June 3, 2008 CONGRESSIONAL RECORD — SENATE S4961 public land ranchers have migrated to pri- been co-opted by environmental litigants as the Western District of Missouri, Ste- vate lands, infringing on our property rights. procedural hurdles to serve their ultimate phen Limbaugh of Missouri to fill a va- Many of today’s decisions are simply not goal of land use control. Congress has dem- cancy in the Eastern District of Mis- ‘‘right for the resource’’. onstrated its inability to act in restoring in- souri, William Lawrence of Indiana to These 21st century resource management tegrity to these laws. There will continue to challenges have also forced ranchers and the be a handful of federal judges who are willing fill a vacancy in the Southern District organizations that represent them into the to aid and abet in their abuse. of Indiana and Murray Snow of Arizona litigation arena to an unprecedented extent. WSGA and others will continue to defend to fill a vacancy there. In addition, Certain environmental organizations have the property rights and grazing permits of when the Judiciary Committee con- perfected the litigation process as a tool to ranchers in environmental litigation. This siders the nominations of Judge Helene make government dysfunctional. Their for- alone will not be enough. The time has ar- White and Ray Kethledge to the Sixth mula is simple: Challenge every unfavorable rived when we must develop a multi-faceted Circuit, we will also consider the nomi- decision on simple procedural grounds, uti- strategy to end this abuse of our rights and lizing the National Environmental Policy our legal system. We have begun the nation of Stephen Murphy to the East- Act (NEPA) or the Endangered Species Act proactive step of building public support for ern District of Michigan. Thus, with (ESA), as a tool. Make massive, costly and our stewardship and forming alliances with cooperation from across the aisle, the time-consuming demands on the agencies for other groups who support our role in re- Senate should be in position to have documents under the Freedom of Informa- source management. Future steps should in- confirmed four circuit court judges and tion Act (FOIA), thereby preventing agency clude an expose of the motives and tactics of 11 district court judges before the personnel from performing normal duties. select radical environmental groups and di- Fourth of July recess, for a total of 15 Identify ‘‘friendly’’ courts that will assure a rect legal challenges to certain of their prac- favorable decision on the weakest of evi- additional Federal judges. tices. This strategy will demand even greater By comparison, during the 1996 ses- dence. Assure that the environmental orga- short-term sacrifices by ranchers and a nization’s legal fees are paid by the taxpayer strong coordinated commitment by those sion when a Republican Senate major- and that the FOIA fees are waived ‘‘in the who represent them. Success will assure a ity was considering the judicial nomi- public interest’’. This is the shameful but sustainable resource and a more secure fu- nees of a Democratic President in a successful strategy of Western Watersheds ture for our industry. Presidential election year, not a single Project, Center for Biological Diversity, For- f judge was confirmed before the Fourth est Guardians and a host of similarly aligned of July recess—not even one. That was conspirators. JUDICIAL NOMINATIONS the same session in which they failed Meanwhile, back at the ranch, individual Mr. LEAHY. Mr. President, before families are forced to scrape together thou- to confirm a single circuit court nomi- sands of dollars of their own funds to defend the last recess, the Senate confirmed nee. property rights and federal grazing permits. Judge G. Steven Agee of Virginia to Another stark comparison is that on Financial and human resources that would the United States Court of Appeals for June 1, 2000, when a Republican Senate otherwise be directed toward resource man- the Fourth Circuit. His confirmation majority was considering the judicial agement and improvements are diverted to lowered the remaining vacancies on nominees of a Democratic President in legal fees and endless meeting participation, that circuit to less than there were at a Presidential election year, there were thereby strengthening the claims of the en- the end of the Clinton administration, 66 judicial vacancies. Twenty were cir- vironmental plaintiffs that the resource is when a Republican-controlled Senate not being properly managed. The rancher is cuit court vacancies, and 46 were dis- placed in a vicious circle from which there is had refused to consider any nominees trict court vacancies. Those vacancies no ready escape. to the Fourth Circuit during the last 2 were the result of years of Republican Agricultural organizations at the state, years of the Clinton Presidency. The pocket filibusters of judicial nomina- national and local levels have stepped up to Republican Senate majority used the tions. This year, by comparison there the plate in recent years in order to address Clinton years to more than double cir- are just 47 total vacancies with only 11 these threats in a collective manner and re- cuit court vacancies around