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86–040 PDF 2003

S. HRG. 107–913

GHOSTS OF NOMINATIONS PAST: SETTING THE

RECORD STRAIGHT

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

MAY 9, 2002

Serial No. J–107–78

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 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 6

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 32

prepared statement .......................................................................................... 65

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

statement .............................................................................................................. 66

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

statement .............................................................................................................. 71

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

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 11

attachment ........................................................................................................ 78

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

statement .............................................................................................................. 57

WITNESSES 

Bea, Carlos, Judge, California Superior Court, San Francisco, California ......... 41

Campbell, Bonnie J., Washington, DC ................................................................... 24

Gray, C. Boyden, former White House Counsel, Washington, DC ...................... 38

Markus, Kent, Professor, Capital University Law School, Columbus, Ohio ....... 18

Moreno, Enrique, El Paso, Texas ........................................................................... 29

Rangel, Jorge C., Corpus Christi, Texas ................................................................ 15

SUBMISSIONS FOR THE RECORD 

American Association of University Women, Lillian R. BeVier, Charlottesville, 

Virginia, letter ...................................................................................................... 54

Department of Justice, Office of Legislative Affairs, Daniel J. Bryant, Assistant Attorney General, Washington, D.C., letter ................................................ 56

Jipping, Thomas L., Washington Times, Washington, D.C., Article ................... 64

(1)

GHOSTS OF NOMINATIONS PAST: SETTING 

THE RECORD STRAIGHT 

THURSDAY, MAY 9, 2002

UNITED STATES SENATE, SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE

COURTS, OF THE COMMITTEE ON THE JUDICIARY, Washington, DC. 

The subcommittee met, pursuant to notice, at 10:08 a.m., in room 

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

chairman of the subcommittee, presiding. 

Present: Senators Schumer, Durbin, Hatch, Sessions, Kyl, and 

DeWine. 

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, and just before I begin I am going to lay out the ground rules because everyone has busy, busy days here. So I will make an opening statement. Senator Sessions will make an opening statement. We will 

go to the panel. 

We are going to stick strictly to the 5-minute rule and we are 

going to limit this to members of our subcommittee. I think what 

we are going to try and do is limit this to the members of the subcommittee because I know that there are time constraints and Senator Sessions wanted to make sure that the second panel got on in 

a timely way. So we will do that. We are going to stick to 5 minutes and subcommittee members, except I would certainly allow 

Senator Hatch and Senator Leahy to be part of this if they wish. 

I think they are ex officio members of the subcommittee anyway. 

We are at a unique time and place in our Nation’s history. Our 

Government is as closely divided as it has ever been. The House 

is narrowly governed by Republicans and the Senate is narrowly 

governed by Democrats, and the White House was won in the closest contested election in our history. 

In the midst of this divided Government, we are in an unprecedented era of conservative judicial activism on the courts. For decades, conservatives, often convincingly, in my opinion, decried the 

Warren Court as a ‘‘legislator of policy, reasoning backward from 

its desired results when ruling to expand equal protection, the 

right to vote, criminal defendants’ rights, and the right to privacy.’’

Today, similar criticisms of the courts acting as social policymakers, actively rejecting the will of Congress, exist, and with good 

reason. Elected officials, as opposed to unelected judges, should get 

the benefit of the doubt with respect to policy judgments, and 

2

courts should not reach out to impose their will over that of elected 

legislatures. 

It is easy for judges to express their personal views and their 

opinions. While that might be appealing for some to do, it is not 

what the Founding Fathers intended, but it is exactly what is happening on the Federal bench today. 

Many of us on our side of the aisle are acutely concerned with 

the new limits that are now developing on our power to address the 

problems of those who elect us to serve. These decisions affect in 

a fundamental way our ability to address major national issues like 

discrimination against the disabled and the aged, protecting the 

environment, and combatting gun violence. Those limits are being 

put in place by judges who are sticking to an ideological agenda 

that can only be fairly described as conservative judicial activism. 

So when the President tells the Nation that he intends to stock 

the courts with conservatives in the mold of Justices Scalia and 

Thomas, we have good reason to worry that the courts, which are 

already hanging in the balance, will be knocked right out of the 

mainstream. 

Ten months ago, the Judiciary Committee was reorganized under 

Democratic control. Since that day, Senator Leahy has moved 

nominees, including many conservatives, including many pro-life 

nominees, rapidly. I know that my friends on the other side are 

going to show up with all kinds of numbers and charts to try to 

prove their point, and we can get into a fight over whose numbers 

are more compelling, but I don’t know what good that does. 

All I know is that in the 10 months we have held the committee, 

we have confirmed 52 judges, with 4 more being confirmed today, 

if we are allowed to proceed on the floor. As the chart behind me 

demonstrates, right over there, we have done better in our first 10 

months than anyone has done in the first 12 months of control; as 

you can see, the 104th Congress, 34; the 105th, 23; the 106th, 24; 

and this Congress, only 10 months thus far, 52. The number is 

likely to go up above 70 by the time the year is out. 

But numbers only tell a small part of the story. The real problem, in my judgment, is not the numbers. The real problem is that 

there is no mandate to throw the third branch of Government out 

of whack with the rest of the country. Nonetheless, that is the 

plan, and it is a bad one. 

As I have said time and time again, I have three criteria when 

I vote for and play a role in selecting judges. They must be excellent, moderate, and diverse—excellent legally, moderate ideologically, and diversity must be accounted for. I don’t like putting 

idealogues on the bench, whether they be of the far right or the far 

left. Each group tends to want to want to legislate from the bench. 

While a couple of Scalias and Thomases could be useful—I 

wouldn’t mind a Supreme Court with, say, a Scalia or a Thomas 

on one side and a Brennan on the other—it is dangerous if they 

are not balanced, if we have five Scalias, five Thomases. 

But this administration isn’t about balance. They are not about 

keeping the courts within the mainstream, they are not about 

nominating independent-thinking, non-ideological judges. You don’t 

have to take my word for it because they are saying it themselves. 

From the President on down, the message is ringing clear as a bell: 

3

they are going to send up wave after wave of conservative nominees. It doesn’t matter if we shoot a few down because ultimately 

enough will get through to stack the courts. 

It is a bad plan for the courts, for the country, and for all average, everyday Americans, for whom most of these judges have the 

last say on some of the most important matters in their lives. 

At a time when the Supreme Court is taking fewer than 100 

cases a year, the lower courts, particularly the courts of appeals, 

have immense power. The conservatives know that, and they knew 

it when they controlled the Senate during the Clinton presidency. 

They knew how important those lower court judgeships are and 

they did everything possible to keep the seats open so they could 

fill them with conservative idealogues. 

All that said, I want to publicly concede to my friends on the 

other side—both literally and politically, I want to concede they are 

correct about a few things. They are correct when they say that the 

vacancy rate on the Federal courts is high and should be lowered, 

and they have a point when they say we could move faster. I know 

that you might be shocked to hear me say this, but I believe that 

when that is said, it is right on both counts. 

But here are my two responses: First, send us moderate, non-ideological judges and we will confirm them quickly. The proof isn’t 

in the pudding; it is in the record. Moderate nominees who are well 

qualified and don’t appear to adhere to an ideological agenda—

these could be conservative, these could be liberal, these could be 

pro-choice, these could be pro-life—are moving through the Senate—moderate, non-ideological judges are moving through the Senate like a hot knife through butter. 

The problem is that red flags are being raised for so many nominees that we are forced to slow down, sometimes to a snail’s pace, 

to fully examine their records. We would like nothing more than 

to confirm every judge immediately, but when you hear what we 

are hearing about some of these nominees, and when you know because he is telling you so that the President is using ideology as 

a litmus test, well, we have a duty to the American people, a constitutional duty, to fully review their records and assess fitness for 

the bench. 

The upshot is that while we are moving quickly, we could move 

faster if the other side would only work with us to select nominees 

who will be broadly supported. The Constitution doesn’t just say 

that the Senate will consent. It says the Senate shall advise and 

consent. I promise you that a little more advice would lead to a lot 

easier consent. 

In other words, if we were consulted ahead of time, if we were 

asked what about this judge, what about that judge, things could 

move easier. But what this administration has done thus far is just 

send raft after raft, with no advice, with no consultation, and what 

they expect us to do is rubber-stamp every one of them, regardless 

of their views, regardless of how far out of the mainstream they 

are, regardless of how much they would stack a bench in a certain 

direction. 

The second point, and this goes to why we are here today, is that 

we have so many vacancies on the Federal courts precisely because 

4

when the other side controlled the Judiciary Committee, they failed 

to confirm qualified, ideologically moderate Clinton nominees. 

President Clinton, it is well known, did not nominate raft after 

raft of far-left judges, people from legal aid or the Civil Liberties 

Union. Most of his nominees tended to be partners in law firms or 

prosecutors. That is so different from the nominees we are seeing 

here, so different. 

What happened was that the other side engaged in a quite deliberate slow-down to keep slots open. We all know, and is not news 

to anybody, that if they won the presidential election, they would 

be able to put their ideologically conservative nominees on the 

courts, not just the four that are here today. 

As you can see from the chart behind me, the list of names is 

impressive both in numbers and in qualifications. 

The chart is on its way. We will put the chart up when it gets 

here. 

In the debate over how well we are performing in moving nominees, this point seems totally lost. These vacancies exist because 2 

years ago the other side refused to confirm President Clinton’s 

nominees, who by and large were far closer to the mainstream than 

most of President Bush’s nominees. 

Don’t judge by what Jeff Sessions thinks or Orrin Hatch thinks 

or Chuck Schumer thinks. Just draw a chart and make 100 be the 

most liberal and 1 be the most conservative in terms of where the 

American people are, and just plot where the Clinton nominees 

were on most issues and where the Bush nominees were. You find 

many more zero-to-10’s on the Bush side than you find 90-to-100’s 

on the Clinton side. 

So this isn’t about tit-for-tat. It is not about what is good for the 

goose being good for the gander. It is about keeping moderation on 

the bench. It is about preventing the bench from being brought way 

over to the other side, which is in their own words what this administration wants to do. 

So if highly qualified, moderate Clinton nominees like the four 

well-respected, eminently able individuals we have here today had 

been confirmed, the vacancy rate would be lower and we would 

have some confidence that the bench wouldn’t be dominated by conservative idealogues. 

But that is not what happened. They weren’t confirmed, and 

there is no good reason they weren’t confirmed, other than a desire 

to keep seats open so they could be filled by a new President implementing an off-the-mainstream agenda when it comes to the courts. 

I will pit the qualifications of our four witnesses—Jorge Rangel, 

Kent Markus, Bonnie Campbell, and Enrique Moreno—against 

those of any four nominees from the Bush administration. They are 

legally excellent, they are ideologically moderate, and it is a diverse 

group. They belong on the bench. Why weren’t they confirmed? 

Well, we might not be able to answer that question today, but 

we will be able to answer the cries of unfairness from the other 

side. They have created a problem by not confirming qualified 

nominees. They propose to solve the problem by nominating out-ofthe-mainstream, conservative idealogues, and then they complain 

we don’t move quickly enough to implement their unacceptable soVerDate Mar 21 2002 11:50 Apr 28, 2003 Jkt 085887 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\HEARINGS\86040.TXT SJUD4 PsN: CMORC
5

lution. This is not fair; it is not right, it smacks of hypocrisy. There 

is no other way to put it. 

Let me say something. I can speak for myself. I will not be bamboozled into rubber-stamping a slate of Scalias and Thomases, who 

by any measure are conservative, activist judges. We are not going 

to be bullied into letting this administration stack the courts for 

decades to come. 

The choice is this to the administration: consult with us, nominate reasonable, moderate men and women who belong on the 

bench and we will confirm them right away. Nominate idealogues 

willing to sacrifice the interests of many to serve the interests of 

a narrow few and you will have a fight on your hands. It is that 

simple. 

I know that each of these fine people sitting before us must be 

shocked to hear the arguments they have heard from our friends 

from the other side. I for one am anxious to hear about their experiences and their reactions to some of the conduct we have been 

seeing. 

Before introducing our first panel, I will turn to my ranking 

member, my friend, Senator Jeff Sessions. We have had a pretty 

good run in keeping our hearings bipartisan. Today is a little bit 

different. This is clearly a hearing that is going to divide us, but 

our side has been pummeled day after day by unfair allegations 

and I think it is fair that we have a chance to answer back. 

So I know that Jeff is not happy about this hearing, but I just 

want to tell him that on the many issues we work together on, we 

will be working together on. But on issues where I at least feel that 

the truth is getting way out of hand, I think there is a need to 

show our side of the story. 

Nonetheless, I will continue to do everything I can to treat my 

colleague as he has always treated me, with professionalism and 

courtesy. So even if things do get a little hot today, Jeff, I am going 

to consider you a friend when the day is done. If you think it will 

help you in November, you are welcome to tell your Alabama constituents that you have a pal in Chuck Schumer. 

What I said earlier is we were just going to have opening statements from the Chair and the ranking member so we can move 

this hearing along, particularly so we can get to the second panel 

early. 

Senator SESSIONS. Mr. Chairman, Senator Hatch is the ranking 

member of the full committee. 

Chairman SCHUMER. I said I would make an exception for Senator Hatch and Senator Leahy. 

Senator SESSIONS. Let me just make one little brief point. You 

have in conducting these hearings taken positions that I have not 

agreed with, but we have had some good and fair hearings. I think 

today I am troubled by the way we are organizing this hearing that 

talks about ‘‘ghosts of nominations past,’’ but we only have nominations from the Clinton administration, whereas there are some witnesses that have a different viewpoint from the previous years in 

which I think the record will show the attack on nominees was far 

more vigorous than anything that occurred during the time President Clinton was in office. 

6

So I would ask that the minority witnesses, Judge Carlos Bea 

and former White House Counsel Boyden Gray, be able to participate and sit at this panel so we could have one panel. Who knows 

how long this hearing may go? They may not even get to testify. 

I think it would create a wrong impression if that were to occur, 

Mr. Chairman. 

You have always been fair; you really have. I have enjoyed it, but 

this I would disagree procedurally with you on. 

Chairman SCHUMER. If the Senator would yield, we have discussed it and the way we are going to structure this hearing is to 

have the four witnesses from the Clinton administration first, and 

then Senator Sessions was able to structure the second panel in 

whatever way he wanted second, instead of mixing the two. 

Senator SESSIONS. Well, I never thought that was a good idea. 

Chairman SCHUMER. I know you didn’t. 

Senator SESSIONS. And I object to that. I don’t think it is going 

to be fair in the long run. Mr. Chairman, your remarks were eloquent, as always, and delivered with force, but to an unusual degree I disagree with your thesis and almost everything in it. 

But, Mr. Chairman, I would yield to Chairman Hatch. 

Chairman SCHUMER. Thank you, Senator Sessions. Senator 

Hatch, I know, will probably disagree fervently with everything I 

have said and refute it in his usual intelligent forceful way. 

Senator Hatch. 

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

THE STATE OF UTAH 

Senator HATCH. Thank you, Mr. Chairman. I do think it would 

be more fair if you had all six people here at the same table because at 11:30 we are going to be voting on a series of votes and 

for all intents and purposes that is probably going to be the end 

of the hearing. 

Chairman SCHUMER. These are four judges, I think, that we are 

going to vote on. 

Senator HATCH. Well, sure. 

Chairman SCHUMER. Yes. 

Senator HATCH. And not six, by the way, that came out of the 

committee, and I might add not my judge from Utah, which is a 

direct slap. I view it as a direct slap, since I don’t know of any Senator on this committee that I didn’t bend over backwards to help 

and my two judges have been sitting there for almost a year, and 

one, Michael McConnell, for a year, yesterday. But thank you, Mr. 

Chairman. If you could do that, I think it would be more fair. 

Thank you for giving me the opportunity to weigh in on the topic 

of judicial nominations from the past. I don’t believe in ghosts, but 

I agree with you that there seem to be a number of illusions floating around Capitol Hill related to this committee’s handling of 

judges. I applaud your desire to set the record straight, and I am 

here to help you do exactly that. 

I wish that instead of this cute hearing, we were having a hearing to confirm the many nominees that are pending in limbo before 

the committee. But you are in power and you set the pace and 

agenda for such nomination hearings. So given this hearing, I 

7

would just like to shine a candle on five points that never seem to 

see the light of day in any discussion of past confirmations. 

First, there seems to be an immortal myth around here that it 

was the Republicans who created the current vacancy crisis by 

stalling President Clinton’s nominees. That is purely and unmistakably false. The fact is that the number of judicial vacancies decreased by 3 during the 6 years of Republican leadership. There 

were 70 vacancies when I became chairman of the Judiciary Committee in January of 1995 and President Clinton was in office, and 

there were 67 at the close of the 106th Congress, in December of 

2000, the end of President Clinton’s presidency. The Republicans 

did not create, or even add to, the current vacancy crisis. 

Each member of the committee is entitled to his or her opinion 

on what happened, but not to his or her own set of facts. I think 

we ought to avoid Enron-type accounting in this matter, regardless 

of what some of the liberal interest groups are asserting. 

Second, there has been a considerable slight-of-hand when it 

comes to the true overall record of President Clinton’s nominations. 

The undisputed fact is that Republicans treated a Democrat President just as well as they did a Republican one. We did not use any 

litmus tests, regardless of our personal views, whether it was abortion, religion, or personal ideology. That didn’t enter in. Otherwise, 

President Clinton wouldn’t have had many judges confirmed. I am 

disappointed to note that that seems to be precisely what is happening with the Democrat-controlled Senate now. 

Let’s be honest and look at the true facts. During President Clinton’s 8 years in office, the Senate confirmed 377 judges, essentially 

the same, only 5 less, than the all-time confirmation champion, 

Ronald Reagan, who confirmed 382. So President Clinton had virtually the same number of judges confirmed as Ronald Reagan. 

Yet, Ronald Reagan had 6 years of a Senate controlled by his 

own party to help him get the 382. Now, contrast that with President Clinton. He had 6 years of the opposition party, the Republican Party, in charge of the Judiciary Committee and got virtually 

the same number. 

True, there were individual instances where a handful of nominees did not move, but it is nothing like the systematic and calculated stalling tactics being employed by this Democrat Senate to 

stop President Bush’s highly qualified nominees. 

