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88–076 PDF 2003

S. HRG. 107–972

THE DISTRICT OF COLUMBIA CIRCUIT: THE

IMPORTANCE OF BALANCE ON THE NATION’S

SECOND HIGHEST COURT

HEARING

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT 

AND THE COURTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

SEPTEMBER 24, 2002

Serial No. J–107–104

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

CHARLES E. SCHUMER, New York, Chairman 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

RUSSELL D. FEINGOLD, Wisconsin 

RICHARD J. DURBIN, Illinois 

JEFF SESSIONS, Alabama 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

BENJAMIN LAWSKY, Majority Chief Counsel 

ED HADEN, Minority Chief Counsel 

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared 

statement .............................................................................................................. 87

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 4

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 27

McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky, prepared 

statement .............................................................................................................. 100

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 1

prepared statement and attachments ............................................................. 133

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 8

prepared statement and attachments ............................................................. 141

WITNESSES

Clark, Bradford R., Professor of Law, George Washington University Law 

School, Washington, D.C. .................................................................................... 22

Fielding, Fred F., Wiley, Rein, and Fielding, Washington, D.C. ......................... 16

Gottesman, Michael H., Professor of Law, Georgetown University Law Center, 

Washington, D.C. ................................................................................................. 25

Mikva, Abner J., Professor of Law, University of Chicago Law School, Chicago, Illinois .......................................................................................................... 13

Schroeder, Christopher H., Professor of Law and Public Policy Studies, Duke 

University School of Law, Durham, North Carolina ......................................... 19

QUESTION AND ANSWER 

Response of Mr. Fielding to a question submitted by Senator Sessions ............. 41

SUBMISSIONS FOR THE RECORD 

Buckley, James L., former U.S. Senator from the State of New York and 

judge emeritus, U.S. Court of Appeals for the D.C. Circuit, statement .......... 42

Cass, Ronald A., Dean, Boston University School of Law, and the Melville 

Madison Bigelow Professor of Law at Boston University, Boston, Massachusetts, statement .................................................................................................... 45

Chicago Tribune, Jonathan Turley, February 10, 2002, commentary ................. 55

Clark, Bradford R., Professor of Law, George Washington University Law 

School, Washington, D.C., prepared statement ................................................. 57

Fein, Bruce, Attorney at Law, Washington, D.C. ................................................. 64

Fielding Fred F., Wiley, Rein, and Fielding, Washington, D.C., prepared statement ...................................................................................................................... 68

Gottesman, Michael H., Professor of Law, Georgetown University Law Center, 

Washington, D.C., prepared statement .............................................................. 74

Hispanic National Bar Association, Angel Gomez, President, Washington, 

D.C., statement .................................................................................................... 93

Mikva, Abner J., Professor of Law, University of Chicago Law School, Chicago, Illinois, prepared statement ....................................................................... 103

National Environmental Organizations, Washington, D.C., joint statement 

and attachment .................................................................................................... 110

Schroeder, Christopher H., Professor of Law and Public Policy Studies, Duke 

University School of Law, Durham, North Carolina, prepared statement ...... 119

Schumer, Hon. Charles E., a U.S. Senator from the State of New York 

and Hon. Patrick J. Leahy, a U.S. Senator from the State of Vermont, 

joint letter ............................................................................................................. 139

Page

IV

Strauss, Hon. Paul, a U.S. Senator from the District of Columbia (shadow), 

Washington, D.C., statement .............................................................................. 180

Wall Street Journal, James L. Buckley, June 13, 2002, commentary ................. 185

Washington Post, Abner J. Mikva, January 25, 2002, editorial .......................... 187

(1)

THE DISTRICT OF COLUMBIA CIRCUIT: THE 

IMPORTANCE OF BALANCE ON THE NATION’S SECOND HIGHEST COURT 

TUESDAY, SEPTEMBER 24, 2002

U.S. SENATE, 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE

COURTS, COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee convened, pursuant to notice, at 10:13 a.m., 

in room SD–226, Dirksen Senate Office Building, Hon. Charles E. 

Schumer, Chairman of the Subcommittee, presiding. 

Present: Senators Schumer, Kennedy, Sessions, Hatch, and Kyl. 

OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. 

SENATOR FROM THE STATE OF NEW YORK 

Chairman SCHUMER. The hearing will come to order. We are 

going to start. Jeff Sessions is on his way, but we have our Ranking Member, who can ably defend the other side. I would rather 

Jeff be here. 

[Laughter.] 

Chairman SCHUMER. Which is a compliment to Orrin and to Jeff. 

I first want to thank everyone for joining us today in this important hearing on the unique role that the D.C. Circuit plays in our 

system of justice and the need for ideological balance on this vital 

court. 

The D.C. Circuit is often called the Nation’s second highest court, 

and with good reason. More judges have been nominated and confirmed to the Supreme Court from the D.C. Circuit than any other 

court in the land. The D.C. Circuit is where Presidents often look 

when they need someone to step in and fill an important hole in 

the lineup. 

It is sort of like the bullpen court, having given us Supreme 

Court Justices like Scalia, Thomas, and Ruth Bader Ginsburg, not 

to mention Robert Bork, Ken Starr, and my good friend who is here 

today with us, the notorious Abner Mikva. 

That was supposed to be funny, Orrin. 

[Laughter.] 

Chairman SCHUMER. He laughed. He was the only one. 

Senator HATCH. I did laugh. 

Chairman SCHUMER. I thought it was pretty good myself. 

All other Federal appellate courts handle just those cases arising 

from within its boundaries. So, for example, the Second Circuit 

where I am from takes cases coming out of New York, Connecticut, 

2

and Vermont. The Eleventh Circuit, where Senator Sessions is 

from, gets cases out of Alabama, Georgia, and Florida. 

But the D.C. Circuit doesn’t just take cases brought by the residents of Washington, D.C. Congress has decided there is value in 

vesting one court with the power to review certain decisions of administrative agencies. We have given plaintiffs the power to choose 

the D.C. Circuit, and in some cases we force them to go to the D.C. 

Circuit, because we have decided, for better or for worse, that when 

it comes to certain administrative decisions one court should decide 

what the law is for the whole country. It seems to me that makes 

sense. 

So when it comes to regulations adopted under the Clean Air Act 

by EPA, labor decisions made by the NLRB, rules propounded by 

OSHA, gas prices regulated by the Federal Energy Regulatory 

Commission, and many other administrative matters, the decisions 

are usually made by judges on the D.C. Circuit. 

To most, this seems like an alphabet soup court, since virtually 

every case involves an agency with an unintelligible acronym—

EPA, NLRB, FCC, SEC, FTC, FERC, and so on and so on and so 

on. It leads to another set of letters to many, a long line of z’s. 

Even my eyes glaze over and roll back in my head when you read 

down the list. But the letters that comprise this alphabet soup are 

what make our Government tick. This court is vital to the functioning and interpretation of how the Government works. 

These are the agencies that write and enforce the rules that determine how much ‘‘reform’’ there will be in campaign finance reform. They determine how clean the water has to be for it to be 

safe for our families to drink. They establish the rights workers 

have when they are negotiating with corporate powers. 

The D.C. Circuit is important because its decisions determine 

how these Federal agencies go about doing their jobs. And in doing 

so, it directly impacts the daily lives of all Americans more than 

any other court in the country, with the exception of the Supreme 

Court. 

But we probably wouldn’t be talking about this court today if it 

weren’t for the political maelstrom brewing over a few of the pending nominations to it. So before any of the reporters here get too 

excited, I want to be clear that the witnesses with us today are not 

going to discuss Miguel Estrada or John Roberts. Those discussions 

are for another day. 

That said, nominations to this special circuit merit special scrutiny. Anyone who thinks we should just blindly confirm any President’s nominees to this all-important court needs to think again. 

The goal of this hearing is to underscore what is at stake when 

considering nominees to the D.C. Circuit, how their ideological 

predilections will impact the decisions coming out of the court and 

why it is vital for Senators to consider how nominees will impact 

the delicate balance on the court when deciding how to vote. 

Perhaps more than any other court, aside from the Supreme 

Court, the D.C. Circuit votes break down on ideological lines with 

amazing frequency. The divide happens in cases with massive national impact, and if anyone thinks the court’s docket isn’t chockful 

of cases with national ramifications, they ought to listen to this. 

Here are some examples. 

3

When it comes to civil rights, the court plays a huge role. In Hopkins v. Price Waterhouse, the D.C. Circuit enforced the Civil Rights 

Act guarantee of equal treatment in the workplace by remedying 

blatant sex discrimination in a case where a woman was denied 

partnership at Price Waterhouse based on her gender alone. 

When it comes to communications, the court plays an enormous 

role. It has exclusive jurisdiction over appeals from FCC decisions. 

That is a pretty big chunk of law with massive impact on American 

consumers. Just a few years ago, the Circuit upheld the constitutionality of the Telecommunications Act of 1996, guaranteeing 

more competition in the local and long-distance marketplaces, 

which in turn guaranteed better and cheaper phone service for 

most of us. 

Even when it comes to defining our post-9/11 world, the D.C. Circuit plays a big role in interpreting and defining our anti-terrorism 

laws. For instance, in the ongoing case of Holy Land Foundation

v. Ashcroft, the Circuit will be called upon to determine whether 

a charitable organization is really a charitable organization or a 

terrorist front whose assets can be frozen by the Federal Government. 

When it comes to privacy, the court plays a big role. Earlier this 

year, the court was called upon to assess the FTC’s power to protect consumer privacy when it comes to the private, personal information credit reporting agencies make public. 

When it comes to consumers, the court plays a big role. Yesterday’s blockbuster decision on the front pages of most of our national papers by the FERC that a major gas and oil company deliberately manipulated gas prices in California will undoubtedly end 

up before the D.C. Circuit. 

When it comes to the environment, the court plays a big role. 

When Congress passed the Clean Air Act in 1970, we gave the EPA 

the authority to set clean air standards—the power to determine 

how much smog and pollution is too much. In 1997, having reviewed thousands of studies, the EPA toughened the standards for 

smog and soot. The decision was to have two primary effects. 

First, it was going to improve air quality. But, second, it was 

going to force some businesses to spend more and to pollute less. 

Industry groups appealed the EPA’s decision, and a majority-Republican panel on the D.C. Circuit reversed the EPA’s ruling. 

In doing so, the court relied on an arcane and long-dead concept 

known as the non-delegation doctrine. I remember studying this in 

law school 25 years ago, and they said even then it was on the way 

out. But it was a striking moment of judicial activism that was probusiness, anti-environment, and highly ideological. 

While that decision ultimately was reversed unanimously by the 

Supreme Court, most other significant decisions of the D.C. Circuit 

have been allowed to stand without review. That is because the Supreme Court takes fewer and fewer cases each year, and, taking an 

increasingly ideological bent itself, many feel we can’t rely on the 

Supreme Court to right the D.C. Circuit’s wrongs. 

Throughout the 1990’s, conservative judges had a stranglehold 

majority on this court. In case after case, during the recent Republican domination of the Circuit, the D.C. Circuit has secondguessed the judgment of Federal agencies, striking down fuel econVerDate 0ct 09 2002 14:18 Aug 08, 2003 Jkt 088571 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\HEARINGS\88076.TXT SJUD4 PsN: CMORC
4

omy standards, wetlands protection, and pro-worker rulings by the 

NLRB. 

Now, for the first time in a long time, because of the resignation 

of two Republican judges, there is balance on the Circuit—four Republican judges and four Democratic judges. Some of us would like 

to keep balance on this all-important court, not giving either side 

an ideological edge. 

I am not going to talk about how President Clinton’s nominees 

were held up, Orrin. 

Given the recent revelations of corporate irresponsibility, avarice, 

and greed, now more than ever we need to ensure that we will 

have balanced courts to ensure the law is enforced equally against 

all offenders. While politics isn’t always the best predictor of how 

judges will vote, some recent studies of the D.C. Circuit pretty conclusively prove that ideology plays a big role in how the judges 

vote—huge differences when it is a Republican group and a Democratic group deciding the decision. Of course, that comes up by the 

way the wheel works. 

One final note before I turn this over to Orrin. As always, I am 

grateful to Jeff Sessions as Ranking Member on this subcommittee. 

It is pleasure serving with him and his staff, especially Ed Haden, 

who once again have worked with us in a collegial and professional 

way to set up this hearing. We occasionally have our disagreements. If Jeff were here, he would probably say more than occasionally, but it is always a pleasure to work with him. 

[The prepared statement of Senator Schumer appears as a submission for the record.] 

Chairman SCHUMER. Now, let me turn this over to somebody who 

is admired by every member of this Committee. Sometimes we 

agree and sometimes we disagree, but he is always both a good 

friend and a worthy adversary, our Ranking Member, Orrin Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. I feel exactly 

the same way about you. I think you have brought a great dimension to this Committee, although you are wrong on some of these 

issues, and I am going to point that out in no uncertain terms. 

Chairman SCHUMER. I have little doubt. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. We also welcome all of our witnesses here today. 

We appreciate you taking your valuable time and helping us here 

on this Committee. 

Since the Democrats took over the Senate and the Judiciary 

Committee last June, my colleague and good friend from New York 

has been arguing that we on the Committee should be up front 

about our role in the advice and consent process, that we should 

not engage in the slight-of-hand of talking about one issue while 

voting on another. I agree with him to the extent that we should 

speak and act forthrightly and we should not stoop down to the politics of personal destruction in order to justify a vote that is based 

on something else. 

Unfortunately, I think that is where our agreement ends. Several 

weeks ago on the floor, I had my friend from New York as a captive 

audience because he was serving as the presiding officer, and he 

5

was very uncomfortable as I was speaking. I explained my view 

that being honest and open neither requires nor excuses the overt 

injection of raw politics into the advice and consent process. 