the coun- circuit vacancies and 36 district court lieve some of the burden placed on individual try. By contrast, we have already re- ranchers. In Wyoming, state government has vacancies. If we can continue to make been a partner in this effort, in particular re- duced circuit court vacancies by al- progress this month, the current va- garding endangered species. most two-thirds, in the process reduc- cancies could be reduced to fewer than In 1999 the Wyoming Stock Growers Asso- ing them to zero or only a single va- 40, with only 9 circuit court vacancies ciation (WSGA), for the first time in its then cancy in nearly every circuit. We have and 30 district court vacancies. over 125 year history, deemed it necessary to already reduced vacancies among the The history is clear. When Repub- establish a permanent Litigation Fund to 13 Federal circuit courts throughout licans were busy pocket filibustering support challenges by the radical environ- the country from 32—which is what it mental community. Since that time the gen- Clinton nominees, Federal judicial va- erosity of our members and supporters has was when I became chairman of the Ju- cancies grew to more than 100, and cir- allowed us to participate in or financially diciary Committee in the summer of cuit vacancies to more than 30. support over ten (10) defenses of the property 2001—to 11, the lowest number of va- When I became chairman for the first rights and interests of the ranching commu- cancies in more than a decade. time in the summer of 2001, we quick- nity. In addition to these direct expendi- When Republican Senators are ready ly—and dramatically—lowered vacan- tures, an increasing portion of staff time is to allow us to consider and confirm the cies. The 100 nominations we confirmed dedicated to reviewing litigation and deter- President’s nominations to fill the last in only 17 months, while working with mining the appropriate level of involvement two remaining vacancies on the Sixth a most uncooperative White House, re- for the organization. Currently, WSGA is involved as an inter- Circuit, yet another circuit will be duced vacancies by 45 percent. venor in litigation seeking the listing of the without any vacancies. We will reduce After the 4 intervening years of a Re- sage grouse and in challenges to the state’s the total number of circuit court va- publican Senate majority, vacancies elk feedgrounds. We have filed a motion to cancies to single digits for the first remained about level. intervene in recent litigation seeking to time in decades. Lost in all the agi- It is the Democratic Senate majority force listing of the mountain plover. WSGA, tating from the other side of the aisle that has again worked hard to lower joined by WWGA, has recently moved to file is the fact that we have succeeded in them in this Congress. We have gone an amicus brief in litigation challenging the reducing circuit court vacancies to his- from more than 110 vacancies to less delisting of the grizzly bear. We were in the process of filing in the black-tailed prairie torically low levels. than 50. With respect to Federal circuit dog litigation when a settlement was In addition, this work period we have court vacancies, we have reversed reached. In addition, WSGA is a leader in an the opportunity to complete Senate course from the days during which the effort by the National Public Lands Council consideration of five additional nomi- Republican Senate majority more than challenging the overturning of the revised nees for lifetime appointment to Fed- doubled circuit vacancies. Circuit va- BLM grazing regulations. The announcement eral courts, which are pending on the cancies have been reduced by almost last week by WildEarth Guardians of a law- Senate’s Executive Calendar. The Judi- two-thirds and have not been this low suit challenging the Secretary of Interior for ciary Committee has favorably re- since 1996, when the Republican tactics failure to act on listing petitions for 681 spe- ported the nominations of Mark Davis cies will undoubtedly present new ‘‘opportu- of slowing judicial confirmations began nities’’ for our involvement. of Virginia to fill a vacancy in the in earnest. The ESA and NEPA are laws whose origi- Eastern District of Virginia, David Consider for a moment the numbers: nal intent remains valid. However, they have Kays of Missouri to fill a vacancy in After another productive month, just 9

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I expect that is the most in our In fact, our work has led to a reduc- cuit vacancies rose to five. One of those history. tion in vacancies in nearly every cir- vacancies—to a seat in North Caro- I regret to report that when I tried to cuit, reducing vacancies on almost lina—still exists because the President expedite consideration of President every circuit to only one or none. Both insisted on nominating and renomi- Bush’s two Sixth Circuit nominations the Second and Fifth Circuits had cir- nating Terrence Boyle over the course last month, I encountered only criti- cuit-wide emergencies due to the mul- of 6 years to fill that vacancy. That cism from the Republican side of the tiple simultaneous vacancies during highly controversial nomination per- aisle, as did one