed the first new rose from 65 to more than 100, an in- lican Senate acting on judicial nomina- member of the Fifth Circuit in 7 years, crease of almost 60 percent. tions from a Democratic President.

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G25JA6.024 pfrm01 PsN: S25PT1 January 25, 2002 CONGRESSIONAL RECORD — SENATE S119 Later that same year, outside groups During those years, the Republican We hear about all the vacancies on began forming to raise money on their majority in the Senate went an entire the circuit courts without mention of pledge to block action on judicial session without confirming even a sin- the fact that there have been previous nominees and to ‘‘kill’’ Clinton nomi- gle judge for the Courts of Appeals. qualified nominees for the vacancies on nees. As few as three appellate nominees whom the Republican-controlled Sen- As the new session opened in 1997, ef- were granted hearings and committee ate refused to proceed. That has cre- forts were launched on the Republican votes in an entire session. During that ated problems that have grown and fes- side of the aisle to slow the pace of Ju- time, the Republican majority aver- tered over time. They are not going to diciary Committee and Senate pro- aged eight hearings a year for judicial be remedied immediately, especially in ceedings on judicial nominations and nominees and had as few as six during the absence of White House coopera- to erect new obstacles for nominees. one entire session. One session of Con- tion. The results were soon apparent de- gress, the Republican majority allowed One of the best friends I have in the laying the process, and they persisted only 17 judges to be confirmed all year, Senate is Senator ORRIN HATCH of throughout the remainder of President and that included not a single judge to Utah. Senator HATCH and I can sit Clinton’s administration. any Court of Appeals. All the while, down and work out many of these Those times stand in sharp contrast the judicial vacancy rate continued to things. But we cannot do it by our- to the last 5 months of last year, in worsen. selves if the White House is uninter- which I noticed a hearing within 10 The problems did not end when Presi- ested in working with us. They ought minutes of becoming chairman of the dent Clinton left office. New problems to understand that we are able to work full committee, chaired unprecedented have arisen through unilateral actions out most of our problems. They ought hearings during the August recess, and taken by the Bush administration in to take advantage of that and work held hearings and votes throughout the its handling of judicial nominations. with us. period after September 11 and during Fifty years ago, President Dwight Ei- Let us turn to look at where we go the closure of our offices and hearing senhower started a policy of having the from here. I think we made a good be- rooms after Senator DASCHLE and I re- American Bar Association do a review ginning in the first 6 months of Demo- ceived anthrax filled letters. of judicial nominees. That practice by cratic leadership in the Senate. But the I want to emphasize that. During President Eisenhower was followed by way forward is not easy. If we want to that time, 50 men and women who were President Kennedy. It was then fol- have continued progress, it is going to nominated and who went through all lowed by President Johnson. It was require leadership and cooperation and the vetting, FBI backgrounds, and ev- then followed by President Nixon. It good will not only within the Senate erything else, never received a hearing was then followed by President Ford. It but by the White House. and a committee vote, many after was then followed by President Carter. These are the steps that the Judici- waiting for years. It was then followed by President ary Committee will take in good faith. They included Judge James A. Beaty, Reagan. It was then followed by the I want to lay this out for my col- Jr., Judge James Wynn, and J. Rich first President Bush. It was then fol- leagues. Leonard, nominees to longstanding va- lowed by President Clinton. But when cancies on the Fourth Circuit; Judge First, we are going to restore steadi- this new White House came in, they de- ness in the hearing process. The com- Helene White, Kathleen McCree-Lewis cided summarily to end that 50-year mittee will hold regular hearings at a and Professor Kent Markus, nominees practice. pace that will exceed the pace of the to the Sixth Circuit; Allen Snyder and Senators are still going to ask at Professor Elana Kagan, nominees to least to have that ABA background last 6 years. Following longstanding vacancies on the D.C. Circuit; and done. It does not mean that peer review committee practice, each hearing typi- James Duffy and Barry Goode, nomi- is controlling, by any means. What is cally will involve several nominees—a nees to the Ninth Circuit; Bonnie happening now is that instead of hav- circuit court nominee and a number of Campbell, the former Attorney General ing that ABA peer review done simul- district court nominees. of Iowa and former head of the Vio- taneously with the FBI background Since the Senate’s reorganization lence Against Women Office at the De- check and having the ABA report come last July, we have convened judicial partment of Justice, nominated to the to the Senate around the same time as nominations hearings each and every Eighth Circuit; Jorge Rangel, H. Al- the FBI report, the Administration month. I mention that because, by con- ston Johnson, and Enrique Moreno, sends up the nominee, and the Senate trast, in the 72 months that the Repub- each nominated to the Fifth Circuit; has to wait 6 or 8 weeks more to get lican majority most recently con- Robert Raymar and Robert Cindrich, the ABA vetting. The vetting processes trolled scheduling such hearings, in 30 among the nominees to the Third Cir- could have done both at the same time of those months no hearings were held cuit; and District Court nominees like and potentially save 2 months in the at all, and in another 34 months only Anabelle Rodriguez, John Bingler, Mi- process. one hearing was held. chael Schattman, Lynette Norton, This unilateral approach in vetting Yesterday we held our 12th hearing Legrome Davis, Fred Woocher, Patricia nominees and disregarding the Senate’s since July. If we are able to keep pace, Coan, Dolly Gee, David Fineman, Ri- longstanding practice is similar to an- we will hold more hearings this session cardo Morado, David Cercone, and Clar- other disregarding of the longstanding than were held in any of the 61⁄2 years ence Sundram. practice that encouraged consultation of Republican control and more than None of these qualified nominees was with home-State Senators, both Repub- twice as many as were held in some of given a vote. licans and Democrats. That has need- those years. Over the course of those years, Sen- lessly complicated the Senate’s han- Secondly, we will include hearings ate consideration of nominations was dling of several of the nominations. for a number of controversial nominees often delayed for not months but years. I realize we are looking back over the who do not have a blue slip problem. It took more than four years of work first year of a new administration. But We will convene a hearing the week to get the Senate to vote on the nomi- I am laying out this history to them after next on the nomination of nations of Judge Richard Paez and because it is a history of the handling Charles W. Pickering for the Fifth Cir- Judge William Fletcher; almost three of nominees that has worked fairly cuit Court of Appeals. I fully expect we years to confirm Judge Hilda Tagle; well for Republicans and Democrats will also have hearings on other nomi- more than two years to confirm Judge alike since President Eisenhower’s nations for which consensus will be dif- Susan Mollway, Judge Ann Aiken, time. Maybe we ought to go back to ficult, including such nominees as Judge Timothy Dyk, Judge Marsha the things that have worked. Judge Priscilla Owen, Professor Mi- Berzon, and Judge Ronald Gould; al- In addition, the White House has not chael McConnell, and Miguel Estrada. most two years to confirm Judge Mar- responded to our repeated requests to Third, we will continue to seek a co- garet McKeown and Judge Margaret help the Senate work through residual operative and constructive working re- Morrow and more than a year to con- issues caused by the Republican Sen- lationship not only with our colleagues firm several others during the pre- ate’s earlier actions and inactions re- on the other side of the aisle but also ceding 61⁄2 years of Republican control. lated to several circuit courts. with the White House. I ask the White

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G25JA6.026 pfrm01 PsN: S25PT1 S120 CONGRESSIONAL RECORD — SENATE January 25, 2002 House to help make the confirmation many reasonable and constructive never suggest that a Senator be bound process more orderly and less antago- home State Senators, in which the by that. Each Senator is bound by their nistic, and thus make it more produc- White House has shown no willingness own conscience and their own sense of tive. to work cooperatively to find can- what is right. But the White House can Finding our way forward out of the didates to fill vacancies. The White make it clear that it is not bound ei- legacy of the last 6 years is going to re- House’s unilateralism is not the way ther but that it is restoring a tradi- quire some White House cooperation. the process is intended to work. It is tional practice—not because it intends The President represents one of our not the way the process has worked to be bound by the results of that peer three branches of Government. We in under past administrations. I urge the review but solely to remove an element the Senate represent one. We are talk- White House to show greater inclusive- of delay that it had inadvertently in- ing about working together in matters ness and flexibility and to help make troduced into the confirmation process. that affect our third branch. I take this a truly bipartisan enterprise. The White House can expressly ask very seriously the advise and consent Logjams persist in several settings, the ABA, if they want, not to send the clause of the Constitution. It does not the legacy of the last 6 years. To make results of its peer reviews to the execu- say: Advise and rubberstamp. It says real progress, the White House and the tive but only to transmit them to the advise and consent. The distinguished Senate should work together to repair committee. Few actions available to Presiding Officer, the President pro the damage and move forward. either the Senate or the White House tempore, knows better than anybody As I said before, the Constitution di- could make as constructive a contribu- else in this body the kind of debate rects the President to seek the Sen- tion as would the President’s resolu- that went on at the founding of this ate’s advice and consent in his appoint- tion of this problem. I ask him to seri- country on the constitutional require- ments to the Federal courts. The lack ously and thoughtfully consider taking ment of advice and consent. Our of effort on the advice side of that obli- it. It would take 1 minute of decision; Founders made very sure we, the peo- gation gives rise to a general impres- it would save months of time. ple, had a voice in these appointments. sion, heightened by the White House’s In conclusion, whether we succeed in This is a democracy, not a regency. refusal to work cooperatively with improving the confirmation process is I will strive—whether we have a some home State Democratic Senators, going to depend in large measure on Democratic President or a Republican and by its unwillingness to listen to whether our goals are shared by Repub- President—to uphold the right, and not suggestions to continue the bipartisan lican Senators and the White House. just the right, the duty of the Senate, commissions that have been a tradi- We will not have repaired the damage to fulfill its advise and consent role. It tion, for years, in many States, that that has been done if we make progress is one of the most important roles this the White House and some in the Sen- this year and the improvements we are ate are intent on an ideological take- body has ever had because it is exclu- able to make are not institutionalized over of our courts. sively in this great Chamber, in this and