I explained then my opinion, based on 26 years of experience, 

that the only way to make sense of this process is to begin with 

the assumption that the President’s constitutional power to nominate should be given a fair amount of deference, and that we 

should defeat nominees only where problems are truly significant. 

I believe that to the extent ideology is a question in judicial confirmations, it is a question answered by the American people and 

the Constitution when the President is constitutionally elected. The 

Senate’s task of advice and consent is to advise and to query on the 

judicious character of nominees, not to challenge by our naked 

power the people’s will in electing who will nominate. 

The premise of this hearing reminds me of a nickname that some 

clever college freshman gave to one of his required first-year 

courses: Introduction to the Obvious. If the point of this hearing is 

to show that the D.C. Circuit currently includes four judges appointed by Republicans, then we hardly need to convene a Senate 

subcommittee to figure that out. 

If the further point is made that adding one Republican appointee will result in five Republican appointees and four Democrat 

appointees, then I still can’t imagine the hearing being disrupted 

by reporters running from the room yelling ‘‘stop the presses.’’

But I know that we are not here to explore the obvious with a 

sense of discovery. So I suppose the real question is, what should 

we do about this? How should the Senate act when faced with 

courts that have either a balance or an imbalance between the 

number of Republican and Democrat appointees? 

Should we refuse to confirm any new judges to those courts unless they belong to the right political party? Should we wait until 

one of the judges steps down and then wait even longer for there 

to be a President who happens to belong to the same political party 

as the President who appointed that judge? 

Well, these options seem to me to be perfectly ludicrous. The only 

possible answer is to accept the reality that Presidents have the 

power to appoint judges and that the balance in the judiciary will 

change over time as Presidents change, but much more slowly. 

The variables of Presidential elections, judicial retirements, circuit size, and many other factors will mean that perfect balance 

will be achieved rarely, if ever. That is simply how the system 

works, and has worked since the Judiciary Act of 1789. 

Our role of advice and consent is meaningful and we must take 

it seriously, but it was never intended as a power to second-guess 

the President or simply to substitute our judgment for his, and in 

so doing usurping the will of the American people. 

Mr. Chairman, you know better than anyone that I am sincere 

about this and that my track record proves it. Your report issued 

last Friday to the press shows that I voted against only one nominee in the last 10 years. As a matter of fact, you could go back a 

lot farther than that because that is the only one for at least the 

last 22 years. 

And to clarify, I did so not on the basis of politics or ideology, 

but rather out of respect for the traditional role of home State SenVerDate 0ct 09 2002 14:18 Aug 08, 2003 Jkt 088571 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\HEARINGS\88076.TXT SJUD4 PsN: CMORC
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ators in the selection of district court nominees. When both home 

State Senators of that nominee informed me that they were voting 

no, I felt I had no choice but to respect their judgment. And for 

what it is worth, I think that vote was quite an unfortunate episode, but I nevertheless acted in accordance with Senate practice. 

In keeping with the spirit of openness and honesty, I must say 

this: Although I know how this hearing is being billed, I am left 

to wonder why we are not having a hearing about the dismal Ninth 

Circuit, or about the procedural scandals that are plaguing the current Sixth Circuit. Why, I ask myself, are we having a hearing 

about the D.C. Circuit just 2 days before the nomination of Miguel 

Estrada? Coincidence? Surely not. 

When I was chairman, I ended the practice of having witnesses 

lined up to eviscerate good nominees. It was clear that the times 

had changed and that the base art native to the Potomac of destroying reputations had been too well perfected. I am glad that 

Chairman Leahy has concurred in this practice and I respect him 

for it. 

I am disappointed that we are having this hearing because, to be 

frank, it strikes me that we are regressing, that this subcommittee 

is just a thinly veiled attempt to lay the foundation to oppose one 

of the most intelligent, accomplished, and respected lawyers ever 

named to the D.C. Circuit Court. It seems to me that it would have 

been more forthright to name this hearing what it is, the Contra 

Estrada hearing. 

Now, let me express my very real concern for the buildup that 

I see happening to attempt to harm the nomination of this brilliant 

young man, who came to this country at age 17 from another country, knowing little English, and who has made his parents very 

proud and all of us who know him very proud. 

In one sense, I agree that there should be concern for balance on 

the D.C. Circuit. As chairman and founder 12 years ago of the nonpartisan Republican Hispanic Task Force, which, despite the name, 

is made up of both Republican and Democratic members, I have 

long been concerned for the inclusion of Hispanics in the Federal 

Government. 

Without trumpeting the over-used word ‘‘diversity,’’ I have made 

it my business to support the nomination of talented Hispanics for 

my entire career in the Senate. I am sorry that not even the desire 

for diversity will trump the reckless pursuit of ideology in judicial 

confirmations. 

I have a special affinity for Hispanics and for the potential of the 

Latin culture in influencing the future of this country. Polls show 

that Latinos are the hardest-working Americans, that they have 

strong family values and a real attachment to their faith traditions. 

In short, they have reinvigorated the American dream and I expect 

that they will bring new understandings of our nationhood that 

some of us might not see with tired eyes. 

I also know that Hispanics come in many colors and that they 

have left behind countries filled with idealogues that would chain 

them to particular political parties. I know that they share a common-sense appreciation of each other’s achievements in this country without any regard whatsoever to ideology, over which some 

Americans have the luxury of obsessing. 

7

I am concerned with balance on the Circuit Court of Appeals for 

the District of Columbia, but of a real sort, not the kind to be discussed here today. Like President Bush, I think it is high time that 

a talented lawyer of Hispanic descent is represented on the second 

most prestigious court in the land. The D.C. Circuit hears Federal 

cases no other court hears, as the distinguished chairman has told 

us, and has a special role in the enforcement of the Voting Rights 

Act of 1965. Yes, I think it is time that a Hispanic sit on that court. 

I also think it is time that we unmask the way that Miguel 

Estrada’s nomination is being treated and the lengths that his detractors are going to place hurdles in his path. And I do not include 

the distinguished Senator from New York in that category. I respect him. We are dear friends, but Miguel Estrada has not been 

treated very fairly. 

For months, I have been sounding the alarm of the influence of 

the special interest groups on this Committee. I have been increasingly ashamed of the axis of profits that demands that judicial 

nominees be voted down for a palimpsest of reasons. While the 

game plan is unvaried, the quarterbacks change, and now it is the 

liberal Hispanic groups that are on the field. They ought to be 

ashamed of themselves. They have sold out the aspirations of their 

people just to sit around schmoozing with the Washington, D.C., 

power elite. 

I have repeatedly warned against what is going on behind the 

scenes, but I have done it so often that perhaps it is time to try 

it with a new word. Here is the Spanish word: the word is 

‘‘confabular.’’ Now, it means when one or more persons come together secretly to invent falsehoods about another. I am afraid that 

that is what we will see this week against Miguel Estrada. And I 

am sorry, Mr. Chairman, that this hearing may be viewed as part 

of that effort. 

Again, the distinguished chairman of this subcommittee is very 

sincere in his belief that ideology is important. I don’t quite agree 

with him on that, but at least I respect his sincerity. But what is 

even more important is that we have respect for the President’s 

nominees, and unless we have very good reasons we should confirm 

those nominees. 

Miguel Estrada has now sat here for 16 months, almost a yearand-a-half. Fortunately, he is going to have his hearing this Thursday. Will we get him through before the end of this session, and 

the others who also have had hearings? I think common sense, decency, honor, and integrity mean we should do that. 

Now, I want to welcome today members of the Hispanic community who are wearing badges saying ‘‘Confirm Miguel.’’ I could not 

agree more. We are very happy to welcome all of you. We are very 

happy to have you here and we hope that this Committee will listen to you. 

Thank you, Mr. Chairman. 

Chairman SCHUMER. Thank you, Senator Hatch. 

Now, let me call on Senator Sessions for an opening statement. 

As I mentioned, he has been a very, very strong and fair Ranking 

Member of this subcommittee. We don’t agree on certain things, 

but we try to work with one another as best we can. 

I thank you, Jeff. 

8

Senator SESSIONS. Thank you, Mr. Chairman. 

Senator HATCH. Could I just interrupt for a second? I am on the 

Intelligence Committee, so I am going to have to leave, but I am 

going to leave it in your trusty two hands. 

Chairman SCHUMER. Well, thank you. I was going to mention 

one thing to my good friend, Orrin, if I might, if Jeff doesn’t mind, 

and that is again it bolsters my view that ideology does matter 

when Judge Paez was nominated, also Hispanic, of a different ideological view than Judge Estrada, he waited 4 years before his confirmation. 

I don’t accuse anybody of doing that because he was Hispanic. I 

accuse people of doing it—or not accuse, I just think it is because 

people thought the Ninth Circuit was out of balance and Judge 

Paez would have increased that lack of balance. In fact, we heard 

some members say that. 

Senator HATCH. If the Senator would yield on that, I was intimately familiar with all of that and that wasn’t the reason he was 

held up. But I have to say that I think the Senator realizes that 

I am the reason that he sits on the Ninth Circuit today, because 

I overruled a whole raft of people to be able to put Judge Paez on 

that court, and I am hopeful that he will do a good job. 

Chairman SCHUMER. Let me say this to my good friend, the 

former chairman and now Ranking Member. I think if he were 

solely in charge of all of this, there would be less rancor, more fairness, and things would work out better for everybody concerned. I 

truly believe that. 

Senator HATCH. We are going to work on that, and hopefully we 

can fulfill your prophecy here. 

[Laughter.] 

Chairman SCHUMER. When I say in charge, I was not of majority 

members; I was talking of higher up than that. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. Thank you, Senator Hatch. You have indeed given your best efforts for quite a 

number of years to improve our courts, and your leadership as 

chairman of the Committee was extraordinary. I appreciate your 

remarks. I think I will say something about Judge Paez, whom I 

felt was not a good nominee, and Senator Hatch disagreed. It was 

an interesting debate and he was confirmed. 

Mr. Chairman, first let me say I appreciate you. You know, we 

don’t agree on this ideology question. You have said, and I think 

it is true, that ‘‘gotcha’’ politics, hearings, and trying to catch somebody with some misstep in a career of law practice, is not a healthy 

way to do it. We ought to put the matter out on the table and discuss it openly if we have got a problem with a judge. 

But, I think we need to have discipline in this approach and not 

suggest that a person’s politics or their political beliefs qualify or 

disqualify them for the bench, whether it is pro-life or pro-choice, 

or whether it is for an expanded Government role or not an expanded Government role in the life of America. When a judge sits 

on that bench and makes a ruling, it shouldn’t make a difference 

9

whether they are Republican or Democrat, conservative or liberal, 

in my view. So this is an important matter. 

I think this hearing is important for three reasons. First, it is the 

fourth hearing that we have had which I would interpret as an attempt to justify the use of a person’s politics rather than their view 

of the proper judicial role as a legitimate reason to vote against a 

nominee. 

Second, this hearing should shed some light on the historic slowdown in the circuit court confirmations that have occurred during 

the first 2 years of President Bush’s term, as Senator Hatch mentioned. 

Third, this hearing serves as an introduction to the nomination 

hearing for Miguel Estrada, who, if confirmed this year, would be 

the first Hispanic judge to sit on the D.C. Circuit. 

As an additional matter, I would like to state again for the 

record that I agree with Democrats Lloyd Cutler and former Chief 

Judge of the D.C. Circuit Harry Edwards, and with Republicans 

Boyden Gray and retired Judge James Buckley of the D.C. Circuit, 

that a nominee’s political ideology should not play a role in a judicial confirmation and should not play a role in judging by that 

judge. 

Instead, I believe that nominees of Democratic Presidents, who 

will generally be Democrats, and nominees of Republican Presidents, who will generally be Republicans, should be treated the 

same in the hearing process. They should be confirmed if they have 

integrity, if they are qualified, and if they have a judicial temperament and appreciate that the role of a judge is to make fair findings of fact—I have seen judges who like to doctor the facts—and 

reasonable interpretations of valid sources of law, and not step outside these sources to advance a personal political agenda. That is 

when we have crossed the boundary. 

If a nominee’s record indicates a problem in an area like this, I 

may oppose them, Republican or Democrat, or else I will support 

them. Thus, on this score I disagree with my friend from New 

York’s statement over the past one and-one-half years on the question of ideology, as we have discussed. 

At our first hearing in June of last year of this subcommittee, we 

heard that the Senate had to reject nominees based on their politics because the Supreme Court was, they alleged, a right-wing 

court, an activist court. When we examined the current Court’s decisions, however, we found that it had protected burning the American flag; had banned voluntary school prayer at football games; 

had stopped the police from using heat sensors to search for marijuana-growing equipment, which, as a prosecutor, I think was a bit 

of an alteration of current law in favor of civil liberties; had reaffirmed and expanded abortion rights; and had struck down a ban 

on virtual child pornography. These decisions don’t indicate to me 

that the Supreme Court is in the grip of some sort of right-wing 

group. 

At the September 4th hearing, we were told that because a nominee’s politics mattered, the Senate now, for the first time, should 

shift the burden to these Republican nominees to prove their worthiness of confirmation beyond the paper record. 

10

When we examined recent history, though, we found that, as 

Senator Hatch has consistently said, for Democratic nominees the 

burden was on the Senate to reject them. And when we examined 

more distant history, we found that during the first 130 years of 

our country’s history, the Senate did not ask nominees any questions at hearings, probing or otherwise. Nominees did not appear 

regularly before the Judiciary Committee until John Marshall Harlan, II, in 1955. It would be difficult indeed for a nominee to bear 

some historical burden if they were not even coming to the hearing 

to submit to examination. 