of the nominees. Sen- the Clinton years with Republicans in sisted for years despite the strong op- ator BROWNBACK publicly apologized control of the Senate. Both the Second position of law enforcement officers for his actions at the hearing, and I Circuit and the Fifth Circuit now are from across the country, civil rights commended him for doing so. without a single vacancy. We have al- groups, and those knowledgeable and We have now received the updated ready succeeded in lowering vacancies respectful of judicial ethics opposed ABA rating for President Bush’s nomi- in the Second Circuit, the Fourth Cir- the nomination. nation of Judge Helene White to the cuit, the Fifth Circuit, the Sixth Cir- The Fourth Circuit now has fewer va- Sixth Circuit. She received a well cuit, the Eighth Circuit, the Ninth Cir- cancies than it did when Republicans qualified rating. That did not come as cuit, the Tenth Circuit, the Eleventh claimed no more judges were needed, any surprise. She has served ably on Circuit, the DC Circuit, and the Fed- and fewer vacancies than at the end of eral Circuit. Circuits with no current the Michigan state appellate courts the Clinton administration. I have al- vacancies include the Seventh Circuit, and acquired additional experience in ready said that once the paperwork on the Eighth Circuit, the Tenth Circuit, the decade since when she was nomi- President Bush’s nomination of Judge the Eleventh Circuit and the Federal nated by President Clinton and the Re- Glen Conrad to the Fourth Circuit is Circuit. When we are allowed to pro- completed, if there is sufficient time, I publican Senate majority refused to ceed with President Bush’s nomina- consider her nomination. The White hope to move to that nomination. tions of Judge White and Ray This is not the first time we have and Kethledge nominations to the Kethledge to the Sixth Circuit, it will heard false complaints about our Sixth Circuit break a logjam after 7 join that list of Federal circuits with- progress on nominations. One of the long years. out a single vacancy. Republicans’ favorite talking points is In light of Republican criticism of My approach has been consistent to use a mythical ‘‘statistical average’’ my efforts to expedite consideration of throughout my chairmanships during of selected years to argue that the Sen- President Bush’s Sixth Circuit nomina- the Bush Presidency. The results have ate must confirm 15 circuit judges in tions, I have said that the nominations been positive. Last year, the Judiciary this Congress. They only achieve this would be scheduled for committee con- Committee favorably reported 40 judi- inflated so-called ‘‘historical average’’ sideration after we received updated cial nominations to the Senate and all by taking advantage of the high con- ratings from the ABA. Now we have 40 were confirmed. That was more than firmation numbers of Democratic-led and I plan to include them on the agen- had been confirmed in any of the three Senates confirming the nominees of da for the committee’s business meet- preceding years when a Republican President Reagan and the first Presi- ing on June 12. I trust that all Senators chairman and Republican Senate ma- dent Bush. They ignore their own will be prepared to consider and vote jority managed the process. record of doubling vacancies during the on the nominations at that time. That Still, some partisans seem deter- Clinton administration, including dur- should provide the Senate with the op- mined to provoke an election year ing the 1996 session when the Repub- portunity to consider them before the fight over nominations. The press ac- lican-led Senate refused to confirm a July 4 recess. counts are filled with threats of Repub- single circuit court nominee. The President has not nominated lican reprisals. The May 14 issue of They do not like to recall that during anyone to 16 current judicial vacancies. Roll Call boasted the following head- the 1996 session, when a Republican He has refused since 2004 to work with line: ‘‘GOP Itching for Fight Over majority controlled the Senate during the California Senators on a successor Judges; Reid’s Pledge to Move Three a Presidential election year, they re- to Judge Trott on the Ninth Circuit. Before Recess Fails to Appease Minor- fused to confirm any circuit court The district court vacancies without ity.’’ Then in a recent article in The judges at all—not one. Their practice nominees span from those that arose in Washington Times, we read that the of pocket filibustering President Clin- Mississippi and Michigan in 2006, to Republican fixation on judges is part of ton’s judicial nominees led Chief Jus- several from 2007 in Pennsylvania, an effort to bolster Senator MCCAIN’s tice Rehnquist to criticize them pub- Michigan, Indiana and the District of standing among conservatives. There licly. Chief Justice Rehnquist was Columbia, to others that arose earlier seem to be no steps we could take to hardly a Democratic partisan. Quite this year in Kansas, Virginia, Wash- satisfy Senate Republicans on nomina- the contrary. Even he was appalled by ington, and several in Colorado and tions because they are using it as a the actions of the Republican Senate Pennsylvania. partisan issue to rev up