At this point, I should also add that the Clinton nominees we 

confirmed were no mainstream moderates, as some may have led 

us to believe. We confirmed nominees, and I think we should have 

confirmed these nominees because President Clinton was the President. That was the attitude I had, but we confirmed nominees; just 

to mention a few, Judge Marcia Berzon, Judge Richard Paez, Judge 

Margaret Morrow, Judge Willy Fletcher, all to the Ninth Circuit 

Court of Appeals. They are among the most liberal nominees we 

have ever had before the committee, but they were worthy and 

they were qualified, and President Clinton was the President and 

I put them through. They were confirmed with my support as 

chairman, and I can tell you not a single one of those would be 

characterized by any measure of the imagination as nominees with 

political ideologies ‘‘within the mainstream,’’ or I should say within 

the moderate mainstream. 

8

I had personal political views almost completely opposite to 

them, but they were confirmed. I saw that they were, and I applied 

no litmus test to them. I reviewed them on their legal capabilities 

and qualifications to be a judge, and that is all I am asking for 

from the Democratic majority. That is not what is happening, and 

it is clear that there is a calculated and wholesale slow-walking of 

President Bush’s nominees, and particularly for the circuit courts. 

Third, let me say that an illusion has been created out of thin 

air that the Republicans left an undue number of nominees pending in committee without votes at the end of the Clinton administration. Again, more Arthur Andersen accounting here. 

Get ready for the truth: There were 41 such nominees—let me 

repeat, 41—which is 13 less than the 54 the Democrats who controlled the Senate in 1992 left at the end of the first Bush administration when they had control of the committee. That is 41 under 

my chairmanship and 54 under the Democrat-controlled Senate in 

1992, at the end of the first Bush administration. 

I have to say that there were about 6 of those 54 that were left 

hanging by the Democrats who were put up too late in the process 

to get through, but there were 9 of the 41 who were put up really 

at the last minute and had no real chance of getting through in 

those time constraints. So if you add those in, it is 48 left hanging 

by the Democrats at the end of the first President Bush’s administration and there were 32 left hanging by us. 

I could go on and name these so-called ghosts that the Senate 

Democrats left hanging from the past Republican administration, 

but I thought better of it because it might make for good theatrics. 

But if anyone is interested in the names, we will be glad to provide 

them. 

We have a chart here. As you can see from this chart, President 

Clinton, just like President Reagan and the first President Bush, 

got all of his first 11 circuit court nominees confirmed, all within 

1 year. All were confirmed well within 1 year of their nominations. 

This is in stark contrast to today. Eight of President Bush’s first 

11 nominations are still pending without a hearing, despite being 

here for one whole year as of yesterday. All have their ABA ratings, all rated ‘‘well qualified’’ or ‘‘qualified,’’ and all but one have 

their home State Senators’ support. That one is North Carolina’s 

nominee, whom Senator Edwards has yet to return a blue slip for. 

Frankly, I didn’t apply blue slips to circuit judges, if I recall, but 

even if we did, I reserved the right to bring them up anyway. But 

this is the second nomination for Judge Terry Boyle. So he has 

been waiting for over 10 years, and so has John Roberts, who has 

been renominated. 

Finally, my fifth point is shown in this chart. President Clinton 

had the privilege of seeing 97 of his first 100 judicial nominees confirmed, and the average time from nomination to confirmation was 

93 days. Such a record was par for the course, until the current 

Senate leadership took over last year. President Reagan got 97 of 

his first 100 judicial nominations confirmed in an average of 36 

days, but he had 6 years of a Republican Senate to help him. President George H.W. Bush saw 95 of his first 100 confirmed in an average of 78 days. 

9

But the ground rules have obviously been changed, as the extreme interest groups have reportedly instructed our colleagues. As 

we sit here today, the Senate has confirmed only 52—not the 97 

President Clinton got—only 52 of President Bush’s nominees. The 

average number of days to confirm those few is over 150, and increasing everyday. 

The reason I mention these five points is that there are some 

people who read the title of this hearing and saw the witness list 

and noted that it is being held on the 1-year anniversary of President Bush’s first 11 nominations who jump to the conclusion that 

the purpose of the hearing is to find historical justification for 

blocking President Bush’s choices for the Federal judiciary. 

First of all, I would never accuse my good friend from New York 

of such a thing. Second, there simply is no historical justification 

for blocking President Bush’s first 11 or first 100 judicial nominees, 

nor is there any truth to the myth that the vacancies we have 

today were caused by the Republican Senate. In other words, anything conjured up from the past and dressed up as a reason to 

thwart the requests of President Bush should be dismissed. 

Now, if I can switch gears just for a little bit and say something 

that I consider to be personal, even though it has had and still 

could have a lot of bearing on this process, back before I became 

chairman of this committee in 1995 I was personally affected by 

several events that occurred under the auspices of ‘‘advise and consent.’’ Those events included the mistreatment of nominees, including Sessions, Bork, Thomas, Ryskamp, Rehnquist, and others. 

I saw how politics can affect the human spirit, both in success 

and defeat, and I saw how baseless allegations can take on a life 

of their own and how they can take away the life from their victims. By the time I became chairman, I had determined to change 

the process that had gotten so vicious. 

I worked to restore dignity back to the committee and the Senate. I championed the cause of President Clinton’s Supreme Court 

nominee, Ruth Bader Ginsburg, even though she was criticized by 

many as a liberal activist and was a former general counsel of the 

ACLU, which I would certainly not hold against anybody. I used 

my influence to quiet her detractors. I helped secure her vote, 

which was 96 to 3. 

Under my chairmanship, for those below the Supreme Court, I 

ended the practice of inviting witnesses to come into hearings to 

disparage nominees. We just didn’t allow it and I told them to get 

lost, and I incurred a lot of enmity from the conservative groups 

in Washington and elsewhere for doing that. 

I dealt with FBI background issues in private, because sometimes they are nothing; sometimes they are serious. But whenever 

they are mentioned in public, people immediately jump to the conclusion that they are serious and there must be something wrong 

with that nominee. So I dealt with FBI background issues in private conferences with Senators, never mentioning them in public 

hearings. That is a practice I am concerned is not being followed 

by this committee. 

I told interest groups, even the ones whose work I liked in other 

areas, that they were not welcome to smear Clinton nominees. I refused to alter the 200-year tradition of deference to Presidents by 

10

shifting the burden onto nominees, and I informed the White 

House of problems that could, if made public, lead a nominee to a 

humiliating vote of defeat so the nominee could withdraw rather 

than face that fate. 

These are the reasons that we were able to confirm 377 Clinton 

nominees, including some pretty contentious ones such as Berzon 

and Paez for the Ninth Circuit. I worked to get these two confirmed, I stuck my neck out for them, and I still believe to this day 

that I did the right thing even though I am increasingly pessimistic 

that someone on the other side of the aisle will step up to the plate 

and reciprocate for any Bush nominees who might be in the same 

circumstances. 

I urge and call upon the Democrat majority to show some leadership and put partisanship and politics of personal destruction behind. Give fair hearings and confirmations of qualified nominees 

and keep the judiciary independent, as our forefathers intended, 

and keep the left-wing interest groups out of the nomination process. 

Chairman Schumer, I have a great deal of admiration for you. I 

count you as one of my close friends in the Senate, and that is not 

the usual B.S. that shows up in the Senate from time to time. I 

mean it, and people who know me know I mean it. 

I understand how some people have felt. Were there some I wish 

I could have gotten through? You bet your life there were, but that 

is always the case, whether Democrats are in control or Republicans are in control. 

But I wanted to make these five points because they are legitimate, they are honest, they are truthful, and frankly I think they 

can’t be ignored. I get a little tired of having my chairmanship, 

should I say, discredited by false facts and by false conclusions. I 

did the best I could under the circumstances, and I think in comparison to what the Democrats have done in almost case it was better, and in most cases much better. 

So, again, I feel badly for anybody who didn’t make it through. 

I have always felt that way, but on the other hand that happened 

whether the Democrats were in control of the committee or Republicans. It is just the process. In any event, I did everything in my 

power to try and do what is right, and I really appreciate you giving me this honor of being able to go forth here and make these 

comments. 

Thank you, sir. 

Chairman SCHUMER. Well, thank you, Chairman Hatch. 

Senator HATCH. Mr. Chairman, I have to go to the floor. 

Chairman SCHUMER. I understand. We very much appreciate 

your statement. We are going to disagree strongly on this issue, 

but nothing is personal and I too consider you a close friend. 

We are now going to get to the four witnesses on the first panel. 

I am going to introduce each one, ask them to speak, and then introduce——

Senator SESSIONS. Mr. Chairman, may I have a few opening remarks? 

Chairman SCHUMER. Please, please. I thought that you had 

ceded. Please. 

11

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

THE STATE OF ALABAMA 

Senator SESSIONS. Mr. Chairman, this is indeed an interesting 

hearing, ‘‘Ghosts of Nominations Past,’’ but the ‘‘Ghosts of Nominations Past’’ did not arise in 1995 when Senator Hatch became 

chairman of this committee. It arose really years before in the mid–

1980s. I remember it well. 

Certainly, we will never forget the hotly-contested hearings in 

which Robert Bork, William Rehnquist, and Clarence Thomas were 

bitterly attacked. Some might even remember the Session, Manion, 

and Fitzwater hearings, those earlier and fainter ghosts who were 

‘‘Borked’’ before they knew what to call it. 

Poor Judge Fitzwater, a wonderful Baptist, an honors graduate 

of Baylor, young, with a fine family, rated by the Houston bar as 

the best judge in Houston, suffered mercilessly because in an election in which he was on the ballot as a candidate, he had passed 

out a flyer that warned if one violated the voting laws of Texas, 

they could be prosecuted. He was accused of chilled voting rights. 

One judge was required to give up membership in a historic, but 

all-male British club which he attended only once or twice a year. 

Once having given it up, the Torquemada team here, their zealotry 

assuaged, allowed him to move on to confirmation. 

First, I would like to compliment Senator Hatch for the way he 

conducted this committee during his chairmanship. He elevated debate, treated nominees with respect, and kept vacancies low 

enough to ensure that judicial business would not be delayed. In 

fact, I cannot recall a single hearing at which special interest group 

representatives were called to testify against one of President Clinton’s judicial nominees. 

Further, Senator Hatch continued the tradition that a nominee 

that had the approval of the President and his two home State 

Senators, a clean background check by the FBI, and in most cases 

an ABA rating of ‘‘qualified’’ or better, was presumed to move forward to confirmation. Of course, the Senate must never be considered a potted plant on these matters, but I do believe a strong presumption for confirmation should exist. 

At the end of the first Bush administration, there were 97 vacancies; that was former President Bush. When the Democrats were 

in charge of the Senate, there were 97 vacancies. There were 54 

nominees unconfirmed, awaiting action. Under Chairman Hatch 

and a Republican Senate, at the end of the Clinton administration 

there were only 67 vacancies and 41 nominations that expired 

without action. Thus, in my view, the ghosts arising from the remains of prior nominees are overwhelmingly the product of my 

Democratic colleagues’ administration of this committee, not from 

Senator Hatch’s leadership. 

The problem is that the ghosts of nomination present is beginning to bring back bad memories. The New York Times reported 

that on April 30, 2001, at a private retreat, Professor Laurence 

Tribe, along with Professor Cass Sunstein and Marcia Greenberger, 

lectured the Democratic Senators on how to block judicial nominees 

by ‘‘changing the ground rules.’’ That is what we are talking about, 

changing the ground rules. So we have a contradiction here. We 

have a complaint that the Clinton nominees were treated unfairly, 

12

so therefore the remedy is to treat the Bush nominees even more 

harshly. 

Then on June 26, Professors Tribe, along with Professor Sunstein 

and Ms. Greenberger, were invited to testify before this subcommittee at a hearing entitled ‘‘Should Ideology Matter?’’ They argued that political ideology—at its base, that means the politics of 

the nominee, I suggest—was a legitimate issue to be considered, 

thus setting a higher hurdle for Republican nominees than had 

been used to confirm Democratic nominees. 

Then on September 4, 2001, this subcommittee held a second 

hearing entitled ‘‘The Senate’s Role in the Confirmation Process: 

Whose Burden?’’ At the hearing, we were told that the burden that 

Senator Hatch had placed on the Senate to reject a nominee should 

be shifted to the nominee; that is, the Bush nominees now had the 

burden to prove that he or she had characteristics worthy of confirmation that exceeded their paper record and their record of 

achievement. 

As support for the use of ideology to aggressively oppose judicial 

nominees, we have heard the assertion from Professor Tribe, 

Marcia Greenberger, and members of this committee that during 

the first 100 years of our country’s history, 1 out of 4 nominees to 

the Supreme Court were rejected by the Senate based largely on 

the nominee’s ideology. 

Chairman SCHUMER. While you are taking a drink, I would like 

to compliment you on your charts. They are very creative. 

Senator SESSIONS. I wonder whose ghost that is on that chart. 

It could be mine. 

Chairman SCHUMER. I am glad you are using the title. Ghosts 

come back. 

Senator SESSIONS. We have examined the history on this matter 

and discovered a different story. A number of the early Supreme 

Court nominees were not rejected at all, but declined to serve on 

what was perceived to be the low-paying, non-prestigious job they 

were asked to take. 

Those declining to serve were Robert Harrison, Levi Lincoln, William Smith, Roscoe Conkling, William Cushing, and John Quincy 

Adams. Further, two nominees that some count as rejected were 

only temporarily delayed and were eventually confirmed. Those 

nominees were Roger Taney and Stanley Matthews. 

Moreover, 10 nominees were not acted upon or were rejected primarily because of the lame duck or near-lame duck status of the 

nominating President, not primarily because of their ideology. 

Those include Jeremiah Black, John Crittenden, Reuben Walworth, 

Edward King, John Specter, John Read, Edward Bradford, George 

Badger, William Micou, and Henry Stanbery. In the instance of 

Henry Stanbery, who was nominated after Andrew Johnson’s failed 

impeachment, the Senate not only declined to act upon his nomination, but passed legislation to remove the tenth seat for which 

Stanbery was nominated. Regardless of whatever personal ideology 

these men may have had, the Senate, it appears, would not have 

confirmed them. 

William Hornblower and Wheeler Peckham were rejected because New York Senator David Hill refused to confirm anyone that 

President Cleveland nominated unless it was his personal choice 

13

from New York—a trend I hope you don’t take too seriously, Senator Schumer. 

Chairman SCHUMER. Hill was in the other line of Senate seats, 

not in my line of Senate seats. 

Senator SESSIONS. I know you strongly believe and have insisted 

on an intense consultation on judges from New York, and I believe 

you are receiving a good bit of consultation on those nominations. 

It appears that only five nominees were not confirmed primarily 

because of their personal ideology. These nominees were John Rutledge, who opposed Jay’s Treaty; Alexander Wolcott, who vigorously sought enforcement of the Embargo Act; Ebenezer Hoar, who 

opposed Andrew Johnson’s impeachment; George Woodward, who 

was an extreme American nativist; and Caleb Cushing, whose constant political party-switching incensed his fellow Senators. 

Thus, only about 5 percent of the Supreme Court nominees can 

fairly be said to have been rejected for any kind of personal ideology. Clearly, that was the historical exception and not the rule. 

I can say with confidence, therefore, that the assertion that 1 out 

of 4 nominees in the first 100 years of this country were rejected 

on the basis of ideology is false and creates a false impression 

about the process. 

The fact that such a view has never been the rule is confirmed 

by the testimony we had earlier of Lloyd Cutler, White House 

Counsel to Democratic Presidents Carter and Clinton, and the 

independent Miller Commission that absolutely rejected the contention that political ideology should be used by the Senate to reject 

nominees. 

If history is to serve as a guide, however, we would do well to 

examine it with respect to the burden, or lack of thereof, on nominees to prove their worthiness of confirmation beyond their paper 

record. 

During the first 130 years of our Nation’s history, the Senate did 

not ask nominees any questions at hearings, probing or otherwise. 

The first nominee to even appear before the Senate was Harlan 

Fiske Stone, in 1925, and nominees did not appear regularly before 

the Judiciary Committee until John Marshall Harlan II, in 1955. 

Occasionally, the committee asked nominees questions in writing, but there was no probing examination or cross-examination in 

the committee. So it would have been difficult to believe the early 

Senate thought that a nominee was required to bear some illusory 

burden of earning the confirmation, to submit to vigorous cross-examination, and to personally convince Senators on the committee 

that he truly met the criteria in a way not reflected in the record 

of the nominee. So if we use history as a guide, and it is a good 

one, I think we ought to understand it first. 

In conclusion, I am concerned with the injection of political ideology—the focus on the political popularity of the results of a 

case—instead of judicial philosophy, the focus on the integrity of 

the process. I agree with President Clinton’s White House Counsel, 

Lloyd Cutler, that the use of ideology could politicize our independent judiciary. 

Mr. Chairman, we did have a lot of ACLU lawyers that President 

Clinton nominated to the bench, for example. At one period, I 

think, before you came to the Senate we had three or four in a 

14

month, so I had someone check the positions of the ACLU. Of 

course, they favor legalization of drugs. They believe the Constitution bars any control of pornography, even child pornography. 

So I took to asking the witnesses, do you agree with this, if they 

were a member of the ACLU. They would all say, oh, no, they 

didn’t agree with that, and I would usually say, then why did you 

join this group? That is their position. Why did you join it? But I 

voted to confirm most of those judges, and I think most of us on 

our side moved forward with a lot of nominees that had very liberal 

backgrounds. 

I believe most of those, it struck me, were committed to enforcing 

the law as written, even if they may disagree with me in what it 

should be, and I think many of them will make great judges. I 

think just because some of these nominees that President Bush 

sends forth have views that are consistent with his political views 

does not mean they can’t be able and competent judges, and it 

would be a shame to have them held up, as is occurring today. 

Thank you. 

Chairman SCHUMER. Thank you, Senator Sessions. 

We are now going to proceed to the witnesses. I will introduce 

everyone and then let them testify. 

Our first witness is Jorge Rangel. He is currently an attorney in 

private practice in Corpus Christi, Texas. He was nominated to the 

U.S. Court of Appeals for the Fifth Circuit by President Clinton in 

1997, but Mr. Rangel was never granted a hearing by the Republican-controlled Judiciary Committee, never granted a hearing. 

A graduate of the University of Houston and the Harvard Law 

School, Jorge Rangel went on to a distinguished career of 20 years 

in private practice in a Corpus Christi firm. In 1983, he was appointed to a judgeship on the Texas State District Court, where he 

served before returning to private practice. 