In the May 9th hearing, we heard about how bad the Republicans were for confirming circuit court nominees. Upon close examination, it was discovered that two of the four proffered examples 

of unfairly treated nominees lacked support from their home State 

Senators. 

One was nominated approximately 4 months before the Presidential election, and the final judicial nominee had never tried a 

case in a courtroom, which isn’t absolutely disqualifying, but in my 

view it takes some compensating factors of significance to overcome 

that lack. 

Indeed, my colleagues across the aisle deemed the home State 

Senator support rule so important that now they have sought to 

guarantee the rule as part of our original negotiations to set how 

we were going to handle nominations. 

So I shouldn’t expect my Democratic colleagues to complain that 

when a home State Senator objected to a few nominees and they 

did not go forward, because they are, in fact, if anything, asking 

that the rule be strengthened now when they deal with President 

Bush’s nominees. 

Within the last few days, we have been treated to a press release 

with an accompanying chart purporting to offer new proof that the 

political ideology of nominees is routinely taken into account by the 

Senate. The chart, however, contains several errors. 

First, the chart purports to count only the ‘‘no’’ votes of current 

members of the Senate Judiciary Committee, both Republicans and 

Democrats, who served on the Committee for at least 2 years of the 

Clinton administration. This is the chart, I believe, we have been 

presented with. 

Chairman SCHUMER. You changed the color. 

Senator SESSIONS. It is a pretty color there. 

The chart excludes, however, the ‘‘no’’ votes of current Committee 

members Edwards and Cantwell, who did not serve on the Committee during the Clinton years. The chart includes, however, the 

‘‘no’’ votes of current Committee members Brownback and McConnell, but Senators Brownback and McConnell did not serve on the 

Judiciary Committee while President Clinton was in office during 

the 105th and 106th Congresses. Thus, by its terms, the chart erroneously includes 25 ‘‘no’’ votes that should have been excluded. 

Second, the chart displays an artificial disparity in the Republican ‘‘no’’ votes and Democratic ‘‘no’’ votes by showing four full 

years of Republican votes involving President Clinton’s nominees, 

but only one-and-one-half years of Democratic votes against President Bush’s nominees; thus, the visual misperception that RepubVerDate 0ct 09 2002 14:18 Aug 08, 2003 Jkt 088571 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\HEARINGS\88076.TXT SJUD4 PsN: CMORC
11

licans vote against Democratic nominees more often than vice 

versa. 

I think, Mr. Chairman, you need to get your math right on this 

chart. 

By looking at the percentages of ‘‘no’’ votes over the number of 

total votes of Committee members for nominees on the floor, a 

rough approximation on a percentage basis removes the mismatch 

of time periods. 

I won’t go into more of the mathematical argument on that, but 

I really think that chart is a bit off. This is where we think the 

numbers are, and it does appear that the Democrats have concerted their ‘‘no’’ votes on single nominees to defeat them on partyline votes, which was not done during the 8 years of President 

Clinton’s presidency. Not one single nominee, to my knowledge, 

was killed in Committee, unless they perhaps had background 

problems or——

Chairman SCHUMER. That is because the ones you didn’t like 

never got votes. 

Senator SESSIONS. Well, Mr. Chairman, most of those that did 

not have votes either had a serious ethical problem, virtually all of 

them, or they had objections from home State Senators, a position 

you don’t intend to give up on, I understand, but want to strengthen the power of a home State Senator to keep the Committee from 

voting. 

I would ask you, you don’t propose, do you, that if Senator Feinstein objects to a nominee that that nominee have a hearing? 

Chairman SCHUMER. Let me just say no, of course not. But of the 

first ten who were ‘‘well qualified’’ by the bar association who were 

not given hearings, five of those, there were no objections from 

their home State Senators. And of relevance here, two of those 

were from the D.C. Circuit. There was a particular effort not to 

bring forward members of the D.C. Circuit who were nominated, 

including, I believe it was, Snyder and Kagen. And then the third 

who was confirmed had to wait a long time, Garland. 

Senator SESSIONS. Well, I will tell you why we had a problem 

with those two judges for the circuit, and it accounts for the ‘‘no’’ 

votes. It is because the circuit had as a caseload about one-fourth 

the average caseload per judge. And the chief judge of the circuit 

said 10 judges is enough, instead of the 12. And actually I thought 

that was too many. I thought ten was too many. 

The D.C. Circuit has the lowest caseload by far in the country 

per judge, and as a result of that I think it does not need as many 

judges. Now, we are below ten, so I think it is appropriate to move 

the court to ten. But I will oppose going above ten unless the caseload is up. In fact, it continues to drop. It dropped 15 percent the 

year before last. So that is why we had a problem with those nominees, Mr. Chairman. 

Chairman SCHUMER. Would it be logical to make it even lower 

right now, if it is even a lower caseload than it was when you said 

it shouldn’t get more than ten? 

Senator SESSIONS. Well, when President Clinton was in office 

and I studied the issue, as this Committee did, because we studied 

caseloads throughout the country, I agreed that ten would be an 

appropriate number, Mr. Chairman, and I think we ought to be 

12

consistent with that. I don’t think we should go above 10, although 

the court is authorized 12. 

Well, it is an interesting debate we are having. 

Chairman SCHUMER. We have a good time debating it. 

Senator SESSIONS. You are such a skilled advocate and a knowledgeable and fine lawyer and a fine, fine Senator. It is a pleasure 

to be with you. 

The court process is something I have been involved with for a 

number of years since I have been in the Senate, almost 6 years, 

and had a prior involvement of unpleasantness with that process 

a number of years ago. 

Chairman SCHUMER. Let the record show I was not on the Committee at that point in time. I maybe would have voted differently. 

Senator SESSIONS. Well, I would hope so. 

At any rate, we have a great country. Mr. Chairman, maybe it 

is good that we bring all this out and continue these kinds of hearings and debate. I just want to say to you it is nothing personal, 

but I really, as you know, am troubled by the thought of a political 

litmus test on judges, and so it is a very important issue to me. 

So let’s have a great debate about it. 

Chairman SCHUMER. Well, I want to sincerely thank my colleague, Jeff Sessions. We are from different parts of the country, 

and not only different parties, but clearly different ideologies, but 

he is always a gentleman. And we have come to agreement, I 

think, that these kinds of debates are very healthy, a lot better, as 

he mentioned earlier, as did Orrin, than the ‘‘gotcha’’ politics which 

just demeaned everything—the nominees, the Committee, the 

courts, the country. 

I hope we can continue these debates in the spirit in which we 

have had them, which is sincere disagreements on these roles. 

Maybe this is overstating it, but if the Founding Fathers and those 

who thought about the judiciary—and we will probably even debate 

what they thought; we have before—looked down on this room, 

they would say this is what they wanted the Congress to do. So I 

appreciate that. 

We have 6 minutes for the vote. We have great witnesses here, 

but I think rather than just starting and rushing our first witness, 

we will go vote and come right back, if that is OK with our witnesses here. I hope you have enjoyed a little bit of our interchange, 

as well, because we are going to enjoy yours. Thank you. 

The hearing is recessed for—just one vote, so we are only going 

to recess for 10 minutes. Thanks. 

[The subcommittee stood in recess from 10:51 a.m. to 11:14 a.m.] 

Chairman SCHUMER. The hearing will resume and we will go 

right to our witnesses. 

Let me introduce our first witness, and I think I will introduce 

the witness, let each witness speak, and then introduce the next. 

We don’t have to do it seriatim. 

Abner Mikva has had one of the most interesting careers in public service that anyone has had in modern American history. He 

has had a stellar career in all three branches of Government, having served as a United States Representatives in 1970’s, Chief 

Judge of the D.C. Circuit Court of Appeals in the 1980’s, and White 

13

House Counsel in the 1990’s. He is currently a visiting professor 

at his alma mater, the University of Chicago Law School. 

There are few more knowledgeable, erudite, and articulate witnesses who appear before this Committee. He obviously has more 

than a passing familiarity with our subject today. 

Judge Congressman, Counsel Mikva, thank you for being here 

today. Your entire statement will be read into the record and you 

may proceed as you wish. 

STATEMENT OF ABNER MIKVA, PROFESSOR OF LAW, 

UNIVERSITY OF CHICAGO LAW SCHOOL, CHICAGO, ILLINOIS 

Mr. MIKVA. Thank you very much, Mr. Chairman. I very much 

appreciate the invitation to appear before this subcommittee to talk 

about the Court of Appeals for the District of Columbia and the 

special need for ideological balance on that court. 

I spent 15 years as a judge on that court, including almost 4 

years as its Chief Judge. When I was practicing law, I did administrative law and I had considerable dealings with that court. When 

I was a member of the House Judiciary Committee, I helped to 

fashion some of the laws that account for some of the uniqueness 

of the D.C. Circuit. As White House Counsel, I helped in the nominating process of judges to that court, and teaching the legislative 

process and the law of the executive branch to law students, I 

spend a lot of time talking about the D.C. Circuit and its jurisdiction and its precedents. So I have looked at that court from just 

about every angle and it is very special, and the need for an ideological balance on that court is very special. 

I guess every judge on every court would argue that his court is 

special, and they are, but the D.C. Circuit has some very special 

characteristics. The chairman has already referenced some of them 

and I will try not to repeat it, but it is rightly known as the ‘‘government court,’’ not just because of that 10-square-mile geographical area that is its physical jurisdiction, but almost every 

Congress passes laws that produces cases for this circuit, sometimes, as you mentioned, in the case of the FCC, exclusive jurisdiction in this circuit. 

Perhaps one of the most important areas where this circuit has 

a special role is where the two branches end up fighting with each 

other. The Nixon tape cases and other challenges to executive privilege come to mind. The D.C. Circuit is an important battle ground 

for those kinds of cases. 

With all deference, I think one of the problems with measuring 

caseload for that circuit is that sometimes those cases are so 

huge—Federal Energy Regulatory cases or executive privilege 

cases—that they occupy an enormous amount of time and energy 

and resources. And to compare a caseload for the D.C. Circuit to 

a caseload for a circuit like my home circuit, the Seventh Circuit, 

which has a lot of diversity cases, fender-benders and others, is 

comparing apples and oranges. I have no particular views as to 

how many judges there ought to be on the court, but I am simply 

saying that caseload is not a very good measuring stick. 

Now, obviously, the D.C. Circuit doesn’t have any more finality 

than any of the other intermediate courts, the inferior courts that 

the Constitution describes should be established by the Congress. 

14

But frequently that circuit ends up teeing up the important questions for the Supreme Court that it finally determines. 

Not surprisingly, because so many of these questions are on the 

cutting edge of the law, the Supreme Court sometimes decides the 

question differently than the D.C. Circuit. I don’t think our record 

matches that of the Ninth Circuit, but we have been reversed on 

numerous occasions. Our clerks used to sport t-shirts which said on 

the front ‘‘D.C. Court of Appeals,’’ with the year of their service, 

and then on the back it would say ‘‘Reversed, U.S. Supreme Court’’ 

the following year. 

Anyway, those are some of the reasons, and the chairman has referred to others, why the court is a unique one, and why it is especially important that the judges on that court avoid carrying a political agenda to the court. I claim a special qualification to speak 

to that subject, and I am sorry that Senator Hatch had to leave. 

He was the one member of the subcommittee that was here when 

I had my difficulties with confirmation when I went on that court. 

There were some who said that because I had been a political activist as a Congressman, I would carry my unfinished causes to the 

court. The National Rifle Association was particularly active in the 

opposition, insisting that would try to effect gun control from the 

bench, even though I had failed in the Congress. In fact, they acknowledged that they spent over $1 million, which 

was a lot of money in those days, to defeat my nomination. When 

my wife heard about that, she said, you know, if they were going 

to talk that kind of money, they could have talked settlement. 

Well, it turned out that during the 15 years I was on the court, 

I had one case involving the National Rifle Association and gun 

control, and I ruled in favor of the NRA, to their surprise. But I 

had my share of critics who insisted that I was an activist judge. 

And all I can tell you is that I was conscious of that concern and 

tried to remember that I was neither elected nor anointed, or even 

final, and that my role was to apply the laws that Congress passed 

and Supreme Court precedents without regard to my personal 

views, whether it was on the death penalty or interpretations of 

the Fourth Amendment or criminal law. 

Now, I don’t suggest that the Senate only confirm judges that 

have never had any views on any important subjects of the day. 

Such a requirement for a tabula rasa, as Chief Justice Rehnquist 

once referred to it, would probably make for good little league umpires, but they hardly would bring the experience that is necessary 

to be a good judge. 

But there is a difference between people who have views on a 

subject and those who have become zealots. I remember a political 

analyst once described one of the nominees who failed Senate confirmation some years ago as someone who felt he had a mission to 

educate the Senate to his point of view. 

Well, I think that nominees who have missions to educate the political branches or the public or their colleagues should stay on the 

lecture circuit or should run for public office, because such missionaries don’t represent the balance the discipline necessary to be a 

good judge on any court, and especially the D.C. Court of Appeals. 

Balance and discipline will reflect how well the court shapes up 

and tees up those sharp questions for the Supreme Court to decide. 

15

If the D.C. Circuit is anticipating the role of the Supremes, as it 

has on occasion, or rejecting the answers that it gets to those hard 

questions, as it does on occasion, then there is an overload. 

That is particularly true when the court is being asked to resolve 

some of the conflicts that arise between the two political branches 

in executive privilege cases. That is particularly true when one of 

the divisive questions confronting the courts and the Congress is 

the extent of congressional power under the Commerce Clause or 

under the Tenth and 11th Amendments to the Constitution. 