their partisan majority. In his 1996 Year-End Report Disputes over a handful of controver- political base. on the Federal Judiciary, he wrote: sial judicial nominations have wasted Among the reasons that Republican Because the number of judges confirmed in valuable time that could be spent on complaints about the Fourth Circuit 1996 was low in comparison to the number the real priorities of every American. I ring hollow is that the emergency va- confirmed in preceding years, the vacancy have sought, instead, to make progress cancy on the Fourth Circuit from rate is beginning to climb. When the 104th where we can. The result is the signifi- North Carolina exists only because the Congress adjourned in 1996, 17 new judges had cant reduction in judicial vacancies. Republican Senate majority refused to been appointed and 28 nominations had not The alternative is to risk becoming consider any of President Clinton’s been acted upon. Fortunately, a dependable corps of senior judges contributes signifi- embroiled in contentious debates for nominees to fill that vacancy. All four cantly to easing the impact of unfilled judge- months. The most recent controversial nominees from North Carolina to the ships. It is hoped that the Administration Bush judicial nomination took 51⁄2 Fourth Circuit were blocked from con- and Congress will continue to recognize that months of debate after a hearing before sideration by the Republican Senate filling judicial vacancies is crucial to the Senate action was possible. I am sure majority. That also prevented Presi- fair and effective administration of justice. there are some who prefer partisan dent Clinton from integrating the When that shot across the bow did fights designed to energize a political Fourth Circuit through appointment of not lead the Republican Senate major- base during an election year, but I do Judge Beaty or Judge Wynn. ity to reverse course, Chief Justice

VerDate Aug 31 2005 03:54 Jun 04, 2008 Jkt 069060 PO 00000 Frm 00062 Fmt 4624 Sfmt 0634 E:\CR\FM\G03JN6.028 S03JNPT1 jbell on PROD1PC69 with SENATE June 3, 2008 CONGRESSIONAL RECORD — SENATE S4963 Rehnquist spoke up, again, in his 1997 ployment and orders for big ticket ADDITIONAL STATEMENTS Year-End Report on the Federal Judici- manufactured goods, both of which fell ary. It was a salvo from a Republican for the third month in a row. SYDNEY POLLACK: IN MEMORIAM Chief Justice critical of the Republican Unfortunately, this bad economic ∑ Senate leadership: news for hard-working Americans is Mrs. BOXER. Mr. President, I ask my Currently, 82 of the 846 Article III judicial nothing new under the Bush adminis- colleagues to join me in honoring the offices in the federal Judiciary—almost one tration. During the Bush administra- memory of a very special man, Sydney out of every ten—are vacant. Twenty-six of tion, unemployment is up more than 20 Pollack of Los Angeles County, who the vacancies have been in existence for 18 died May 26, 2008. He was 73 years old. months or longer and on that basis con- percent; the price of gas has more than doubled and is now at a record high na- Sydney Pollack was a master stitute what are called ‘‘judicial emer- filmmaker and will be fondly remem- gencies.’’ In the Court of Appeals for the tional average of over $3.94; trillions of Ninth Circuit, the percentage of vacancies is dollars in budget surplus have been bered for his over four decades of work particularly troubling, with over one-third of turned into trillions of dollars of debt, in Hollywood as a director, producer, its seats empty. with an annual budget deficit of hun- and actor. Judicial vacancies can contribute to a Sydney Irwin Pollack was born to dreds of millions of dollars. According backlog of cases, undue delays in civil cases, Rebecca and David Pollack on July 1, to a recent poll, 81 percent of Ameri- and stopgap measures to shift judicial per- 1934, in Lafayette, IN. He was raised in cans today believe that our country is sonnel where they are most needed. Vacan- South Bend and moved to New York headed in the wrong direction. It costs cies cannot remain at such high levels in- City in 1952 to study at the Neighbor- definitely without eroding the quality of jus- more than $1 billion a day—$1 billion a hood Playhouse. While there, Sydney tice that traditionally has been associated day—just to pay down the interest on so impressed head acting teacher San- with the federal Judiciary. Fortunately for the national debt and the massive costs ford Meisner, that Mr. Meisner quickly the Judiciary, a dependable corps of senior generated by the disastrous war in judges has contributed significantly to eas- made Sydney his assistant. Sydney Iraq. That’s $365 billion this year that ing the impact of unfilled judgeships. went on to teach at the Neighborhood would be better spent on priorities like It was only after the scorching criti- Playhouse from 1954–1959, guiding the health care for all Americans, better cism by a Republican Chief Justice talents of actors such as Robert schools, fighting crime, and treating that the Republican Senate majority Duvall, Rip Torn, Brenda Vaccaro, and diseases at home and abroad. modified its approach in order to allow Claire Griswold, whom he married in some