Due Justice: New Federal Justices
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RAY SUAREZ: With only 15 months left in office, President Clinton has been urging the Senate to confirm his nominations to fill an increasing number of vacancies in the federal court system. But the President has found it difficult even to get the Republican-controlled Senate to consider his nominees.
According to Citizens for Independent Courts, a bipartisan watchdog group, President Clinton is partly to blame, taking longer than previous administrations to send his nominees to the Senate for confirmation. However, the group’s report also shows that once judicial nominees reach the Senate, many of their nominations have stalled. Senate action on nominees has slowed down, from an average 83 days in 1993 to more than 200 days last year.
The backlog is at the Senate Judiciary Committee, which must approve nominees before they’re sent to the full Senate. Currently, the committee has some three dozen nominees pending before it, but there are more than 60 federal court vacancies.
SPOKESMAN: Clerk will call the roll.
RAY SUAREZ: Last week, the Senate, on a straight party-line vote, rejected the nomination of Missouri State Supreme Court Judge Ronnie White, an African American. It was the first time the full Senate had rejected a judicial nominee since Robert Bork’s nomination to the Supreme Court 12 years ago. The Senate action brought criticism from President Clinton.
PRESIDENT CLINTON: Yesterday’s defeat of Ronnie White’s nomination for the federal district court judgeship in Missouri was a disgraceful act of partisan politics. Unfortunately, by voting down the first African American judge who was already serving– the first African American judge to serve on the Missouri State Supreme Court– the Republican- controlled Senate is adding credence to the perceptions that they treat minority and women judicial nominees unfairly and unequally.
RAY SUAREZ: A study of judicial nominations by citizens for independent courts gives some weight to the president’s concerns. During the last Congress, 86 percent of white nominees were confirmed, as opposed to 65 percent of minority nominees. And the report shows that the Senate took an average of 60 days longer to act on minority nominees than white nominees.
SPOKESMAN: Mr. Kyl?
RAY SUAREZ: In fact, the straight party- line defeat of Judge White came after a two-year wait to bring his nomination to the floor. And Senate action on female nominees also took longer than male nominees by an average of 65 days. Now, the judiciary backlog as seen by two key Senate players: The chairman and ranking Democratic member of the Judiciary Committee, Senator Orrin Hatch of Utah and Senator Patrick Leahy of Vermont. Gentlemen, welcome to the program. Senator Hatch, in particular regions of the country, the vacancies are really starting to bite, slow down the courts. Where does the responsibility for this lie?
SEN. ORRIN HATCH: Well, that’s not really true. You know, we’ve put through 325 Clinton judges since he’s become President. And I have to say that we only have 64 vacancies at this point, one more than when Joe Biden was chairman and the Democrats controlled the committee, than when the President said that that was a full judiciary. So we are doing a good job. We have 325 people already confirmed. We just put three more out today from the Judiciary Committee. We’ve put out 33 so far this year out of the Judiciary Committee, and yes, there are some times when I wish it would move faster, but this is a difficult process. We have to satisfy a lot of people, and I think we’re doing as good a job as any judiciary committee in the past.
RAY SUAREZ: In circuits like the ninth, which takes up a large slice of western states, there are judges who are looking forward to retirement, judges who have remained in service long past retirement age, providing what by some accounts is a kind of assembly line justice, listening to quick summaries of the cases and passing judgment and moving them along.
SEN. ORRIN HATCH: Well, that may be, but a lot of that’s brought on by themselves. That ninth circuit has become so radical and so activist a court that a lot of Judiciary Committee members, at least on our side, really don’t want to put anybody else on and especially more of these left-wing radical types. And that makes it much more difficult for me, as committee chairman, to try and move some of those nominees. Now, we just moved Ray Fisher and I believe we just…we’re ready to move…we just moved one more out of committee today. So you know… but it’s been a problem, there’s no question about it. And part of the problem is caused by the radical activist nature of that particular court, which has reversed almost unanimously over the last number of years and over the last ten years probably reversed better than 75 percent of the time. These are judges that really don’t care what the law says, they’re going to do whatever their viscera tells them or their feelings tell them, and that’s not the way law should be practiced, that’s not the rule of law, that’s not the rule of judging in our society. And that’s been a big problem. It’s been a problem to me, it’s been a problem to those who would like to process these judges as fast as we can.