Judge Rangel has also been active in legal and community associations over the years, including time as an officer of the Board 

of Governors of the Bar Association of the Fifth Circuit and of the 

American Board of Trial Advocates. He served on the Advisory 

Council of the Texas Center for Legal Ethics and Professionalism, 

on the Board of Directors of the Texas–Mexico Bar Association, as 

Chair of the Texas Board of Legal Specialization, as Chair of the 

Antitrust and Business Litigation Section of the State Bar of 

Texas, on the Advisory Board of the Food Bank of Corpus Christi, 

on the Executive Board of the Boys Scouts of America, Southern 

Region, and President of the Board of the United Way of the Coastal Bend, among many, many others. 

A look through Judge Rangel’s life and career shows both have 

been distinguished. He has dedicated himself to the betterment of 

his profession and his community, all the while working hard to 

represent clients in a variety of legal matters. He has written no 

so-called controversial writings. He has been affiliated with no socalled liberal groups, and gave no one any reason whatsoever to 

question his credentials and fitness for the bench. He was rated 

‘‘well qualified’’ by the ABA. 

Yet, for reasons that many have characterized as totally political, 

Jorge Rangel’s nomination was help up for more than a year, from 

July 1997 until the end of the 1998 congressional session, a total 

15

of more than 15 months, with no explanation or hint of opposition 

to him. 

Judge Rangel, it is an honor to have you here and you may proceed. We will try to limit each witness to the 5-minute rule. 

STATEMENT OF JORGE C. RANGEL, CORPUS CHRISTI, TEXAS 

Mr. RANGEL. Thank you, Mr. Chairman and members of the subcommittee. 

On July 24, 1997, President Clinton nominated me to the U.S. 

Court of Appeals for the Fifth Circuit. Almost 5 years later, I welcome this opportunity to appear before a committee of the U.S. 

Senate to discuss that nomination. 

I must confess that this hearing is not exactly what I envisioned 

when my nomination was announced. At the time, I fully expected 

that in due course the Senate Judiciary Committee, in discharging 

its advise and consent responsibilities under the Constitution, 

would conduct a hearing to review my background and qualifications. I was sadly mistaken, because the hearing never materialized. 

My nomination died the following year, when the Senate adjourned on October 21, 1998. The next day, I wrote the President 

requesting that my nomination not be resubmitted in the next session of Congress because personally and professionally I could not 

continue to place my life on hold while waiting to see if the political 

forces at play would favor me with a hearing. The delay had taken 

its toll and it was time to move on. 

The confirmation process was grueling and time-consuming, but 

I did everything that was asked of me. I invested almost 2 years 

of my life in the process, starting early in 1997 when my name first 

surfaced as a possible nominee to fill a vacancy that exists to this 

day. 

I underwent extensive background checks by the FBI, the Justice 

Department, and the White House. After the ABA committee completed its investigation into my professional qualifications, I received a ‘‘well qualified’’ rating. I filled out countless forms containing every conceivable question concerning every aspect of my 

adult life, including detailed financial information. 

After my nomination was forwarded to the Senate, a cross-section of the Texas legal community, including Democrats and Republicans, sent dozens of letters to Senator Gramm and Hutchison 

urging my confirmation. In September 1997, I met with the Senators’ statewide advisory committee of lawyers which advised them 

on judicial nominations. The committee asked numerous questions 

about my legal experience and about my views of the role of the 

judiciary in our society. 

In May 1998, at my request, I met privately and separately with 

Senator Gramm and Senator Hutchison to discuss the status of my 

nomination and to answer their individual questions. During those 

meetings, I made a personal plea for a hearing. They stated that 

they were still considering my nomination and would let me know 

if I needed to submit any additional information. 

As the weeks of delay turned into months, nothing seemed to 

bring me closer to a hearing. Each letter of support triggered a 

16

form response acknowledging receipt and stating that my background and credentials were under review. 

While my nomination was pending, I was inducted as a Fellow 

of the American College of Trial Lawyers, one of the legal profession’s most prestigious organizations whose membership is limited 

to lawyers who have distinguished themselves in the courtroom. 

The president of the group, the late Ed Brodsky from New York, 

asked me to give the response speech on behalf of all of the inductees at the induction ceremonies. I duly reported the news to those 

reviewing my nomination, but it was of no apparent consequence. 

When the 1-year anniversary of my nomination passed without 

a hearing, it became clear that there was nothing that I could do 

to open the doors to the hearing room of the Senate Judiciary Committee. The doors remained closed until the end. I was never given 

a reason why my nomination did not merit a hearing. 

Even with the passage of time, I find it difficult to reconcile my 

experience in the confirmation process with the basic notions of fair 

play, justice, and due process that have guided me in my career. 

Moving from the past to the present, I am somewhat troubled at 

the ease with which some are now attacking the pace of judicial 

confirmations, while choosing to ignore or forget what happened to 

so many of President Clinton’s judicial nominees. We have become 

mere historical statistics in a never-ending numbers game. 

With all due respect, Mr. Chairman, I would like to raise my 

voice to underscore the point that those statistics represent real 

human beings with real families and real careers that suffered at 

the hands of those who, for political reasons, set out to prevent 

many of us from being confirmed. Hopefully, our presence here 

today will, in fact, set the record straight so that other judicial 

nominees, regardless of their party affiliation, will not suffer the 

same fate. They and the American people deserve better. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Rangel follows:]

STATEMENT OF HON. JORGE C. RANGEL, CORPUS CHRISTI, TEXAS

Mr. Chairman, Members of the Subcommittee: On July 24, 1997, President Clinton nominated me to the United States Court of Appeals for the Fifth Circuit. Almost 5 years later, I welcome this opportunity to appear before a committee of the 

U.S. Senate to discuss that nomination. I must confess that this hearing is not exactly what I envisioned when my nomination was announced. At the time, I fully 

expected that, in due course, the Senate Judiciary Committee, in discharging its advice and consent responsibilities under the Constitution, would conduct a hearing 

to review my background and qualifications. 

I was sadly mistaken, because the hearing never materialized. My nomination 

died the following year when the Senate adjourned on October 21, 1998. The next 

day I wrote the President, requesting that my nomination not be resubmitted in the 

next session of Congress, because, personally and professionally, I could not continue to place my life on hold while waiting to see if the political forces at play 

would favor me with a hearing. The delay had taken its toll and it was time to move 

on. 

The confirmation process was grueling and time-consuming, but I did everything 

that was asked of me. I invested almost 2 years of my life in the process, starting 

in early 1997 when my name first surfaced as a possible nominee to fill a vacancy 

that exists to this day. I underwent extensive background checks by the FBI, the 

Justice Department and the White House. After the ABA Committee completed its 

investigation into my professional qualifications, I received a well qualified rating. 

I filled out countless forms containing every conceivable question concerning every 

aspect of my adult life, including detailed financial information. 

17

After my nomination was forwarded to the Senate, a cross section of the Texas 

legal community, including Democrats and Republicans, sent dozens of letters to 

Senators Gramm and Hutchison urging my confirmation. In September 1997, I met 

with the Senators’ state-wide advisory committee of lawyers which advised them on 

judicial nominations. The committee asked numerous questions about my legal experience and about my views on the role of the judiciary in our society. In May 

1998, at my request, I met privately and separately with Senator Gramm and Senator Hutchison to discuss the status of my nomination and to answer their individual questions. During those meetings, I made a personal plea for a hearing. They 

stated that they were still considering my nomination and would let me know if l 

needed to submit any additional information. 

As the weeks of delay turned into months, nothing seemed to bring me closer to 

a hearing. Each letter of support triggered a form response acknowledging receipt 

and stating that my background and credentials were under review. While my nomination was pending, I was inducted as a Fellow of the American College of Trial 

Lawyers, one of the legal profession’s most prestigious organizations, whose membership is limited to lawyers who have distinguished themselves in the courtroom. 

The president of the group, the late Ed Brodsky from New York, asked me to give 

the response speech on behalf of all the inductees at the induction ceremonies. I 

duly reported the news to those reviewing my nomination, but it was of no apparent 

consequence. 

When the 1-year anniversary of my nomination passed without a hearing, it became clear that there was nothing that I could do to open the doors to the hearing 

room of the Senate Judiciary Committee. The doors remained closed until the end. 

I was never given areas on why my nomination did not merit a hearing. 

Even with the passage of time, I find it difficult to reconcile my experience in the 

confirmation process with the basic notions of fair play, justice and due process that 

have guided me in my career. Moving from the past to the present, I am somewhat 

troubled at the ease with which some are now attacking the pace of judicial confirmations while choosing to ignore or forget what happened to so many of President 

Clinton’s judicial nominees. We have become mere historical statistics in a never 

ending numbers games. With all due respect, I would like to raise my voice to underscore the point that those statistics represent real human beings with real families and real careers that suffered at the hands of those who, for political reasons, 

set out to prevent many of us from being confirmed. Hopefully, our presence here 

today will in fact set the record straight so that other judicial nominees, regardless 

of their party affiliation, will not suffer the same fate. They and the American people deserve better. 

Thank you Mr. Chairman.

Chairman SCHUMER. Thank you, Mr. Rangel. 

Our next witness is Kent Markus. He is the Director of the Dave 

Thomas Center for Adoption Law at Capital University Law School 

in Columbus, Ohio. A graduate of Northwestern University and the 

Harvard Law School, Professor Markus was nominated by President Clinton to serve on the U.S. Court of Appeals for the Sixth 

Circuit in February of 2000, and quickly received the approval of 

both of his home State Senators, two Republicans, Mike DeWine 

and George Voinovich. 

Despite this bipartisan support, a ‘‘qualified’’ rating from the 

ABA, and an excellent record of achievement and service, Professor 

Markus was never afforded the courtesy of a hearing before the Judiciary Committee and his nomination was returned to the President at the close of the 106th Congress. 

Professor Markus previously served as Deputy Chief of Staff at 

the U.S. Justice Department and as the highest-ranking adviser to 

Attorney General Janet Reno. During his approximately 5 years at 

Justice, Professor Markus was responsible for national implementation of the 1994 Crime Act and was the first Director of the Community–Oriented Policing Services Office, the COPS Office, responsible for putting 100,000 new community police officers on the 

streets. He managed the Department’s dealings with Congress and 

18

was the point person for the Department on crime policy, in general, with special attention to juvenile crime and gun violence. 

Prior to his service at the Justice Department, Professor Markus 

was the Chief of Staff at the Democratic National Committee, and 

before that Chief of Staff for a former Ohio Attorney General. Early 

in his career, Professor Markus, a Cleveland native, worked at law 

firms in Australia, Alaska, and Washington, D.C., held a clerkship 

with a Federal judge, practiced law, and taught at Cleveland State 

Law School. On Capitol Hill, Markus worked for former U.S. 

Speakers Carl Albert and Tip O’Neill, and House Rules Committee 

Chairman Richard Bolling. 

Mr. Markus, you may proceed. 

STATEMENT OF KENT MARKUS, PROFESSOR, CAPITAL 

UNIVERSITY LAW SCHOOL, COLUMBUS, OHIO 

Mr. MARKUS. Thank you, Mr. Chairman, Senator Sessions, members of the subcommittee. In the past when I have testified at congressional hearings, I have always thanked the Chair for inviting 

me, and while I am grateful for the opportunity to talk with you 

about the confirmation process for Federal judges, as Mr. Rangel 

said, this isn’t quite the Senate Judiciary hearing that I had once 

longed for. 

I am here today because I concur with President Bush that we 

need to find a way to consider Federal judicial nominations without 

undue delay. But I am also here today because I believe that the 

history regarding the current vacancy backlog is being obscured by 

some, and I believe that this historical revisionism is exacerbating 

the negative political dynamics surrounding judicial confirmations. 

I don’t think we will ever stop the retaliatory cycle of judicial 

nomination delay unless both political parties agree to compromise, 

a topic I will address at the end of my testimony. 

Chairman SCHUMER. Mr. Markus, your entire statement—it is 

rather lengthy—will be read in the record, so if you can highlight 

the key points. 

Mr. MARKUS. I am going to try and be selective, Mr. Chairman. 

Chairman SCHUMER. Great. 

Mr. MARKUS. In the summer of 1999, I was contacted by friends 

at the Justice Department who informed me that Judge David Nelson of the Sixth Circuit had notified the White House that he 

would take senior status in October of that year. They asked me 

if I wanted to be considered for the seat and I told them that I 

most assuredly did. I immediately confirmed my interest with a letter to the White House Counsel. 

Throughout that fall, the White House reviewed possible nominees for Judge Nelson’s seat, and as a result of a strong and cordial 

working relationship with Senator DeWine, I was able to represent 

to the White House that I was confident Senator DeWine would advise them that he had no objection to my nomination. 

Shortly thereafter, the White House nominations counsel informed me that he had indeed conferred with Senator DeWine and 

reported that he had been pleased by the Senator’s decidedly favorable response. In December, I was informed that the President had 

tentatively selected me as the nominee for the vacancy and began 

19

the documentation and background process described by Mr. Rangel. 

Since I had left the Justice Department with a high-level security clearance a little more than a year before, the FBI was able 

to complete its update check relatively easily. The ABA also moved 

swiftly, and on February 9 of 2000 I was the President’s first judicial nominee in that calendar year, and then the waiting began. 

On the day of my nomination, in an interview with the Cleveland 

Plain Dealer Senator DeWine declared me to be well qualified for 

the position. Not long after, both Senators DeWine and Voinovich 

returned their blue slips, indicating they had no objection to my 

nomination receiving a hearing. I believe I was the only circuit 

nominee in the country awaiting a hearing with blue slips returned 

by two Republican home State Senators. 

At the time, the Sixth Circuit was operating at three-quarters 

strength, with 4 of its 16 seats vacant. It was apparent that the 

Sixth Circuit nominees from Michigan were being held up, and it 

seemed that if there were any chance for relief for the circuit, it 

would come from my confirmation. 

While my nomination was pending, my confirmation was supported by, among others, 14 past presidents of the Ohio State Bar 

Association, representing every political stripe; more than 80 Ohio 

law school deans and professors, again coming from every point on 

the political spectrum; prominent Republicans in Ohio, including 

the Chief Justice of the Ohio Supreme Court, another Justice of the 

Ohio Supreme Court, Justice Evelyn Stratton, Congresswoman 

Deborah Pryce, and Congressman David Hobson. I also had support from the National District Attorneys Association, the Fraternal Order of Police, and had endorsements from virtually every 

major newspaper in the State of Ohio, including two editorials from 

the generally conservative Columbus Dispatch. 

As a result of the vacancies on the court, the Sixth Circuit had 

become the slowest appellate court in the Nation. It was also evident at the time that more Sixth Circuit vacancies were on the 

way. Of the 12 members of the court at the time, 5 were eligible 

for senior status in the years 2000 and 2001. 

At the time my nomination was pending, despite the lower vacancy rates than the Sixth Circuit, the Senate confirmed circuit 

nominees to the Third, Ninth, and Federal Circuits, and afforded 

hearings to nominees from the Eighth and D.C. Circuits. No Sixth 

Circuit nominees had been afforded a hearing in the prior 2 years. 

Of the nominees awaiting a Judiciary Committee hearing, there 

was no circuit with more nominees pending than the Sixth Circuit. 

Yet, with the high vacancies already impacting the Sixth Circuit’s performance and more vacancies on the way, why did my 

nomination expire without a hearing? To their credit, Senator 

DeWine and his staff, and Senator Hatch’s staff and others close 

to him were very straight with me. Over and over again, they told 

me two things. No. 1, there will be no more confirmations to the 

Sixth Circuit during the Clinton administration. No. 2, this has 

nothing to do with you; don’t take it personally. It doesn’t matter 

who the nominee is, what credentials they may have or what support they may have. See item No. 1. 

20

While I never had the opportunity to discuss the matter personally with Senator Hatch, with whom I had an excellent relationship 

during my tenure at the Justice Department, it was my strong 

sense that he and Senator DeWine were not at all comfortable with 

this state of affairs. On one occasion, Senator DeWine told me, this 

is bigger than you and it is bigger than me. 

Senator Kohl, who had kindly agreed to champion my nomination within the Judiciary Committee, encountered a similar brick 

wall. The fact was a decision had been made to hold the vacancies 

and see who won the presidential election. With a Bush win, all 

those seats could go to Bush rather than Clinton nominees. 

I see my time has expired, Mr. Chairman, and I know my full 

statement is in the record. I am happy to discuss with the committee any thoughts on how we might remove ourselves from this 

downward cycle in the future. 

[The prepared statement of Mr. Markus follows:]

STATEMENT OF KENT MARKUS, PROFESSOR, CAPITAL UNIVERSITY LAW SCHOOL

Good morning Mr. Chairman, Sen. Sessions and members of the Subcommittee. 

My name is Kent Markus. I’m a professor at Capital University Law School in Columbus, Ohio where I also serve as the Director of the Dave Thomas Center for 

Adoption Law, a nationally unique institution aimed at improving child welfare and 

adoption systems. 

In the past when I’ve testified at Congressional Hearings, I’ve always thanked the 

Chair for inviting me. And while I am grateful for the opportunity to talk with you 

about the confirmation process for Federal judges, this isn’t quite the Senate Judiciary Committee hearing that I had once longed for. 

I’m here today because I concur with President Bush that we need to find a way 

to consider Federal judicial nominations without undue delay. But I’m also here 

today because I believe that the history regarding the current vacancy backlog is 

being obscured by some—and I believe that this historical revisionism is exacerbating the negative political dynamic surrounding judicial confirmations. I don’t 

think that we’ll ever stop the retaliatory, tit-for-tat cycle of judicial confirmation 

delay unless both political parties agree to compromises—a topic I’ll address at the 

end of my testimony. 

MY EXPERIENCE AS A FEDERAL JUDICIAL NOMINEE

In the summer of 1999, I was contacted by friends at the Department of Justice. 

They informed me that Judge David Nelson of the 6th Circuit had notified the 

White House that he would take senior status on October 1st of that year. They 

asked if I wanted to be considered for the seat. I told them that I most assuredly 

did. 

To confirm my interest, I immediately wrote to the then White House Counsel 

Chuck Ruff. My letter, in part, stated as follows:

I write to express my deep interest in appointment to the vacancy on the 6th 

Circuit resulting from Judge David Nelson’s decision to leave active status. I 

believe that the range and breadth of my professional experience have prepared 

me for such a position and I am confident that I would serve in a manner that 

would bring credit to the President and others involved in selecting me. 

At different points in my professional life, I have worked in the legislative, 

executive and judicial branches of the Federal Government. I am presently a 

law professor and have also been a private practice litigator and the manager 

of two private, non-profit organizations. I have been consistently involved in 

making, implementing and interpreting Federal (as well as state) law. If appointed, I believe that the unusual breadth of my career would help me to decide cases through a blending of rigorous legal analysis with common sense 

practicality. 