continued the next time a Demo- With the circuits so evenly split in so cratic President or, for that matter, a great body. Senators really do not fol- many places, nominees to the Courts of different Republican President is the low their oath of office if they do not Appeals may have a significant impact one making judicial nominations. uphold that right and that privilege on the development of the law for dec- In the statements I have heard and and that duty of advice and consent. ades to come. Some of us are concerned I have heard the distinguished Pre- read from the Republican side, I have that there not be a rollback in the pro- not heard them concede any short- siding Officer speak of the number of tections of individual rights, civil comings in the practices they em- Presidents with whom he has served. rights, workers’ rights, consumers’ ployed over the previous 61⁄2 years, even He very correctly has pointed out, we rights, business rights, privacy rights, though since the change in majority do not serve under a President, we and environmental protection. serve with a President. Secondly, I ask the President to re- last summer, we have exceeded their 1 I have enormous respect for all Presi- consider his early decision on peer re- pace and productivity over the prior 6 ⁄2 dents I have served with, Republicans view vetting. It has needlessly added years. If their efforts were acceptable and Democrats. They are a major part months to the time required to begin or praiseworthy as some would argue, I of our Democratic framework. Whoever the hearing process for each nominee. would expect them to commend our is President carries an awesome burden For more than 50 years, the American better efforts since last July. and should be helped in carrying out Bar Association was able to conduct its If they did things they now regret, that burden. But we carry an awesome peer reviews simultaneously with the their admissions would go far in help- burden on advice and concept, as well. FBI background check procedures. As I ing establish a common basis of under- Let us try to bring the duties and said earlier, that meant that when standing and comparison. Taking that rights and obligations at one end of nominations were sent to the Senate, step would be a significant gesture. It Pennsylvania Avenue closer to the du- the FBI report and the ABA report is something that has not yet occurred. ties and rights and obligations at the were sent at approximately the same I wish it would. other end of Pennsylvania Avenue and time, and we could start moving for- Whether it occurs or not, I want to see how we might work together. ward to review nominations and sched- move forward. The nominees voted on So today I ask the President, for his ule hearings from that day. this morning and those included at our part, to consider several steps, each of We had occasions last year when we most recent hearings yesterday are which makes a tangible improvement proceeded with hearings with fewer clear evidence, again, that consensus in the consideration of judicial nomi- District Court nominees than I would nominees with widespread bipartisan nations. have liked because recent nominees’ support are more easily and quickly First, the most progress can be made files were not yet complete. I worry considered by the committee and con- quickly if the White House would begin that same problem will be repeated firmed by the Senate. I believe there working with home State Senators to this year. was not a single vote against either of identify fair-minded, nonideological, For example, in relation to the FBI the judges confirmed today. consensus nominees to fill these court and the ABA background materials on There are still far too many judicial vacancies. the 24 District Court nominations that vacancies. We have to work together to One of the reasons that the com- we received in the last day or so, we fill them. We have finally begun mov- mittee and the Senate were able to are not going to have all that material ing the confirmation and vacancy num- work as rapidly as we did in confirming until March or April. That is regret- bers in the right directions. The way now 30 judges in the last few months table. It was avoidable. We could have forward is difficult. Democrats alone was because those nominations were had it all here today so we could start cannot achieve what should be our strongly supported as consensus nomi- reviewing those nominations and con- common goal of regaining the ground nees by people from across the political sidering them for hearing agendas lost over the last 6 years. But all of us and legal spectrums. right away. together can achieve that. I invite each I have heard of too many situations, Now, no Senator is bound by the rec- with a role in this process to join that in too many States, involving too ommendations of the ABA. And I would effort.

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G25JA6.029 pfrm01 PsN: S25PT1 January 25, 2002 CONGRESSIONAL RECORD — SENATE S121 If I could close on a personal note, as There were a variety of reasons that sence, there were 32 nominees that did I said before, the ranking member of prevented several of President Clin- not get voted on at the end of the Clin- the Senate Judiciary Committee, the ton’s nominees from getting confirmed, ton Administration. senior Senator from Utah, is a close including some who lacked the support The fact is that 32, contrasted with personal friend. I have been in the posi- of their home State Senators. But the the 48 that the Democrats left hanging tion of ranking member of that com- overall record makes clear that we when they controlled the Senate, is a mittee while he was chairman. I know were fair. As my colleague, Senator pretty good record. It was the best we many times he had to urge actions to LEAHY, said, our job was not to simply could do given the individual cir- move forward, actions with which rubberstamp President Clinton’s cumstances presented. A couple were many in his caucus did not agree. But judges. The current President does not held up because of home State Sen- he did, and I commend him for it. For expect a rubber stamp either. So, mere ators. I could not solve that problem. my part, I pledge, during this year or numbers and statistics—as my distin- Neither could Senator LEAHY. There whatever time I am chairman, to meet guished chairman, the Senator from were some who were held up because of on a regular basis with my friend from Vermont, listed—do not give the full further investigation that had to be Utah to try to iron out as many prob- picture because they do not explain the made and questions that had arisen. lems as we can. I believe there is a mu- reasons in particular cases. And our Some were held up because of other tual respect between the two of us. But current President has been more delib- matters in the FBI reports or problems I would also urge the White House to erative, more cooperative in his selec- that existed that we could not solve be- realize that they do not act in a vacu- tion, evaluation, and nomination of fore election day. um, to understand it is a democracy, to judges than any other President while On January 1 of this year, Supreme take a moment to reread the advice I have been serving in the Senate. Court Chief Justice William Rehnquist and consent clause. Let us work to- I have to be honest, I am concerned released his 2001 year-end report on the gether. Things will go a lot faster and about the tone I have heard today. But Federal judiciary. I ask unanimous a lot better that way. I still remain cautiously optimistic consent it be printed in the RECORD. I yield the floor. that the Senate will do the right thing There being no objection, the mate- The PRESIDING OFFICER (Mr. with regard to judges, and I keep hope rial was ordered to be printed in the LEAHY). The distinguished senior Sen- alive that this bitter tone on judicial RECORD, as follows: ator from Utah. nominees will subsist. I think we are Mr. HATCH. Mr. President, I don’t 2001 YEAR-END REPORT ON THE FEDERAL above that. want to take this time to engage in JUDICIARY At the outset of the second session of I. OVERVIEW statistical judo on judicial nominees. I the 107th Congress, we have an oppor- personally have appreciated our chair- The 2001 Year-End Report on the Federal tunity in the Senate to make a real dif- Judiciary is my 16th. 2001 will surely be re- man and the work he did last year. We ference in the administration of justice are friends, and I intend to work very membered by the entire country, including in this country. This opportunity is the the federal Judiciary, for the terrorist at- closely with him. Hopefully we can put chance to halt the vacancy crisis that tacks of September 11 and the anthrax con- through a lot of judges this year, as we presently plagues the Federal courts. A tamination that followed. did for President Clinton in his second new congressional session provides I received word of the first strike on the year. many opportunities to make changes World Trade Center as the 26 federal judges Mr. President, the record is clear. who are members of the Judicial Conference Here are the true facts, the numbers and allocate our time to those matters of the United States were preparing to con- for the first years and for the current most pressing. Our Nation is facing vene at the Supreme Court the morning of session. I gave an extensive speech at many great challenges, ranging from September 11. It soon became clear that we the end of last year, and it shows where threats of terrorism at home and would have to cancel the Conference session we stand today and what we did to es- abroad to the struggling economy. We and evacuate the building, the first cancella- tion of a Conference meeting since its cre- tablish a near record with 377 Clinton have a lot of work to do. One of the most pressing matters we ation in 1922. judges. That is five fewer than for must address this session is the va- Just six and a half weeks later, our Court President Reagan, the all-time cham- was forced to evacuate the building again cancy crisis in the Federal court sys- pion of confirmed judges. I can say, after traces of anthrax were found in our off- categorically, there would have been at tem. I was interested in some of the site mail facility. For the first time since least three more than what President statistics my colleague from Vermont our building opened in 1935, the Court heard Reagan had, had it not been for holds gave. In 1992, the Democrats controlled arguments in another location—the ceremo- on the Democrat side of the Chamber. the Senate and therefore the Senate nial courtroom in the District of Columbia Judiciary Committee. On election day E. Barrett Prettyman Federal Courthouse. So the all-time champion would have The Court was also forced out of its quarters been William Jefferson Clinton as 1992, when William Jefferson Clinton was elected President of the United in the Capitol when the British burned part President. The Democrats, not the Re- of the Capitol building in August 1814. publicans, stopped the approximately States, there were 97 vacancies and 54 Despite the effects of events since Sep- eight or nine additional Clinton nomi- of President Bush’s nominees left hang- tember 11, the federal courts, along with the nees who otherwise would have been ing without a vote. (Some of those 54 rest of our government, have gotten back to confirmed. neglected nominees have now been re- business, even if not business as usual. Our Sometimes it was for petty reasons nominated by the current President Court has kept its argument schedule, fed- that holds were put on. But the fact is Bush.) Of the 54, there were about 6 eral (and state) courts have met, albeit with that holds came from the other side. who were nominated so late in the ses- heightened security, and within three weeks, sion that there wasn’t really an oppor- the Judicial Conference completed by mail One thing we did not do is apply any all of the business that had been on the litmus test. Today, some special inter- tunity on the part of Senator BIDEN or schedule for September 11 and that could not est groups are urging the Democrats to the committee to confirm them. So, be postponed. really, 48 were left hanging without a apply one. Had we Republicans applied II. ENSURING A WELL-QUALIFIED AND FULLY an abortion litmus test to President vote. By contrast, when George W. STAFFED JUDICIAL BRANCH Clinton’s nominees, perhaps fewer than Bush was elected President, there were The federal courts were created by the Ju- a dozen judges would have gone 67 vacancies—30 fewer than eight years diciary Act of 1789, which established a Su- through. If the Senate were to get into earlier when the Democrats controlled preme Court and divided the country into the litmus test game, we would cer- the Senate Judiciary Committee. And three circuits and 13 districts. This structure tainly hurt this body and this country for those 67 vacancies, there were 41 has obviously changed greatly since 1789, but a great deal. Everyone knows that nominees left hanging. In other words, one thing has not changed: the federal courts when we elect a President, we are the Republicans left 13 fewer nominees have functioned through wars, natural disas- than the Democrats did. But, of the 41, ters, and terrorist attacks. During times choosing the person who has the power such as these, the role of the courts becomes to pick the judges in this country. As 9 were nominated so late in that ses- even more important in order to enforce the long as the President’s nominees are sion that there was no chance any Ju- rule of law. To continue functioning effec- qualified, the Senate ought to approve diciary Committee chairman could tively and efficiently, however, the courts the President’s judges. have gotten them through. So, in es- must be appropriately staffed. This means

