Statement Of Sen. Patrick Leahy,
Ranking Member, Judiciary Committee,
On Judicial Nominations
June 6, 2006

As we resume consideration of judicial nominations today, it is worth taking stock of the mileposts we have passed and those we are working toward.  Chairman Specter has now chaired the Judiciary Committee for 17 months.  I congratulate him on that.  The Committee has been extremely active, and we have achieved a good deal working together. 

We reported a bill to provide compensation to asbestos victims and began its consideration in the Senate.  Just recently, we joined together to introduce a new version of our legislation, to note the passing of our friend Judge Becker and to recommit ourselves to finishing this bipartisan task to provide fair compensation to asbestos victims and reduce the litigation burden that asbestos cases have imposed on our civil justice system.

We worked together to report a comprehensive immigration reform bill and continued to work with Senators Kennedy, McCain, Hagel, Martinez and others in a bipartisan coalition that culminated in Senate passage of S.2611 late last month.  We look forward to help from the President to enact that measure later this year.

We worked together to revive and reauthorize the expiring provisions of the USA PATRIOT Act.  I supported the Judiciary Committee and Senate bill.  When our bill was hijacked, I appreciated Chairman Specter’s efforts to restore some balance and his efforts to work with those of us seeking improvements.  Sadly, the final product insisted upon by the Bush-Cheney Administration and House Republicans was not one I could support.

We are working together now in a bipartisan, bicameral partnership to reauthorize the expiring provisions of the Voting Rights Act.  We need to complete hearings on our bill without further delay and I hope that we can report our bipartisan bill by mid-June so that these important provisions, including those in section 203 providing voting access for language minorities, can be reauthorized this year.

We worked together to report privacy legislation to the Senate last November.  Senate action on our bill is overdue.  The recent theft of millions of veterans’ personal information and the growing problem of identification theft remind us how important these issues are for so many Americans.

We have also worked together on competitiveness issues including the NOPEC legislation to clarify that our antitrust laws should be applied to the OPEC cartel, our broader bill on windfall oil company profits, and our bill to end the antitrust exemption for the insurance industry. 

We have made progress on several issues, but our work is far from over.  There are only 13 weeks left in this legislative session of the Senate and we still have much that needs to get done.  The Republican-controlled House and Senate have yet to enact a federal budget and are in violation of the statutory deadline of April 15.  We have yet to pass a single appropriations bill, and we are required by law to pass 13.  We have yet to reconcile and enact the emergency supplemental appropriations bill that has been pending for months and that includes funding for Iraq and Katrina victims and other matters. We have yet to reconcile and enact lobbying reform and ethics legislation.  We have yet to deal with the skyrocketing cost of gasoline.  We have yet to reconcile and enact a bipartisan and comprehensive immigration reform bill.  We need to enact stronger privacy protection legislation, especially in the wake of the theft of information on more than 26 million veterans.  We have yet to enact stem cell research legislation.  We need to reauthorize the Voting Rights Act.  We have yet to enact patent reform legislation.  And I hope that we will take up, pass and enact our asbestos compensation legislation and my measure to speed lifesaving medicine to those in desperate need. 

I have urged that we exercise effective oversight of the Executive branch, and I have supported Chairman Specter’s efforts to get to the bottom of the NSA’s unprecedented program of domestic spying on Americans without warrants.  We need to make more progress on this important front and to restore accountability and check and balances in our government.  

One of the most important checks and balances to unprecedented overreaching by the Bush-Cheney Executive branch is an independent judiciary. With respect to judicial nominations, we worked together in connection with the nominations of Chief Justice Roberts, whom I came to support, and Justice Alito, whom I did not.  I have sought to expedite consideration of qualified, consensus nominees and urged the President to work with us to make selections that unite all Americans. 

Today we will proceed to confirm another lifetime appointment to the federal courts in New Jersey.  With the support of the New Jersey Senators we were able to confirm Judge Susan Davis Wigenton just before the last recess.  Her nomination, as well as the nomination of Renee Marie Bumb that we are considering today, were reported favorably by the Judiciary Committee to the Senate more than a month ago. 

Rather than proceed to those nominations promptly, the Republican leadership of the Senate delayed their consideration while proceeding over time with circuit court nominations.  I was cooperative in proceeding to the confirmation of Judge Milan Smith to the Ninth Circuit.  His confirmation demonstrated, again, that we can work together.  I was pleased for his brother, the Senator from Oregon, and believe that he will be a fine judge. 

Regrettably, the Senate Republican leadership chose not to move to any of the four District Court nominations from New Jersey, or the two nominations to District Courts in Michigan that their home State Democratic Senators have reached out to support.  Instead, they forced debate on another controversial nomination, that of a White House insider selected for a lifetime position on the D.C. Circuit as a reward for his loyalty to President Bush.  I did not support confirmation of Brett Kavanaugh.  That was the fight that the Republican leader had promised the narrow special interest groups of the right wing of his party.