It is not for the intermediate courts, and especially not for the 

government court, to either ignore or extend the balance that the 

Supreme Court is striking on those hot issues. That is a drama 

that has to be played out between the main actors, the Congress 

and the Supreme Court, and it does not call for any understudies 

to take center stage. 

Some academics recently wrote a letter to this Committee extolling the virtues of a nominee who is a law professor, and I would 

like to quote just briefly from that letter. They said that that particular nominee, quote, ‘‘exhibits respect, gentleness, concern, rigor, 

integrity, a willingness to listen and to consider, and an abiding 

commitment to fairness and the rule of law,’’ end of quote. 

Now, obviously those are good attributes for any judge, but they 

are especially needed for the D.C. Circuit. The barn-burners, the 

crusaders, the zealots are counterproductive to the task of maintaining that delicate balance that the chairman referred to. 

Some believe that the best way to achieve that balance is to advocate bipartisan appointments. I confess when I was White House 

Counsel I did unsuccessfully urge the appointment of several Republican nominees, including one to the D.C. Court of Appeals. I 

didn’t get past first base; it didn’t pass the Presidential test. 

It is not an easy advocacy at any time. Presidents as recently as 

Truman and Eisenhower did appoint persons of the opposite political party to the Supreme Court, but it is not a common occurrence 

to an appellate court, and it is not even common to the Supreme 

Court anymore. And as you elected officials know better than anybody, the words ‘‘liberal’’ and ‘‘conservative’’ vary from issue to 

issue and are in the eye of the beholder. 

I think that the better way to find a balance on any court is to 

seek moderation within each judge. The words used to be—and I 

think Senator Sessions used them—‘‘judicial temperament.’’ They 

mean that the judge could hear with both ears, had not decided the 

case before hearing the evidence, could remain reasonable even 

when the juices were flowing all around. I hope those are the kinds 

of judges that the President nominates and the Senate confirms for 

the D.C. Circuit. 

Thank you. 

[The prepared statement of Mr. Mikva appears as a submission 

for the record.] 

Chairman SCHUMER. Thank you. We very much appreciate your 

testimony. 

Now, we will go to another distinguished member who has served 

in Government with great distinction, and that is Fred Fielding. 

Fred Fielding is a senior partner and the head of governmental affairs, business, finance, litigation and crisis management, and 

16

white collar crime practice—that is a lot to do—at the law firm 

Wiley, Rein, and Fielding. 

Mr. Fielding was counsel to President Reagan from 1981 to 1986, 

after first serving as an associate and deputy counsel for 4 years. 

He was also clearance counsel in the Bush-Cheney Presidential 

transition. Mr. Fielding served for 6 years on the ABA Standing 

Committee on Federal Judiciary, so he knows a little bit about 

nominating judicial nominees. He also serves on C. Boyden Gray’s 

Committee for Justice, a group that is working to get all of the administration’s judicial nominees confirmed. 

Thank you very much for being here, Mr. Fielding. As with the 

other witnesses, your entire statement will be read into the record 

and you may proceed as you wish. 

STATEMENT OF FRED F. FIELDING, WILEY, REIN, AND 

FIELDING, WASHINGTON, D.C. 

Mr. FIELDING. Thank you, Mr. Chairman and members of the 

subcommittee. I am very grateful to have the opportunity to appear 

before the subcommittee. I sought the opportunity because the announced subject of this hearing, which is the D.C. Circuit and the 

importance of balance on the Nation’s second highest court, implies 

a conclusion that I find inconsistent with my own experience and 

the strong feelings in regard to the nomination and confirmation 

process for the Federal judiciary in this circuit, in particular, and 

the Federal judiciary in general. 

Mr. Chairman, I have been a practicing attorney for over 38 

years now, and I have been admitted to practice and I am a member of this circuit for some 30 years and a member of the Judicial 

Conference of this circuit for over 25 years. In addition to that, as 

you have mentioned, I have some familiarity with the Federal judicial selection process, for the first five-and-a-half years of Ronald 

Reagan’s presidency. Also, in that regard, I chaired that Administration’s judicial selection panel within the Administration. 

Second, as you mentioned, I did get a different perspective on the 

process, serving as the D.C. Circuit’s representative on the ABA 

Standing Committee on the Federal Judiciary for 6 years. My service covered four-and-a-half years of the Clinton administration and 

a year-and-a-half of the present Bush administration. 

Last, I served on the Miller Commission, of which I am sure the 

Committee is aware. That commission was co-chaired by former Attorney General Katzenbach, former Deputy Attorney General Howard Tyler, and its members included Howard Baker, Birch Bayh, 

Lovida Coleman, Lloyd Cutler, Judge Higginbotham, Judge Lacey, 

Judge Kimba Wood, and Professor Dan Meador. The study, reported in 1996, dealt with the issue this subcommittee is dealing 

with today and I will make reference to that later, if I may. 

I give you this foregoing litany of experience, in addition to being 

a member of the bar of the circuit, only to emphasize the single 

point which I wish to make to the Committee today, and that is 

from each perspective which I was able to view the process, I 

strongly feel that probing a candidate’s political ideology has no 

constructive place in the process. In my experience, it has not been 

a part of an administration selection process or the review process 

of the ABA. 

17

For the Senate to now seek to use a test of political ideology in 

evaluating the merits of a nominee to the D.C. Circuit in order to 

effect this elusive standard of balance would be a step beyond any 

role played by any other party in the process. It would be a step 

that, in fact, is avoided by every other participant in the selection 

process because of the very serious implications and consequences 

that ideological screening would have on the independence of the 

Federal judiciary. 

I would argue that the independence of our judiciary is what sets 

it apart from the political branches in the eyes of our citizens. Citizens need to know that the laws that are passed and enforced by 

the political branches will be adjudicated by an independent body 

of jurists. 

Now, that is not to say for one moment that no inquiries should 

be made of the views of any nominee either by the President, the 

White House, the Judiciary Committee, or individual Senators. But 

such an inquiry should be directed to an evaluation of the nominee’s integrity, abilities, and temperament, which are also the 

standards for the ABA analysis, and also his or her judicial philosophy. 

Nor should anyone assume that a judicial candidate comes to the 

bench without some personal philosophical beliefs about certain 

issues. Former Chief Judge Irving Kaufman of the Second Circuit 

addressed this point in a letter in 1981 which we all had to study 

and read very carefully, which was entitled ‘‘An Open Letter to 

President Reagan on Judge-Picking.’’

If I can quote from him, he said, ‘‘I am not cautioning you 

against recommending candidates with a demonstrated commitment to issues of public importance or individuals who have taken 

sides in national debates on pressing issues. Participation in those 

debates does not augur bias, but rather a dedication to the commonweal that should be encouraged in all public officials, judges 

included.’’ That is the end of the quote. 

In addition to satisfying oneself that a nominee possesses the 

legal skills, temperament and integrity to face each case with an 

open mind, it is certainly legitimate to also inquire as to the individual’s views of the role of the Federal judiciary, his or her conception of the judiciary’s role in the separation of powers, if you will. 

But that inquiry is far different from seeking to determine if such 

a candidate brings a certain political ideology to the bench on a 

particular issue or issues, for the purpose of effecting a balance on 

that court, or for that matter an over-balance on any court. 

I earlier mentioned the Miller Center report, and I would adopt 

as my own testimony the comments that are contained in that report on the role of ideology in the judicial selection process. If I 

may share them with you, ‘‘The Commission believes that it would 

be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the 

confirmation process is to suggest that the legal process is and 

should be a political one. That is not only wrong as a matter of political science; it also serves to weaken public confidence in the 

courts. Just as candidates should put aside their partisan political 

views when appointed to the bench, so too should they put aside 

ideology. To retain either is to betray dedication to the process of 

18

impartial judging. Men and women qualified by training and experience to be judges generally do not wish to and do not indulge in 

partisan or ideological approaches to their work. The rare exception 

should not be taken as the norm.’’

Inquiring about an evaluation of a nominee’s political ideology 

has no historic place in the evaluation process either. To the extent 

that it may have taken place in the past in isolated cases doesn’t 

make it acceptable. In fact, as I have mentioned before, I don’t believe it was practiced by past or present administrations, Republican or Democratic, and it certainly has no proper role in executive 

branch screening. 

Likewise, this Committee’s own questionnaire to judicial nominees asks, and I quote, ‘‘Has anyone involved in the process of selecting you as a judicial nominee discussed with you any specific 

case, legal issue or question in a manner that could be reasonably 

interpreted as asking or seeking a commitment as to how you 

would rule on such case, issue or questions,’’ end of quote. 

Thus, I must conclude that this Committee historically found 

such questioning to be unacceptable as well, and if this Committee 

now seeks this sort of probing of one’s ideology in order to effect 

such a balance on the D.C. Circuit, it is destroying that precedent 

and, I fear, will be planting seeds that will bear bitter fruit in 

years to come. 

It is my belief that if such a question is asked, shame on the 

questioner. And if it is answered, I must also seriously question the 

potential independence, and therefore the suitability, of the candidate who would be answering that question. 

Such screening and selection of judges signifies that it is acceptable for judges as a pre-condition of their confirmation that they reveal how they would in the future decide a particular case or cases. 

That should be fear by all across the entire breadth of the political 

spectrum. 

In conclusion, Mr. Chairman and members of the Committee, I 

would like to make two other observations. First, to the argument 

that ideological differences are a divisive element and a deterrent 

to the decisionmaking on the D.C. Circuit, and hence the need for 

the balance, may I respectfully direct the Committee’s attention to 

an essay published in October 1998 in the Virginia Law Review by 

then-Chief Judge Harry Edwards. Chief Judge Edwards, who was 

a Democratic appointee, debunks—and that is his term—that 

myth, and also notes that over 90 percent of the cases in that court 

were decided unanimously. 

My second observation is that when I was on the ABA Standing 

Committee, in addition to evaluating hundreds of candidates from 

all around the country over those 6 years—and they were the nominations of both Democratic and Republican Presidents—I also personally conducted the interviews of nine nominees to the courts of 

this circuit. In each investigation, I interviewed 35 to 55 individuals, judges, members of the bar, practicing attorneys within the 

circuit. 

I can advise you that in all those interviews, there was never a 

complaint expressed to me by members of the bench or the bar of 

this court and this circuit as to the ideological balance or imbalance 

of the court. To the contrary, members of the bench and bar of the 

19

D.C. Circuit are quite proud of the special reputation this court has 

for excellence and for its reputation as a principled body of jurists 

who rule on the law and the facts of a case and not on a personal 

set of political or ideological preferences. 

I respectfully urge that in your deliberation you take care to 

avoid the unintended consequence of interjecting ideology into this 

court, and thereby destroying that pride and that reputation of this 

fine court. 

Thank you. 

[The prepared statement of Mr. Fielding appears as a submission 

for the record.] 

Chairman SCHUMER. Thank you very much, Mr. Fielding, for 

your very thoughtful testimony. 

We are now going to go to our third witness. We are running a 

little late here in time. I would ask each of the next witnesses to 

limit themselves not to the usual five, but to 7 minutes, if they 

could. I let the first two go as long as they wished. But if you could, 

it would be helpful to the subcommittee. 

The next witness is Christopher Schroeder. He is Professor of 

Law and Public Policy and Director of the Program in Public Law 

and Co-Chair of the Center for the Study of Congress. Professor 

Schroeder has previously served as Acting Assistant Attorney General in the Office of Legal Counsel at the Department of Justice 

and as chief counsel to the Senate Judiciary Committee under Senator Biden’s leadership. He coauthored a leading environmental 

law casebook entitled Envirommental Regulation: Law, Science and 

Policy, and he is editor of a forthcoming resources for the future 

book evaluating the performance of the environmental Protection 

Agency. 

Your entire statement, Professor Schroeder, will be read into the 

record and you may proceed as you wish. 

STATEMENT OF CHRISTOPHER H. SCHROEDER, PROFESSOR 

OF LAW AND PUBLIC POLICY STUDIES, DUKE UNIVERSITY 

SCHOOL OF LAW, DURHAM, NORTH CAROLINA 

Mr. SCHROEDER. Thank you very much, Mr. Chairman, Senator 

Sessions, Senator Kennedy, and thank you for the invitation to testify today. 

I am going to be speaking about the impact of judges on the D.C. 

Circuit who come to this court with strong partisan and ideological 

commitments as it affects just a particular part of that court’s 

docket, that is the administrative law part of the docket, and in 

particular the part of the docket that reviews decisions by the Environmental Protection Agency. 

The bottom line of my testimony is simply that it appears that 

we have good evidence to believe that one of the consequences of 

staffing the D.C. Circuit with judges who have strong partisan or 

ideological commitments is a relative shift in the making of 

envirommental policy away from the elected branches of Government, away from the Congress and the executive branch, and to 

the courts, because there is a tendency by judges, whether they be 

strongly partisan and ideological on the left or strongly bipartisan 

and ideological on the right, to supplant the decisions of the demoVerDate 0ct 09 2002 14:18 Aug 08, 2003 Jkt 088571 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 C:\HEARINGS\88076.TXT SJUD4 PsN: CMORC
20

cratically elected branches of Government with greater frequency 

than I think would otherwise be the case. 

Mr. Fielding referred to Judge Edwards’ article in the 1998 Virginia Law Review. That was a response to a piece of work by now 

Dean Ricky Revesz at the NYU School of Law who analyzed environmental judicial decisionmaking on the D.C. Circuit and found 

some of the marked disparities that you mentioned in your opening 

statement, Mr. Chairman, between the outcomes of cases involving 

the Environmental Protection Agency when the panel was majority 

Republican versus when the panel was majority Democrat. 