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\G25JA6.032 pfrm01 PsN: S25PT1 S122 CONGRESSIONAL RECORD — SENATE January 25, 2002 that necessary judgeships must be created sights into the process gained from experi- tional district court judgeships and 24 new and judicial vacancies must be timely filled ence. But we have never had, and should not bankruptcy judgeships. No additional court with well-qualified candidates. want, a Judiciary composed only of those of appeals judgeships have been created since Promptly filling vacant judgeships persons who are already in the public serv- 1990. No new bankruptcy judgeships have It is becoming increasingly difficult to find ice. It would too much resemble the judici- been created since 1992, although the number qualified candidates for federal judicial va- ary in civil law countries, where a law grad- of cases filed has increased by nearly 500,000 cancies. This is particularly true in the case uate may choose upon graduation to enter since then. The 107th Congress has not cre- of lawyers in private practice. There are two the judiciary, and will thereafter gradually ated a single new judgeship. Despite a significant increase in workload, reasons for these difficulties: the relatively work his way up over time. The result is a the Courts of Appeals for the First, Second, low pay that federal judges receive, com- judiciary quite different from our common and Ninth Circuits have not increased in size pared to the amount that a successful, expe- law system, with our practice of drawing on for 17 years—since 1984. During that time pe- rienced practicing lawyer can make, and the successful members of the private bar to be- riod, appellate filings in the First Circuit often lengthy and unpleasant nature of the come judges. Reasonable people, not merely have risen 65%, in the Second Circuit they confirmation process. here but in Europe, think that many civil Of the inadequacy of judicial pay I have law judicial systems simply do not command have risen almost 58%, and in the Ninth Cir- spoken again and again, without much re- the respect and enjoy the independence of cuit appellate filings have almost doubled— sult. Judges along with Congress have re- ours. We must not drastically shrink the rising 94.6%. The Judicial Conference has ceived a cost-of-living adjustment this year, number of judicial nominees who have had asked that the Congress create one new ap- and for this they are grateful. But a COLA substantial experience in private practice. pellate judgeship for the First Circuit, two The federal Judiciary has traditionally only keeps judges from falling further behind judgeships for the Second Circuit, five for drawn from a wide diversity of professional the median income of the profession. I can the Ninth Circuit and two for the Sixth Cir- backgrounds, with many of our most well-re- only refer back to what I have previously cuit, which has had only one additional spected judges coming from private practice. said on this subject. judgeship since 1984. I spoke to delays in the confirmation proc- As to the Supreme Court, Justice Louis D. Congress has recognized the crisis faced by ess in my annual report in 1997. Then as now Brandeis, who was known as ‘‘the people’s the overwhelming caseloads in the South- I recognize that part of the problem is en- attorney’’ for his pro bono work, spent his western border states. Although we are demic to the size of the federal Judiciary. entire career in private practice before he thankful that Congress has provided addi- With more judges, there are more retire- was named to the Supreme Court in 1916 by tional judges during the 106th Congress for ments and more vacancies to fill. But as I President Wilson. Justice John Harlan four of the five affected districts, it has not said in 1997, ‘‘[w]hatever the size of the fed- served in several government posts early in alleviated the very serious problem faced by eral judiciary, the President should nomi- his career, but the lion’s share of his experi- the Southern District of California, based in nate candidates with reasonable promptness, ence prior to his nomination by President San Diego, a district with no judicial vacan- and the Senate should act within a reason- Eisenhower in 1954 was in private practice. cies. The judges there have the highest num- able time to confirm or reject them. Some When appointed to the Court of Appeals for ber of filings per judge of any federal district current nominees have been waiting a con- the Second Circuit, a year before his ap- court in the nation and the Judicial Con- siderable time for a Senate Judiciary Com- pointment to the Supreme Court, Justice ference has requested that eight additional mittee vote or a final floor vote. The Senate Harlan succeeded Judge Augustus Hand. district judgeships be created for this dis- confirmed only 17 judges in 1996 and 36 in Judge Hand and his cousin, Learned Hand, trict. I urge the Congress to act on all of the 1997, well under the 101 judges it confirmed are well known as great court of appeals pending requests for new judgeships during during 1994.’’ judges; both spent virtually all the time be- At that time, President Clinton, a Demo- tween their graduation from law school and its next session. crat, made the nominations, and the Senate, their appointment as federal judges in pri- III. INTERNATIONAL JUDICIAL EXCHANGES controlled by the Republicans, was respon- vate practice. Retired Justice Byron White, The federal Judiciary continues to play a sible for the confirmation process. Now the who played professional football for the De- vital role in the development of independent political situation is exactly the reverse, but troit Lions on the weekends while attending judicial systems in countries around the the same situation obtains: the Senate con- Yale Law School, was in private practice in world. This year over 800 representatives firmed only 28 judges during 2001. When the Colorado for nearly 14 years before joining from more than 40 foreign judicial systems Senate adjourned on December 20th, 23 court the Justice Department as deputy attorney formally visited the Supreme Court of the of appeals nominees and 14 district court general to Robert Kennedy. Less than a year United States seeking information about our nominees were left awaiting action by the later, President Kennedy named Justice system of justice. Judiciary Committee or the full Senate. White to the Court. Justice White was the On September 25, 2001, I led a small delega- When I spoke to this issue in 1997, there were circuit Justice for the Tenth Circuit, where tion representing the federal Judiciary on a 82 judicial vacancies; when the Senate ad- Judge Alfred P. Murrah served as a district judicial exchange in Guanajuato, Mexico. journed on December 20th there were 94 va- judge in Oklahoma and as a judge on the The visit was at the invitation of Genaro cancies. The Senate ought to act with rea- court of appeals. Judge Murrah, who spent David Go´ ngora Pimentel, President of the sonable promptness and to vote each nomi- his entire career in private practice before Mexican Supreme Court, and followed a nee up or down. The Senate is not, of course, becoming a judge, is remembered for much similar visit to Washington by a Mexican obliged to confirm any particular nominee. more than having the Oklahoma City federal delegation in November 1999. Our traveling But it ought to act on each nominee and to building named after him. Before being to Mexico within two weeks of the Sep- do so within a reasonable time. I recognize named a judge on the Court of Appeals for tember 11 attacks underscored the impor- that the Senate has been faced with many the Second Circuit, Justice Thurgood Mar- tance of this exchange. I am grateful to challenges this year, but I urge prompt at- shall spent his career in the private sector. President Go´ ngora Pimentel and his col- tention to the challenge of bringing the fed- He first opened his own law practice in Balti- leagues for their invitation to meet with eral judicial branch closer to full staffing. more and then for many years worked as the them in Mexico and for their commitment to The combination of inadequate pay and a top lawyer for the NAACP, becoming known strengthening cross-border judicial relations drawn-out and uncertain confirmation proc- as ‘‘Mr. Civil Rights.’’ Justice Marshall left in North America. ess is a handicap to judicial recruitment his seat on the court of appeals to become The visit brought home not only the close across the board, but it most significantly Solicitor General of the United States before connections of our two countries, but the im- restricts the universe of lawyers in private President Johnson named him to the Su- portance of working with other judiciaries to practice who are willing to be nominated for preme Court in 1967. John Brown, Richard improve the functioning of all judicial sys- a federal judgeship. United States attorneys, Rives, Elbert Tuttle and John Minor Wis- tems. The Federal Judicial Center, the Ad- public defenders, federal magistrate and dom, well-known for their courage in enforc- ministrative Office of the United States bankruptcy judges, and state court judges ing this Court’s civil rights decisions as Courts, and the International Judicial Rela- are often nominated to be district judges. judges on the Court of Appeals for the Fifth tions Committee of the Judicial Conference For them the pay is a modest improvement Circuit, all served almost exclusively in pri- have also provided many international visi- and the confirmation process at least does vate practice before their appointments to tors with information, education, and tech- not damage their current income. Most aca- the bench. nical assistance to improve the administra- demic lawyers are in a similar situation. But On behalf of the Judiciary, I ask Congress tion and independence of foreign courts and for lawyers coming directly from private to raise the salaries of federal judges, and I enhance the rule of law. Through these judi- practice, there is both a strong financial dis- ask the Senate to schedule up or down votes cial exchanges, we also gain valuable in- incentive and the possibility of losing clients on judicial nominees within a reasonable sights into our own judicial system by ex- in the course of the wait for a confirmation time after receiving the nomination. changing information with foreign visitors vote. Creating necessary new judgeships and by visiting foreign courts. Improving the Former magistrate, bankruptcy, and state Last year I expressed hope that the 107th administration of justice—here and in other court judges, as well as prosecutors and pub- Congress would take action on the Judicial courts around the world—have become even lic defenders, have served ably as federal dis- Conference’s request to establish 10 addi- more important in the age of the global trict and circuit judges, bringing their in- tional court of appeals judgeships, 44 addi- economy.