In addition to intellect, I believe that a key aspect of performing well as a 

judge is attitude. I believe in the importance of presenting timely, clear and cogent rulings. I believe that judges should interpret the law and that legislators 

should make the law. I believe that government service—and particularly service in the judiciary—is a public trust that requires a commitment to show neiVerDate Mar 21 2002 11:50 Apr 28, 2003 Jkt 085887 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 C:\HEARINGS\86040.TXT SJUD4 PsN: CMORC
21

ther bias nor prejudice to any party. As an appeals court judge, I would expect 

to live by these principles and bring energy, commitment, common sense, good 

humor and humility to the courthouse everyday.

Throughout that fall, the White House reviewed possible nominees for Judge Nelson’s seat. As the result of a strong and cordial working relationship with Senator 

DeWine, I was able to represent to the White House that I was confident Senator 

DeWine would advise them that he would have no objection to my nomination. 

Shortly thereafter, the White House nominations counsel informed me that he had 

conferred with Senator DeWine about my possible nomination. He reported to me 

that he had been pleased by the Senator’s decidedly favorable response. 

In December, I was informed that the President had tentatively selected me as 

the nominee for the vacancy. I was instructed to provide the voluminous documentation required of nominees by the White House, the Justice Department, the FBI, the 

Senate, and the Administrative Office of the Courts so that ABA and FBI background checks could commence. 

Since I had left the Justice Department with a high level security clearance just 

a little more than a year before, the FBI was able to complete its update check relatively easily. The ABA also moved swiftly. On February 9, 2000, I was the President’s first judicial nominee in that calendar year. 

And then the waiting began. 

On the day of my nomination, in an interview with the Cleveland Plain Dealer, 

Senator DeWine declared me to be ‘‘well-qualified’’ for the position. Not long after, 

both Senators DeWine and Voinovich returned their ‘‘blue-slips’’ indicating that they 

had no objection to my nomination receiving a hearing. 

At the time, the 6th Circuit was operating at three-quarters strength, with 4 of 

its 16 seats vacant. It was apparent that the 6th Circuit nominees from Michigan 

were being held up and it seemed that if there were any chance for relief for the 

Circuit, it would come from my confirmation. 

While my nomination was pending, my confirmation was supported by, among 

others: 

• Fourteen past presidents of the Ohio State Bar Association—representing individuals of every political stripe. 

• More than 80 Ohio law school deans and professors, again, coming from every 

point on the political and ideological spectrum. 

• Prominent Ohio Republicans, including Ohio Supreme Court Chief Justice 

Thomas Moyer, Ohio Supreme Court Justice Evelyn Stratton, Congresswoman 

Deborah Pryce, Congressman David Hobson, State Auditor Jim Petro, former Columbus Mayor Greg Lashutka, and former Franklin County Prosecutor Mike Miller. 

• The National District Attorneys Association and the National Fraternal Order 

of Police. 

• Virtually every major newspaper in the state, including two editorials by the 

generally conservative Columbus Dispatch. 

As a result of the vacancies on the court—one stemming back to 1995 that is still 

open today—the 6th Circuit became the slowest appellate court in the Nation. Then 

Chief Judge Martin told me that the average time for a case to move from filing 

to decision was 2 years—a period 51⁄2 to 6 months slower than the next slowest circuit. 

Friends of mine on the District Court informed me that a request for them to sit 

by assignment on the Circuit Court—traditionally an honor for District Court 

judges—had become so routine and onerous given busy dockets of their own that 

some district judges had begun to refuse the previously prestigious assignment. 

It was also evident at that time that more 6th Circuit vacancies were on the 

way—of the 12 members of the court at that time, 5 were to be eligible for senior 

status in 2000 or 2001. The possibility that the court would be half-empty before 

any reinforcements arrived is the reality we face today. 

At the time my nomination was pending, despite lower vacancy rates than the 6th 

Circuit, in calendar year 2000, the Senate confirmed circuit nominees to the 3rd, 

9th, and Federal Circuits and afforded hearings to nominees from the 8th and DC 

Circuits. No 6th Circuit nominee had been afforded a hearing in the prior 2 years. 

Of the nominees awaiting a Judiciary Committee hearing, there was no circuit with 

more nominees than the 6th Circuit. 

With high vacancies already impacting the 6th Circuit’s performance, and more 

vacancies on the way, why, then, did my nomination expire without even a hearing? 

To their credit, Senator DeWine and his staff and Senator Hatch’s staff and others 

close to him were straight with me. Over and over again they told me two things: 

(1) There will be no more confirmations to the 6th Circuit during the Clinton Administration, and 

22

(2) This has nothing to do with you; don’t take it personally—it doesn’t matter 

who the nominee is, what credentials they may have or what support they may 

have—see item number 1. 

While I never had the opportunity to discuss the matter personally with Senator 

Hatch, with whom I had an excellent relationship during my tenure at the Justice 

Department, it was my strong sense that he and Senator DeWine were not at all 

comfortable with this State of affairs. On one occasion, Senator DeWine told me 

‘‘This is bigger than you and it’s bigger than me.’’ Senator Kohl, who had kindly 

agreed to champion my nomination within the Judiciary Committee, encountered a 

similar brick wall. 

The fact was, a decision had been made to hold the vacancies and see who won 

the Presidential election. With a Bush win, all those seats could go to Bush rather 

than Clinton nominees. 

Although I had hoped to be serving on the Federal Bench over the course of the 

last several years, I have certainly enjoyed the teaching career the Senate’s inaction 

has afforded me. I do talk a little bit about my experience in my Legislation class 

and greatly enjoy my Adoption Center work on behalf of kids—especially kids who 

have been abused or neglected—in need of a safe, permanent home. I’m particularly 

grateful to Senator DeWine for his continued leadership in the area and was proud 

that my Center recognized him with our highest award this year, The Dave Thomas 

Award. 

Still, it’s my sincere hope that we can find a way to allow Federal judicial nominees to receive timely consideration without undue delay. The current system is 

simply unfair to good and talented people from across the political and legal spectrum who are eager to lend their talents to the nation’s well-being as members of 

the Federal judiciary. 

A SOLUTION? 

Since I teach Legislation to law students, I’ve tried to apply some of the lessons 

I discuss with my students to looking for a resolution to this problem. As an academic, here’s how I see things. 

A great many pending vacancies stem from the refusal of the Republican-controlled Senate to confirm, or even provide a hearing to, well-qualified Clinton nominees. Other vacancies stem from the normal course of judicial retirements that have 

occurred during the Bush Administration. 

It seems clear that as long as the Democrats control the Senate, they will seek 

to ensure that their Republican colleagues do not benefit from their failure to process Clinton nominees and are denied the ill-gotten gain of a super-abundance of judicial appointments. Senate Democrats will insist that the White House should not 

be able to put conservative judges in seats that the Democrats believe would not 

be vacant but for stall tactics employed for several years by their Republican colleagues. 

Ironically, Republican Senators, on the other hand, will now insist that whatever 

the reasons for the vacancy, the courts are problematically backlogged and nominees 

are being ill-treated. They will insist that as long as a nominee is intellectually, 

temperamentally, and experientially well-prepared for service on the bench, confirmation hearings should be scheduled, post haste, with the treatment of Clinton 

nominees forgotten and forgiven. 

One promising development with respect to the consideration of judicial nominees 

is greater transparency in the process. Anonymous holds are gone. More candid and 

open discussion about nominees—at timely nomination hearings—will reflect well 

on the entire Senate and will remove the frustrating mystery confronted by past 

nominees. 

If the two parties wish to break the judicial nominations logjam, each will have 

to pay some deference to the other side’s view. The Democrats will have to acknowledge that, in the end, the country is not well-served if the judicial branch is forced 

to operate at a level substantially less than full strength. The Republicans will have 

to accept that it is particularly galling to their Democratic colleagues to allow an 

extremely conservative individual fill a seat for which a Clinton nominee was left 

languishing without even a hearing. And the White House will simply have to confer more earnestly and completely with Democrats in the Senate about the acceptability of nominees and may need to withdraw some that are pending in the spirit 

of that increased consultation. 

If both parties will take the first step together, it’s possible that we can stop the 

downward spiral plaguing the consideration of Federal judicial nominations. I’m 

eager to see what happens and discuss it with my class—and of course I’d be 

pleased to answer any questions members of the Subcommittee may have.

23

Chairman SCHUMER. Well, I thank you, Mr. Markus, and your 

solution is a thoughtful one and if we have a chance, I will try to 

ask you a question or two on it, which we appreciate. 

Our next witness is Bonnie Campbell. She is now a partner at 

the distinguished Washington law firm of Arent Fox, where she 

acts as an adviser, negotiator, advocate, and litigator representing 

employers in personnel, labor relations, employment discrimination 

benefits, and other employment-related matters. 

A graduate of Drake University and Drake’s Law School, Ms. 

Campbell has an outstanding record of public service. She was 

nominated by President Clinton early in 2000 to serve on the U.S. 

Court of Appeals for the Eighth Circuit. She was supported by both 

of her Senators, Democrat Tom Harkin and Republican Chuck 

Grassley, given a ‘‘qualified’’ rating by the ABA, and afforded a 

hearing before the Judiciary Committee a few months later, in May 

of 2000. 

However, despite a non-controversial, rather unremarkable hearing, Ms. Campbell was never scheduled for a committee vote. No 

explanation for this failure to grant her due process was ever given 

and her nomination was eventually returned at the end of the 

106th Congress. In January of 2001, President Clinton renominated Ms. Campbell, but President Bush failed to seize the opportunity and withdrew her nomination shortly thereafter. 

At the time of her nomination, Ms. Campbell was nearing the 

end of a distinguished term at the U.S. Department of Justice, 

where she served as Director of the Violence Against Women Office, a position to which she had been appointed by President Clinton in 1995. In that capacity, she oversaw a $1.6 billion program 

to provide funding to States to strengthen their efforts in the areas 

of domestic violence and sexual abuse. 

She also directed the Federal Government’s efforts to implement 

the new criminal statutes created by the 1994 Violence Against 

Women Act. Ms. Campbell oversaw the Justice Department’s efforts to combine tough new Federal laws with assistance to States 

and localities to fight against violence against women. She also 

served for Secretary Madeline Albright as U.S. representative to 

the international negotiations on the creation of an international 

criminal court. 

Before coming to Washington, Ms. Campbell served as the Attorney General of Iowa, the first woman ever elected to that position. 

During her tenure in office, she was instrumental in pushing the 

State legislature to strengthen Iowa’s domestic abuse statute, and 

in 1992 she authored one of the Nation’s first anti-stalking laws. 

In 1997, Bonnie Campbell was named by Time magazine as one 

of the 25 most influential people in America. Ms. Campbell’s record 

of distinguished public service and her experience in private practice combined to make an excellent nominee to the Court of Appeals for the Eighth Circuit, a fact with which both of her Senators 

obviously agreed. 

Given the chance at her hearing to raise questions about her or 

her work, members of the Senate Judiciary Committee voiced no 

objections at all, and no opposition from any quarter surfaced on 

any issue. Yet, once afforded a hearing, Bonnie Campbell was left 

to linger in limbo. She was not granted a committee vote, but neiVerDate Mar 21 2002 11:50 Apr 28, 2003 Jkt 085887 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 C:\HEARINGS\86040.TXT SJUD4 PsN: CMORC
24

ther was she confronted with any objection to her nomination proceeding. 

Ms. Campbell, you may proceed. Your entire statement will be 

read into the record. We thank you for being here. 

STATEMENT OF BONNIE J. CAMPBELL, WASHINGTON, D.C. 

Ms. CAMPBELL. Thank you, Mr. Chairman. Good morning, members of the subcommittee. It is indeed a pleasure to be here today. 

In 1999, I learned that one of the Iowa judges serving on the 

Eighth Circuit had announced his pending retirement. I informed 

the White House of my interest in applying for that position, and 

I commenced the rather laborious paperwork so well described by 

Judge Rangel. 

President Clinton nominated me for the U.S. Court of Appeals 

for the Eighth Circuit on March 2 of 2000. I was pleased and proud 

to have been nominated, and had the support of both my Senators, 

Senator Grassley and Senator Harkin, with whom I had worked for 

years. Indeed, Iowa’s two Senators have had a history of bipartisan 

support for judicial nominees for Iowa and Eighth Circuit vacancies. 

The Senate Judiciary Committee scheduled my confirmation 

hearing for May 25, and I felt privileged to have the opportunity 

to appear before the committee to answer any questions. Now, 

hearing from my colleagues, I realize how truly privileged I was. 

Both Senator Harkin and Senator Grassley took time from their 

very busy schedules to attend my hearing, make introductory remarks, and express their support for my nomination. 

From my own experience at the hearing and the observation of 

more astute observers than I, it seemed that my confirmation hearing was cordial, even friendly. Certainly, there was no hint that my 

nomination was viewed as controversial or contentious in any fashion. 

After the hearing, I received written follow-up questions from a 

number of Senators and I responded to those questions as quickly 

as possible. I continued to receive further written questions until 

late June. I answered each Senator’s questions as completely and 

honestly as I could, and then I waited. 

By roughly July of 2000, after my confirmation hearing and after 

I had answered many follow-up questions, there was no indication 

that the Senate Judiciary Committee intended to schedule my nomination for a vote. The Senate leadership began publicly stating 

that the White House had submitted some nominations so late in 

the session that the committee would not be able to schedule further hearings or votes on those nominees, especially those nominated for the appellate courts. 

However, this ‘‘it is too late’’ excuse turned out not to be a hard 

and fast rule. A nominee for the Ninth Circuit and two district 

court nominees were all nominated on July 21, 2000, more than 4 

months after I was nominated, provided a hearing 4 days later, 

voted out of committee 2 days later, and confirmed by the Senate 

on October 3. These confirmations are evidence that the Senate 

had the capacity to move nominations through the process quickly 

when there was a determination to do so. 

25

Despite the fact that Senator Harkin went to the floor nearly everyday pleading with the Senate leadership to schedule a vote on 

my nomination, I never got a vote out of the committee or of the 

full Senate. 

At that time, any individual Senator could put an anonymous 

hold on a nominee, and I heard rumors that various Senators had 

indeed a hold on my nomination. There were other rumors floating 

around. One suggested the possibility that because the President 

had recess-appointed a Justice Department official, there would be 

no further confirmation votes for nominees as a kind of payback 

against the President. 

The more common theory was the one so capably described by 

my colleague, Kent Markus, which was that it was simply too late 

and there were not going to be any additional votes. To say that 

I was disappointed is obviously an understatement. 

Last week, President Bush declared a vacancy crisis in the Federal courts and suggested that the slowness of the process is ‘‘endangering the administration of justice in America.’’ In my view, 

President Bush could have simultaneously underscored his deep 

concern for the vacancy level in the Federal judiciary and demonstrated a bipartisan approach to filling those vacancies simply by 

renominating a number of individuals who had already been 

through the most time-consuming aspects of this process, rather 

than withdrawing their names when his new administration came 

to office. 

Considering the context of that moment—as you described, a 

sharply and narrowly divided electorate; the President assumed office after receiving less than 50 percent of the popular vote; a divided Congress so competitive that the switch of one person 

changed control of the Senate; a divided Supreme Court—most key 

decisions are 5 to 4—such a wonderful show of bipartisanship 

would not only have reduced the vacancy level within the Federal 

judiciary, but also set a positive, constructive tone for filling future 

vacancies, one that in the end would have served the new President well. 

I know it is naive to say that even today President Bush could 

make a bipartisan gesture of goodwill by renominating some of 

those individuals who were never given the opportunity for a hearing or for a vote. 

I will stop there because I am trying to be respectful of the time 

constraints. 

[The prepared statement of Ms. Campbell follows:]

STATEMENT OF BONNIE J. CAMPBELL, WASHINGTON, DC. 

Mr. Chairman and Committee Members. Good morning. It is a pleasure for me 

to be here today to discuss the Federal judicial selection process and to share a little 

about my own experience as a nominee within that process. 

By way of introduction, let me discuss briefly the salient aspects of my background. I was born and raised in upstate New York but spent most of my adult life 

in Iowa. I attended Drake University and Drake Law School. After law school, I 

joined a law firm in Des Moines and engaged in the general practice of law. In 1991, 

I was sworn in as Iowa’s Attorney General and began a legal career in the public 

sector. In 1995, I was appointed by President Clinton as the first Director of the 

Violence Against Women Office in the U.S. Department of Justice, where I also 

served as Counsel to the Attorney General. After my tenure at the Department of 

Justice, I joined the Arent Fox Law Firm here in the District of Columbia. 

26

In 1999, I learned that one of the Iowa Judges serving on the Eighth Circuit had 

announced his pending retirement, thus creating a vacancy on the Court. Believing 

that my experience as an attorney in private practice, as Iowa Attorney General, 

and as Director of the Violence Against Women Office and Counsel to the Attorney 

General had prepared me well for a position as an appellate judge, I informed the 

White House of my interest in applying for the position. I commenced the paperwork 

to begin the vetting process for the FBI, the American Bar Association, the Department of Justice, and this Committee. 

President Clinton nominated me for the United States Court of Appeals for the 

Eighth Circuit on March 2, 2000. I was pleased and proud to have been nominated 

and to have the support of both of my Senators—Senator Grassley and Senator Harkin. Indeed, Iowa’s two Senators have had a history of bipartisan support for judicial nominees for Iowa and Eighth Circuit vacancies. 

The Senate Judiciary Committee scheduled my confirmation hearing for May 25, 

2000, and I felt privileged to have the opportunity to appear before the Committee 

to answer any questions the Senators might have of me. Both Senator Harkin and 

Senator Grassley took time from their busy schedules to attend my hearing, make 

introductory remarks, and express their support for my nomination. From my own 

experience and the observation of more astute observers than I, it seemed that my 

confirmation hearing was cordial, even friendly; certainly there was no hint that my 

nomination was controversial or contentious in any fashion. 

After the hearing, I received written follow-up questions from a number of Senators, and I responded to those questions as quickly as possible. I received further 

written questions until late June. I answered each Senator’s question as completely 

and honestly as I could. And, then I waited. 