RAY SUAREZ: Senator Leahy, in your view, what’s going on?
SEN. PATRICK LEAHY: Obviously, we take a different view on this. I look back at the numbers. We had 68 nominations up here. We’ve only confirmed 21 this year. Last year we confirmed 48. In 1994, we confirmed 100 judges. So there is a major slowdown. To use this ninth circuit thing, I commend Orrin for being able to do it with a straight face, but you know, a number of those judges on the ninth circuit were put there by Republican Presidents. The fact is I don’t care who comes up, we don’t like some of these people who were put there before, so if you’re an extraordinarily well qualified woman, if you’re an extraordinarily well-qualified minority or whatever, we’re not going to put you on, that doesn’t say much for our commitment to the independence of the Judiciary. Bring these people up, vote them up or vote them down. I use an example of one nominee out of the… out of California, Margaret Morell, she spent year after year just waiting for a vote, not a radical person. She was supported by the Republican mayor of Los Angeles, by key Republicans and democrats, by law enforcement, by everybody. But it just took forever. This is not the way we should do things. And then when the study came out that said it takes longer for minorities and for women to go through the Senate, then something is wrong. We should step back and say, “is this becoming too partisan? Are we affecting the independence of the Judiciary?” And with the number of vacancies we have here, the number of what they call judicial emergencies because courts can’t do their work because they haven’t had the judges put in, are we making a bad mistake? I think we should step back, stop the kind of partisanship that blocks people oftentimes by just one or two holds — people that get hold up sometimes for a year or more and when they’re finally allowed a vote, they get 90 votes on the floor.
RAY SUAREZ: We should explain what it means to have a hold because a lot of people at home don’t understand what a hold is.
SEN. PATRICK LEAHY: Well, a lot of times, we keep trying to get a person to at least have a vote, one way or the other, vote them up, vote them down. And we’re told that, well, somebody has a concern so they’re holding back. We never know who that mysterious somebody is. And yet when this person who is so offensive that we can’t bring them to a vote, when after a year or two or three of waiting, they come out for a vote, they get 90 votes or 95 votes out of the 100-member Senate. But what’s happened is that one or two Senators anonymously hold somebody back. I think that’s wrong. I think that hurts the integrity of the courts, but it also is not a… it does not reflect well in the Senate or on the democratic process.
RAY SUAREZ: Senator Hatch, Article II of the Constitution gives the President the power to appoint judges, with the vice and consent of the Senate. But I’m wondering where the burden of proof lies. If someone is recommended by the Judicial and American Bar review panels, passed on as highly qualified, someone whose performance from the bench shows judicial comportment, their public lives are, as far as we can tell, blameless, don’t they have to be manifestly unfit for you to turn them down, rather than just troubling to you personally?
SEN. ORRIN HATCH: Well, as you know, I’ve done my very best to get a number of people through. There have been problems. A lot of the problems come from accusations that are made behind the scenes, that we have to take time to check out. Sometimes they’re because, in the case of the ninth circuit, there are Senators here who just plain don’t want to put anybody else on until they clean up their act out there. I don’t agree with, that but that’s something that I have to face as committee chairman. In the case of Margaret Morell, I was the one who led the fight to get her through. It does take some time to get these through. Now, look, we’ve had one turndown of judges since this President has become President. I think most of the battles have been behind the scenes. For instance, there were some high-level people that they wanted to put on the Supreme Court that I had to stop behind the scenes.
RAY SUAREZ: But Senator, you say one turndown, and yes, Judge Ronnie White was not approved.
SEN. ORRIN HATCH: Wait a minute.
RAY SUAREZ: But there’s Richard Piaz and Michelle Berzon in California who’ve been waiting for hundreds of days.