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\A25JA6.005 pfrm01 PsN: S25PT1 January 25, 2002 CONGRESSIONAL RECORD — SENATE S123

IV. THE YEAR IN REVIEW options or enhancing the physical security of ommendations to control costs further and The Supreme Court of the United States courthouses, addressing security needs dur- to improve the management of court librar- ing court proceedings, improving the protec- ies. The work of the Supreme Court continues tion of judges in and outside the courthouse, to grow modestly, putting an increasing VI. THE FEDERAL JUDICIAL CENTER and conducting background checks on em- strain on the Supreme Court’s building, the The Federal Judicial Center, the federal ployees. The Judicial Conference’s Com- infrastructure of which has not been changed courts’ statutory agency for education and mittee on Security and Facilities and the in any basic way since the building was research, last year provided education to Administrative Office are currently review- opened in 1935. I wish to thank Chairman some 50,000 participants in traditional and ing the report’s recommendations. distance education programs and continued Byrd, Ranking Minority Member Stevens, One of the Administrative Office’s key pri- Chairman Young, Ranking Minority Member its research and analysis to improve the liti- orities is to secure adequate funding from gation process. A few highlights of the Cen- Obey, Chairman Hollings, Ranking Minority Congress so that the federal courts can carry Member Gregg, Chairman Wolf, and Ranking ter’s work in 2001 follow. out their critical work and maintain the Science and technology. Litigation is in- Minority Member Serrano for their efforts to quality of justice. Director Mecham, Judge secure funds to modernize our Supreme creasingly dominated by scientific and tech- John Heyburn II, chair of the Judicial Con- nical evidence. The Center’s efforts to help Court building. I am hopeful that the re- ference’s Budget Committee, and Judge Jane maining funds necessary to implement our judges included its acclaimed Reference Roth, chair of the Security and Facilities Manual on Scientific Evidence, now in its building modernization program, which has Committee, deserve credit for their efforts in been in the planning stage for several years, second edition, and a six-part Federal Judi- this area. The funding provided to the courts cial Television Network series, Science in will be included in our Fiscal Year 2003 ap- for fiscal year 2002 represents a 7.1% increase propriation. Significant safety and security the Courtroom, on principles of microbi- and will provide the courts adequate staff ology, epidemiology, and toxicology, and upgrades to the Supreme Court building are (including probation and pretrial services of- how to manage cases involving these types of included in the project and should not be de- fices) to meet growing workloads. I want to evidence. Other judicial education programs layed. express thanks to the Congress for funding dealt with genetics, the human aging proc- The total number of case filings in the Su- an increase in the rates of pay for private ess, astrophysics, and the impact of com- preme Court increased from 7,377 in the 1999 ‘‘panel’’ attorneys accepting appointments puter technology on the law of intellectual Term to 7,852 in the 2000 Term—an increase under the Criminal Justice Act of $90 per property. of 6.4%. Filings in the Court’s in forma hour. This has been a high priority for the To assist federal judges in dealing with the pauperis docket increased from 5,282 to Judiciary for several years. I am also pleased sophisticated technology many attorneys 5,897—an 11.6% rise. The Court’s paid docket to report that Congress has continued to pro- use to present evidence, the Center provided decreased by 138 cases, from 2,092 to 1,954—a vide significant funds for the courthouse federal judges its Effective Use of Courtroom 6.6% decline. During the 2000 Term, 86 cases construction program, funding 15 needed Technology: A Judge’s Guide to Pretrial and were argued and 83 were disposed of in 77 courthouse construction projects costing Trial, developed in cooperation with the Na- signed opinions, compared to 83 cases argued $280 million. tional Institute for Trial Advocacy. It also and 79 disposed of in 74 signed opinions in the Last year, an independent consultant con- provided judges a Guide to the Management 1999 Term. No cases from the 2000 Term were cluded that the Judiciary is making effective of Cases in ADR, which it prepared in light scheduled for reargument in the 2001 Term. use of technology and that it is doing so with of the growing use of alternatives to tradi- Although the closing of our building did not fewer resources invested in technology when tional litigation. delay any scheduled arguments, the inter- compared with other organizations. The Ad- Management skills for federal courts in un- ruption in mail delivery in the Washington ministrative Office continues to develop and certain times. Center programs responded to area may have an impact on the number of implement automated systems that will en- another challenge facing the courts: the need cases heard by the Court this Term. hance the management and processing of in- for leadership skills and management prac- The Federal Courts’ caseload formation and the performance of court busi- tices befitting the complex organizations In Fiscal Year 2001, filings in the 12 re- ness functions. Deployment of a new bank- that federal courts have become. Courts gional courts of appeals rose 5% to 57,464—a ruptcy court case management/electronic must integrate technology with increasingly new all-time high.1 Civil filings in the U.S. case files system began this year, and it is sophisticated business practices, and deal district courts fell 3% to 258,517,2 and, after now operating in 14 bankruptcy courts. The with growing caseloads and diverse six consecutive years of growth, the number system’s electronic case files capabilities in- workforces and litigants, while pursuing of criminal cases and defendants declined clude the ability to receive and file docu- their overarching purpose to deliver justice slightly.3 The essentially static level of ments over the Internet. The creation of for all. Demystifying the legal process. The Center criminal filings was reflected in a 1% gain in electronic files will reduce the volume of assisted the Judicial Conference’s Advisory the number of defendants activated in the paper records and make these records more Committee on the Federal Rules of Civil pretrial services system.4 The number of per- readily accessible. Testing of the district Procedure with a different type of challenge. sons on probation and supervised release court case management/electronic case files The Committee has proposed a requirement went up by 4% to an all-time high of 104,715.5 system began in 2001, and development work that attorneys use ‘‘plain language’’ in the Filings in the U.S. bankruptcy courts on the appellate court system is underway. Under the guidance of the Judicial Con- notices they send to potential class members climbed 14% from 1,262,102 to 1,437,354, fol- ference’s Committee on Court Administra- in class action suits and asked the Center to lowing two years of decline.6 tion and Case Management, the Administra- develop illustrative language as examples. V. THE ADMINISTRATIVE OFFICE OF THE UNITED tive Office completed a two-year study on The Center tested alternative workings with STATES COURTS how to balance privacy concerns with the focus groups of ordinary citizens typical of The Administrative Office of the United rights of the public to access court elec- class members. This testing explored recipi- States Courts serves as the central support tronic records. After extensive public com- ents’ willingness to open and read a notice as agency for the administration of the federal ment, the Committee recommended that well as their ability to comprehend and court system. In light of the terrorist at- civil case documents be made available elec- apply the information it contained. From tacks of September 11 and the ensuing an- tronically to the same extent they are avail- this research, the Center produced illus- thrax contamination, the Administrative Of- able at the courthouse (except that certain trative notices, which remain on the Cen- fice played a pivotal role in ensuring that personal identifiers will be partially re- ter’s Web site (www.fic.gov) for public com- the federal courts around the country had ef- dacted). A similar policy will be followed for ment and use. fective security precautions and mail-screen- bankruptcy case documents assuming nec- International judicial cooperation. Given ing procedures in place. An emergency re- essary statutory changes are enacted. The its international reputation, the Center gets sponse team was convened to work with the Committee recommended that there be no frequent visitors from other countries seek- staff of the affected courts in New York to electronic access to documents in criminal ing to create or enhance their judicial get communications and computer systems cases at this time. These policies were en- branch research and education centers. Al- working and to return the courts to normal dorsed by the Judicial Conference in Sep- though it does not use its own funds in re- operations as soon as possible. In November tember, and several Conference Committees, sponding to these requests, the Center has 2001, Administrative Office Director Leoni- supported by Administrative Office staff, are been of assistance this year in important das Ralph Mecham created a Judiciary currently working to implement them. ways. It hosted seminars or briefings of 422 Emergency Preparedness Office to focus on A review of the Judiciary’s use of libraries, foreign judges and officials representing 34 the planning aspects of crisis response. lawbooks, and legal research materials—both countries. The Center also responded to more Even before September 11, court security hard copy and electronic—was completed in specific requests for assistance. For example, was a high priority. A study of the court se- 2001. While the use of on-line legal resource a delegation from the Russian Academy of curity program by independent security ex- materials is expanding and continues to Justice spent a week at the Center attending perts was completed in November. The con- show promise for increased use, the study a program on teaching methodology. Three sultants concluded that although there have concluded that a clear and compelling need Center representatives traveled to Moscow been substantial improvements in court se- continues to exist for lawbooks and other for a follow-up workshop focusing on dis- curity over the last two decades, security legal research materials in hard-copy for- tance learning and judicial this. Center per- needs continue to grow. They recommended mat. The Judicial Conference adopted rec- sonnel also played an important role in the