That study actually finds the most marked differences in cases 

that are somewhat different than the ones that we have been, I 

think, implicitly referring to so far, not the cases in which the D.C. 

Circuit reaches out to make some bold holding of law, but the cases 

in which the D.C. Circuit, as it must under our rules of administrative law and procedure, is trying to resolve disputes that raise 

questions of law that are much more vague, indeterminate, and 

lack sharp edges and clear, objective criteria for decisionmaking, 

such as the requirement that the Supreme Court announced in the 

State Farm decision of nearly 20 years ago that an agency has to 

have demonstrated a rational connection between the findings in 

the record and the conclusions it reaches in its regulation, or the 

requirement that if an agency is interpreting a statute that it develop a permissible or a reasonable construction of that statute, or 

whether there is adequate record evidence to support a conclusion 

that the agency has reached. 

In these kinds of areas where the objective criteria for a legal determination are open-ended and require judgment and discretion, 

there is room for a judge, in all good faith, to come to those questions and resolve them or have a tendency to resolve them in the 

direction of their partisan and ideological commitments with respect to the outcome. And I mean in no way to attack the integrity 

of any judge on the D.C. Circuit or any other circuit when I make 

that claim. 

I think the legal realists who were an important part of our 

American legal intellectual heritage 50 or 60 years ago had a theory of law that postulated that judges first figured out what outcome they would like and then they looked around for legal doctrine to justify that outcome. 

That system of lawmaking, if you will, that model of lawmaking 

is always ridiculed whenever you talk to any sitting Federal judge 

or anybody who has clerked for any Federal judge, and frankly I 

think it doesn’t reflect the way the judges make the vast majority 

of their decisions. 

There is, however, a way in which ideology and commitment as 

to outcome can influence a judge’s decision while that judge is exercising complete good faith, and I sketched a little bit of the approach in my written testimony and it is largely work that has 

been developed by people who study how we all reason and think. 

The guts of it is that when you are dealing with questions of reasoning that have a number of decision junctures in them where you 

could go one way or another and reasonable people could disagree 

about which way is the right one to go, where you want to come 

21

out ultimately has an influence on which choice you find more persuasive than the other. 

So, for instance, if you have a general tendency to be skeptical 

that the Federal Government has gone too far in environmental 

policy and that any new rule or regulation from the Environmental 

Protection Agency, without knowing anything more about it, raises 

a certain skeptical gleam in your eye, you will tend to be more persuaded by the decisions you have to make in reviewing a record 

that will seem legally compelling to you that lead to the result that 

vindicates that skepticism. 

Similarly, if you think the Federal Government hasn’t gone too 

far in environmental policy, you will have a tendency to look more 

favorably at decisions that come to you where, say, EPA has lowered a standard and less favorably at decisions where, for instance, 

EPA has deregulated or raised a standard. 

That is not to say you are figuring out the result first and reasoning backward to the conclusion. It is to say that in all good 

faith, in looking through the record trying to figure out what the 

right answer is, that motivation or direction that the cognitive 

theorists talk about will have or tends to be one of the contributing 

factors in what kinds of reasons you find compelling and what 

kinds of reasons you don’t. 

Now, I am not a cognitive theorist and I just wanted to warn you 

that I am sketching work that has been done by others. Unfortunately, they have never been able to work on judges, so all of this 

theory has been worked out in the context of other kinds of individuals doing other kinds of reasoning. 

But there is no obvious reason to suppose that they haven’t 

reached a kind of general explanation of the way we think through 

problems. This simply means that our partisan commitments, our 

values, if you will, are inevitably going to influence how it is we 

come out some of the time. It doesn’t mean they will dictate it, but 

it will be a contributing influence. 

Let me close simply by saying I think that asking what party a 

candidate belongs to is an awfully crude way at getting at the 

kinds of values and partisan commitments that may matter in trying to predict the general tendencies of a judge on the bench. It unfortunately is one of the more obvious ways, and so it is very often 

leaned on. 

But if what you are really worried about is trying to figure out 

what a person’s general political, philosophical orientation is and 

what his or her general judicial philosophy is, those are two questions that I think are entirely within the competence and responsibility of the Committee to ask about. They have an influence on the 

way people decide cases and they have actually been inextricably 

linked in our country from the beginning. 

The first person to use political ideology as an aspect of their decisions as to whom to appoint on the Supreme Court was George 

Washington. There was a critical constitutional struggle just after 

the Constitution was ratified over how strongly or weakly the Constitution was going to be interpreted. 

Now, he knew the people he was appointing intimately, or his 

colleagues did, and so they didn’t have to have questionnaires and 

22

they didn’t have to have a lot of questions. But it is no accident 

that the Marshall Court was staffed with strong nationalists. 

In fact, political parties started as a result of the debate over 

constitutional interpretation. The famous debate between Thomas 

Jefferson and Andrew Hamilton over the first national bank was 

a debate over the scope of Federal power, and it was Thomas Jefferson’s defeat in that debate that led to his desire to create the 

Federalist Party, the first, nascent political party in the United 

States. So these two ideas have been part and parcel of our jurisprudence, our politics, and I think the confirmation process from 

the very beginning. 

Thank you. 

[The prepared statement of Mr. Schroeder appears as a submission for the record.] 

Chairman SCHUMER. Thank you, Professor Schroeder, for your 

fine testimony. 

We are now going to turn to Professor Clark. Professor Bradford 

Clark is currently a Professor of Law at George Washington University Law School. Before coming to George Washington in 1993, 

Professor Clark began his legal career clerking for Judge Bork and 

Justice Scalia. So he too knows something about the D.C. Circuit. 

Professor Clark then worked as an attorney-advisor in the Department of Justice’s Office of Legal Counsel before joining the law 

firm of Gibson, Dunn, and Crutcher. 

Professor Clark, your entire statement will be read in the record, 

as with the other witnesses. You may proceed as you wish and if 

you can stay to the 7-minutes, which no one has so far, I must say, 

we would appreciate it. 

STATEMENT OF BRADFORD R. CLARK, PROFESSOR OF LAW, 

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, D.C. 

Mr. CLARK. Thank you, Mr. Chairman, and Senator Sessions, 

Senator Kennedy. Thank you for inviting me to participate in this 

hearing today. 

I teach in the areas of Federal courts and constitutional law, and 

I think the question raised by today’s hearing is important, particularly because this idea of balance on the courts, and the D.C. Circuit in particular, raises a very delicate question of constitutional 

law and separation of powers—namely, what is the role of the 

President and the Senate in the appointments process and to what 

extent should these actors consider ideology in nominating or confirming judges? 

With all due respect, I think this focus on ideology has the capacity to threaten the independence of Federal judges in the constitutional framework, and also to undercut public confidence in the judiciary. 

Now, I should say at the outset that it is certainly appropriate 

for the President and the Senate to inquire into the general judicial 

philosophy of nominees. I think that has been standard practice for 

a number of years. Particularly, you will want to know is a nominee capable of performing his or her duties as a judge. Can the 

nominee approach the law fairly and decide according to the law, 

the Constitution, and judicial precedents? 

23

As Lloyd Cutler testified before your subcommittee last year, this 

is the inquiry into judicial temperament. He defined that inquiry 

as asking whether a nominee ‘‘is even-handed, unbiased, impartial, 

courteous yet firm, and dedicated to a process, not a result.’’ I think 

all of that is fine when the President and the Senate are looking 

at judicial nominees. 

On the other hand, for either the President or the Senate to go 

beyond these general inquiries threatens judicial independence. Let 

me explain. The Constitution goes to great lengths—and this is a 

great innovation of our Constitution over others in the rest of the 

world and throughout history—to separate the Congress, the President, and the judicial branch. The judges of the Federal judiciary 

are appointed for life, with salary protection. By design, they are 

to be independent of the political branches. 

In particular, there is another provision that we sometimes overlook, the Incompatibility Clause of Article I, Section 6, clause 2, 

and this is the provision that provides ‘‘No person holding any office under the United States’’—and that includes judges—‘‘shall be 

a member of either House during his continuance in office.’’ There, 

we have a specific separation, prohibition if you will, on commingling the legislative branch with the Federal judiciary. So this was 

a very important idea at the time of the Founding that goes to our 

constitutional structure. 

Now, given that, I think it is important to conclude that potential 

judges should not be asked about their political ideology and they 

should not be asked to give specific representations as to how they 

would rule in particular cases. That would go too far into the area 

of judicial independence. 

A nominee cannot answer these types of questions without effectively giving the political branches a pre-commitment inconsistent 

with judicial independence. And these political commitments would 

prevent judges from deciding important questions in their proper 

setting. Judges are supposed to decide these important questions in 

the context of deciding a case—that is, with adversary parties, full 

briefing and argument, considering the views of their colleagues on 

the court, and reconsidering initial views in light of experience, 

new arguments, and changed circumstances. Making judges precommit to the Senate or to the President would undermine their 

ability to perform their judicial role. 

Now, in addition to undermining judicial independence, the Senate’s attempt to question judicial nominees about political ideology 

could erode public confidence in the Federal judiciary. The public 

generally accepts decisions by unelected Federal judges precisely 

because Federal judges were designed to be independent and are 

perceived to be independent of the political branches. 

If the Senate makes ideology a central focus of its confirmation 

hearings, the public might well conclude that judges no longer are 

above partisan politics. They may think that they are, as Judge 

Mikva once wrote, simply a Congress in black robes, and this shift 

could threaten our constitutional framework. 

What, then, is the proper role of the Senate in considering judicial nominees? Well, Alexander Hamilton suggested an answer in 

Federalist 76. According to Hamilton, the requirement of Senate 

confirmation was meant to be a ‘‘check upon a spirit of favoritism 

24

in the President, and would tend greatly to prevent the appointment of unfit characters,’’ he said, through State preference or 

other improper favoritism. That should be the standard that the 

Senate uses to evaluate nominees. Is the nominee fit to sit on the 

bench? Do they have the experience, the background, the temperament to be an objective and fair Federal judge? 

Now, the D.C. Circuit, in particular, presents a special question, 

I suppose. We have heard today how important the court is and I 

certainly wouldn’t quarrel with that, having been a law clerk there. 

It is a very important court and it does hear a disproportionate 

number of administrative law cases, which I am sure are important 

to everyone here today. 

But these types of cases are governed by a complex mix of constitutional, statutory, and judicial precedents developed over many, 

many years. We have heard reference to the essay by Judge Harry 

T. Edwards, of the D.C. Circuit, refuting the charge of political or 

ideological bias on the D.C. Circuit. 

This is particularly important, I think, because Judge Edwards 

is there. He has been there for many years; he has been there for 

probably 25 years and he has great experience on the court. He 

says that in over 97 percent of the cases the court disposes of, ideology does not play a role. 

This accords with my experience as a clerk on the D.C. Circuit, 

and I think Judge Mikva is a very good example of this because 

as he testified, he was perceived to be potentially an ideological 

nominee, but he worked very hard and I think succeeded in being 

a very excellent circuit judge. 

One last point, since I don’t want to go over my time. Pursuing 

ideological balance on the D.C. Circuit would necessarily misrepresent the work of the court and cast its decisions in ideological 

terms. As Judge Edwards warned, ‘‘giving the public a distorted 

view of judges’ work is bad for the judiciary and the rule of law.’’ 

The Senate should not risk undermining the legitimacy of the judicial branch by encouraging such false perceptions. I think the Senate should stick with the traditional view of evaluating nominees 

based on judicial temperament and general judicial philosophy. 

Thank you. 

[The prepared statement of Mr. Clark appears as a submission 

for the record.] 

Chairman SCHUMER. Thank you, Professor Clark. You came the 

closest of anybody. You win the prize. Congratulations. 

Our final witness is Professor Michael Gottesman. He served as 

an adjunct professor at Georgetown Law School from 1978 to 1988 

and then joined the faculty as a full-time professor in 1989. Previously, Professor Gottesman practiced law with the Washington, 

D.C., firm Bredhoff and Kaiser from 1961 to 1988. He has written 

broadly on labor and civil rights law—some subjects of interest to 

us today—and has appeared as a practitioner on numerous occasions on the D.C. Circuit. 

Like the other witnesses, Professor, your entire statement will be 

read into the record and you may proceed as you wish. 

25

STATEMENT OF MICHAEL H. GOTTESMAN, PROFESSOR OF 

LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, D.C. 

Mr. GOTTESMAN. Thank you, Mr. Chairman. I am bound to win 

that prize. I am going to finish in that 7 minutes, I promise. 

Congress works very hard to assure that the administrative 

agencies are themselves ideologically balanced. In many of the statutes that create these agencies, you have specifically directed that 

there be balance between the parties. And as you all know, I am 

sure, in your deliberations when you are confirming, you are very 

conscious of having slates of candidates who are going to fill these 

agencies who are balanced. 

Now, there is a reason why you want that. You want balanced, 

mainstream administrative decisions. But all of that effort comes 

to naught if those decisions are then reviewed by a court that does 

not have ideological balance and that is prepared to aggressively 

overturn those agency decisions. 

Sadly, that has been the case with the D.C. Circuit for roughly 

the two-decade period 1980 to 2000. It was an ideologically unbalanced court, and as I am going to suggest with a few statistics, it 

generated decisions overturning administrative agencies that were 

way out of the mainstream, as compared to the other circuit courts 

of appeals. 

It wasn’t always that way. If you go back—and I am going to use 

the Labor Relations Act as my example, although my statement 

has some others as well. If you look at the performance of the various circuit courts in 1980, the D.C. Circuit’s rate of approving 

Labor Board decisions was virtually identical to that of the overall 

percentage for all of the circuit courts. 