By roughly July, 2000, after my confirmation hearing and after I had answered 

many follow-up questions from various Senators, there was no indication that the 

Senate Judiciary Committee intended to schedule my nomination for a vote. The 

Senate leadership began publicly stating that the White House had submitted some 

nominations so late in the session that the Committee would not be able to schedule 

further hearings or votes on nominees, especially those nominated for the appellate 

courts. However, this ‘‘It’s too late’’ excuse turned out not to be a hard and fast rule. 

A nominee for the Ninth Circuit and two district court nominees were all nominated 

on July 21, 2000 (more than 4 months after I was nominated), provided a hearing 

4 days later (July 25, 2000), voted out of committee 2 days later (July 27, 2000), 

and confirmed by the Senate on October 3, 2000 These confirmations are evidence 

that the Senate had the capacity to move nominees through the process quickly 

when there was a determination to do so. 

Despite the fact that Senator Harkin went to the Senate floor nearly every day 

pleading with the Senate leadership to schedule a vote on my nomination, I never 

got a vote in the Senate Judiciary Committee; consequently, I never got a vote of 

the full Senate. And, of course, I was never told why there was no vote on my nomination. At that time, an individual Senator could put an anonymous hold on a nominee, and I heard rumors that various Senators had put a hold on my nomination. 

There were other rumors: one offered the possibility that the President’s recess appointment of a Justice Department official so angered certain Senators that the Senate retaliated by not confirming any more circuit court nominees; another speculated that the Majority Leader had simply decided to stop the judicial selection process completely until after the November election, hoping to avoid confirming any 

more Clinton nominees to the courts. This latter theory is, of course, the most likely 

explanation for the refusal to confirm judicial nominees, and, certainly, the one to 

which I ascribe. 

To say that I was disappointed is an understatement. My own circumstance aside, 

I always appreciated that, compared to others whose nominations similarly landed 

in limbo, I was probably relatively better positioned. I was caught up in the process 

for nearly 2 years. However, at least I did not have a private legal practice to worry 

about while I was shuttled along an emotional rollercoaster for those many months. 

For those nominees who were in private practice or the private sector, I wondered 

often whether their businesses stayed afloat through the ups and downs of a long 

and painful judicial selection process. 

Last week, President Bush declared a vacancy ‘‘crisis’’ in the Federal courts and 

suggested that the slowness of the process is ‘‘endangering the administration of justice in America.’’ In my view, President Bush could have simultaneously underscored his deep concern for the vacancy level in the Federal judiciary and demonstrated a bipartisan approach to filling those vacancies by re-nominating a number of individuals who had already been through the most time-consuming aspects 

of the process, rather than withdrawing their names when his new Administration 

came to office. 

27

Considering the context of that moment—a sharply and narrowly divided electorate (the President assumed office after receiving less than fifty percent of the 

popular vote), a divided Congress (so competitive that the switch of one person 

changed control of the Senate), a divided Supreme Court (most key decisions are 5 

to 4)—such a wonderful show of bipartisanship would not only have reduced the vacancy level within the Federal judiciary but also set a positive, constructive tone for 

filling future vacancies, one that, in the end, would have served the new President 

well. 

I say today in earnest that, even now, President Bush could make a bipartisan 

gesture of good will by re-nominating some of those individuals who were never 

given the opportunity for a hearing or a vote. Just to assure that no one views this 

particular comment as self-serving, let me point out that the vacancy for which I 

was nominated has been filled now by a capable and decent man whom I consider 

a friend. 

Recently, President Bush said that every nominee for the Federal bench should 

be given a vote of the Senate, and I agree with him. There may have been Senators 

who opposed my nomination for one reason or another—certainly, I suspect that to 

be the case—but I will never know, because, like so many others, my nomination 

died in Committee. 

Much has been said about whether it is appropriate for Senators to consider a 

nominee’s ‘‘ideology’’ in the performance of their constitutionally mandated duty of 

advise and consent. Again, given the divisions within our society and its governmental institutions, common sense suggests that it would behoove the President to 

consult with the Senate on potential nominees in an honest attempt to assure that 

the candidates under consideration are within the mainstream of American thinking. 

Any discussion of the judicial nominating process would be incomplete without at 

least a passing comment addressing the massive, duplicative paperwork which is required of potential nominees. For me these forms included: the ABA Personal Data 

Questionnaire; the Senate Judiciary Committee Questionnaire; two Justice Department questionnaires dealing with my family’s financial affairs and my medical condition; and the FBI Background Investigation Forms. I certainly appreciate that 

anyone seeking a life-time appointment to the bench should be carefully vetted, but 

a consolidation of the various forms designed to eliminate duplication is definitely 

in order. 

I close by expressing again my appreciation for the opportunity to appear on this 

panel discussing the Federal judicial selection process. I wish you well in your deliberations of this very important topic. 

Thank you.

Chairman SCHUMER. Thank you, Ms. Campbell. We very much 

appreciate it. 

Our fourth witness is Enrique Moreno. He is 47. He is an attorney in private practice in El Paso, Texas. A native of Mexico, Mr. 

Moreno is a graduate of Harvard University and the Harvard Law 

School. 

Nominated by President Clinton in September of 1999 to serve 

on the U.S. Court of Appeals for the Fifth Circuit, Mr. Moreno was 

given the highest rating of ‘‘well qualified’’ by the ABA, and received significant support from community groups. He waited 15 

months, but was never given the courtesy of a hearing before the 

Senate Judiciary Committee. President Clinton renominated him at 

the beginning of 2001, but President Bush withdrew the nomination after a short time. 

Mr. Moreno has been extensively involved in his community, 

serving as Chairman of the United Way of El Paso County, Chairman of the Hispanic Leadership Institute, and President of the 

Board of the El Paso Cancer Treatment Center and the El Paso 

Legal Assistance Center, and his service to many other organizations. 

He has been listed among the best lawyers in America, the top 

lawyers in El Paso, and has been given prestigious awards by the 

28

El Paso Chapter of the NAACP, the Hispanic Leadership Institute, 

and the El Paso Hispanic Chamber of Commerce. 

The El Paso Bar Association, the Mexican American Bar Association of El Paso, and the Hispanic National Bar Association are just 

a few of the organizations which endorsed his nomination, as did 

the local district attorney, county attorney, police chief, sheriff, the 

El Paso Chamber of Commerce, and the U.S. Hispanic Chamber of 

Commerce. 

Despite all of this support, his public service, and his sterling 

legal credentials, Mr. Moreno was subjected to perhaps the worst 

treatment of any of President Clinton’s nominees, although there 

are certainly many terrible stories to choose from. 

In an unquestionably partisan political move, Enrique Moreno 

was insulted and demeaned by some Senators. Eight months after 

his nomination, the Senators from Texas announced their opposition to his confirmation on the clearly manufactured basis that he 

lacked the necessary experience. Seven of the 14 judges sitting on 

the Fifth Circuit at the time has no prior judicial experience when 

appointed, and 6 of those 7 were appointed by Republican Presidents. 

Relying on the opinion of 10 of the 31 members of the handpicked, unelected, partisan ‘‘advisory committee,’’ the Senators denied Mr. Moreno the opportunity to defend himself and his record 

in front of the Judiciary Committee. Outrage in the community 

over this action, described by the Texas Monthly as ‘‘a paroxysm 

of civic anger,’’ was so strong that a folk ballad, called a correa, 

usually written about legendary heroes, was composed about Mr. 

Moreno’s treatment. 

The San Antonio Express News, the El Paso Times, the Houston 

Chronicle, the Austin American Statesman, and the Dallas Morning News all editorialized against the Senators’ rejection of Moreno, 

a rejection which can only be explained in not very nice and very 

partisan terms. 

Senator SESSIONS. Mr. Chairman, I would just note that my concerns that this panel would take up the time and there would be 

very little time for questions or the second panel before we vote are 

confirmed. I appreciate your introductions, but, in fact, they are 

more arguments than introductions. It has created a 

misimpression, frankly, into the problems that these nominees had. 

There is another side of this story. Obviously, we are not going to 

have much time to discuss it. 

I just wanted to share that because I think you have taken full 

advantage of the Chair to make your points. 

Chairman SCHUMER. I don’t do it often, but once in a while it is 

fun. More than fun, I think it is important to do. 

Let me try to limit Mr. Moreno to 5 minutes. The vote will begin 

at 11:30, but maybe we can keep going for another 10 or 15 minutes after. I will not ask questions and give you a chance, Senator 

Sessions, to ask some questions, as well as Senator Kyl. 

Senator KYL. Mr. Chairman, might I just note I am not a member of this subcommittee, but I am a member of the full committee 

and I have been here for the full hearing and I would hope that 

prior to the time we have to go to vote, I would at least have some 

opportunity to make a comment or two. 

29

Chairman SCHUMER. Well, we were going to just limit it to subcommittee members because of the time. But after Senator Sessions is finished with his questions, I again will forgo questioning, 

unless I feel the need in response to one of Senator Sessions’ questions, and let you make a brief statement. So let us have Mr. 

Moreno make his statement. 

Mr. Moreno, your entire statement will be read into the record, 

and if you could proceed in 5 minutes so we can get to the questions. 

STATEMENT OF ENRIQUE MORENO, EL PASO, TEXAS 

Mr. MORENO. Thank you, Mr. Chairman. I want to thank the 

subcommittee for the opportunity to appear before you. I greatly 

appreciate being given an opportunity to share my experience and 

to express a few personal viewpoints concerning the nomination 

process. 

Although I have been asked on a variety of occasions, this is the 

first time that I have agreed to speak publicly about my nomination experience. I do so today at the invitation of this committee, 

with the sincere hope that in some way my experience will lead to 

constructive dialogue that will improve the process for future nominees. 

Let me talk briefly about my background. I was not born in this 

country. My family emigrated to this country from Mexico when I 

was a young child. My father, a carpenter, and my mother, seamstress, came to this country with their children and their hope. 

Specifically, they hoped that their children could receive an education and succeed on their merits. My parents’ hopes were realized. 

My dad always joked that he had sent his dumbest son to Harvard. I have been privileged and fortunate to live the American 

dream. I have practiced law in El Paso for 21 years. My practice 

has included a wide spectrum of litigation. I have practiced both 

civil and criminal law. In the civil area, I have represented both 

plaintiffs and defendants. I have represented large business clients, 

and also advocated for individuals on behalf of their civil rights. 

My work has been recognized by my colleagues and by my community. I am especially proud of the recognition I have received from 

State district judges who are in a unique position to observe performance and professionalism. 

I was nominated by President Clinton for a vacancy on the U.S. 

Court of Appeals for the Fifth Circuit on September 16, 1999. Even 

before my nomination, I went through a thorough vetting process 

by the White House Counsel’s office, the Justice Department, the 

FBI, and the American Bar Association. I am proud to say that I 

received unanimously the highest rating given by the ABA to judicial nominees. I was the first person from El Paso to be nominated 

to the Fifth Circuit. No one from El Paso has ever served on this 

important court. 

My nomination was received with great excitement. Certainly, 

my family and I felt that excitement. Certainly, my community felt 

that excitement. Perhaps because of my background, I came to realize that a lot of people identified with my nomination. 

30

I will always remember being stopped on the street by an elderly 

woman whom I had never met. I will never forget her telling me 

in Spanish that she had heard about my nomination, that it was 

important, that she was praying for me, and that she would be 

lighting candles for me on my behalf. I was touched by that experience, but I was overwhelmed by the support that I received from 

others. 

I received support from friends and colleagues, but also from 

strangers and non-lawyers. I received support from Democrats and 

Republicans. This support came from my community, from 

throughout the State of Texas and throughout the Nation. For 

those that I have not personally thanked, I would like to take this 

opportunity to express my gratitude for their support and encouragement. 

I was a nominee for 14 months. I was nominated again by President Clinton on January 3, 2001, and became a nominee for another 3 months. In those 14 or 17 months, I waited and I waited. 

I was never offered a hearing before this committee. I would have 

welcomed the opportunity to appear, to answer your questions, to 

address your concerns, to submit my qualifications and experience 

to open and candid debate. I was never offered that opportunity. 

That I am aware, there was no public opposition to my nomination. I was never publicly criticized for a specific position or a specific matter about my background. I don’t recall being called controversial. If there were any specific concerns about me, they were 

never publicly debated. 

Six months into my nomination, I was invited by my State Senators to interview with an advisory group. This was a private interview, the specific results of which are not known even to members 

of the advisory group. I was later advised that, of the 31 members 

of the advisory group, 10 members recommended against my confirmation, 5 recommended in favor of my confirmation, and 16 either abstained or did not express an opinion. The Senators from 

my State wrote a letter stating that because of this vote, they 

would not support my confirmation. 

I do not think it is constructive for me to editorialize on that conclusion or that process. I think it is fair to observe, however, that 

an advisory group should not substitute for the U.S. Senate. I 

think it is also fair to observe that private deliberations are not a 

substitute for public debate. There is nothing in my background or 

my experience that I would shield from public debate. 

Let me close by anticipating a question. I am often asked if I am 

personally disappointed or bitter about my experience. Let me say 

that I am not. You see, I have received such encouragement, support, goodwill, and kindness from so many sources that it would be 

an extreme act of selfishness for anyone who has experienced what 

I have experienced to say that they have a right to be personally 

disappointed. 

I am not personally disappointed. I am disappointed for my community, for the people that supported my nomination, for the people that identified themselves with my nomination. With all due respect, I believe that they deserved better. 

Thank you again for this opportunity. 

[The prepared statement of Mr. Moreno follows:]

31

STATEMENT OF ENRIQUE MORENO, EL PASO, TEXAS

Good morning. I would like to thank the Committee for giving me the opportunity 

to appear before you. I greatly appreciate being given the opportunity to share my 

experiences and to express a few personal viewpoints concerning the nomination 

process. Although I have been asked to do so on a variety of occasions, this is the 

first time that I have agreed to speak publicly about my nomination experience. I 

do so today, at the invitation of the Committee, with the sincere hope, that, in some 

way, my experience will lead to a constructive dialog that will improve the process 

for future nominees. 

Let me talk briefly about my background. I was not born in this country. My family immigrated to this country from Mexico when I was a young child. My father, 

a carpenter, and my mother, a seamstress, came to this country with their children 

and their hope. Specifically, they hoped that their children could receive an education and succeed on their merits. My parents’ hopes were realized. My Dad always 

joked that he had sent his dumbest son to Harvard. I have been privileged and fortunate to live the American dream. 

I have practiced law in El Paso, Texas for 21 years. My practice has included a 

wide spectrum of litigation. I have practiced both civil and criminal law. In the civil 

area I have represented both plaintiffs and defendants. I have represented large 

business clients and also individuals advocating for their civil rights. My work has 

been recognized by my colleagues and by my community. In one survey of State 

judges, I was rated as one of the three top trial attorneys in El Paso. I am especially 

proud of that recognition, coming as it did from the State District Judges who are 

in a unique position to observe performance and professionalism. I am proud of my 

career, my legal and non-legal experience, and the tradition that my career represents. 

I was nominated by President Clinton for a vacancy on the United States Court 

of Appeals for the Fifth Circuit on September 16, 1999. Even before my nomination, 

I went through a very thorough vetting process by the White House Counsel’s Office, the Justice Department, the FBI, and the American Bar Association. I am 

proud to say that I received, unanimously, the highest rating given by the ABA to 

judicial nominees. I was the first person from El Paso, Texas to be nominated to 

the Fifth Circuit. No one from El Paso has ever served on this important court. 

My nomination was received with great excitement. Certainly, my family and I 

felt that excitement. Certainly, my community felt that excitement. Perhaps because 

of my background, I came to realize that a lot of people identified with my nomination. I will always remember being stopped on a street by an elderly woman whom 

I had never met. I will never forget her telling me in Spanish that she had heard 

about my nomination and that she was praying for me and lighting candles on my 

behalf. 

I was overwhelmed by the outpouring of support that I received from her and so 

many others. I received the support from friends and colleagues, but also from 

strangers and nonlawyers. I received the support from Democrats and from Republicans. This support came from my community, from my home State of Texas, and 

throughout the Nation. For those that I have not thanked personally, I would like 

to take this opportunity to express my gratitude for the support and encouragement. 

I was a nominee for 14 months. I was nominated again by President Clinton on 

January 3, 2001 and I became a nominee for another 3 months. In these 14 or 17 

months, I waited and waited. I was never offered a hearing before this Committee. 

I would have welcomed the opportunity to appear, to answer questions, to address 

your concerns, to submit my qualifications and experience to open and candid debate. I was never offered that opportunity. 

That I am aware, there was no public opposition to mynomination. I was never 

publicly criticized for a specific position or a specific matter about my background. 

I don’t recall being called ‘‘controversial.’’ If there were specific concerns about me, 

they were never publicly debated. 

Six months into my nomination, I was invited by my State’s Senators to interview 

with an advisory group. This was a private interview, the specific results of which 

are not known even to members of the advisory group. I was later advised that of 

the thirty-one members of this advisory group, ten members recommended against 

my confirmation, five recommended in favor of my confirmation, and 16 either abstained or did not express an opinion. The Senators from my State wrote a letter 

stating that because of this vote they would not support my confirmation. The only 

stated basis for the opposition was the apparent view of ten members of the Advisory Group that I ‘‘had not achieved the level of experience necessary to be fully 

engaged and effective’’ on the Fifth Circuit. I do not think it’s constructive for me 

to editorialize on that conclusion or that process. I do think it is fair to observe, 

32

however, that an advisory group should not substitute for the U.S. Senate. I also 

think it’s fair to observe that private deliberations are not a substitute for public 

debate. There is nothing about my background or experience that I would shield 

from public debate. 

I respect the Senate, its traditions and its customs. I continue to respect the nomination process. With all due respect, I have a simple and unoriginal observation 

about the nomination process. Nominees should get a hearing, hopefully a timely 

hearing. A nominee should receive an open public debate about the merits of his 

or her nomination. 

Let me close by anticipating a question. I am often asked if I am personally disappointed or bitter about my experience. Let me say that I am not. You see, I have 

received so much encouragement, support, good will, and kindness from so many 

sources. It would be an act of selfishness for anyone who has experienced what I 

have experienced to say that they have a right to be personally disappointed. I am 

not personally disappointed. I am disappointed for my community, for the many people that supported my nomination, and for the many people that identified with my 

nomination. With all due respect, I believe that they deserved better. 

Being nominated by the President of the United States for an important position 

is a source of great pride. Being recognized by my colleagues as well qualified for 

that position is also a source of great pride. Finally, appearing before this Committee is a source of great pride. While I would have preferred to appear before you 

earlier and under different circumstances, I hope that my comments and my experience can be used constructively. 