The President and Senate Republican leadership continue to pick fights over judicial nominations rather than focus on filing vacancies.  Judicial vacancies have now grown to more than 50 from the lowest vacancy rate in decades.  More than half these vacancies are without a nominee.  The Congressional Research Service has recently released a study showing that this President has been the slowest in decades to nominate and the Republican Senate among the slowest to act.  If they would concentrate on the needs of the courts, our federal justice system and the needs of the American people, we would be much further along. 

Still, we have passed a milestone.  When the Senate votes today to confirm Renee Bumb as a district court judge, the Republican-controlled Senate will have this year confirmed 17 judicial nominations.  That was the total number of judges confirmed in the 1996 congressional session, when Republicans controlled the Senate and stalled the nominations of President Clinton.  In the 1996 session, however, Republicans would not confirm a single appellate court judge.  All 17 confirmations were district court nominees.  That is the only session I can remember in which the Senate has simply refused to consider a single appellate court nomination.   That was part of their pocket filibuster strategy to stall and maintain vacancies so that a Republican President could pack the courts and tilt them decidedly to the right.  In the important D.C. Circuit, the confirmation of Brett Kavanaugh was the culmination the Republicans’ decade-long attempt to pack the D.C. Circuit that began with the stalling of Merrick Garland’s nomination in 1996 and continued with the blocking of President Clinton’s other well-qualified nominees, Elena Kagan and Allen Snyder. 

Of course, with the confirmation today, we will tie that record of 17 confirmations for the year.  It is June, and we have a few more weeks in which to make progress.  There remain four more district court nominees on the calendar whose consideration could be scheduled for debate and vote but are being delayed --not by Democratic opposition-- but by Republican control.  There is also another circuit court nominee on the calendar who was reported with Democratic support from the Judiciary Committee and whose confirmation could be scheduled for debate and vote.  Successful consideration of those five additional nominees will bring the Senate’s total judicial confirmations to 22, thereby matching the total achieved all last year. 

But the road ahead is likely to be rocky.  In the run-up to the Kavanaugh nomination debate, we saw that the Senate Republican leadership is apparently heeding the advice of The Wall Street Journal editorial page, which wrote, “[a] filibuster fight would be exactly the sort of political battle Republicans need to energize conservative voters after their recent months of despond.” Rich Lowery, editor of the conservative National Review, listed a fight over judges as one of the ways President Bush could revive his political fortunes, writing that he should, “[p]ush for the confirmation of his circuit judges that are pending. Talk about them by name. The G.O.P. wins judiciary fights.”  

Republican Senators are relishing picking fights over controversial judicial nominees.  Senator Thune has said, “A good fight on judges does nothing but energize our base . . . .  Right now our folks are feeling a little flat.”  Senator Cornyn has said, “I think this is excellent timing. From a political standpoint, when we talk about judges, we win.”  On May 8, 2006, The New York Times reported: “Republicans are itching for a good election-year fight.  Now they are about to get one: a reprise of last year’s Senate showdown over judges.”  The Washington Post reported on May 10: “Republicans had revived debate on Kavanaugh and another Bush appellate nominee, Terrence Boyle, in hopes of changing the pre-election subject from Iraq, high gasoline prices and bribery scandals.” 

We should not stand idly by as Republicans choose to use lifetime federal judgeships for partisan political advantage.  In a May 11, 2006, editorial The Tennessean wrote: 

“[T]he nation should look with complete dismay at the blatantly political angle on nominations being advocated by Senate Republicans now. . . . Republicans are girding for a fight on judicial nominees for no reason other than to be girding for a fight.  They have admitted as much in public comments. . . . In other words, picking a public fight over judicial nominees is, in their minds, the right thing to do because it’s the politically right thing to do. . . . Now, Republicans are advocating a brawl for openly political purposes.  The appointment of judges deserves far more respect than to be an admitted election-year ploy. . . . It should be beneath the Senate to have such a serious matter subjected to nothing but a tool for political gain.”

On May 3, 2006, The New York Times wrote in an editorial:  “The Republicans have long used judicial nominations as a way of placating the far right of their party, and it appears that with President Bush sinking in the polls, they now want to offer up some new appeals court judges to their conservative base.”

Consider the President’s nomination of Judge Terrence Boyle to the Fourth Circuit.  We have learned from recent news reports that, as a sitting United States District Judge and while a circuit court nominee, Judge Boyle ruled on multiple cases involving corporations in which he held investments. In at least one instance, he is alleged to have bought General Electric stock while presiding over a lawsuit in which General Electric was accused of illegally denying disability benefits to a long-time employee. Two months later, he ruled in favor of GE and denied the employee’s claim for long term and pension disability benefits. Whether or not it turns out that Judge Boyle broke federal law or canons of judicial ethics, these types of conflicts of interest have no place on the federal bench. Certainly, they should not be rewarded with a promotion to the Fourth Circuit. Certainly, they should be investigated.  