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\A25JA6.008 pfrm01 PsN: S25PT1 S124 CONGRESSIONAL RECORD — SENATE January 25, 2002 U.S. delegation’s visit to Mexico, which I de- ments in the face of adversity. In spite of the ters except Chapter 12, jumping 17% under Chapter scribed earlier, and will continue that rela- terrorist attacks that have affected the en- 7, rising 7% under Chapter 11, and increasing 8% tionship by organizing a seminar next May tire country, our courts continue to conduct under Chapter 13. Bankruptcy filings under Chapter in Washington for interchange with Mexican business, day in and day out. We continue to 12, which constituted 0.03% of all petitions filed, fell 31%. This decrease resulted from the expiration of judicial educators. find ways to perform our work more effi- the provisions for Chapter 12 on July 1, 2000. Subse- VII. THE UNITED STATES SENTENCING ciently. quently, Public Law 107–8 extended the deadline for COMMISSION Despite an alarming number of judicial va- filing Chapter 12 petitions to June 1, 2001, and Public On May 1, 2001, the newly reconstituted cancies, our courts continue to serve as a Law 107–17 extended the deadline further to October United States Sentencing Commission com- standard of excellence around the world. At 1, 2001. Bankruptcy filings have increased 47% since 1992. pleted its first full sentencing guidelines bottom, federal judges are able to administer amendment cycle and submitted to Congress justice day in and day out because of their Mr. HATCH. In his report, the Chief a package of guidelines amendments cov- commitment and the commitment and hard Justice stressed the urgent need to fill ering 26 areas. This package of amendment work of court staff around the country. My vacancies promptly, particularly in resolved 19 circuit conflicts and included re- thanks go out to all of them. light of the threats facing our Nation sponses to nine new congressional directives I extend to all my wish for a happy New Year. at present. He noted that although the (five with emergency amendment authority). structure and scope of the judiciary END NOTES For the first time in years, there are no con- have changed dramatically since its gressional directives awaiting implementa- 1 Original proceedings surged 48%, largely as a re- creation in 1789, tion by the Commission. sult of a rise in habeas corpus petitions filed by pris- The amendment include a multi-part, com- oners. Criminal appeals grew 5%, administrative [O]ne thing has not changed: The Federal prehensive economic crimes package with a agency appeals increased 2%, and civil appeals rose courts have functioned through wars, nat- new loss table that significantly increases 1%. Bankruptcy appeals fell 5%. Appeals filings have ural disasters, and terrorist attacks. During penalties for crimes involving high-dollar increased 22% since 1992. times such as these, the role of the courts 2 Filings with the United States as plaintiff seek- becomes even more important in order to en- loss amounts, but gives judges greater dis- ing the recovery of student loans dropped 47%. New cretion in sentencing defendants convicted force the rule of law. To continue func- administrative procedures implemented by the De- tioning effectively and efficiently, however, of crimes with relatively low loss amounts. partment of Education led to fewer such filings in The amendments also increase the penalties the federal courts. Excluding student loan filings, the courts must be appropriately staffed. for ecstasy and amphetamine trafficking; total civil filings increased 1%. Total private case This means that necessary judgeships must counterfeiting; high-dollar fraud offenses; filings fell less than 1%. Filings related to federal be created and judicial vacancies must be child sex offenses; and the use of nuclear, bi- question litigation were consistent with the total timely filled with well-qualified candidates. ological, and chemical weapons. The Com- decline in private cases, falling less than 1% to In light of the September 11 attacks, 138,441. Diversity of citizenship and civil rights fil- mission also expanded eligibility for first- ings each rose less than 1%. Filings related to fed- I share the Chief Justice’s concern time, non-violent offenders to obtain relief eral question litigation and diversity of citizenship about the potential impact of the va- under the guidelines’ ‘‘safety valve’’ provi- were greatly affected by the stabilization of per- cancies on the Federal judiciary and sion and it clarified that participants who sonal injury/product liability case filings related to our Nation’s ability to fight the war on play a limited role in a crime are eligible for breast implants, oil refinery explosions, and asbes- an adjustment to their sentences under the tos. Despite an 11% decrease in total filings with the terrorism. Federal judges are instru- guidelines ‘‘mitigating role’’ provision. The United States as plaintiff or defendant, filings with mental in combating terrorism by pre- the United States as defendant increased 10% to siding over hearings and trials and by guidelines went into effect November 1, 2001. 40,644. This was mostly due to a 23% surge in federal On June 19, 2001, the Sentencing Commis- prisoner petitions and an 8% rise in social security imposing just sentences. What is more, sion held a public hearing in Rapid City, filings. Motions to vacate sentences filed by federal they play a crucial role in protecting South Dakota, in response to the March 2000 prisoners grew by 36%. Social security filings re- civil liberties by ensuring that our law Report of the South Dakota Advisory Com- lated to disability insurance and supplemental secu- enforcement officials abide by the let- rity income rose 9% and 6%, respectively. Civil fil- mittee to the U.S. Commission on Civil ter and the spirit of the law. In addi- Rights, which recommended that an assess- ings have increased 9% since 1992. ment of the impact of the federal sentencing 3 Filings of criminal cases dropped by 37 cases to tion to their integral function in the 62,708, and the number of defendants decreased 1% to criminal justice system, Federal judges guidelines on Native Americans in South Da- 83,252. As a result of the creation of 10 additional Ar- kota be undertaken. As a result of sugges- ticle III judgeships, criminal cases per authorized preside over and decide civil cases that tions made at the hearing and subsequent district judgeship declined from 96 to 94. This was impact everyday business relation- written submissions, the Commission is the first decrease in cases per judgeship since 1994, ships. forming an ad hoc advisory group on issues when the effects of a hiring freeze on assistant U.S. Federal judges are tasked with pre- related to the impact of the Federal Sen- attorneys was being felt. In succeeding years, fed- eral courts saw increases in criminal filings, pri- serving the rights of employers and tencing Guidelines on Native Americans in workers alike. They also provide the Indian Country. marily due to immigration and drug law-related The Tenth Annual National Seminar on cases in districts along the Southwestern border of certainty of dispute resolution nec- the United States. This year, drug cases rose 5% to essary for future business and employ- the Federal Sentencing Guidelines, co-spon- 18,425, firearms cases rose 9% to set yet another sored by the Commission and the Federal record at 5,845, traffic cases rose 6% to 4,958, robbery ment decisions. But when there is a Bar Association, was held May 16–18, 2001, in cases rose 8% to 1,355, and sex offense cases rose 8% shortage of Federal judges, criminal Palm Springs, California. More than 400 fed- to 1,017. Immigration filings fell by 873 cases, a 7% matters must understandably take eral judges, U.S. probation officers, and at- decline over last year due to fewer immigration precedence due to speedy trial concerns cases reported by the Western District of Texas, the torneys attended. During fiscal year 2001, and other concerns. The unintended Commission staff also participated in train- Southern District of California, and the District of ing for thousands of individuals at training New Mexico. However, in the Western District of consequence is that the American Texas and in the Southern District of California, the workers and their employers are left sessions across the country (including ongo- decline in immigration filings was offset by a rise in ing programs sponsored by the Federal Judi- drug filings. As a result, overall criminal filings in- hanging in limbo when their cases are cial Center and other agencies). Commission creased 2% in the Western District of Texas and de- not being heard in a timely manner. staff continue to work with the Federal Ju- clined 3% in the Southern District of California. Today, we have 99 judicial vacancies. dicial Center and the Administrative Office Criminal filings since 1992 have increased 30%. This is a far cry from the appropriately to plan and develop educational and informa- 4 In 2001, the number of defendants activated in the pretrial services system increased 1% to 86,140, and staffed judiciary of which Chief Justice tional programming for the Federal Judicial Rehnquist spoke. When the Chief Jus- Television Network. During the year, the the number of pretrial reports prepared rose 1%. During the past five years, pretrial services case ac- tice addressed the vacancy crisis in the Commission’s ‘‘Helpline’’ provided assistance tivations and pretrial reports prepared each rose 1997 year-end report, there were 82 to approximately 200 callers per month. 24%, persons interviewed grew 16%, and defendants Finally, congratulations are due to Sen- released on supervision increased 25%. Pretrial case empty seats on the Federal bench, tencing Commission Chair Diana E. Murphy activations have risen each year since 1994, and this nearly 20 fewer than the present situa- who, together with Judge Frank M. Coffin of year’s total is 54% higher than that for 1994. tion. Commenting on the 1997 statistic, the U.S. Court of Appeals for the First Cir- 5 There is an average lag of several years before de- the Washington Post, in January 1998, fendants found guilty and sentenced to prison ap- cuit, received the 19th Annual Edward J. in an editorial remarked: Devitt Distinguished Service to Justice pear in the probation numbers. Supervised release following a period of incarceration continues to ac- The problem of judicial vacancies is get- Award on September 10, 2001. This award rec- count for a growing percentage of those under super- ting out of hand. Nearly 10 percent of the 846 ognizes Article III judges who have achieved vision and now stands at 65% of this total. In con- seats on the Federal bench are now empty. exemplary careers and have made significant trast, the number of individuals on parole is small contributions to the administration of jus- and declining, composing only 4% of those under su- One key Democratic Senator called tice, the advancement of the rule of law, and pervision. Of the 104,715 persons under probation su- these figures ‘‘pretty frightening,’’ and the improvement of society as a whole. pervision, 42% had been charged with a drug-related said, ‘‘If this continues, it becomes a offense. The number of persons on probation has in- VIII CONCLUSION . crease 22% since 1992. constitutional crisis.’’ Once again the Judiciary can look back 6 Nonbusiness petitions rose 14% and business peti- There are now 99 vacancies, or 17 upon the year ended as one of accomplish- tions increased 7%. Filings increased under all chap- more than when the editorial and the

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\A25JA6.011 pfrm01 PsN: S25PT1 January 25, 2002 CONGRESSIONAL RECORD — SENATE S125 statements by the Democratic Senator keep up the pace of hearings and con- good teaching ever since. When I asked were made. If 82 vacancies was a seri- firmation votes so we do not fall fur- the liberal dean, ‘‘What do you think of ous crisis in 1997, what do we have now ther behind in filling the vacancies Michael McConnell?’’ he said these with 99 vacancies? that plague our Federal judiciary. words: We in the Senate have an oppor- I look forward to working with our Senator, I’ve met two legal geniuses in my tunity to address this situation. We Democratic colleagues to accomplish lifetime, and Michael McConnell is one of can make a real difference in the ad- this goal. Having said that, let me them. ministration of justice in this country make this clear. We have had a total And he is. He is a great nominee. simply by fulfilling our constitutional confirmed since the distinguished There are other excellent nominees I responsibilities of advise and consent. chairman took over in the middle of would like to mention, but I do not In fact, Chief Justice Rehnquist spe- last year of 30 judges. That means 6 cir- have enough time today. cifically urged the Senate ‘‘to act with cuit court nominees and 24 U.S. dis- We have 23 circuit court nominees reasonable promptness and to vote trict court nominees. I commend my pending. Many of them have been nom- each nominee up or down.’’ colleague. I think it is certainly a de- inated to seats declared to be judicial He continued: cent start. emergencies by the Administrative Of- The Senate is not, of course, obliged to On the other hand, we have currently fice of the Courts. confirm any particular nominee, but it ought pending 23 circuit court nominations— Again, there are 23 U.S. circuit court to act on each nominee and to do so within 23. Most of them have well qualified judges pending, and 36 U.S. district a reasonable time. ratings by the ABA. I do not think any- court judges, for a total of 60 who are I could not agree more with the Chief body can make a case that they are not awaiting action. I am gratified by my Justice. This is precisely what I tried qualified to serve. Just to mention colleague from Vermont’s expression to accomplish as Judiciary Committee four: John Roberts was one of those that he wants to move these nominees chairman while abiding by our customs nominees submitted by the first Presi- through the Senate process. It means a and rules of the Senate. But now some dent Bush who was left hanging with- lot to me, and I compliment him for his of President Bush’s judicial nominees out Senate action back in 1992. Roberts comments today. have been waiting more than 8 months is considered one of the top five appel- With regard to some of the statistics, for a hearing. All but a handful of them late lawyers in the country. He is not we certainly disagree, and we can both have had their blue slips returned. an ideologue. He is probably more con- make our cases with regard to that. I Their FBI background investigations servative than most of the Clinton did want to make some of these points are completed, and their ABA ratings nominees were, but the fact is he is a because, to me, it is very important are submitted. tremendously effective advocate and that we make the record clear. At a time when our national security an excellent nominee for the court. He Mr. President, I am also pleased is at stake, we have a duty to follow should not be held up any longer. He today we have confirmed two excellent the Chief Justice’s admonition and act went through that back in 1992. Why judicial nominations. These two nomi- promptly on these nominees. As we em- does he have to go through it again, es- nees are Marcia Krieger and James bark on the second session of this Con- pecially for 8 months? Mahan. They were unanimously ap- gress, we in the Senate have the per- Miguel Estrada—I am pleased to hear proved by the Senate Judiciary Com- fect opportunity to do just this. I sin- the distinguished Senator from mittee. cerely hope we accomplish this goal. I Vermont indicate that he will have a I was gratified to see that done on will continue to cooperate with our hearing. Miguel Estrada is one of the December 13, and I expect the unani- Democratic chairman, and I hope the brightest people in law. He came from mous vote they received today tells ev- rhetoric on both sides of the aisle is Honduras and attended Columbia Uni- erybody the Bush administration is cooled so we can confirm as many as versity as an undergraduate. He grad- doing a good job on these judgeship possible of the highly qualified nomi- uated with honors and then went on to nominees. nees pending before us. Harvard Law School and graduated Our vote today on these two nomi- A realistic yardstick of our success with honors there. He is considered one nees, along with the nominations hear- will be how President Bush’s second of the brightest people in law today, ing Chairman LEAHY held yesterday, in year in office will compare to Presi- and, of course, he is a very successful my opinion, is a step in the right direc- dent Clinton’s second year in office. In attorney. He is a Hispanic nominee tion. It is a good beginning to this ses- 1994, the second year of President Clin- that I think our colleagues should be sion. ton’s first term, the Senate confirmed pleased that the President has sent to I think it is important to start our 100 judicial nominees. I was an integral the Senate. work early because we have a lot of part of that. I worked very hard to get Jeffrey Sutton is one of the best ap- work to do. As I said before, there are them confirmed. I had to override peo- pellate lawyers in the country. He has presently 99 vacancies in the Federal ple on my side of the aisle and convince argued a number of cases in the Su- judiciary, which represents a vacancy some of them that the nominees should preme Court, including in the last few rate of almost 12 percent, one of the be confirmed. As a result of this work, weeks. He is also a decent human highest in history. there were only 63 vacancies in the being. He has very good ratings from As Alberto Gonzalez, counsel to Federal judiciary when the Senate ad- the ABA. He is a person we ought to President Bush, says in today’s Wall journed on December 1, 1994. put on the Circuit Court of Appeals. Street Journal: The Federal courts des- I am confident the Republicans and I am pleased the distinguished Sen- perately need reinforcements. Democrats can work together to ator from Vermont mentioned one of Mr. President, I ask unanimous con- achieve or even hopefully exceed the my State’s nominees, Michael McCon- sent that the full text of Judge Gon- goal of confirming 100 judges in 2002, nell. Michael McConnell is considered zalez’ article be printed in the RECORD particularly the many circuit court one of the greatest constitutional ex- at this point. There being no objection, the article nominees who are pending to fill emer- perts in the country. I do not think you was ordered to be printed in the gency vacancies in the appellate courts can categorize him in any particular RECORD, as follows: around this country. political pigeonhole. This is a fair and I have been gratified this morning to circumspect man who is going to do a [From the Wall Street Journal, Jan. 25, 2002] hear the comments of the distinguished tremendous job on the bench. THE CRISIS IN OUR COURTS Senator from Vermont that he wants I asked one of the leading deans of a (By Alberto Gonzales) to do that; that he wants to do the best law school in the country, a very lib- Federal courts protect constitutional he can, and that he believes we can. I eral Democrat, what he thought of Mi- rights, resolve critical civil cases, and ensure chael McConnell. By the way, McCon- that criminals are punished. But as Chief think we are off to a good start. Justice William Rehnquist cautions, the There are two district court nomi- nell was tenured at the University of ability of our courts to perform these func- nees awaiting a vote by the Senate Chicago before moving to Utah to raise tions is in jeopardy due to the ‘‘alarming after today. Our first confirmation his family. He moved to the University number’’ of judicial vacancies, 101 as of hearing was held yesterday. We have to of Utah where he has been a pillar of today.

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G25JA6.035 pfrm01 PsN: S25PT1 S126 CONGRESSIONAL RECORD — SENATE January 25, 2002 President Bush has responded to the va- nations to the Senate. They are really ballot by your peers, some of whom cancy crisis by nominating a record number doing a good job in this White House, may not like you but nevertheless ac- of federal judges: 90 since taking office, al- and I know it has been difficult for knowledge you are of the highest legal most double the nominations that any of the past six presidents submitted in the first them. ability and legal ethics. And he has year. Despite his decisive action, the Senate Since we already had 38 nominees that rating. has not done enough to meet its constitu- still pending from last session, and we In February 1999, he was named a tional responsibility. It has voted on less confirmed 2 today, we now have a total judge on the Clark County District than half of the nominees. Indeed, it has of 60 nominees awaiting action from Court. Since taking the bench, Judge voted on only six of the 29 nominees to the the Judiciary Committee. Yesterday’s Mahan has heard civil and criminal courts of appeals. And the Senate has failed hearing and today’s votes make me op- matters and trials involving a 3,000 even to grant hearings to many nominees, timistic we will vote on all of our case docket. who have languished before the Judiciary Both Judge Krieger and Judge Mahan Committee for months. nominees as expeditiously as possible For example, on May 9, 2001, the president this year, and I am counting on our have already established themselves as announced his first 11 nominees. All were chairman to help get that done. capable jurists. After today, they will deemed ‘‘well qualified’’ or ‘‘qualified’’ by It certainly is possible to confirm all be able to share their expertise in the the American Bar Association, whose rating 60 this year, in addition to the other Federal system, and I am confident system Judiciary Committee Chairman Pat- nominations we will receive later. In they will bring honor and dignity to rick Leahy has called the ‘‘gold standard’’ the Federal district court bench. I am for evaluating nominees. Yet his committee 1994, the second year of President Clin- has held hearings for only three of the 11. Al- ton’s first term, as I mentioned earlier, very pleased our colleagues have unani- though the Senate did confirm 28 judges last the Senate confirmed 100 judicial nomi- mously confirmed both of them. year, its overall record was unsatisfactory, nees. I am confident Republicans and Again, I thank my good friend and given the number of vacancies and pending Democrats can work together to distinguished chairman of the Judici- nominees. achieve or even hopefully exceed this ary Committee for the work he has As Congress returns to work, the adminis- done up to now, and hopefully we can tration respectfully calls on the Senate to number in 2002, particularly with re- gard to the many circuit court nomi- do better in the future. I appreciate make the vacancy crisis a priority and to en- being able to work with him. sure prompt hearings and votes for all nomi- nees pending to fill emergency vacan- The PRESIDING OFFICER (Mr. nees. The Senate should make this practice cies in appellate courts around this permanent, adhering to it well after Presi- LEVIN). The Senator from Vermont. country. To do this, we have to keep up Mr. LEAHY. Mr. President, I appre- dent Bush leaves office, so as to ensure that the pace of hearings and confirmation every judicial nominee by a president of ei- ciate the words of my friend from ther party receives a prompt hearing and votes so we do not fall further behind Utah. Obviously, we cannot determine vote. in filling the vacancies that plague our the course the White House might The federal courts desperately need rein- Federal judiciary. take. They can make that decision on forcements. There are 101 vacancies out of As Chief Justice Rehnquist noted, their own, and I expect will. We can 853 circuit and district court judgeships. The and as I have stated, in his 2001 year- only determine what the Senate does. 12 regional circuit courts of appeals have an end report: extraordinary 31 vacancies out of 167 judge- As I said before, it is advise and con- ships (19%). The chief justice recently To continue functioning effectively and ef- sent, not advise and rubberstamp. warned of the dangerous impact the vacan- ficiently . . . the courts must be appro- I only urge the White House to seek, cies have on the courts and the American priately staffed. as Presidents have throughout my life- people, and the Judicial Conference has clas- This means that necessary judgeships must time, advice from the home State Sen- be created and judicial vacancies must be sified 39 vacancies as ‘‘judicial emergencies.’’ ators of both parties on judgeships. In 1998, when there were many fewer judi- timely filled with well-qualified candidates. Senator HATCH and I can move far cial vacancies, Sen. Thomas Daschle, now So I sincerely hope we will accom- more quickly on judges when that kind majority leader, and Mr. Leahy expressed plish this goal. I look forward to co- their concern about the ‘‘vacancy crisis’’— of consensus has been reached, just as operating with my chairman, the dis- we have demonstrated by moving with the latter explaining that the Senate’s tinguished Senator from Vermont, and failure to vote on nominees was ‘‘delaying or through numerous conservative Repub- preventing the administration of justice.’’ all of our other Democrat colleagues, lican nominees but for whom there was Today’s crisis is worse, and is acute in sev- and I hope the rhetoric on both sides of consensus. eral places. The D.C. Circuit Court of Ap- the aisle is cooled so we can confirm as Frankly, it would be a much easier peals, which, other than the Supreme Court, many as possible of the highly quali- job if only the Senator from Utah and is often considered the most important fed- fied nominees pending before us. I had to make these decisions. Again, I eral court because of the constitutional Today’s nominees are good examples cases that comes before it, has four vacan- hope the White House will listen to cies on a 12-judge court. The Sixth Circuit of the kind of highly qualified nomi- what the two of us have been saying. Court of Appeals has eight vacancies on a nees President Bush has submitted to We have demonstrated we will work to- court of 16. In March 2000, when that court the Senate. Chief Bankruptcy Judge gether. They also have to help. They had only four vacancies, its chief judge stat- Marcia Krieger, who has been nomi- have to help in the consultation. They ed that it was ‘‘hurting badly and will not be nated to the District Court in the Dis- have to help in getting the information able to keep up with its work load.’’ trict of Columbia, attended Lewis & on to the FBI, and the ABA reports. In the past, senators of both parties have Clark College, from which she grad- accused each other of illegitimate delays in They have to also make sure when they voting on nominees. The past mistreatment uated after 3 years summa cum laude, speak about these issues they speak ac- of nominees does not justify today’s behav- and earned her law degree from the curately. ior. Finger-pointing does nothing to put University of Colorado School of Law. I thank my good friend from Utah for judges on the bench and ease the courts’ bur- She has experience as a lawyer and as his comments. I will continue to work dens; it only distracts the Senate from its a specialist in bankruptcy. She has with him. constitutional obligation to act on the presi- served as a bankruptcy court judge I also see the distinguished assistant dent’s judicial nominees. President Bush has encouraged the Senate since 1994. Republican leader. He and the assistant to act in a bipartisan fashion, both now and Judge James Mahan, who has been Democratic leader, Senator REID, have in the future. He put it best at the White nominated to the District Court for the worked very closely together with each House last May while announcing his first 11 District of Nevada, achieved a great other to try to schedule votes on nominees: ‘‘I urge senators of both parties to reputation as a lawyer in Las Vegas for judges. Both have worked with me and rise above the bitterness of the past, to pro- 17 years, primarily focusing on busi- with Senator HATCH. I think that is vide a fair hearing and a prompt vote to ness and commercial litigation. In the helpful. It reflects the way the Senate every nominee. That should be the case for process, he earned an AV rating from no matter who lives in this house, and no is supposed to work. Our distinguished matter who controls the Senate. I ask for the Martindale-Hubbell legal directory, leaders, Senator DASCHLE and Senator the return of civility and dignity to the con- high praise from his peers. I have held LOTT, have worked closely on this and firmation process.’’ that rating from the earliest day it will continue to do that. It is time for the Senate to heed his call. could be given to me, and I understand I yield the floor. Mr. HATCH. This week, the White what goes into getting an AV rating. It The PRESIDING OFFICER. The Sen- House submitted 24 new judicial nomi- is very important because it is a secret ator from Oklahoma.

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\A25JA6.014 pfrm01 PsN: S25PT1 January 25, 2002 CONGRESSIONAL RECORD — SENATE S127 Mr. NICKLES. Mr. President, I thank ers were referenced. With adequate co- Honorable Lewis T. Babcock, Chief my friend and colleagues from operation, we will be able to move for- Judge of the United States District Vermont and Utah for their comments. ward. We held hearings yesterday on Court for the District of Colorado, in a On the issue of judges, I think the Sen- another court of appeals nominee, Mi- letter to Senator LEAHY and Senator ate, and particularly with the leader- chael Melloy, of Iowa; as well as hear- HATCH stated, ‘‘I know Judge Krieger, ship of both Senator LEAHY and Sen- ings on Robert Blackburn, to be U.S. and believe her to be well qualified.’’ ator HATCH, did very well on district district judge for the District of Colo- court judges. We moved a total of 28 rado; and James Gritzner, to be U.S. I thank Senator HATCH and Senator judges last year, and 2 now, so that is district court judge for the Southern LEAHY. 30 judges we have confirmed this Con- District of Iowa; and Cindy K. Jor- I ask unanimous consent to print in gress, 6 of whom were circuit court genson, to be U.S. district judge for the the RECORD the editorial from the Den- judges and the rest were district court District of Arizona; and Richard J. ver Post and the letter from the Honor- judges. So I compliment them. Leon, to be U.S. district judge for the able Lewis T. Babcock, Chief Judge of The percentage of district court District of Columbia; and Jay C. the U.S. District Court for the District judges has been a good percentage for Zainey, to be U.S. district judge for the of Colorado. the number who were nominated Eastern District of Louisiana. Those There being no objection, the mate- through the summer. So that was good. hearings were held within 28 hours of On circuit court judges, the record is coming back into session. rial was ordered to be printed in the not quite so good. We have confirmed Mr. NICKLES. I thank my colleague. RECORD, as follows: six. President Bush has nominated 29. The committee has done a wonderful BUSH TAPS 2 JUDGES I comment to the chairman of the job on district court judges, and I urge committee and the ranking member of them to consider some of the circuit Tuesday, September 11, 2001.—The White the committee, there are 23 circuit court nominees. House nominated two distinguished Colorado judges to the U.S. District Court yesterday, court judges, only 1 of whom has had a NOMINATION OF MARCIA S. KRIEGER and both will receive the full support of U.S. hearing. In the 23 who are pending, Mr. ALLARD. Mr. President, it is there are some outstanding nominees. Sens. Wayne Allard and Ben Nighthorse both an honor and a privilege to stand Campbell. For example, Miguel Estrada is a na- before my colleagues today and thank President Bush’s nominations, as predicted tive Honduran who came to the United them for accepting the nomination of States. He graduated top of his class in these pages Aug. 12, recommend U.S. Chief The Honorable Marcia S. Krieger to the Bankruptcy Judge Marsha Krieger and 16th from Columbia and Harvard Law U.S. District Court for the District of School. He has argued 16 cases before Judicial District Judge Robert Blackburn for Colorado. Marsha S. Krieger is a person the bench. the Supreme Court. I hope we have a of outstanding legal credentials, and We are delighted by the White House deci- hearing for him. He was nominated in has served the people of Colorado and May, so I again ask the chairman of sion. Both judges have extensive experience, the United States with great diligence solid knowledge of the law and a reputation the committee, before he leaves—be- and dedication for many years. fore he leaves, I wanted to again com- for fairness. They are widely respected by Judge Krieger has strong ties to Col- other judges and by lawyers who have ap- pliment him for the work he has done orado and is familiar with the issues peared before them. on district court judges. I think we faced by people in the State, an impor- Both should prove extremely helpful to the have made good progress, but on cir- tant aspect of any Federal judge who cuit court judges there are 23 who are Federal court in Colorado, which hasn’t will work with fellow citizens through added a judge since 1984 despite increasingly pending, 1 of whom has had a hearing, a myriad of complex litigation set- complex and mushrooming caseloads. Judge Pickering, but of the 22 who tings. She graduated from the Univer- have not had a hearing, several are We commend Republicans Allard and sity of Colorado School of Law, and has Campbell, as well as the White House, for outstanding, many of whom were nomi- since spent many years as a sole prac- nated in May. I believe eight were nom- pushing to fill these vacancies quickly. We titioner, practicing in a law firm, and, also congratulate the senators for zeroing in inated in May. I urge my friend and most recently, serving as Judge. on such highly qualified candidates. colleague to take a look at such out- Since 1994, Judge Krieger has served Krieger, daughter of retired Colorado standing individuals. I mentioned on the Bankruptcy Court—a key indi- Miguel Estrada, John Roberts. Miguel Court of Appeals Judge Don Smith, has cator of her efficiency and effective- served on the Bankruptcy Court since 1994 Estrada argued 16 cases before the Su- ness; she was also unanimously chosen and was unanimously chosen by the federal preme Court; John Roberts, also for by the federal judges to become Chief judges to become chief bankruptcy judge in the D.C. Circuit Court of Appeals, ar- Bankruptcy judge in January 2000. January 2000. gued 36 cases before the Supreme However, practicing law is not her Blackburn has been one of two district Court. Undoubtedly, they are two of only passion. Judge Krieger, manages judges serving Bent, Crowley and Otero the most well-qualified individuals to find time to teach, sharing her Counties since 1988, having previously served anywhere in the country. They have knowledge of the law with future attor- simultaneously as a deputy district attor- yet to have a hearing scheduled. neys, teaching in a manner that pro- ney, Bent County attorney, and municipal I say thank you. The Senator has vides hands-on learning, sharing with judge and attorney for the town of Kim. moved all of the district court judges students her passion for the law. Both judges are graduates of the Univer- from Oklahoma. I am pleased about Marsha Krieger presides over the sity of Colorado School of Law. that. All four were sworn in and will be court with a stern hand and keen intel- good consensus judges. I ask and urge The next step calls for the Senate Judici- lect—she has the ability to decisively ary Committee to send ‘‘blue slips’’ to Colo- my colleague to move forward as pull the issue from complex litigation rado’s senators. Allard and Campbell then quickly as possible on the 23 circuit with certainty and accuracy. will return the blue slips, signaling their ap- court nominees, schedule their hear- According to an article in the Denver proval of Krieger and Blackburn. ings, and see if we cannot move some of Post, Judge Krieger is widely respected those nominees through as soon as pos- Next, the Judiciary Committee will inde- by other judges and by lawyers that pendently investigate the candidates and sible. have appeared before them. She has ex- vote on whether to approve them. The nomi- Mr. LEAHY. If the Senator will yield, tensive experience, solid knowledge of nations then would be sent to the Senate that question is directed toward me. I the law, and has a reputation for fair- floor, and approval there would result in ‘‘ju- say to the distinguished Senator from ness. dicial commissions’’ by the president. Oklahoma that while he was off the This vote is significant for many rea- The Senate process often drags on for floor attending to other duties, I laid sons—Colorado hasn’t added a judge months and months. We urge the committee out some plans and intentions for the since 1984. Making matters more seri- and the full Senate to exercise all reasonable handling of judicial nominees, includ- ous, only four active judges struggle to speed with the Krieger and Blackburn nomi- ing those for the courts of appeals—I do the work of nine judges. nations. The long-overworked federal court believe those are some of those men- The legal community believes the of Colorado needs qualified new judges, and tioned—including Mr. Estrada and oth- Judge to be well qualified as well. The it needs them now.