Thank you again for this opportunity.

Chairman SCHUMER. Thank you, Mr. Moreno. 

Now, I am going to let Senator Sessions do the first 5 minutes 

of questions. 

Senator SESSIONS. Well, thank you, Mr. Chairman. Let me just 

say I appreciate these individuals who have testified. One thing I 

would say is you have not been subject to intensive probing in to 

your backgrounds to see what kind of subscriptions to magazines 

you might have, or been attacked personally or ethically, or had 

your ethics challenged in any way. I think that is something you 

can be proud of. 

The system confirms a lot of people. We confirmed 377 for President Clinton. Only one was voted down and 41 were left 

unconfirmed. You were part of that 41, but I just want to say to 

you there is life after non-confirmation. I am sure you are finding 

that to be so. I wish you the best. 

Mr. Chairman, if it would be all right if Senator Kyl could go 

first and then I could follow him. 

Chairman SCHUMER. We are going to vote pretty soon, but, yes, 

I will be happy to give Senator Kyl—I would just the Senator to 

try and limit his comments to 5 minutes, no more. 

Senator KYL. I will do it in less than 5 minutes, Mr. Chairman. 

Chairman SCHUMER. Thank you, Senator. 

Senator KYL. I have just two quick points. I would like unanimous consent to submit a statement for the record. 

Chairman SCHUMER. Without objection. 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Here are my two points, and let me begin by just 

quoting statements from two of the witnesses in the interests of 

time. From the last witness, this comment: ‘‘I have a simple and 

unoriginal observation about the nomination process. Nominees 

should get a hearing, hopefully a timely hearing. A nominee should 

33

receive an open public debate about the merits of his or her nomination.’’

To one of the other witnesses this concluding two sentences: 

‘‘Hopefully, our presence here today will, in fact, set the record 

straight so that other judicial nominees, regardless of their party 

affiliation, will not suffer the same fate. They and the American 

people deserve better.’’

Mr. Chairman, I agree, and I think that if this hearing establishes anything, it is that nominees should get a hearing—precisely 

the point that we and President Bush have been making. If it is 

wrong for three of these witnesses to have been denied a hearing, 

it is wrong for this committee now to deny a hearing to current 

nominees. 

The second point I would like to make is to quibble a bit with 

the new standard that you discussed in your opening statement 

about the Senate’s responsibility to ensure balance on the courts, 

especially because of the view that the Senator from New York can 

objectively define that balance when speaking of the Bush nominees as being ‘‘out-of-mainstream conservative idealogues.’’ That is 

a direct quotation from you, I think. 

I would just like to say that I suspect that neither the Senator 

from New York nor the Senator from Arizona, myself, can objectively define what is a conservative idealogue, as well perhaps as 

the President, who represents all of the country, who is elected by 

all of the citizens of the country, not just the citizens of a particular 

State with a particular relative ideology, a President that now has 

an approval rating of over 70 percent. 

I would suggest that that kind of broad characterization has to 

be brought down to specific names. Is John Roberts an out-of-themainstream conservative idealogue? Is Miguel Estrada an out-ofthe-mainstream conservative idealogue? 

I will conclude this point by taking up the challenge of the chairman of the subcommittee, who said ‘‘I challenge you to present any 

of the four nominees of the eight circuit court nominees that the 

President made exactly a year ago today and stack them up 

against these nominees, and you will find that they are equally 

qualified.’’

Now, without denigrating any of the qualifications of these four 

witnesses, all of whom, I suspect, have very fine legal backgrounds, 

one of the four before us here has a unanimous ‘‘well qualified’’ 

background. Four of the nominees currently pending—Miguel 

Estrada, John Roberts, Priscilla Owen, and Terry Boyle—four of 

the nominees that have been pending now for over a year and 

haven’t been given a hearing have ‘‘well qualified’’ unanimous recommendations from the American Bar Association. 

My point again is not to suggest that any of these nominees 

would not have been qualified to serve on the Federal judiciary, but 

to make the point that the nominees that President Bush has made 

who have been languishing now for over a year without a hearing 

have received unanimous ‘‘well qualified’’ recommendations from 

the American Bar Association, your gold standard. So there can be 

no reason for these nominees not having a hearing, and as these 

witnesses have said, every one of these nominees deserves to have 

a hearing. 

34

I appreciate your holding this hearing today, Mr. Chairman, because I think it makes the point that we have been making all 

along. 

Thank you. 

Chairman SCHUMER. Thank you, and I would just, before I call 

on my colleague from Alabama, say a couple of points. 

No. 1, I think the Bar standard goes to one of the criteria I have 

had for nominating judges, and that is excellence. I think all four 

of these nominees, or former nominees, merit that standard of excellence. I think that the two you have mentioned, Estrada and 

Roberts, meet that excellence criteria. 

I go beyond that; I have made no bones about it. I believe that 

moderation ought to be a standard, not moderation of each particular nominee, but moderation of the bench. The President has 

said it himself. The President has said that he wants nominees in 

the guise of Scalia and Thomas. Those are the two most conservative members on the Supreme Court, a Supreme Court that 

doesn’t have anybody in the Brennan or the Hugo Black tradition. 

The most objective observers believe that both Ginsburg and 

Breyer, the two Clinton nominees, are fairly moderate. 

Senator KYL. It is all in the eye of the beholder, Mr. Chairman. 

Chairman SCHUMER. It is, it is. You know what? You and I will 

never agree, but it is sort of like what the Supreme Court said. I 

think it was Potter Stewart who said it about pornography: you 

know it when you see it, and I think most people know it and they 

see it. 

We are not fools here. We know what the administration’s plan 

has been here. They have stated it—thank God for their candor—

and that is to recapture the judiciary and move it way over. Now, 

you may say that is mainstream. I don’t think many people do. 

If you look at what the opinions of Scalia and Thomas have stood 

for and then just look at polls and see where the American people 

stand on most of these issues, Scalia and Thomas, I would argue, 

are way out of the mainstream, far more out of the mainstream 

than Breyer and Ginsburg. But that is for another day, that is for 

another day. 

I would just that ‘‘well qualified’’ by the Bar Association is a wonderful standard, but it is not my sole criteria. As you know, I have 

labored mightily that we do debate judicial ideology. I think that 

is fair. I just saw a survey. If you ask the American people if judicial ideology should be one of the things debated in choosing 

judges, 57 percent said yes, 30-some-odd percent said no. 

It is not the only criteria. I have voted for many, many judges 

who are to the right to me and I have voted for some who are to 

the left of me, but it should be part of it, I think. That is what I 

am laboring to do here. This hearing is a little different. We have 

heard such indignation. I agree with you that everyone should have 

a hearing, but we have heard such indignation from the other side 

about judges being held up, when the same thing was done a year 

or two ago. 

I don’t understand that. I can understand saying that was wrong 

and this is wrong, but to be on such a high horse when just in a 

short time, not in distant historical memory, the same thing was 

done, that bothers me. That bothers me because that is saying that 

35

something else is at work here. If someone felt so strongly that 

every judge should have a hearing, then why didn’t that happen 2 

years ago? 

By the way, I do believe that Senator Hatch tried to make that 

happen, as one of the witnesses said. I do. I have to say this, that 

I think both Senator Kyl and Senator Sessions were very fair and 

have been fair in all of this. But we all know what happened. 

Somehow, somewhere, at a higher place, the signal came down 

‘‘stop,’’ and it did. 

So let’s get off the high dudgeon here that, oh, this is the most 

horrible thing. Well, if it was horrible in 2001 and 2002, it was also 

horrible in 1999 and 2000, and I would like to see the debate shift 

from that and go to the place where we are really all debating, 

which is judicial philosophy. We know that, we know that. 

Hate the ‘‘gotcha’’ business, and it got many more conservative 

judges than liberal judges, unfortunately, but it was sort of strange 

to me when somebody was accused of a minor peccadillo back in 

their early, early days, a minor infraction, that somehow, if it was 

a liberal judge, all the Republicans said, that is a horrible infraction, I have to vote no, but all the Democrats said that is venial 

and forgivable. The opposite: when it was a conservative judge, all 

the Republicans would say that is venial, we can leave live with 

it, but all the Democrats were in high dudgeon. 

Everyone knew what was going on. Everyone knew, because if it 

was really that we were just judging the merits of that minor impropriety back then, then the votes should have been scattered 

equally among Democrats, Republicans, liberals, conservatives. It 

wasn’t. 

So I have been pretty clear and pretty consistent here, as you 

know, and you have said that, to your credit. But let’s debate what 

we are really debating here. Let’s not put up subterfuges, and I 

would say that the slowness of the process again is not really what 

we are talking about here. It is not really what we are talking 

about. We are talking about something else, just as looking at 

minor improprieties, which seemed to be the rage 5 or 6 years 

ago—and both sides did it; I do not claim that this was a Republican or Democratic thing—was also a subterfuge. That is the point 

I wish to make here. 

I apologize, Senator Sessions. 

Senator SESSIONS. Well, Mr. Chairman, I don’t agree. I think the 

ground rules have been changed. I think this is an unprecedented 

slow-down of judicial nominations, as the chart Senator Hatch put 

up there displays and shows. Overwhelmingly, President Clinton 

got the nominations he wanted confirmed. 

This Senate is not a perfect body, and for these good people, 

there is no perfect consistency in this body. I mean, I guess you can 

count, well, Lord, how did I ever even get as far as I got? That is 

what I consoled myself with. I am amazed I even got to the U.S. 

Senate. Yet, I am not entitled to be a Federal judge. 

The Senate does have responsibilities here, but we have got to 

discipline ourselves. We have got to have some sort of integrity in 

the process, and I believe we are looking at a historic slow-down 

of some of the finest nominees that any President has ever submitted. 

36

I know, Ms. Campbell, you mentioned that the President should 

nominate maybe some of the nominees that were not confirmed. It 

did nominate, as you know, two former Clinton nominees, Roger 

Gregory and Legrome Davis, both of whom were confirmed. He 

didn’t renominate every nominee that President Clinton had submitted, but he did that. 

You served in the Department of Justice. Did President Clinton 

ever nominate any of the 54 unconfirmed nominees under former 

President Bush? Did he renominate any of those when he took office? 

Ms. CAMPBELL. Unfortunately, I don’t know the answer to that, 

and I was conceding that that sounded naive. 

Senator SESSIONS. Well, the current President Bush has renominated a few of President Clinton’s nominees. President Clinton renominated a few of the fine nominees that the first President Bush 

had submitted, and that is the way life is. So I think the current 

President Bush reached out significantly there, and I believe that 

is important. 

Let me just mention a few things. I don’t know how people make 

it sometimes and others don’t make it. I am sure you have wrestled 

with that personally and you realize that it is not a reflection on 

you personally that you did not make it through this process. 

I would point out that 377 were confirmed; 41 were left pending 

when President Clinton left office. Only one was voted down on the 

floor of the Senate. Only one was voted down, so I think that is 

a pretty good record. We would like to see the Democratic leadership provide the same respect to the Bush nominees that the Clinton nominees received. 

You know, Mr. Markus and Ms. Campbell, I suspect you would 

have been good judges. I don’t know, but this is a political environment. You were being nominated, I guess all of you were, to the 

courts one step below the U.S. Supreme Court, important courts. 

I know the two of you had been close to the administration, had 

been involved in the Department of Justice, but had not been active in the practice of law and had not tried any lawsuits, to my 

knowledge. I think neither one of you at the time of your nominations had actually tried a jury trial. Is that correct? 

Ms. CAMPBELL. That is correct in my case, but I would argue 

that serving as a public sector lawyer is indeed the practice of law, 

far more akin to being an appellate judge. 

Senator SESSIONS. Well, I respect that, but all I am telling you 

is all these factors come together. To me, it is a factor. I mean, I 

practiced law full-time in Federal court for 15 years before Federal 

judges, so I have some appreciation for that. That was a valuable 

experience to me. Serving in the Department of Justice was also a 

valuable experience. 

But I think it was a lack in your record, so you come at it from 

a political process at the last of an administration and things may 

not have moved as fast as you felt like you were entitled to have 

them move. I mean, that is just the way the Senate works sometimes. 

Mr. MARKUS. Senator, I think merely all we are saying is that 

had there been an opportunity for a hearing, we might have had 

an opportunity to discuss what factors were relevant, what our 

37

backgrounds were, what qualifications we had, and whether we 

ought to have been confirmed. 

Senator SESSIONS. Well, I understand that and I would just say 

this to you, that is part of the process—senatorial courtesy, the 

blue slip policy that is historically part of this process. 

I know, Mr. Moreno and Judge Rangel, you fell afoul of that, but 

Senator Schumer wants to enhance it. He has advocated an enhanced power of the blue slip policy and he wants even more consultation than President Clinton ever gave to Republican Senators. 

So there is some inconsistency there, it seems to me. 

I know our time is running out. Mr. Moreno, you have got a lot 

of fine supporters and I appreciate that, but this commission there 

that Senator Gramm had, I know, did not support your nomination. 

That was factor obviously, I guess, in the blue slip factor or the objection that occurred. So all these things are frustrating. 

The vote is about over, Mr. Chairman. I have talked too long. 

Chairman SCHUMER. I will let you have the last word. 

Senator KYL. Mr. Chairman, might I just thank the panel of witnesses here? I especially appreciated just the tone, Mr. Moreno, of 

your comments. Not that I didn’t appreciate the others, but I especially yours and I appreciate your being here. 

Chairman SCHUMER. We have a second panel. We have four 

votes. We will resume in approximately one hour. The hearing is 

temporarily recessed. 

[The subcommittee stood in recess from 11:45 a.m. to 12:50 p.m.] 

Chairman SCHUMER. The hearing will resume. First, let me 

apologize to the witnesses and thank them for their patience. It is 

very rare that we get a block of four votes together that delays us 

so long, but unfortunately that happened. You might be happy to 

know that it was four judges we voted for. Anyway, it is something 

we can probably agree on. 

Also, my colleague and friend, Jeff Sessions, is on his way over, 

but has given us the okay to start. So I am going to introduce the 

first witness, C. Boyden Gray. I have always wondered what the 

‘‘C’’ stands for. 

Mr. GRAY. Clayland. 

Chairman SCHUMER. Clayland. 

Mr. GRAY. I didn’t want to be known as Clay Gray. 

Chairman SCHUMER. Clay Gray, yes, that is true. I thought it 

might be Charles, but a lot of Charleses don’t want the Charles 

and do a ‘‘C’’ also. 

C. Boyden Gray is a graduate of Harvard University and the 

University of North Carolina Law School, where he served as Editor-in–Chief of the UNC Law Review. He clerked for Chief Justice 

Earl Warren, of the U.S. Supreme Court, for a year. Mr. Gray 

joined the Washington, D.C., law firm of Wilmer, Cutler and Pickering in 1969 and became a partner in 1976. 

In 1981, he left the firm to serve as legal counsel to Vice President George Bush. He served as counsel to the Presidential Task 

Force on Regulatory Relief, chaired by Vice President Bush. Mr. 

Gray later served as Director of the Office of Transition Counsel for 

the Bush transition team and as counsel to President Bush from 

1989 to 1993. He returned to Wilmer Cutler in 1993. 

38

Mr. Gray currently serves as Chairman of the Citizens for a 

Sound Economy. In addition, he is a member of Harvard University’s Committee on University Development, the Board of Trustees 

of the Washington Scholarship Fund, St. Mark’s School, and the 

National Cathedral School. He recently served on the Bush–Cheney 

Transition Department of Justice Advisory Committee. 

Mr. Gray, your entire statement will be read into the record. You 

are an old hand here. You know the rules. You have 5 minutes and 

may proceed as you wish. 

STATEMENT OF C. BOYDEN GRAY, FORMER WHITE HOUSE 

COUNSEL, WASHINGTON, D.C. 

Mr. GRAY. Thank you very much, Mr. Chairman. In light of the 

testimony this morning, I thought I could probably best summarize 

my testimony with just two points. 

First, we faced in 1989 a Democratic Senate with a larger majority than you have now. 

Chairman SCHUMER. It couldn’t be smaller. Excuse me. I am 

sorry. 

Mr. GRAY. Yet, we were able to work out agreements with or consultations with the home State delegations and eventually get most 

of our nominees confirmed, even though many of them, I think, 

would be classified under your rubric as too conservative. This was 

not a factor, at least officially. 

I therefore would submit that what is going on now is a change 

in the way judicial nominations have proceeded in the past. I think 

it is a fundamental change and if this is what the Senate can 

achieve, I suppose that is fair game. But it is, I want to again repeat, a fundamental change in the way I think this has operated 

in the past. 

The second point that I want to make is that, notwithstanding 

that, it is true that in the last year of a presidency there is a slowdown, especially if it is thought that there might be a change in 

the White House. This is a tradition that may not be a pleasant 

one, but it goes back many, many years and it is quite bipartisan. 

Therefore, I think it is unfair to compare the confirmation rate, Mr. 

Chairman, of the last year of the Clinton administration with the 

first 2 years of the Bush 43 administration. 

If you take the four witnesses, the fine men and women who 

were here earlier this morning, two of them had home State problems, and the other two were not last-minute, but last-year nominees, when traditionally the confirmation rate goes way, way down. 

I have some personal experience with this, having been involved 

peripherally with the Judiciary Committee on some legislative battles in the late 1970s. In 1980, the Republicans, in the minority, 

slowed down the nominations of President Carter quite dramatically. Two did, however, get through—Justices Ginsburg and 

Breyer, one to the D.C. Circuit and one to the First Circuit. But 

this is a long, long tradition of slow-down and the comparisons just 

don’t wash, in my opinion. 

As I said, we were able in the Bush 41 administration to get consultations enough to not get expeditious treatment, necessarily, but 

to get many of our nominees through. Nevertheless, we still were 

39

left with 54 not getting confirmed and 97 vacancies, as compared 

to the number of 41 and 67 from the past administration. 

As for the current nominees of the Bush administration, I believe 

that, in addition to being well qualified, they are accepted and they 

are mainstream. They have, by and large, the support of their 

home State delegations and I don’t know how anyone can say—to 

pick two examples of gentlemen that I know well myself, Roberts 

and Estrada, how they can be considered to put any court that they 

might be confirmed to out of whack. They are both very, very fine 

individuals. 

I think John Roberts, who was a casualty of being nominated in 

the last year of Bush 41 and didn’t make it, perhaps understandably, has argued more cases in the Supreme Court than any living 

appellate advocate, and I think has got the absolute support of anyone who has ever heard him or dealt with him. 