The President should heed the call of North Carolina Police Benevolent Association, the North Carolina Troopers’ Association, the Police Benevolent Associations from South Carolina and Virginia, the National Association of Police Organizations, the Professional Fire Fighters and Paramedics of North Carolina, as well as the advice of Senator John Edwards, and withdraw his ill-advised nomination of Judge Terrence Boyle. Law enforcement from North Carolina and law enforcement from across the country oppose the nomination. Civil rights groups oppose the nomination. Those knowledgeable and respectful of judicial ethics oppose this nomination. This nomination has been pending on the calendar in the Republican-controlled Senate since June of last year when it was forced out of the Committee on a party-line vote.   It should be withdrawn.

Also on the calendar is the nomination of William Myers to the Ninth Circuit.  This is another Administration insider and lobbyist whose record has made him extremely controversial.  I opposed this nomination when it was considered by the Judiciary Committee in March 2005.  He was a nominee who the so-called Gang of 14 expressly listed as someone for whom they made no commitment to vote for cloture, and with good reason.  His anti-environmental record is reason enough to oppose his confirmation.  His lack of independence is another.  If anyone sought to proceed to this nomination, there would be a need to explore his connections with the lobbying scandals associated with the Interior Department and Jack Abramoff.  This nomination should also be withdrawn. 

A few months ago, the President withdrew the nomination of Judge James Payne to the Court of Appeals for the 10th Circuit after information became public about that nominee’s rulings in a number of cases in which he appears, like Judge Boyle, to have had conflicts of interest. Those conflicts were pointed out not by the Administration’s screening process or by the ABA, but by journalists.

Judge Payne joins a long list of nominations by this President that have been withdrawn. Among the more well known are Bernard Kerik to head the Department of Homeland Security and Harriet Miers to the Supreme Court. It was, as I recall, reporting in a national magazine that doomed the Kerik nomination. It was opposition within the President’s own party that doomed the Miers nomination.

During the last few months, President Bush also withdrew the nominations of Judge Henry Saad to the Court of Appeals for the 6th Circuit and Judge Daniel P. Ryan to the Eastern District of Michigan after his ABA rating was downgraded.

It is not as if we have not been victimized before by the White House’s poor vetting of important nominations. If the White House had its way, we would already have confirmed Claude Allen to the Fourth Circuit.  He is the Bush Administration insider who recently resigned his position as a top domestic policy adviser to the President.  Ultimately we learned why he resigned when he was arrested for fraudulent conduct over an extended period of time. Had we Democrats not objected to the White House attempt to shift a circuit judgeship from Maryland to Virginia, someone now the subject of a criminal prosecution for the equivalent of stealing from retail stores would be a sitting judge on the Fourth Circuit confirmed with a Republican rubberstamp.

Yet another controversial pending nomination is that of Norman Randy Smith to the Ninth Circuit.  This nomination is another occasion on which this President is seeking to steal a circuit court seat from one State and reassign it to another one, one with Republican Senators.  That is wrong.  I support Senators Feinstein and Boxer in their opposition to this tactic.  I have suggested a way to resolve two difficult situation if the President were to renominate Mr. Smith to fill the Idaho vacancy on the Ninth Circuit, instead of a vacancy for a California seat.  Regrettably, the White House has not followed up on my suggestion. 

A complicit Republican-controlled Senate remains all too eager to act as a rubberstamp for the Bush-Cheney Administration. The nomination of Kavanaugh was one of the few to be downgraded by the ABA upon further review. Until the Republican-controlled Senate proceeded to confirm this White House insider, I cannot recall anyone being confirmed after such a development.  Another first, and another problematic confirmation that ill serves the American people.

Another troubling nomination is that of William James Haynes to the Fourth Circuit, which has been pending in the Republican-controlled Senate without action for three years.   Mr. Haynes is the General Counsel at the Defense Department and was deeply involved developing the torture policies, detention and interrogation policies, military tribunals and other controversial aspects of the manner in which this Administration has proceeded unilaterally to make mistakes and exceed its legal authority.  Concerns about the Haynes nomination may not be confined to Democratic Senators, according to recent press reports.

I trust that the Senate will not repeat the mistake it made before.  It was only after Jay Bybee was confirmed to a lifetime appointment to the Ninth Circuit that we learned of his involvement with the infamous Bybee memo seeking to justify torture and degrading treatment.  I had asked him what he had worked on while head of the Department of Justice’s Office of Legal Counsel, but he had refused to respond.  This former Defense Department and Justice Department insider now sits on the Ninth Circuit for life.

Finally, there is the more recent nomination of Michael Wallace to a vacancy on the Fifth Circuit.  Mr. Wallace received the first ABA rating of unanimously “not qualified” that I have seen for a circuit court nominee since President Reagan.  Yet that is one of the controversial nominations we can expect the Republican Senate to target for action given their track record. 

Working together we could do better.  I made the point when in the 17 months I chaired the Judiciary Committee we proceeded to confirm 100 judicial nominees of President Bush.  I urge the White House to work with us.  I hope that the Republican-controlled Senate will stop rubberstamping this President’s nominees and stop using controversial judicial nominations to score partisan political points.  Our courts are too important.  The rights and liberties of the American people are too important.  The courts are the only check and balance left to protect the American people and provide some oversight of the actions of this President.

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