of the nominations that had been In contrast, one of the few numbers 1958. held back for years to finally proceed. actually going down as the President At the urging of Director John Having built up scores of vacancies, winds down his tenure is that of judi- Frankenheimer, Sydney left New York some were allowed to be filled while cial vacancies. Senate Democrats have City in 1961 for Hollywood where he the Republican Senate majority care- worked hard to make progress on judi- began work as a director of television fully kept vacant circuit court posi- cial nominations, lowering circuit shows. In 1965, Sydney made his movie- tions to be filled by President Clinton’s court vacancies by almost two-thirds directing debut in the suicide help-line successor. It is in that context that Re- from the level to which the Republican drama, ‘‘The Slender Thread’’ with Sid- publican claims of magnanimity must Senate majority had build them. Any ney Poitier and Anne Bancroft. In 1969, be seen for what it was. It is in that effort to turn attention from the real Sydney received his first Best Director context that the 8 circuit confirma- issues facing Americans to win polit- nomination for an Academy Award for tions in 2000 must be evaluated while ical points with judicial nominations is the film ‘‘They Shoot Horses Don’t the Republican Senate majority re- neither prudent, nor productive. They?’’ turned 17 circuit nominations to Presi- As an actor, Sydney’s key roles in- dent Clinton at the end of that session f clude Woody Allen’s ‘‘Husbands and without action. Wives,’’ 1992, Robert Altman’s ‘‘The By contrast, the Democratic Senate RECOGNIZING L. ROBERT KIMBALL Player,’’ 1992, and Stanley Kubrick’s majority has worked steadily and ‘‘Eyes Wide Shut,’’ 1999. Sydney’s most steadfastly to lower vacancies and Mr. SPECTER. Mr. President, I have notable acting and directing role was make progress, and we have. When Sen- sought recognition to recognize an out- in his 1982 comedy film ‘‘Tootsie’’ in ate Republicans allow the Senate to standing Pennsylvania citizen, L. Rob- which he played George Fields, agent confirm President Bush’s Sixth circuit ert Kimball. to the main character played by Dustin nominees, we will have achieved the In 1953, L. Robert Kimball opened the Hoffman. His production company, Mi- average number of circuit confirma- doors of a surveying and civil engineer- rage, produced this film as well as tions the Republican Senate majority ing consulting company in Ebensburg, many others, most recently ‘‘Michael achieved in presidential election years PA. Under Mr. Kimball’s leadership Clayton’’ in which Sydney gave yet an- and lowered circuit vacancies to an his- over the past 55 years, L. Robert other memorable performance. torically low level. Kimball & Associates has grown from a Perhaps Sydney Pollack’s biggest di- Further, the Republican effort to cre- 2-person outfit to a 600-person firm recting triumph came in 1985 with ‘‘Out ate an issue over judicial confirma- which now oversees nearly 1,200 of Africa.’’ This landmark film re- tions is sorely misplaced. Americans projects a year in 14 offices across the ceived seven Academy Awards—Best are now facing an economic recession, United States. Picture, Director, Adapted Screenplay, massive job losses of 232,000 in the first Cinematography, Original Score, Art 3 months of this year, increasing bur- L. Robert Kimball’s leadership has Direction, Sound—and three Golden dens from the soaring price of gas, and not gone unnoticed. Among his many Globe Awards—Best Picture, Sup- a home mortgage foreclosure and cred- commendations are the Outstanding porting Actor, Original Score. ‘‘Out of it crisis. Engineering Alumnus Award and the Africa’’ was also an example of one of Last month, the Commerce Depart- Distinguished Alumnus Award from the great collaborations of all time be- ment reported the worst plunge in new the Pennsylvania State University, the tween actor and director. Sydney Pol- homes sales in two decades. The press Western Pennsylvania Family Business lack and Robert Redford made seven reported that new home sales fell 8.5 of the Year Award from the University classic films together that include percent to the slowest sales pace since of Pittsburgh’s Katz Graduate School ‘‘This Property Is Condemned,’’ ‘‘Jere- October 1991, and the median price of a of Business, and the Small Business miah Johnson,’’ ‘‘The Electric Horse- home sold in March dropped 13.3 per- Person of the Year Award from the man,’’ ‘‘3 Days of the Condor,’’ ‘‘The cent compared to the previous year. Small Business Association. Way We Were,’’ and ‘‘Havana.’’ That was the biggest year-over-year I will conclude by commending the Those who knew Sydney Pollack rec- price decline in four decades. You four guiding principles that Mr. ognize him as a courageous, innovative would have to go back to July 1970 to Kimball instills in each his staff: have and brilliant man. He took pride in find a larger decline. Sales of existing a goal, be persistent, know when to tackling social issues through films homes also fell in March, as did em- change direction, and enjoy your work. which raise interesting and challenging

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