VerDate 10-DEC-2001 02:32 Jan 26, 2002 Jkt 099060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\G25JA6.039 pfrm01 PsN: S25PT1 S128 CONGRESSIONAL RECORD — SENATE January 25, 2002 U.S. DISTRICT COURT, largest newspaper, Judge Mahan’s re- pending amendment and ask consent to DISTRICT OF COLORADO, tention rates scored the highest of any call up amendment No. 2702 on behalf Denver, CO, September 20, 2001. judge serving on State or local court in of Senator ALLEN. Hon. PATRICK LEAHY, Nevada, and that includes the Nevada The PRESIDING OFFICER. In my Russell Senate Office Building, capacity as a Senator from Michigan, I Washington, DC. Supreme Court. Judge Mahan’s extensive legal back- object to that. I understand there is an Hon. ORRIN HATCH, ground and his commitment to public objection. Dirksen Senate Office Building, Mr. NICKLES. I ask unanimous con- Washington, DC. service make him an excellent choice DEAR SENATORS LEAHY AND HATCH: In this as U.S. District Court Judge for the sent this be the next Republican time of national crisis I appreciate that you District of Nevada. I know his wife Ei- amendment filed in the normal course have much added to your ordinary labors in leen and his son James, Jr., are proud of business. government. I take to heart our president’s of him for being here today, and the The PRESIDING OFFICER. Without admonition to go to work and do our jobs. It State of Nevada is proud of Jim and all objection, it is so ordered. is axiomatic that our federal judiciary must Mr. NICKLES. I thank my friends perform not only its usual role under our that he represents for our great State. I am proud to support Judge Jim and colleagues. Constitution, but a heightened role in re- The PRESIDING OFFICER. The Sen- Mahan before the Senate today. sponse to terrorism. Specifically, at this ator from Wyoming. time this nation requires that judicial va- f Mr. ENZI. I rise to speak on the cancies be fairly and expeditiously filled. More specifically, I urge you to act expedi- HOPE FOR CHILDREN ACT— Bond-Collins amendment and give a tiously on the confirmation of nominees Continued little explanation of what has been sub- Marsha Kreiger and Robert Blackburn to va- mitted. I am sure most of the Members AMENDMENT NO. 2717 cancies existing in the United States Dis- of this body will want to back an Mr. NICKLES. I ask unanimous con- trict Court for the District of Colorado. I amendment that supports small busi- sent to set aside the pending amend- know Judge Kreiger and Judge Blackburn ness in the way that this particular and believe them to be well qualified. As you ment and send an amendment to the amendment does. Senator BOND, of know, the Honorable Richard P. Matsch did desk on behalf of Senator BOND, Sen- course, has worked extensively on it much to restore this nation’s confidence in ators COLLINS, ENZI, ALLEN, and Sen- and is the ranking member on the its courts during the trials of McVeigh and ator NICKLES. Small Business Committee. Senator Nichols. He is now recovering from recent The PRESIDING OFFICER. Without COLLINS has been involved in small liver transplant surgery. It will be a long pe- objection, it is so ordered. riod of recovery. So, the District of Colorado business most of her life. I appreciate The clerk will report. struggles to do the work of seven active all the thought and effort that went judges with four. By the way, the Judicial The assistant legislative clerk read as follows: into this amendment. It will provide an Conference of the United States has ap- immediate economic stimulus and will The Senator from Oklahoma [Mr. NICK- proved two additional seats for the District provide a stimulus for small businesses of Colorado. Thus, the District of Colorado LES], for Mr. BOND, for himself, Ms. COLLINS, struggles to do the work of a demonstrated Mr. ENZI, Mr. ALLEN, and Mr. NICKLES, pro- in this country. The details of this are need for nine active judges with four active poses an amendment to the language pro- very limited to small business. How- judges. posed to be stricken by amendment No. 2698. ever, it is an area that will help out I urge you not only to act to fill the exist- Mr. NICKLES. Mr. President, I ask immediately a wide range of busi- ing two vacancies, but to address the dem- unanimous consent reading of the nesses, and I will explain how that will onstrated need for two additional seats in happen. this district. amendment be dispensed. The PRESIDING OFFICER. Without I appreciate this opportunity to talk NOMINATION OF JAMES C. MAHAN objection, it is so ordered. about what our Nation and my State of Mr. ENSIGN. Mr. President, it is an The amendment is as follows: Wyoming need in the way of an eco- honor to come before the U.S. Senate (Purpose: To amend the Internal Revenue nomic stimulus package. I will talk on today to lend my support to a man of Code of 1986 to provide for a temporary in- a broader issue first and then get into the highest legal distinction, Judge crease in expensing under section 179 of the details of this particular amend- Jim Madhan. such code) ment. While I have a degree in account- A long-time resident of Las Vegas, At the end, add the following: ing, you don’t need to be an accountant NV, Judge Mahan began his studies not SEC. ll. TEMPORARY INCREASE IN EXPENSING to know that something needs to be in our great State, but at the Univer- UNDER SECTION 179. done to kick-start our economy. We sity of Charleston in Charleston, WV. (a) IN GENERAL.—The table contained in ended Congress last year with a well- Following graduation he attended section 179(b)(1) of the Internal Revenue crafted economic stimulus bill that graduate school before joining the U.S. Code of 1986 (relating to dollar limitation) is had bipartisan support, which the Navy where he served until honorably amended to read as follows: House passed, and the President said he discharged in 1969. Jim then studied ‘‘If the taxable year The applicable would sign. In short, it was a bill and graduated from Vanderbilt Univer- begins in: amount is: 2001 ...... $24,000 worked out over several months of sity Law School. 2002 or 2003 ...... $40,000 tough negotiations involving the ad- Following graduation, Judge Mahan 2004 or thereafter ...... $25,000.’’ ministration and congressional Demo- began his work in Nevada, first as a (b) TEMPORARY INCREASE IN AMOUNT OF crats and Republicans. It included un- law clerk and then as an associate at- PROPERTY TRIGGERING PHASEOUT OF MAX- employment compensation and health torney. In 1982 he formed the law firm IMUM BENEFIT.—Paragraph (2) of section insurance for unemployed workers. It of Mahan & Ellis, where he practiced 179(b) of the Internal Revenue Code of 1986 is included tax relief for hard-working in- law primarily in the areas of business amended by inserting before the period ‘‘($325,000 in the case of taxable years begin- dividuals and families, and it included and commercial litigation for 17 years. ning during 2002 or 2003)’’. much needed help for America’s small In February 1999, Judge Mahan’s legal (c) EFFECTIVE DATE.—The amendments businesses. experience and expertise were recog- made by this section shall apply to taxable I was disappointed about the major- nized by Gov. Kenny Guinn, who named years beginning after December 31, 2001. ity leader’s refusal to schedule the bi- him as his first appointment to the Mr. NICKLES. Is there an amend- partisan bill for a vote before the re- Clark County District Court. ment pending by Senator Allen? cess. Today, rather than having an op- Since taking the bench, Judge Mahan The PRESIDING OFFICER. There is portunity to vote on that bill, we are has heard civil and criminal matters no amendment at the desk; there is a suddenly faced with a vote on a totally involving a 3,000 case docket assigned submitted amendment from Senator new bill. to him. Judge Mahan’s service on the ALLEN. The bill we are currently debating bench has been of the highest order. He Mr. NICKLES. Parliamentary in- did not go through the normal congres- has overseen many of Nevada’s most quiry: What is the number of that sional process. Instead, it was filed complex and controversial cases since amendment? quickly. It was filed with little input taking the bench and has done so with The PRESIDING OFFICER. It is 2702. from our Senate colleagues on either great care, fairness, and prudence. In a Mr. NICKLES. Mr. President, I ask side of the aisle, and it was brought to survey conducted last year by Nevada’s unanimous consent to set aside the the floor for purposes of a vote.

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