But if you then roll forward, as the appointments of what I 

would suggest were strongly ideological judges occurred, if you look 

at the period 1985 to 1989, less than a decade later, here is what 

the statistics show. The Labor Board’s decisions were affirmed in 

full—if you look at all the circuits, they were affirmed in full 78 

percent of the time. 

Now, look at just those cases that came to the D.C. Circuit. The 

Labor Board was affirmed in full only 53 percent of the time—78 

percent; more than three-quarters versus 53. And even that doesn’t 

state the full extent of the disparity because the 78 includes the 

D.C. Circuit. If you took them out, the rate in all the other circuits 

was well over 80 percent affirming the National Labor Relations 

Board. 

Well, that is just 1 circuit of 11, right? So we get skewed decisionmaking in 1 circuit out of 11. But the stark reality is that the 

D.C. Circuit controls the fate of administrative rules, and it does 

so because it is the one circuit that anybody unhappy with an administrative agency’s ruling can come to, and this is true of virtually every administrative agency. 

So let’s just take hypothetically a Labor Board rule that says employers are not allowed to do ‘‘x.’’ Eleven circuits may agree with 

the Labor Board and say that is well within your authority. But 

if the D.C. Circuit disagrees, the Labor Board is going to get reversed a hundred percent of the time on that issue. Why? Because 

the employers know they can come to the D.C. Circuit. 

26

And, indeed, that is what they have been doing. Here, to me, is 

the most interesting statistic. The employers have a choice between 

the D.C. Circuit and other circuits. Back in 1980, when the D.C. 

Circuit’s approval rate was the same as all the other circuits, only 

3 percent of the appeals from Labor Board decisions came to the 

D.C. Circuit. In the year 2000, 18 percent—six times as many—

came to the D.C. Circuit. Why? Because employers knew this is 

where we can get the Labor Board reversed and we can’t do that 

in the other circuits because they still approve the Labor Board decisions. 

Now, my statement describes similar phenomena in the areas of 

civil rights and environmental law, but to stick to my time, I won’t 

mention those. The rate of Labor Board success in the D.C. Circuit 

has gotten somewhat better in recent years because as there have 

been retirements of some of those most ideological judges, the court 

has come into somewhat more balance. 

In 1998, when we weren’t yet at the balance we have today, the 

difference, which had been 25 percent between the D.C. Circuit and 

all the other circuits in affirming the Labor Board, had been reduced to 13 percent, half as much imbalance. 

I would assume that if we had statistics for the last year or two, 

it would be even closer because the court is now more of a mainstream court. And it would be sad, now that it has become a mainstream court, and given its unique position as the universal recipient for anybody who is unhappy with an administrative agency—

it would sad if it now fell out of balance, as well. 

Now, there are, of course, two ways to assure that if there are 

going to be more appointments that this current state of balance 

be achieved. One would be to appoint by looking at the parties of 

the various candidates, and indeed there is a recent article in the 

Washington Lawyer quoting a former general counsel of the Republican National Committee who has suggested that that is something to be considered. 

The other way is to allow Presidents to do what they normally 

do, appoint members of their own party, but insist that those people be mainstream judges who are not going to be skewed. And this 

involves, it seems to me, attention not only to what their ideology 

is—that is, how would they vote if they were on an administrative 

agency—but also to what extent do they respect the Supreme 

Court’s command that courts are supposed to give broad deference 

to the rulings of administrative agencies. 

It is absolutely clear that the D.C. Circuit has not been giving 

deference over the past 20 years if it is only affirming the Board 

half the time. That is what anybody would expect to get. That 

doesn’t show deference. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Gottesman appears as a submission for the record.] 

Chairman SCHUMER. Well, not only have you given excellent testimony, Professor, but you have indeed won the prize. Congratulations. 

I want to thank all five witnesses. Actually, every one of you has 

won a prize in the sense that your testimony was excellent, obviVerDate 0ct 09 2002 14:18 Aug 08, 2003 Jkt 088571 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 C:\HEARINGS\88076.TXT SJUD4 PsN: CMORC
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ously conflicting. That is what we would like on this subcommittee 

and we thank you. 

What I am going to do is delay my time in questioning. Senator 

Kennedy was nice enough to come to the hearing and has another 

engagement, and so I am going to give my time to Senator Kennedy. Then I will call on Senator Sessions and I will go last. 

Senator Kennedy? 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Senator Schumer, and 

thank you for having this hearing. I welcome all of our panelists. 

I particularly want to welcome Ab Mikva. I was listening to the references to Ab Mikva’s confirmation and I remember very clearly all 

those—the NRA—who were gunning for Ab Mikva at that time. 

And now to find out from his own testimony that he decided for the 

NRA, after all this time, it is too late to have reconsideration. 

[Laughter.] 

Senator KENNEDY. I want to thank him for his very distinguished 

career. Many of you have, but I know in particular of his past history and commitment and the good work he does with young people 

out in Chicago, too. We had an opportunity to meet with a number 

of these young people fairly recently, and it is a wonderful thing 

that you continue to do. 

I was having difficulty in listening to our discussion about appointing judges with political philosophy and idealogy because we 

have a President of the United States who said that he wants to 

appoint judges in the line of Scalia and Thomas. If you ask the average American, that is sending a pretty clear message of the type 

of individual they are trying to support on this. 

So the mark has been out there and the statements by the White 

House are clear. I agree myself that we obviously are not looking 

for narrow partisanship, but when the administration has indicated 

that that is going to be narrow in their criteria, it is a disappointment. 

I think we have a responsibility to make sure that people are 

going to have a core commitment to the fundamental values of the 

Constitution. I think that that is a perfectly reasonable test to 

take, because we have seen over the period of time where nominees 

have been coached and tested. We have had nominees who have 

been up before this Committee who gave the exact same answers 

to questions because they were told by the Justice Department, if 

you give that same answer, you are not going to get in trouble. So 

we have to use our own judgment. 

With all respect to our history, the appointment power, until the 

final weeks of the Constitution, was in the Senate of the United 

States. It was only decided later that it was going to be a shared 

power, so we are not a rubber stamp. We have a real responsibility 

to go ahead. 

Former Judge Mikva mentioned two excellent recommendations: 

moderation and judicial temperament. Just very quickly because I 

have limited time, judicial temperament, I imagine, is even more 

important in the circuit court because it is smaller, would you say, 

Judge Mikva? The collegiality and the ability to work together to 

28

try and work through various issues—of particular importance and 

relevancy? 

Mr. MIKVA. It is very important. It is a small court and it is all 

in one place; it is all in Washington. Many other courts are diffused 

all over the map. This court sits only in Washington, D.C. The colleagues have a lot to do with each other and there can’t be the 

intercourse that is necessary to find moderation if somebody comes 

in with a strong agenda and says it is going to be my way, I want 

to be in such-and-such an image. 

Senator KENNEDY. It has been mentioned here about the NLRB 

and the cases that have been now brought to the circuit court. I 

saw a chart here about the NLRB cases that were brought and 

heard, and the small percentage number going back to 1980 and 

how that has escalated. 

As you correctly pointed out, in 1980 83 percent were affirmed, 

and now it is 50 percent affirmed and the numbers have really skyrocketed. I think you stated that one of the reasons you believe 

that to be so is because now the district court is giving less adherence to the time-honored concept of supporting administrative 

agencies and are now using different judgments in terms of reaching conclusions. 

Do you think this is true? This is the chart which sustains that 

position. What about OSHA, what about EPA? There is the notorious case obviously of American Trucking and EPA. But do you 

find that this has been true on OSHA? Has it been true in other 

regulatory agencies? Can you reach the same kinds of conclusions 

when it is in regard to workers’ rights and protection of consumers? 

Mr. GOTTESMAN. I haven’t personally studied them all. One of 

the problems we have with the environmental statutes is that the 

D.C. Circuit’s jurisdiction is exclusive. So we can’t compare its performance to that of other circuits because people can only come to 

this circuit. 

With OSHA, that is not the case; that is, employers can go to 

other sectors or to the D.C. Circuit. The fact that the D.C. Circuit 

generates such a large percentage of the review cases of OSHA 

standards, and has, is a reflection, I think, that when people want 

to challenge an OSHA standard, they believe that the D.C. Circuit 

is going to be a more sympathetic forum for them. 

While I don’t have statistics—there aren’t as many of those cases 

as there are labor cases because there is a finite number of OSHA 

standards that have been challenged—but certainly my sense of it 

from having some experience in this field, having been a labor lawyer in a prior life, is that indeed the D.C. Circuit was one that we, 

the people who were supportive of the OSHA standards, feared. 

It was a court that we thought we were less likely to get affirmance of the agency than others, but I can’t cite statistics on the 

comparative performance because there are, I think, just too few 

cases of OSHA standard review. 

Senator KENNEDY. Well, there has been a constant effort to dismantle OSHA since its enactment and it continues. 

Let me ask a question. Maybe you would comment, Professor 

Schroeder, on EPA and American Trucking and its conclusions. As 

I understand it, in arriving at its holding the panel resurrected the 

29

non-delegation doctrine which was used in the 1930’s. We are talking about being able to set health standards for air pollution. 

Everyone obviously is interested in making sure that their children are going to breathe clean air. Its health implications are profound. As one who is the father of a chronic asthmatic, I see it in 

spades. The fact is we are doubling the number of children actually 

that are dying from asthma today. It is one of the areas of children’s diseases that is going right through the roof. It is up to 

18,000 children a year that are dying. This is enormously important. 

The court reached the decision in its holding and resurrected the 

non-delegation doctrine which was used in the 1930’s to limit the 

power of Federal agencies during the New Deal. Cass Sunstein 

called the court’s ruling a remarkable departure from precedent 

which, if taken seriously, brings much of the activity of the Federal 

Government into question. Fortunately, the Supreme Court overruled the decision in a unanimous holding. 

Your views, Professor Schroeder? Was this a reach? How did this 

come to pass, and if that holding had stood, what would have been 

its implications in terms of health standards and other protections 

that are there in the agency? 

Mr. SCHROEDER. Well, Senator Kennedy, you are right. It was a 

resurrection of a theory that hasn’t been used to strike down an 

Act of Congress since the 1930’s. Not only that, but it was an application in a manner that no court had ever attempted in the United 

States. 

In other words, the D.C. Circuit did not hold the Clean Air Act 

unconstitutional, which is what you would expect if it actually was 

a violation of Congress actually delegating legislative authority to 

the agency without any standards. The remedy for that is to strike 

down the Act that you have passed, but that is not what the court 

did. 

The court said the problem is that the agency hasn’t given us a 

clear understanding as to how it reached the decision it did in a 

way that we can replicate and test. In other words, what it wanted 

was a kind of objective formula where you could plug in health, uncertainty of the medical research, number of people affected, costs, 

and then just read out the answer at the end. 

EPA has never done its standards in that way. Eventually and 

ultimately, the Administrator has an awesome responsibility to 

make a judgment because this is a matter of public health protection, but it is also a matter that we all realize is terribly expensive 

to implement. 

This was the tenth or eleventh ambient air quality standard 

change that we have made since the 1970 Act was passed. None 

of them would have survived what the D.C. Circuit did. If the D.C. 

Circuit opinion were law, all of those ambient air quality standards 

and very many of all the other standards that EPA writes would 

be invalid until such time as an administrative agency makes a decision like what is the value of a human life, or what is the value 

of an asthma attack avoided, what is the value of emphysema and 

how is that to be evaluated in terms of when do you have enough 

medical evidence to make the judgment that that is the health effect that is going to be suffered. And tell me how you are going to 

30

decide that question in advance so that I know exactly what to look 

for when you ultimately do make the judgment. 

That is the kind of complex social public health judgment that 

we have always trusted the agency, with professional guidance, 

with testimony by all interested parties, with medical evidence, to 

make, trying to figure out what the wisest thing to do at the time 

is. 

Then Congress has the opportunity, if it disapproves of the action 

or thinks that the agency now has found a way to do its job that 

it disapproves, to interject its own evaluation of the agency’s work. 

But to place that responsibility on the court and say that unless 

you can come up with a formula in which we can put all of these 

different and complicated considerations together and read out the 

answer at the end or you can’t implement a standard at all would 

have worked a really radical change in the law. 

In a unanimous opinion authored by Justice Scalia, the Supreme 

Court said to the D.C. Circuit you have got this all wrong, this is 

not the way our law works. It is about as pregnant an example of 

the D.C. Circuit reaching out for a novel theory of law as you can 

find, I think. 

Senator KENNEDY. Mr. Chairman, my time is up. I thank you for 

having these hearings. As we have seen, the implications of this 

court and its impact in terms of real people and their lives are 

often missed. I think we have highlighted the importance of this 

court, and I am very grateful for the hearing and I thank the Chair 

for having it. 

Chairman SCHUMER. Thank you for coming, Senator Kennedy. 

Senator Sessions? 

Senator SESSIONS. Thank you. 

Judge Mikva, you have been someone I have admired. You have 

been a real advocate. I think if we applied Senator Schumer’s 

standard of moderation, you may not have made it on the bench, 

but you proved that you could be a good judge. 

I remember one person that wanted me to consider them for a 

Federal judgeship said, you know, I don’t even give contributions 

to candidates and I am not a Republican or a Democrat. And I said, 

well, I don’t know that this is necessarily a high advantage on 

being a judge if you don’t care enough about the political process 

to even be involved and take positions. I tend to respect people who 

do take positions, who love the law and respect the system, care 

about it, have views about it, advocate and debate. But when you 

put on the robe, we need to know that they can call it fairly. 