If you go through some of the others who have not had hearings, 

I think you would see that there is really no basis for holding them 

up: Levinsky Smith, African American nominee to the Eighth Circuit, supported by both Arkansas Senators, not yet confirmed; Priscilla Owen, rated ‘‘well qualified’’ by the ABA, support of both 

Texas Senators, not yet confirmed; Jeff Sutton, former Solicitor 

General of Ohio, ‘‘well qualified’’ by the ABA, Sixth Circuit, home 

State Senate support, not yet confirmed; Deborah Cook, Ohio Supreme Court Justice, support of both Ohio Senators, not yet received a hearing; and, finally, Professor Michael McConnell, an old 

colleague of mine, a former Brennan clerk, rated ‘‘well qualified,’’ 

supported by many of your supporters here, including Professor 

Cass Sunstein, support of both Utah Senators, but not yet confirmed. 

I really believe that there is a change in the way this confirmation process has operated in the past. I believe the President of the 

United States is elected to make these judgments. I for one would 

like the power to say that balance is being affected one way or the 

other, but I believe that is for the President to decide, with the full 

Senate making vote, not for the Judiciary Committee to screen in 

isolation. 

Thank you very much. 

[The prepared statement of Mr. Gray follows:]

STATEMENT OF C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL,

WASHINGTON, DC. 

I. INTRODUCTION

Good morning, Mr. Chairman. Thank you for this opportunity to appear today. 

The topic of this hearing, ‘‘The Ghosts of Nominations Past: Setting the Record 

Straight,’’ is of particular interest to me: As White House Counsel during the first 

Bush Administration from 1989 to 1993, I dealt directly with the selection of nominees and their confirmation. 

II. BUSH I NOMINEES

Our practice under President Bush was to consult home-state Senators in advance 

of nomination regarding nominees for the District and Circuit Court. In all but a 

small handful of cases, the Administration was able to secure the support or nonopposition of both home-state Senators. On this score, we and the Senators operated 

under generally accepted rules of engagement that a Senator’s disagreement with 

a potential nominee on a legal or political question was not a sufficient basis for 

that Senator to oppose the nominee. 

40

Our determined efforts not to surprise home-state Senators and to address any 

legitimate concerns in advance of nomination may have helped us avoid the multiyear delays experienced by some of President Clinton’s nominees. Even though we 

nominated some individuals who Members of this Committee might view as more 

conservative than they would have preferred, generally speaking we had good faith 

on both sides and were able to secure home-state Senator support. 

We were, of course, disappointed that outstanding nominees like Terry Boyle from 

North Carolina for the Fourth Circuit, Frederico Moreno from Florida for the 11th 

Circuit, Lillian Bevier from Virginia for the 4th Circuit, and John Roberts from 

Maryland for the D.C. Circuit did not get confirmed. In all, 54 of our nominees did 

not get confirmed at the end of the 102d Congress, and we were left with 97 vacancies on the Federal bench. 

III. CLINTON NOMINEES

My understanding is that many of the Clinton nominees who were delayed for 

long periods of time and not confirmed had home-state Senator problems. For example, I am advised that Helene White, Kathleen McCree Lewis, Jorge Rangel, 

Enrique Moreno, James Beaty, and James Wynn all lacked support from one or both 

of their home-state Senators. Not knowing the particulars of all these instances, I 

cannot speak as to whether these issues were all of the kind we would have recognized and endeavored to address, but from my knowledge of the Senators involved, 

I would guess that the Clinton Administration must have been partially to blame 

in at least several of these instances. 

Nonetheless, President Clinton was able to have 377 of his nominees confirmed—

5 short of the all-time record. He lost one floor vote for a nominee to the district 

court. And when the Senate adjourned for the last time under his presidency, there 

were only 67 vacancies and only 41 nominations expired without action. Overall, 

that is a very good record. 

IV. BUSH II NOMINEES

Of course, the context of this hearing clearly relates the ‘‘Ghost of Nominations 

Past’’ to the present nominees. Currently, of the 21 circuit court nominees pending, 

only 5 appear to have support issues with their home-state Senators. Thus, over 75 

percent of these circuit nominees have no support issues from home-state Senators, 

but have still not been confirmed. 

For example, John Roberts was nominated in Bush I, but his nomination expired 

through delay in 1992. There is widespread agreement that he is one of the top appellate attorneys in the Nation. He was renominated 1 year ago today by President 

George W. Bush, but still has not received a hearing. It has been 10 years—or 3,755 

days—since his first nomination and he has spent over 1.5 years/620 days during 

which his nomination has actually been pending without a hearing. 

Miguel Estrada, who will be the first Hispanic judge on the D.C, Circuit, was 

rated ‘‘well qualified’’ by the ABA. He is a former Supreme Court clerk, an alumnus 

of the Solicitor General’s office, and a partner at a major D.C. firm. His professional 

qualifications are impeccable. A year after his nomination, he still has not received 

a hearing. 

Levinsky Smith, an outstanding African American nominee to the 8th Circuit, is 

supported by both Arkansas Senators, but has not yet been confirmed. 

Priscilla Owen, a justice on the Texas Supreme Court, has been rated ‘‘well qualified’’ by the ABA, is supported by both Texas Senators, but has not been confirmed. 

Jeff Sutton, the former Solicitor General of Ohio, an excellent nominee to the 6th 

Circuit, is supported by both home-state Senators, but has not yet been confirmed. 

Deborah Cook, a justice on the Ohio Supreme Court and an outstanding nominee 

to the 6th Circuit, is supported by both Ohio Senators, but has yet to receive a hearing. 

And Professor Michael McConnell, who clerked for Justice William Brennan, was 

rated ‘‘well qualified’’ by the ABA, is supported by numerous professors, including 

Cass Sunstein, and has the support of both Utah Senators, but has not been confirmed. 

IV. CONCLUSION

In sum, I believe that the President and the Senate should work together, with 

good faith on both sides, to keep the courts staffed with a sufficient complement of 

judges to conduct the Nation’s judicial business in a timely manner. This said, rarely will a President of one party nominate a person from the other party. But the 

President of one party should consult with Senators of the other party in good faith. 

41

And, I believe that home-state Senators should, in turn, act in good faith toward 

the President. 

As Lloyd Cutler and I stated at a hearing on the judicial selection process hearing 

last year, the Senate should confirm a President’s nominees if they are qualified, 

even if the Senate might not share a particular nominee’s ideology. I also believe 

that is generally what the Senate has done, including under President Clinton. For 

example, Ruth Bader Ginsburg, former General Counsel to the ACLU, was confirmed by a 96–3 vote despite the fact that most Republican Senators disagreed with 

her personal political views. I do not believe either the President or the Senate 

should impose a litmus test with respect to any particular issue. And I certainly do 

not believe the Senate Judiciary Committee—which means any individual Senator 

in an evenly divided Senate—should preclude full Senate consideration of a Presidential nominee.

Chairman SCHUMER. Thank you, Mr. Gray. We appreciate your 

testimony. 

Now, we are going to hear from Judge Carlos Bea. The Honorable Carlos Bea is a superior court judge in San Francisco, California. A nominee to the Federal bench during the first Bush administration, Judge Bea is a native of Spain and a graduate of 

Stanford College and Stanford Law School. 

Judge Bea was in private practice from 1959 to 1990. He was 

also involved in family businesses during that time, including as 

vice president and general counsel for the American Pacific Concrete Pipe Company. Since 1990, he has served on the local bench 

in San Francisco. 

Judge Bea, your entire testimony will be read into the record and 

you may proceed as you wish for 5 minutes. 

STATEMENT OF CARLOS BEA, JUDGE, CALIFORNIA SUPERIOR 

COURT, SAN FRANCISCO, CALIFORNIA 

Judge BEA. Thank you very much. I was born in Spain, but of 

Cuban parents, and was born a Cuban and went to school in Havana. Neither my family nor I had any contact with the Cuban government either then or now, except I was sent as part of the Cuban 

Olympic basketball team to Helsinki in 1952, and that is the only 

time I traveled on government money. 

Chairman SCHUMER. Were you a forward or a guard? 

Judge BEA. I was the tallest man on the team, at 6 foot 4 inches, 

so I was the center. 

Chairman SCHUMER. I was a forward on my high school team—

6 foot, 1 inch. 

Judge BEA. When I went back to Stanford, I was a forward. I 

wasn’t a center. 

So, anyway, I was nominated. I was nominated by President 

Bush in November of 1991. Senator Seymour tried to help as much 

as he could. He was in the Senate a very short time, as you will 

remember. Senator Cranston received me very kindly and said that 

he was not going to pull the blue slip. I never got that straight, 

whether pulling is good or pulling is bad, but the blue slip wasn’t 

a problem. 

I am here really to address something that hasn’t been talked 

about today, which is how some Hispanic or minority candidates 

are seen differently in this process than others. I am a Republican. 

A long time ago, 30 years ago, I was a member of the Republican 

State Central Committee, so I have done my time in the pits. 

42

Some people say that I am conservative. Some of my pals who 

think that way since I got on the superior court don’t really see me 

as that conservative anymore, and from time to time I have strayed 

off the reservation and supported Willie Brown and John Burton. 

On second thought, maybe in San Francisco they are conservatives. 

I don’t think that racial and ethnic make-up kept me off the 

bench, nor do I think that is happening to the Clinton appointees 

or to the Bush appointees. But I am suspicious of how certain minority candidates who are not liberals politically are treated, and 

it motivated me to find out a little bit about why I didn’t get a 

hearing. 

Unlike anybody else I have heard today, I actually made a Freedom of Information Act request and got my FBI file, and I went 

through it and it was very interesting. I wondered if there were 

some hard feelings left over because of my 1990 campaign. In my 

1990 campaign, I had been run against by a candidate who described herself as liberal, progressive, and lesbian. I wondered if 

there were some hard feelings left over from that and that is why 

I tried to get my FBI file. 

I also got some letters, copies of which I have here, in case you 

are interested, from gay and lesbian judges in San Francisco backing me to this committee. But what I found was that some hearsay 

statements—and I won’t go into the subject matter—some hearsay 

statements that had been relayed to the committee in August of 

1991 were not followed up on and asked to be investigated until 

September of 1992, 13 months later. Once they were investigated, 

the accusers recanted. But by that time, it was September 14, 

1992, and there were no more hearings to be had. 

I can’t help but be suspicious that because I was a Republican 

and not allied with liberal interest groups that I was dealt with a 

little bit differently, like perhaps Justice Thomas and Mr. Estrada 

are being dealt with now. The delay in that case was tantamount 

to a denial. 

I am not here to get the hearing I didn’t get 10 years ago. Life 

moves on. As somebody said, there is life after a failed Federal appointment. But I am here to ask you respectfully to leave the politics of the nomination process to President Bush, President Clinton, or President Bush, or whoever is going to be our President 

from now on, because in committee, and because of the staff situation that we have, very busy, decisions are made and the decisions 

are made by delay and they are made in back-room deals and behind the backs of the persons affected, and with that no opportunity to come forward. 

All I wanted when I was interviewed the second time by the FBI 

was that they call the people who had said whatever they had said 

against me and have them come here and let me examine them. 

When they were examined, they said, well, we got it wrong, it 

wasn’t what we thought, and good-bye. But by that time, it was too 

late. 

I have no hard feelings toward the Democratic leadership. I have 

a fine family. I have got four strapping sons, and here allow me 

a commercial. My oldest one won a silver medal for the United 

States in the 2000 Olympic Games in the men’s pairs. He did a lot 

better than his dad. 

43

Chairman SCHUMER. Congratulations. That is great. 

Judge BEA. Well, I will accept that all day. I am having a wonderful time as a superior court judge in San Francisco—great attorneys and good cases. 

I thank you very much for giving me this opportunity to put in 

my two cents’ worth, even though I haven’t used up all the time. 

If you have any questions, I will be glad to answer them. 

[The prepared statement of Judge Bea follows:]

STATEMENT OF CARLOS BEA, JUDGE, CLIFORNIA SUPERIOR COURT, SAN FRANCISCO, CALIFORNIA

My name is Carlos Bea; I am a California Superior Court Judge sitting in San 

Francisco. 

As you can tell from my name, I am Hispanic. I was born a Cuban citizen, went 

to school in Havana and came to live in this country when still a child. Neither my 

family nor I ever had anything to do with the Cuban government, present or past, 

except that I once played on the Cuban Olympic basketball team, in the Helsinki 

Games. 

I was one of the 54 Bush I nominees whose nomination expired due to lack of 

Senate action. I was nominated by President Bush in November, 1991 and received 

New Judges’ training. in January 1992. I never got a hearing date, and it was not 

for lack of trying. Senator Seymour tried very hard to get me a hearing. Senator 

Alan Cranston told me that he would not pull the Blue Slip on my nomination. 

Other Appointees, nominated after I was, did receive hearings that Spring and Summer of 1992. 

I would like to address the race or ethnic issue which inevitably comes up at these 

hearings. 

I am a Hispanic, a Republican—and former member of the State Central Committee—and a naturalized American. I think it is fair to State that my political 

views are generally Conservative, although from time to time I stray off the reservation and support candidates not thought to be Conservative—such as Willie Brown 

and John Burton. Well, I know what you are thinking: maybe in San Francisco they 

are thought to be Conservative. 

I do not think the 1992 Senate held up action on my nomination because of my 

ethnic background. Nor do I think any Clinton nominations were held up on that 

account. 

But I can’t help but be suspicious of how Conservative minority candidates find 

their nominations vigorously contested: It happened to Clarence Thomas, Gerry Reynolds and Miguel Estrada. 

I think it happened to me. As I say, I was nominated by Pres. Bush in November, 

1991. Fall entered Winter, no hearings were scheduled for my nomination. Winter 

into Spring no hearings. Spring into Summer—and I became suspicious that someone had said something derogatory about me that I didn’t know about. I wondered 

what it could be and speculated that it had to do with the 1990 election campaign. 

After my appointment to the Superior Court by Gov. Deukmejian in 1990, I had 

been challenged in the confirmation election by a female attorney who described 

herself in the campaign as a liberal-progressive Lesbian. I had won that San Francisco-wide election 59 percent–41 percent. Just in case some hard feelings remained 

from the election, I asked and received letters of support from Gay and Lesbian 

judges on the San Francisco Superior Court. They were sent to this Committee. 

What I didn’t know, and what I found out years later when I got my FBI file 

through the Freedom of Information Act, was that in August 1991 BEFORE my 

nomination, some totally hearsay derogatory statements had been made about my 

campaign and about me. The Committee did not launch a followup investigation of 

those charges until September, 1992, over 13 months after the information was in 

the investigatory files. The follow-up investigation resulted in the accuser withdrawing the remarks and any opposition to my nomination. But by that time it was 

too late. No further hearings were scheduled. 

The whole purpose of hearings is to air out spurious charges. Committee and committee staff can, and in this case did, avoid a clearing of a person’s name by inaction. I doubt it would have happened had I not had conservative political views. 

There are organizations—some would call them pressure groups—that advocate 

‘‘Diversity’’ in everything except political views for minority candidates. One is ‘‘Diverse’’ if an ethnic and Liberal. One is not a real member of a minority group if 

one is politically Conservative. 

44

There have been Press reports that confirm this result: Professor Lawrence Tribe, 

a member in good standing of the Liberal view, has been quoted as saying that a 

Hispanic nominee to the Supreme Court of the United States might have to be defeated if he or she were conservative. 

This August body does itself and the Nation a great disservice when it adopts a 

political litmus test to judicial nominees. First, the politics held before reaching the 

Bench don’t always play out in decisions. Look at Chief Justice Earl Warren, on the 

one hand; Justice Byron White, on the other. 

But more importantly, the independence of the Judiciary as a co-equal branch of 

Government is imperiled. The Senate ought to pause and think what is the effect 

on the institution of the Judiciary when it is politicized. 

The Judiciary has no arms with which to defend itself against such politicization. 

Much less do nominees before they become Judges. 

Last, I hope no one has got the impression that anything I have said here is a 

result of sour feelings toward the Democratic leadership of the Senate. There is life 

after a failed Federal nomination. 

First, I have been blessed with a wonderful wife and family of four boys—which 

I can’t mention without pointing out that our boy Sebastian won a Silver Medal in 

the Mens’ Pair for the United States in the 2000 Olympic Games. 

Second, I have greatly enjoyed. my service in the Superior Court, with very interesting cases presented by superb counsel. And, time heals all wounds—and perhaps, 

vice versa. 

Thank you for giving me the opportunity to address you. I will take any questions 

you or your counsel might have for me.

Chairman SCHUMER. Thank you, Judge Bea, and we very much 

appreciate your coming all the way across country and congratulations on your son. What was he in? 

Judge BEA. The men’s pair, the coxless men’s pair, rowing. He 

and Ted Murphy from Dartmouth College were the two——

Chairman SCHUMER. Excellent, so it was a bi-coastal winning 

team. 

Judge BEA. Right. They are warming up to go again in 2004, God 

willing. 

Chairman SCHUMER. Great. Well, maybe he will even come to the 

2012 Olympics, which we hope will be in New York City. 

Judge BEA. Well, we hope it is going to be in San Francisco. 

Chairman SCHUMER. Yes, that is right; you are one of the competing cities. 

Mr. GRAY. We hope it is going to be here. 

Chairman SCHUMER. Well, let’s just hope it is in America. Well, 

thank you. Let me ask a couple of questions of Mr. Gray, and then 

I have one of Mr. Bea. 

Mr. Gray, I remember you came before us, and you are an eloquent and extremely intelligent witness, and I think you came in 

1999 and talked about how ideology should not be part of the process. Your basic view was just what Judge Bea said as well; he sort 

of said it: leave the politics to the President. You might say don’t 

leave the politics to anybody, but that ideology shouldn’t be part. 

Is that right? 

Mr. GRAY. That is correct, yes, sir. 

Chairman SCHUMER. Here is what I would like to ask you, because this is how some of us feel that when we bring up these 

things, they say leave out ideology, and I am sure you will be able 

to reconcile this. 

You were part of a group. In May of 1997, you and some others 

of like political mind, conservatives, created the Project on the Judiciary. As I understand it, the purpose there was to investigate 

45

the judicial philosophy of nominees to the Federal bench for signs 

of what the Project called ‘‘activism.’’

Maybe it is a coincidence that the Project only existed during the 

Clinton administration, 1997 to 2000. You were on the board, and 

William Bennett, Ed Meese, Dick Thornburgh. Previous Attorney 

General Thornburgh called the Project ‘‘a counterpoise to the American Bar Association.’’ Then–Chairman Hatch had said the Judiciary Committee shouldn’t take into account the Bar. 

