2004 Orrin Hatch on Judicial Nominations

by Orrin Hatch

2004 Orrin Hatch on Judicial Nominations

2004 Orrin Hatch on Judicial Nominations

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Congressional Record

United States Senate

U.S. Senator Orrin Hatch

May 10, 2004

JUDICIAL NOMINATIONS

Mr. HATCH. Madam President, over 6 weeks ago, the Senate minority instituted what resulted in a virtual freeze on the Senate's constitutional responsibility to provide advice and consent on the President's nominees.

This is troubling to me for a variety of reasons. Nevertheless, I am slightly encouraged by the movement on a few executive nominations last week, even though I remain extremely concerned about the current and continuing freeze on judicial nominations.

The last time the Senate confirmed a judge was on March 12, about 2 months ago. So it is past time for a rollcall.

Yesterday, in addition to being Mother's Day, marked the beginning of the fourth year since the President sent to the Senate his first nominations to the Federal judiciary. Back on May 9, 2001, President Bush nominated 11 outstanding individuals to serve on the bench. The Senate has confirmed eight of those nominees. One has withdrawn, and two are still pending.

I commend Senator Daschle and other colleagues across the aisle, especially my friend the ranking Democratic member of the Judiciary Committee, Senator Leahy, for working with us and the administration in confirming to date 173 of President Bush's judicial nominations. As Senator Leahy frequently reminds us, 100 of those nomination confirmations took place during his tenure as Judiciary Committee chairman from mid-2001 through 2002.

But more work can and needs to be done so that the American public can enjoy the benefits of a more fully staffed Judiciary. Unfortunately, the old saying, "justice delayed is justice denied" is true. The Senate needs to consider the judges on the calendar and give each one an up-or-down vote, as the Constitution requires. At present, there are 32 nominations for our district and circuit courts pending before the full Senate. Among this group are 22 men and 10 women. This is an outstanding group of candidates with diverse backgrounds. These candidates include a number of impressive minority candidates such as Justice Janice Rogers-Brown of the California Supreme Court, who has been nominated to serve on the influential Circuit Court of Appeals for the District of Columbia.

The nominees being held in limbo are highly qualified. Each and every one of them deserves the consideration of the full Senate. They include sitting State supreme court justices, State and Federal trial judges, and distinguished members of the bar. Many have served as judicial clerks in our Federal trial and appellate courts and in the Supreme Court. Others have served at the highest levels of all three branches of Government. All have distinguished academic records. Twenty-four of these nominees received a Well Qualified rating from the American Bar Association. Fourteen of those Well Qualified ratings were unanimous.

While I do not take the position that the ABA ratings are or should be dispositive on judicial nominations, let me remind my colleagues what a Well Qualified rating means. According to guidelines published by the American Bar Association, standing committee on Federal judiciary:

To merit a rating of "well qualified," the nominee must be at the top of the legal profession in his or her legal community, have outstanding legal ability, breadth of experience, the highest reputation for integrity, and either have demonstrated, or exhibited the capacity for, judicial temperament.

This rating accurately describes the nominees before the Senate. When votes are held, I believe we will find there is bipartisan support for all of the nominees pending before the Senate. Even those who have been previously filibustered have received an affirmative vote of support by a majority of the Senate and have supporters across the political spectrum. Yet they are being held up, for the first time in this country's history, by filibusters.

As further evidence of the qualifications and support of the nominees, I note that 22 nominees were reported out of the Judiciary Committee without a single negative vote. Eighteen district judges were reported by voice vote and with no announced opposition. Four circuit nominees received a 19-to-0 Judiciary Committee vote. I see no reason all cannot expeditiously be acted on by the Senate. That means all of the 22 Judiciary Committee consensus nominees by voice vote or by unanimous consent, and the others, as well.

I have been troubled by the practice in this Congress of demanding time-consuming rollcall votes on nominees who pass unanimously or nearly unanimously. I understand these positions are lifetime appointments, but the Senate acts on many extremely important matters by unanimous consent or by voice vote. I have been told that last year alone we took about twice as many rollcall votes on unopposed judicial nominees than in 8 years under President Clinton. That is just last year.

Like every other Senator, I took an oath to defend and support the Constitution. Every Senator has his or her view on how that responsibility is to be exercised with respect to acting on judicial nominees. In my view, the Constitution requires the Senate provide its advice and consent regarding the judicial nominees.

Fulfilling my oath means I have a stake in seeing that happen. As chairman of the Judiciary Committee, I have a special role in working with the leadership in seeing the nominees, once reported from the committee, are brought up for floor action. Vote up or down, but just vote. Every judicial nominee who reaches the Senate floor is entitled to an up-or-down vote.

I am hopeful the votes will be held on all judicial nominees presently on the Executive Calendar, as well as for nominees who may yet be reported this year by the Judiciary Committee.

Now, I intend for my remarks today to bring us closer together on considering nominations in the Senate. While I will not fully discuss this matter today, I will note I am not persuaded by arguments that suggest that President Bush's exercise of his constitutional prerogative to make recess appointments somehow justifies this current freeze on nominations. Absent the refusal to allow the simple up-or- down vote on judicial nominees that article II, section 2, clause 2 of the Constitution requires, the recess appointments would not have been made in the first place.

I am mindful that my colleagues across the aisle have also expressed an interest in seeing that minority party nominees to bipartisan boards and commissions be acted upon. For the last several weeks, I have publicly stated on a number of occasions that I understand this concern and that I would support qualified Democratic nominees such as Jon Leibowitz, a former Judiciary Committee staffer of Senator Kohl, to serve as a Commissioner on the Federal Trade Commission. Likewise, I am pleased that the White House is considering a particular Democratic attorney, also a former Judiciary Committee staffer, to serve on the Federal Sentencing Commission.

I hope that significant and mutually satisfactory progress can be made on judges and other nominees. I hope such progress will be made. I know from my experience in this body if we work together we can usually find solutions to these matters, even in an election year.

Senator Leahy and I and other members of the Judiciary Committee have worked hard on nominations, even as we faced other difficult issues in the committee this year.

I know Senator Frist and Senator Daschle are working hard with the administration, and I wish them well. I simply implore them--each and every one of them--to accelerate the pace of these discussions. But I must also state I believe the time for discussions, negotiations, and talk is drawing to a close. At some point, the Senate must do its sworn duty and vote up or down on judicial nominations. That is just right. It is the right thing to do.

The time for action is quickly coming upon us. Some believe that point has already passed. To do otherwise is unfair to this institution, unfair to the nominees, unfair to the President, and, most importantly, unfair to the American public who entrusted us with the responsibility to conduct the public business.

Madam President, we can and should do a better job of considering judicial nominees on the Senate floor. I stand ready and willing to continue to work with all of my colleagues and the administration on this important matter.

Madam President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. REID. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.