SEN. ORRIN HATCH: Well, just wait a second here. And there’s good reason why they’re waiting. There are people who believe that Richard Piaz is an activist judge and the reason they do and the reason he’s had to wait is because of some of the decisions that he’s made that have indicated that he may very well be an activist judge, who ignores the law, who substitutes his own preferences for what the law really is. And that’s a legitimate concern that some people have. Now, look, I didn’t hear any griping from anybody when there were 63 vacancies one year and Clinton said it was a full Judiciary. One year there were 148 vacancies when the… and this is when Democrats were in control. One year there were 148 vacancies, not one peep out of anybody, especially the media. In another year there were 118 vacancies –not one peep out of the media. Now, what I’m saying is this: This is a tough process. I don’t always agree with some of the battles that are waged in this process. I certainly didn’t when Justice Rehnquist was brutalized or Judge Bork was treated the way he was or any number of others. You can name a judge down in Florida who was stopped for no good reason whatsoever during Democrat administrations and during Democrat control of the committee. I think we’ve done a very good job. We’ve put 33 judges out this year out of the committee. Now, once they get out of the committee, I can’t particularly demand that they be called up on the floor, although I do that.
SEN. PATRICK LEAHY: Yes, you can.
SEN. ORRIN HATCH: I do demand.
RAY SUAREZ: What’s happening with those ones that do clear committee and then languish after that?
SEN. PATRICK LEAHY: The thing is some of them…
SEN. ORRIN HATCH: There aren’t that many around.
SEN. PATRICK LEAHY: Some have languished for years and have had to be re-nominated. The fact of the matter is I’ve been here for 25 years. I’ve been here during Republican administrations when Democrats were in control of the Senate. We never ever held back judges like this.
SEN. ORRIN HATCH: Oh, give me a break. That is not true. As a matter of fact, look back through those years, and look at the people who were stopped and brutalized and mistreated. Our side has been totally fair. My gosh, just look at the Bork nomination.
SEN. PATRICK LEAHY: Bork got a vote, which is more than these people…
SEN. ORRIN HATCH: Yeah, finally, yeah.
SEN. PATRICK LEAHY: Which is more than these people are getting. The fact is, Orrin, that these people are not allowed to come out for a vote.
SEN. ORRIN HATCH: If you and I can do it…
RAY SUAREZ: Senator Hatch, you keep referring to the backlogs of previous years, and by common consent, the amount of time that these candidates were waiting was a lot less during the Reagan years when the vote of the current federal judiciary was nominated.
SEN. ORRIN HATCH: That is not true. I’ve heard these reports that women take longer and minorities take longer than men. My gosh, when the Republicans controlled the Congress in ’97 and ’99, on the average, female judicial nominees moved faster than male nominees. During the 102nd Congress, when President Bush was there and Democrats controlled the Congress, it took an average of 136 days to confirm an African American — 162 days to confirm Hispanic district court nominee. 133 Days to confirm a female. 108 days to confirm a male. It’s nice to take cheap shots, but frankly, that’s what they are.
SEN. PATRICK LEAHY: You want the chart? Look, here’s Richard Piaz, 44 months, Ronnie White, 27 months. And then he gets voted down the first time I think in this century in a party-line vote when somebody’s voted down. Marsha Berzon, 20 months. And then when you have the Citizens for Independent Courts, a bipartisan report that comes out spreading blame everywhere but does make one inescapable fact: If you are a minority, if you are a woman, you take longer. Now, having said all of that…
SEN. ORRIN HATCH: That’s just not true.
SEN. PATRICK LEAHY: Having said all that, I think it is time for those who will put these anonymous holds on to be required to come forward and have the votes, allow the committee to work the way we should. On had started to say something earlier, and I think it was going to say if it was left to the two of us, we could move it much faster. I believe that is so. I believe I’ll say that, to Senator Hatch’s credit. But you cannot have a small click decide they want to know exactly how judges are going to rule before they go on the bench, or they’re not going to confirm them.
RAY SUAREZ: I’m going to have to stop it there.
SEN. PATRICK LEAHY: And that’s wrong.
RAY SUAREZ: Senator Patrick Leahy of Vermont, Senator Orrin Hatch from Utah. Thanks for being with us, gentlemen.