I know Lloyd Cutler, who also served for a time as President 

Clinton’s White Counsel, as you did, stated before this subcommittee not too long ago, quote, ‘‘It would be a tragic development if ideology became an increasingly important consideration in 

the future. To make ideology an issue in the confirmation process 

is to suggest that the legal process is and should be a political one.’’

In 1985, you wrote, and appeared to be consistent with Mr. Cutler and Judge Edwards, who is also a Democratic appointee—you 

wrote in 1985, ‘‘What the Senate ought not to do is determine 

through questioning a nominee’s views on emerging issues of constitutional doctrine or on issues likely to face the court in the future. Why? Because these questions are really a signal to the nomiVerDate 0ct 09 2002 14:18 Aug 08, 2003 Jkt 088571 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 C:\HEARINGS\88076.TXT SJUD4 PsN: CMORC
31

nee that he will become a judge only if he promises to be obsequious, to be a ’yes’ man to the powers that be.’’

You have said some other things along that same line. I won’t 

go into them, but I think you are warning us that we need not politicize this process, are you not? 

Mr. MIKVA. That is what makes your job so hard, Senator Sessions, because it is wrong, as I think everyone up here would agree, 

for you to try to exact a commitment from a nominee about how 

he is going to vote on a future case. 

You can ask congressional candidates how they are going to vote 

on a bill, but it is wrong to ask a judge how he is going to vote 

on a case that he has not yet heard, where the facts have not been 

presented, where the legal arguments have not been presented. 

But what makes it hard is not those 97 percent of the cases on 

which there is unanimity on the court, but those 3 percent that are 

the cutting edge. How do you find out where a nominee’s general 

philosophy is, what his judicial temperament is, how much of a 

cause is he carrying with him on some of these issues? 

Let me be specific: the issue of what the breadth and extent of 

the Commerce Clause power is in Congress. This is an emerging 

issue. Obviously, if you ask a nominee how are you going to vote 

on whether or not a statute that allows control of guns near schools 

is constitutional or not, that is asking for a commitment that you 

shouldn’t do. But shouldn’t you want to know, as one of the oversees of the judiciary—and you are that—what a nominee’s general 

philosophy is about deference to Congress, about deference to the 

agencies? 

Two of the most collegial colleagues that I had on the court—I 

can say this because neither of them are there as active judges 

anymore—were Judge Buckley and Judge McKinnon. The reason I 

found them so collegial is that we had one thing in common. We 

had all served in the Congress and we had a deference for the way 

you reach decisions. We had a deference for the process by which 

Congress comes to decisions—and none of us voted to strike down 

laws because we didn’t approve of the way you did your work. 

Those, it seems to me, are legitimate concerns that you as the oversees have to have when you confirm. How you reach that balance 

I don’t know, Senator. 

Senator SESSIONS. I was going to ask Mr. Clark and he had to 

go, but I think it is quite appropriate, particularly if a nominee has 

demonstrated strong convictions in a given area, to inquire to determine whether or not those convictions might influence their objectivity on the bench. I mean, you would agree with that. 

Mr. MIKVA. Absolutely. 

Senator SESSIONS. So I think that is perfectly appropriate. I remember I was criticized after I had voted for quite a number of 

ACLU members, some of which were officers and board members 

of the American Civil Liberties Union. I took to asking them did 

they agree with the ACLU board position for legalization of drugs, 

that child pornography could not be controlled under the Constitution, and several of those positions that I thought were extreme. 

They either said they personally did not or assured me it would 

not influence their decision, that they would enforce a different law 

in existence, and I think I voted for virtually all of them. When I 

32

am voting for an ACLU person as a prosecutor who disagrees with 

some of their views on drug and child pornography, in particular, 

I am asking and confident that they are going to enforce the law 

even if they disagree with it. 

Isn’t that the real test? 

Mr. MIKVA. Yes, absolutely, absolutely. 

Senator SESSIONS. With regard to this Revesz study, Professor 

Schroeder, let’s talk about it a little bit. It dealt only with the 

judge’s rulings on procedural environmental issues. Is that correct? 

Mr. SCHROEDER. Senator, that is right. With respect to the figures that we have been discussing today, those refer to cases in 

which—the cases excluded are statutory interpretation cases. 

Senator SESSIONS. So it was environmental cases. It didn’t deal 

with agriculture or the IRS or the Trade Commission or criminal 

cases. 

Mr. SCHROEDER. Exactly. 

Senator SESSIONS. And they found no significant difference in Republican and Democratic voting patterns on statutory environmental cases. 

Mr. SCHROEDER. That is correct. 

Senator SESSIONS. And they found no favoritism by Republicans 

in procedural environmental cases in seven of the ten time periods 

investigated. Isn’t that correct? 

Mr. SCHROEDER. Senator, you have me there. I don’t have the 

studies sufficiently memorized to recall, but that sounds right to 

me. 

Senator SESSIONS. Also, my staff’s review of the study finds that 

they found no group favoritism for the activist plaintiffs in these 

cases by Democrat judges in procedural environmental cases in 

four out of the ten time periods involved. So it seems to me that 

this is a pretty thin reed. 

I know liberals believe in civil liberties and First Amendment 

rights. Procedure is as utterly important as substance almost. Procedure is a big part of the law, and I think that agencies need to 

follow the procedures. So I don’t know that that is very much proof 

of any kind of bias here. 

You talk about the legal realist school. We also have the critical 

legal studies school that seems to believe that law is just a way to 

oppress the poor by those in power. 

Mr. SCHROEDER. I don’t agree with them either, Senator. 

Senator SESSIONS. I don’t either, but that has some basis in this 

country, in the law schools of America, which I am not favorable 

to. 

Mr. Gottesman, I am not surprised. You indicated you were a 

labor lawyer, but the Labor Board can overreach, also. With regard 

to these cases, isn’t it essential that an unelected agency be able 

to articulate what they are doing and that their actions be consistent with the regulations that Congress has passed? 

Could the fact that the Labor Board was having problems in 

court indicate that they had been overreaching? Isn’t it just as logical that that is so as that the court had overreached? 

Mr. GOTTESMAN. Well, Senator, sure. Any agency can overreach, 

but it seems that it is only the D.C. Circuit that finds that they 

have overreached so often because as I mentioned, the Board is afVerDate 0ct 09 2002 14:18 Aug 08, 2003 Jkt 088571 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 C:\HEARINGS\88076.TXT SJUD4 PsN: CMORC
33

firmed only 53 percent of the time by the D.C. Circuit. Of all the 

other 11 circuits, the next one up after the District of Columbia 

was 72 percent during that same period. So why is it, if the Labor 

Board is overreaching so much, that only the D.C. Circuit is noticing it? 

Senator SESSIONS. Well, I don’t know that that is a huge difference. It depends on how the cases come out. 

Mr. GOTTESMAN. But this pattern reveals itself over a 20-year period. It is always the D.C. Circuit that is overturning the Labor 

Board most, whereas the other circuits are approving the Labor 

Board most often. No circuit is approving them a hundred percent 

of the time. Sure, agencies sometimes issue decisions that courts 

think are out of line, but the D.C. Circuit thinks the Labor Board 

is out of line 50 percent of the time. That is a fairly stunning reversal rate. 

Senator SESSIONS. I would just say that ultimately they are answerable to the Supreme Court. In the last 4 years, 1997 through 

2001, the D.C. Circuit reversal rate is only 26 percent, whereas the 

Ninth Circuit has a 67-percent reversal rate. I don’t think this circuit is out of step at all. 

Mr. Fielding, on March 16, 2001, the chairman of the full Committee and the chairman of this subcommittee sent a letter to 

President Bush in which they stated, quote, ‘‘ABA evaluation has 

been the gold standard by which judicial candidates are judged,’’ 

close quote. 

In examining a nominee’s qualifications, does the ABA look at 

their temperament? Is that one of the factors? 

Mr. FIELDING. Yes, there are three areas that we look at. Temperament is one of them. 

Senator SESSIONS. And when the ABA examined Mr. Estrada—

and they interview numerous lawyers that know them, do they not, 

in that process, and they interview judges and people that have 

worked with them? They would have examined the nominee’s temperament, would they not? 

Mr. FIELDING. Yes. The purpose of the investigation is to review 

potential judicial temperament which, of course, is temperament, 

legal ability, and competence. And in each investigation and in the 

Estrada investigation, there were some 45 to 55 people interviewed. They were people that were judges, they were people that 

were coworkers with him in all aspects—practitioners, people that 

had cases with him, people that worked in the trenches with him 

in Government. 

Senator SESSIONS. And, of course, it is no secret that Republicans 

and President Bush have felt that the ABA has tilted somewhat to 

the left in their evaluation of nominees. I have respected the ABA 

a lot and feel like they ought not to be given power to say yea or 

nay, but I believe the ABA does deserve respect. 

Is it a Committee of 15 that does the final vote? Is that what it 

is? 

Mr. FIELDING. There is a representative for each circuit. There 

are two for the Ninth Circuit because of the diversity and the travel in Hawaii and all the other issues there. And they are the ones 

that vote. That includes the Federal Circuit as well. 

34

Senator SESSIONS. Well, when they voted, how did they vote on 

Mr. Estrada? 

Mr. FIELDING. I think it has been announced publicly that it was 

a unanimous ‘‘well qualified’’ vote. 

Senator SESSIONS. Which is unanimously voted the highest possible rating, and that includes evaluation of temperament. 

Thank you, Mr. Chairman. 

Chairman SCHUMER. Thank you, Jeff. Let me go to my questions, 

again thanking the panel. 

Over the course of the last year, I have spoken out about my belief that we should have more open, honest, and legitimate discussions about judicial nominees. My argument has boiled down to 

this: ideology. You can call it judicial philosophy, you can call it 

what you will. It is not what party you are a member of; it is your 

views on the big issues, not on specific cases—I couldn’t agree more 

with the panel—but on the big views. 

You don’t want to ask about schools and guns in a specific case, 

but you might want to ask how far the Second Amendment goes. 

Is it a right to bear arms? Is it militia-related? That is my obligation in terms of these, and I think as Professor Schroeder pointed 

out, the first judge—we talking about the Founding Fathers; I 

think Professor Clark did. But those very same Founding Fathers 

turned down Judge Rutledge, I believe it was, for the Supreme 

Court because of his views on the Jay Treaty, a pretty specific 

view. 

So this idea that ideology, philosophy, even specific views on specific issues was not intended by the Founding Fathers is simply 

belied by history. 

But I want to talk a little bit about the D.C. Circuit here, again 

this idea that both Mr. Fielding and Professor Clark seem to profess all of a sudden, and that is that, well, everyone will see the 

law once they look at it in exactly similar ways that ideology 

shouldn’t matter. Well, if that is the case, then when there are 

three Democrats on the D.C. Circuit panel or three Republicans or 

two and one, you should get about the same spread of the rulings 

because you are just examining the law as a priest of the law. 

We all know that is hogwash. That has never happened, and it 

doesn’t, and I think people cloak it. So let me just ask for this chart 

here. These are some environmental cases, and I don’t know who 

put together these rulings, but these were rulings in favor of industry challenges. 

When you get all-Republican panels, 3 judges, 80 percent in favor 

of the industry. Professor Sunstein, of Chicago, who has testified 

here and is very well-respected—in fact, he was quoting by my Republican friends in his support of Mr. McConnell at the McConnell 

hearing—made up this chart. Majority-Republican panels, 48 percent; minority-Republican panels, 27 percent; all-Democratic panels, 20 percent in favor of industry. 

So who are we kidding? Ideology doesn’t matter? Philosophy 

doesn’t matter? Then you would get 50, 50, 50, 50, or at least the 

average of all those panels spread equally out. So, of course, it 

makes a difference. 

Let me show you another one, the same type of thing. This is on 

the Chevron cases, very important. They are charged with upholdVerDate 0ct 09 2002 14:18 Aug 08, 2003 Jkt 088571 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 C:\HEARINGS\88076.TXT SJUD4 PsN: CMORC
35

ing agency interpretations of the law so long as they are reasonable. I think some of my friends here would like us to say, well, 

‘‘reasonable’’ has nothing to do with ideology; ‘‘reasonable’’ should 

just be a legal standard. 

So that would mean that a Democrat and a Republican, or a liberal and a conservative if you don’t want to look at party, should 

interpret ‘‘reasonable’’ exactly the same way, right? Again, a huge 

disparity. An all-Republican panel upholds the agency action in 

only a third of the cases. For a two-to-one Republican panel, it is 

62 percent. Evidently, the Democratic nominee has some leavening 

there, whether you like the leavening or not. 

A three-zero Democratic panel, 71 percent. Actually, a two-to-one 

Democratic panel is 86 percent. How do you explain that little 

anomaly? I think one way to explain it, the way the professor who 

put this together, Sunstein, said that when you had three of the 

Democrats on, they tended to be more moderate and didn’t do 

much differently than when one Republican was added on the 

panel. But that is small. 

Of course, ideology mattered in the D.C. Circuit cases. So I would 

like to ask the panel—I wish Professor Clark were here so you are 

not alone, Mr. Fielding—what do you have say about numbers like 

this? I don’t have to ask Professor Schroeder or Professor 

Gottesman because their testimony was pretty much along those 

lines. 

If we are not supposed to look at any views on anything, why is 

it that there is such disparity of the views of the people once they 

get to the courts? If we are all priests of the law and it doesn’t matter if we are on the far left or far right and we would interpret it 

the same way—we don’t. Do you want to say anything to that? 

Mr. FIELDING. Yes. The point I was trying to make is that I don’t 

think that this panel at this Committee should be making judgments that are based upon somebody’s personal ideology. I also am 

troubled, to repeat my testimony, that there is an objective of finding a finite balance which is elusive. We know historically a lot of 

times somebody goes on a bench and doesn’t turn out to be the way 

everyone thought they would anyway. 

Chairman SCHUMER. That occasionally happens, but we know it 

to happen. 

Mr. FIELDING. My concern is that once you talk about balance in 

the way that it has been discussed, in all candor, it politicizes this 

whole process. 

Chairman SCHUMER. Well, I would say that this chart argues 

that the process has politics in the warp and woof of it from start 

to finish, not politics, but ideology—I think the two words are different—from the start. That is what it is; it is there. 

Let me ask you another question. I would ask this to Mr. Fielding. Here is what we think we are faced with, those of us on this 

side. We think we are faced with a President, as Senator Kennedy 

said, who has injected ideology into his selections. He said it, 

judges in the mold of Scalia and Thomas. 

Senator SESSIONS. That is not ideology. 

Chairman SCHUMER. OK, philosophy. We can quibble about 

words, but it is not about judicial temperament because it is not 

that Scalia and Thomas represent different judicial temperament 

36

in how they get along with their colleagues than the others. They 

are neither more popular nor less popular. They are the most conservative. I would say ideological, I would say way out there, but 

let’s just say conservative, not to be confrontational of those two 

people. The President is looking for conservative nominees. 

I guess what I would ask Mr. Fielding is if the President isn’t 

doing this, can you name me five liberals that Ronald Reagan nominated when you were—forget whether they were Democrat or Republican—that Reagan nominated when you were counsel? 

Mr. FIELDING. I hope not. 

[Laughter.] 

Chairman SCHUMER. There you go. I agree with you and I appreciate your candor, and you are a fine man, but of course he didn’t. 

I would argue, even though maybe philosophically he is not as conservative as President Reagan, that judges nominated by President 

Bush are the most far over of any we have had. I don’t see many 

moderates. 

I would argue, and some might disagree with me—and Jeff is 

right; this depends on where you look at it. But I would argue that 

President Clinton did not nominate as many to the far left as 

President Bush is nominating to the far right. President Clinton 

tended to go not for ACLU lawyers. Those were small. 

Senator SESSIONS. There were quite a number of them. 

Chairman SCHUMER. Well, not too many. It was mostly partners 

in law firms, prosecutors, et cetera. 

But in any case, that is the point. The point is it is not Chuck 

Schumer, Patrick Leahy, or the ten Democrats on this Committee 

who started making ideology count here. It is not even President 

Bush, although he is more ideological than we are, I would argue 

in this. It has been part of the warp and woof of it, and we ought 

to just come clean about it, particularly on the D.C. Circuit. 

Fred Fielding was honest. If we were just looking at judicial temperament, as Professor Clark seemed to indicate—how they get 

along with their colleagues, how they conduct themselves on the 

bench—then each President should nominate an equal number of 

Democrats and Republicans or an equal number of liberals and 

conservatives, unless you have the view, which I don’t, that one 

side or the other tends to have better judicial temperament. It 

doesn’t happen. 

All we are trying to do here is seek some balance, and so I am 

going to let any of you have the last word here. I have said my 

piece and I think the argument is virtually unassailable, and I 

think those arguing against it are not admitting the truth, which 

is the President is being every bit as ideological, if not more, than 

anyone on this panel when he makes nominations, and it is our job 

to bring the balance. 

Judge Mikva? 

Mr. MIKVA. Senator, I think that is what makes your job so hard, 

is that we don’t have the proper vocabulary to describe what is the 

Senate’s role. I fought that Senate role because I was a semi-victim 

of it. I had a protracted confirmation battle and, sitting as a nominee, I thought the Senate was being very political at the time, and 

they were. They were voting on what they thought my ideology 

was. 

37

Chairman SCHUMER. Were they voting on your judicial temperament? 

Mr. MIKVA. No. 

Chairman SCHUMER. Did the Republicans think you were a less 

nice guy or less distinguished? 

Mr. MIKVA. No. There was a certain member, still of the Senate, 

who told me how much he liked me as he voted no, and what a 

great temperament I had. 

Chairman SCHUMER. He was voting about your ideology, whether 

they admit it or not? 

Mr. MIKVA. Absolutely, and I think what makes it so hard is 

that, as you pointed out, historically that has always been the Senate’s role. When they voted down Mr. Rutledge for the Supreme 

Court, they were voting politically. You are a political body, you are 

elected as a political body. 

The difficulty arises, as it does currently, where the Senate has 

a majority of one political party persuasion and the President is of 

the other, and it has been that way since the beginning of the Republic. Now, maybe it is important somehow to disguise what the 

Senate is doing, as they sometimes have done. 

But I have to say I admire the candor with which you have 

viewed this difficult task, Senator Schumer. 

Unfortunately, this President isn’t going to nominate many 

Democrats. As Fred Fielding very candidly said, they didn’t during 

the Reagan administration, and Bill Clinton didn’t during his administration. 

Chairman SCHUMER. Bill Clinton didn’t nominate many Republicans. 

Mr. MIKVA. Right. As I said, I tried on two occasions to get him 

to consider Republicans. It was rejected. 

Chairman SCHUMER. You know, Judge, I would say something 

else. When Clinton did nominate people, we can argue where they 

were, but it is clear, especially during the times when the Republican Party controlled the Senate, they tried to be a moderating 

force, and I didn’t see anything wrong with that. 

Mr. MIKVA. I had many conversations with members of this Committee during that period. 

Chairman SCHUMER. Right. Our chart over there doesn’t talk 

about total nominations, but it talks about when you vote no. Why 

is it, if ideology doesn’t matter, Democrats are always voting no, 

whether it is 63 or 87? Democrats are always voting no on Republican judges, not on most—Jeff Sessions, to his credit; Democrats, 

maybe to our credit. We only vote against a small number, but 

when we vote no, when we use that significant and large power to 

block a President’s nominee, ideology is a big factor on both sides. 

Senator SESSIONS. Well, Mr. Chairman, that chart there is so 

bogus, you really ought to take it down. 

Chairman SCHUMER. Why? Tell me why it is bogus. 

Senator SESSIONS. The one on the other side of it is more accurate than that one. 

Chairman SCHUMER. Let’s take not this one, because this to me 

has no relevance. Both parties vote no on a small number. It is 

when they vote no. Let’s just assume it is 63; it still makes our 

case. 

38

Senator SESSIONS. This is 4 years. This is just less than two. 

Chairman SCHUMER. Double ours. It is still the same. Make 

them four and two. 

Senator SESSIONS. Fifty-four to 63 was what that would say. 

Chairman SCHUMER. No, no, no. You have got to make four and 

two. That is what you double. 

Senator SESSIONS. That chart is bogus. 

Chairman SCHUMER. OK. I would respectfully beg to differ. 

Any other comments on what I said? Then I am going to let Jeff 

have the last word, since I was so vehement here. 

Mr. FIELDING. Mr. Chairman? 

Chairman SCHUMER. Yes, Mr. Fielding. 

Mr. FIELDING. I would again just say to you I think it has become very obvious in our discussion that a lot of the problems we 

have are definitional, because where you sit is where you stand a 

lot of times. 

Of course, President Reagan didn’t appoint any liberals to the 

bench, nor did President Clinton appoint any conservatives to the 

bench. 

Chairman SCHUMER. Correct. 

Mr. FIELDING. I don’t think there is an evil in that. My concern, 

and I will repeat it again at the risk of becoming ad nauseam, is 

that for the Senate to announce and specifically try to balance by 

rejecting people that a President sends up on that basis—not an 

extreme person, not a zealot, but somebody who happens to be a 

Republican or happens to be a conservative—is wrong and it is 

dangerous and it is deleterious to this court. 

Chairman SCHUMER. I would agree with you on that. I would just 

say this: first, I don’t think you have heard anyone here, when the 

nominees come up, inquire about their party or care about their 

party. We voted for—I don’t know how many judges I voted for, 60-

some-odd. My guess is the vast majority, if not all of them, are Republicans. So I wouldn’t ask that. 

Second, we don’t ask about specific cases. I think that is a very 

accurate and right thing to do, but we do ask about views to determine if they are out of the mainstream. You know, some might say 

Justice Scalia is bringing America back to the mainstream and others might say that he is taking America out of the mainstream. 

But that is why we have a Senate and that is why we elect a 

Senate, and I think those are relevant questions to ask. But I appreciate very much your saying ideology is different than party, 

and I think that is what we are looking at here. 

Did you want to say something, Professor Gottesman? 

Mr. GOTTESMAN. Yes. 

Chairman SCHUMER. Then I am going to turn to Jeff Sessions 

and then we will have to conclude. 

Mr. GOTTESMAN. When the Founding Fathers decided to give the 

confirmation power, they didn’t give it to a body of psychiatrists to 

judge people’s temperaments. They didn’t give it to law professors 

to judge their credentials. They gave it to a political body, and it 

seems to me that the practice in those early years simply confirms 

what the plan was, which is, of course, this is a political process 

and that we don’t want the President’s views about ideology to go 

unchecked. We want the people’s elected representatives in the 

39

Congress to have a voice, as well, in making sure that the people 

chosen have an acceptable ideology to all. 

Chairman SCHUMER. I would just say one thing. There have been 

times in our history where it has mattered less, when there have 

been moderate Presidents. In the Eisenhower era, they sort of got 

away from ideology because he really did nominate sort of moderates. He nominated people of both parties. 

Then what happened is some of those moderates became very liberal—Earl Warren—and the conservative movement said, wait a 

minute, they are taking it away from the people and away from us. 

I had sympathy with that. I mean, I remember arguing in college 

during the radical days of the 1960’s that it should be the Congress 

that ought to make most of these decisions, not the courts. So I understood where they were coming from. 

It is just that since maybe 1970, we have not had that moderation and ideology has mattered both to Presidents on whom they 

nominate and to the Senate. The only thing—and Jeff and I agree 

on this—when we didn’t do ideology, for a period we devolved into 

the ‘‘gotcha’’ politics which I talked about for a while, and that was 

awful and it has been done to Democrats and Republicans. 

When you go ask if somebody smoked marijuana 30 years ago, 

all the Democrats thought that was horrible and disqualifying and 

all the Republicans thought that was forgivable. And then you 

asked if somebody went and got the wrong kind of movie out of the 

movie shop, and all the Democrats thought that was terrible and 

the Republicans—or vice versa. It was all code. Code is bad. The 

public likes us to say what we think. 

With that, I am going to let Jeff Sessions have the last word, as 

excited and eager as I am to talk about this subject on and on and 

on. 

Senator SESSIONS. You know, Mr. Chairman, as we go along and 

we get right down to it, we are probably not as far apart as our 

words make us sound to be. 

I would note Senator Grassley has a statement for the record, 

and Senator Kyl did come by when we had a recess and he had the 

Intelligence Committee that he is on that is doing important work 

now, and so he apologized. 

Chairman SCHUMER. Does he have a statement, as well? 

Senator SESSIONS. I don’t think he did, but he is prepared to 

offer one consistent with my views. 

Chairman SCHUMER. We will still allow the record to stay open 

for Senator Kyl’s views. We ask unanimous consent that Senator 

Grassley’s statement be added to the record. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Chairman SCHUMER. Why don’t we let the record stay open for 

a week so that others can submit their statements? 

Senator SESSIONS. Just in summation, I think Mr. Clark had it 

right that if we tell the people of the United States that a Federal 

judge is nothing more than a political product, that we don’t respect the fact that they have to make legal decisions, and that we 

somehow believe that their decisions are consistently political, 

which some do—in fact, Laurence Tribe when he testified here said 

40

that we need to abandon the, quote, ‘‘Olympian ideal’’ of non-political justice. That is what I am concerned about. 

I believe, having practiced law in Federal courts for many, many 

years, that consistently, day after day, Republicans and Democrats, 

liberals and conservatives, if they are good lawyers and men and 

women of integrity who are committed to the law, come out pretty 

close to the same thing. 

Now, you might find on procedural matters and environmental 

cases some class in which a person might be a little different than 

another one. But, fundamentally, we ought not to send a message, 

I would say, that would suggest that. 

Judge Mikva left the bench and went to be the White House 

Counsel to President Clinton, one of the most skilled politicians, I 

guess, of the century. You helped him, from just reading the newspapers and things that I saw, and gave him good advice. But you 

also did a good job on the bench. Because a person has strong political views does not mean they can’t be a good person on the bench. 

I would repeat Mr. Cutler’s comments. Mr. Fielding, the Miller 

Commission report that we had a hearing on—and I believe Lloyd 

Cutler talked about it then—was really a classical study of the 

proper relationship. I think your conclusion of a bipartisan commission and the conclusion they reached about how we ought to evaluate judges was sound. 

I do believe it would be a tragedy to make ideology an increasing 

part of our confirmation, and I would quote Mr. Cutler, President 

Clinton’s counsel: ‘‘To make ideology an issue in the confirmation 

process is to suggest that the legal process is, and should be, a political one.’’ That would be a dangerous message for us to send. 

So as we talk about it, yes, I think we have a right to ask them 

about their views, particularly if they have written or talked or advocated certain views, just like it would be fair to ask Judge 

Mikva—you have spoken on gun control—will you follow existing 

law. That is appropriate. But if they answer and we believe them, 

and we believe they are men and women of integrity and they will 

follow existing law, they ought to be given the benefit of the doubt 

and be confirmed. 

Chairman SCHUMER. With that, we will close the hearing, but 

only after thanking our witnesses for what I thought was an excellent discussion. Thank you. 

We will insert into the record a letter and a paper submitted by 

various environmental groups into the record. 

The hearing is adjourned. 

[Whereupon, at 12:52 p.m., the subcommittee was adjourned.] 

[A question and answer and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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