Now, I wasn’t aware of it until recently, but it seems the Project 

on the Judiciary was sponsored by a group called the Ethics and 

Public Policy Center, which was established to ‘‘reinforce the bond 

between the Judeo–Christian moral tradition and the public debate 

over domestic and foreign policy issues.’’ Yet, as I said, they didn’t 

evaluate President Bush’s nominees. 

Now, I have no objection to that, but it does seem to me that that 

group was evaluating nominees on the basis not of the excellence 

or lack thereof of their legal qualifications—all the nominees you 

mentioned would meet my standard of excellence that way—but 

rather to look at views and ideology. 

So just answer for me two questions. That seems to be the case. 

Why isn’t it? And, second, why did this group stop after the presidency changed? 

Mr. GRAY. Let me see if I can answer that in two ways. First, 

I am not sure it lasted even very long after it started. Maybe in 

Republican circles, as opposed to Democratic, when you get into 

these issues it is not easy to find money the way some of the liberal 

groups seem to be able to do. 

But the purpose was not to influence directly the nomination 

process, but rather to tee up generally the question—using potential judges as a way of putting some flesh on the bones, raising a 

flag about judicial activism. It wasn’t designed to deal with a specific set of nominees. It was designed rather to deal with the bigger 

question of judicial activism. 

This is, of course, a question of judicial philosophy: what is the 

role of a judge? Should it be to legislate or to interpret the law as 

passed by the legislature. That was the focus of this group. 

Chairman SCHUMER. So you didn’t evaluate any nominees? 

Mr. GRAY. I don’t recall getting involved directly in the nomination process and being part of the nomination fights over any of the 

nominees that came through during that period. I was not involved, certainly. 

Chairman SCHUMER. But it just seems to me if the group that 

you worked for believed that it was important to ‘‘reinforce the 

bonds between the Judeo–Christian moral tradition and the public 

debate over domestic and foreign policy issues,’’ again that is fine 

with me, but——

Mr. GRAY. Well, that is a broad description of the——

Chairman SCHUMER. That is sort of ideology, ‘‘public debate over 

domestic and foreign policy issues.’’ That is not looking at what law 

school the judge went to, what the temperament of the potential 

judge was, how good they are in court. It is looking at their views 

on issues. 

Mr. GRAY. But, Senator Schumer, I think you are mixing two 

things. 

46

Chairman SCHUMER. I like a nice, robust debate, so don’t hold 

back. 

Mr. GRAY. This effort was housed in this group called—I can’t remember the name of it exactly. You are taking what was the general charter of the Ethics and Public Policy Center and reading 

that into this Judiciary Project, which I don’t think is fair. I don’t 

think the Judiciary Project was worrying about foreign policy or 

the Judeo–Christian ethic. I think they were worried about, as I 

said, the question of what is judicial activism and when does a 

judge exceed his or her role to interpret the law and instead fall 

over into making law. That was the focus of that effort. It had 

nothing to do with foreign policy. 

Chairman SCHUMER. Why wouldn’t it continue, then? I have said 

this repeatedly: Judge way off the mainstream, far left, far right, 

like to make law. I have seen in New York City a lot of judges to 

the far left just love to sort of prescribe what they want. It doesn’t 

matter how much it costs the city or the State, or whatever, and 

I think that is a bad way, in general, to make policy. It is a little 

bit anti-democratic. 

But why would it stop, if that was its view, the minute the presidency changed hands? 

Mr. GRAY. That is a good question. I don’t know that it continued 

up to the end of the—maybe it did; I just don’t recall. But by and 

large—and this is where I think the parties do differ—Republicans 

don’t tend to nominate judges who have an expansive view of their 

role. 

Every President that I have watched on the Republican side, and 

certainly the one that I served, campaigned on the principle that 

he would look for judges who would interpret and not make law. 

I think President Bush 43 has said virtually the same thing as his 

father, which was very close to what President Reagan campaigned 

on. Judicial activism is something I think is legitimate fair game; 

political ideology, no. 

Chairman SCHUMER. So you could be a judicial activist on the 

right as well? 

Mr. GRAY. Well, I suppose you could. 

Chairman SCHUMER. You don’t think Justice Scalia is an activist 

in terms of changing 30, 40, 50 years of law? 

Mr. GRAY. I think he is stuck with precedent the way most 

judges are. 

Chairman SCHUMER. I think he is less stuck with it than many 

others. 

Mr. GRAY. Well, I suppose you could debate that, but I think he 

respects precedent as much as any. 

Chairman SCHUMER. Let me continue here. One of the main articles of the Project on the Judiciary—this was the group you were 

part of, not the larger group—was an op ed called ‘‘In 2000 Supreme Court Is at Stake Too,’’ and this was published in the Wall 

Street Journal. It discussed the close decisions of the Supreme 

Court in cases involving federalism, anti-discrimination law, prayer 

in the public schools, and abortion—some of the questions that I 

have tried to say are legitimate for us to ask judges about here. 

The publication of the Project on the Judiciary noted that many of 

47

the decisions in these areas came down to one vote and that is why 

the presidential election of 2000 was so important. 

You also told newspaper reporters that ‘‘For the Supreme Court, 

this is the most significant election in my lifetime.’’ The Project on 

the Judiciary elaborated on that point. Here is what they said: ‘‘A 

liberal victory in 2000 would give the President the opportunity to 

replace the conservative Chief Justice and Justice O’Connor with 

liberal activists. That would give the current four–Justice minority 

a six-to-three majority on the Court. A conservative presidential 

victory, in contrast, would give the President an opportunity to replace Justice Stevens with a conservative jurist and increase the 

conservative majority.’’

Now, I am not objecting to someone having those views. In fact, 

that is just what I am saying. But it seems to me that somebody 

who comes before us and says ideology shouldn’t matter and espouses these views—they seem to contradict one another, and you 

can cloak it in the words ‘‘judicial activism,’’ but that is not even 

what they are saying here. They are saying ‘‘conservative,’’ which 

is a distinct political philosophy. 

Mr. GRAY. Well, as I said in my testimony——

Chairman SCHUMER. I will let you finish. I apologize, but it is 

part of the warp and woof of what we do. 

Mr. GRAY. I agree with you it is part of what we do, but my point 

is that—and we did this; I testified just minutes ago that some of 

the nominees, many of the nominees, if not most of the nominees 

that President Bush 41 nominated would probably not pass muster 

under the litmus test that you are now imposing in this committee. 

But they went through, and I am saying what we are seeing now 

is a big change. 

Chairman SCHUMER. What is the litmus test you are referring 

to? 

Mr. GRAY. Well, you are saying that, in your view or in the view 

of the committee, some of these nominees—and I guess you include 

Roberts and Estrada—are too far to the right. All I am saying is 

we nominated Roberts ourselves and we didn’t get him because he 

was a last-year nominee, but I believe that that is what the President is entitled to do. 

That is what President Clinton was entitled to do and largely 

did. He got most of his nominees through. He had fewer left on the 

starting blocks than President Bush 41 did, as has been amply 

demonstrated, I think, this morning and at earlier hearings before 

this committee. 

That is what a President is elected to do, and I don’t believe that 

the Senate Judiciary Committee, in whoever’s hands it is, Republican or Democrat, should say, well, we think these nominees are 

too conservative. 

Chairman SCHUMER. So you are saying the President should 

allow ideology to enter into his nominations, which clearly happens. If you look at Democratic Presidents, the ideology and judicial philosophy is different than the Republican. But the Senate, in 

its advise and consent role, should not be allowed to take this into 

account. How can you reconcile that? 

Mr. GRAY. I frankly believe that the full Senate will take into account what the full Senate will take into account, and I don’t think 

48

that anyone can control what the full Senate does. My point is 

more limited that I don’t believe the Judiciary Committee ought to 

screen out, based on its view. 

With all due respect, Senator Schumer, you represent New York. 

It is a State with definable characteristics. 

Chairman SCHUMER. Let’s hope. 

Mr. GRAY. But those characteristics don’t necessarily line up 

with the characteristics of people who come from Georgia or come 

from Alabama or come from Texas or even Oregon or Washington 

State. So, therefore, that is why the system is set up that the 

President nominates. 

The President of one party is very unlikely to make many nominations of individuals of the other party. That is to be expected. 

That is not to say that it doesn’t happen. It does happen, but it is 

not likely to happen, and the President got elected. 

Now, there is an undercurrent—and this is perhaps more than 

what you asked, but there is an undercurrent of, well, there was 

a very close election and therefore, to use perhaps your words, he 

didn’t have a mandate. But I don’t know that you can calibrate it 

that way. I don’t know that you can say, well, because there was 

a recount procedure in Florida, therefore the Senate Judiciary 

Committee has the right to try to balance the ideology, as it sees 

it, of the bench. I think it is up to the President and if the full Senate wants to reject nominees, it certainly will, regardless of what 

label is put on any nominee by any side. 

Chairman SCHUMER. Well, I respect your view. I just would close, 

and then I will go to my colleague, Senator Sessions, by saying I 

think the view you have enunciated, which is it is okay for Presidents to nominate using ideology as part of the criteria—and now 

you are saying the full Senate can, but the Judiciary Committee 

can’t, and that is a little different. 

Mr. GRAY. Let me just clarify. You are saying that the President 

is using ideology. I am saying the President can nominate—and 

with the kind of ratings that they are getting from the ABA, ‘‘well 

qualified’’ in most cases—that the President is entitled to nominate 

these highly qualified people. 

You may label them as ideological. I doubt if President Bush 

would label them as ideological. You may, but that is the President’s choice. All I am saying is yes, and I don’t think the Senate 

should reject, but I certainly don’t believe the Senate Judiciary 

Committee should reject, and I don’t believe the full Senate would. 

Chairman SCHUMER. Thank you. I thank both witnesses, and 

again congratulations on your son, Mr. Bea. 

Senator Sessions. 

Senator SESSIONS. Judge Bea, I am sorry that the system did not 

work well for you. I was just recalling when I came up to testify 

at my little fiasco, and the day before I testified I read in the newspaper that two Department of Justice officials—and I was a member of the Department of Justice—had alleged that I had blocked 

a civil rights investigation in Conecuh County. So they asked me 

about it. I hardly had time to prepare and I couldn’t believe anybody could be in error about that. I mean, surely these people 

wouldn’t say that if something hadn’t been the basis of it. 

49

So I said I don’t know what that could be. I don’t think I have 

done that. I mumbled around there pretty inartfully and called 

back home to find out what was going on, and it later turned out, 

after the news had been dramatic that I had blocked this civil 

rights investigation, that the two career attorneys in the Civil 

Rights Division were in error, that it was a different county, and 

the former Democratic U.S. attorney, not me, had blocked this investigation. They recanted sometime after the story was all out 

there. 

So I do think Senator Schumer shares our concern about that. 

He thinks we ought to be better about giving nominees a fair 

shake, and I do believe he is sincere about that. 

Judge BEA. You had at least the pleasure of finding out what 

they were saying about you in time to do something about it. I had 

to scratch my head and say why am I not getting a hearing from 

fall to winter, from winter to spring, from spring to summer. I 

never found out until the Freedom of Information Act—God bless 

the Freedom of Information Act—came through and showed me. 

Then for further rancor, it turns out that on further investigation 

the people who were accusing me of these vast misdeeds said, well, 

we may have gotten it wrong and we think he would be okay and 

we withdraw our objection. But that came so late, and so then 

when they finally came to interview me the second time and I had 

some newspaper articles saying my nomination had died—and they 

came to interview me again and I remember talking to the FBI 

people and saying is this a morbid joke? I mean, who could have 

thought this one up? This is really rubbing salt in wounds to ask 

me now. So, bless your lucky stars, you got your day in court. I 

didn’t. 

Senator SESSIONS. Well, let’s mention that. 

Chairman SCHUMER. He is not so happy with his day in court. 

Senator SESSIONS. Well, all in all, this is a fun place to be. I am 

honored to be on this side of the table. All in all, it is better to be 

on this side than that side. 

But Senator Schumer raises a point that I think I had in my 

mind, and I will ask you if you thought it so with you, that a lot 

of times people who make these statements, and these attorneys in 

the Civil Rights Division who said later they were mistaken and 

also said they felt betrayed that their comments had been made 

public—so my question is if you are at liberty to tell in confidence 

the FBI or anyone in the process something bad about a nominee 

and the nominee not know who said it or where it came from, it 

could encourage people who would just like to see your nomination 

fail to come forward with false information, couldn’t it? 

Judge BEA. Well, it could, and I am very conscious of the necessity to give confidentiality in order to get people to speak honestly. 

I am all for that. Don’t get me wrong, but what I would suggest 

to staff and to the Senators is if something comes in that is bad 

about the nominee, the appointee, confront him right away. 

You don’t have to tell him who it is, but confront him right away 

and tell him this has come up and get the details so the man or 

woman can defend themselves. Don’t just let it sit there on the 

back burner and kill the process. That is what I am here to say. 

50

Give a shake, maybe not the fairest shake, but at least give a 

shake. 

Senator SESSIONS. Well, thank you for sharing that. We deal 

with a lot of nominations. We ought to reach the highest possible 

level of fairness, and I think for the most part the system does, 

with the FBI and the White House and the Senate reviews. Local 

Senators usually take the matter seriously, so it is important that 

we do that. 

Mr. Gray, a lot of the nominees that did not make it through the 

Clinton years was because they had an objection from their home 

State Senator, the senatorial courtesy, the blue slip policy. That is 

a fact of life historic here. 

Could you share with us how that works and how a wise White 

House can work within that structure from your perspective? 

Mr. GRAY. Well, the tradition, as I understand it, going back, is 

it is pretty important to have the assent of the home State Senators for appellate nominees. Now, if you look at it stepping back, 

there is a difference in the way home State prerogatives are treated between a district court nominee and an appellate nominee. 

Senator SESSIONS. Well, President Reagan, for example, took the 

view that it was his nomination and he did not feel bound by the 

local State Senator. Isn’t that correct? 

Mr. GRAY. That is correct. 

Senator SESSIONS. With respect to circuit judges? 

Mr. GRAY. Appellate judges. Our view was probably not quite the 

same as that. We tried to get, and I think did in most cases get 

concurrence from the home State Senators, even though the individuals would not have been someone that they themselves would 

have proposed. Now, that seems like kind of being on both sides 

of it, but they could pretty well call the shots on the district nominees. We wouldn’t let them have so much leeway on the appellate. 

But at the same time, we didn’t want their opposition because that 

spelled trouble, and in most cases we did not have their opposition. 

How do you deal with that? Well, you get on top of the curve as 

fast as you can and you work very, very hard to persuade the home 

State delegation that your nominee, which may be the same as 

theirs but not always is, is acceptable. It takes a lot of persuasion 

and a lot of work. I believe that President Clinton fell down on the 

job in that regard by not, in advance of his nominations, getting 

the political spade work done that would have saved him a lot of 

trouble. 

Senator SESSIONS. And you have to watch who you nominate if 

you expect support. 

Mr. GRAY. Well, of course. 

Senator SESSIONS. For example, we had two in this previous 

panel, fine people who had been very active politically, had served 

in the Department of Justice, but neither one of them had ever 

tried a lawsuit, good people. In the last days of the Clinton administration, he tried to run those through and they didn’t make it. 

I mean, if you were advising President Bush in the latter days 

of his administration, if you put up that kind of nominee, you 

would probably tell him, wouldn’t you, that you are liable to run 

into some difficulties with these nominees? 

51

Mr. GRAY. I think you are liable to run into trouble and you are 

not going to get the kind of ‘‘well qualified’’ top rating from the 

ABA for those kinds of nominees and they are risky. So there are 

two problems here, which may be what you are getting at. 

One is nominating someone who has the active opposition of the 

home State delegation. That is a very risky proposition. Nominating someone who doesn’t have the best possible credentials in 

the last year is asking for a little trouble, too. That is a risky business, and both of those factors operated, I believe, with respect to 

the whole panel that was here this morning. Notwithstanding the 

fact they are great people, they were all risky nominees. 

Senator SESSIONS. I remember in the last year of President 

Bush’s administration he chose to nominate the chief of the appellate division of the Alabama Attorney General’s office, a Democratic person, realizing that he needed a Harvard graduate, highly 

capable. He realized he needed a qualified nominee that would 

have broad support if he expected to get him through in the last 

months of that administration and he barely did. I think that is the 

reality of life. 

Let me ask you about this question of ideology and philosophy. 

Lloyd Cutler, I know, has worked on these issues kind of like you 

have from the White House side over the years. He rejected the 

idea of ideology being a factor, saying it would politicize the courts. 

Can you distinguish between political ideology and what that 

means in the confirmation process as opposed to a person’s judicial 

philosophy? 

Mr. GRAY. I will try, yes, sir. Political ideology to me means a 

person’s political views as expressed in any number of fora. That 

person might have been, and often has been in the past a Senator 

who has been nominated to the Supreme Court. That person has 

a political ideology. That is what I think Lloyd and I—same law 

firm, different philosophies, different ideologies for sure—both believe is really off limits. That is not something that should be used 

to exclude a presidential nominee. 

Now, judicial philosophy within the confines of one’s views about 

the courts and the role of the courts is I think something that is 

more legitimately the subject of your inquiry; that is, is the nominee someone who is going to legislate from the bench. I will oversimplify it by saying that. 

Now, you can say that is an aspect of political ideology. I will 

grant that. Yes, you could say that, but I believe that judges should 

stick to the job of judging and should not be legislating. I clerked 

for the Chief Justice, as the chairman pointed out, and we always 

used to say when we had time alone with him, which was every 

Saturday for lunch—he would take us to lunch—we would periodically say what a difficult job Brown v. Board of Education must 

have been to decide. 

He said, you know, that is not the decision I am proudest of. Obviously, it had to be decided that way, but that was really a job 

for a legislature. Had we had Reynolds v. Sims and Baker v. Carr, 

one man, one vote, fully in place, I am not sure we would have had 

to decide that case. Having been stuck with it, we had to decide 

it the way we had to decide it. But, ideally, it wouldn’t be for us 

to decide. 

52

Here was a man who is regarded as a liberal icon who understood, I think, the limits of the role of the judiciary, and that is 

what I talk about when I mention judicial philosophy. 

Senator SESSIONS. Well, you would not say that a person is a judicial activist just because in serving on a court they conclude that 

an act of the U.S. Congress violates the Constitution of the United 

States, would you? 

Mr. GRAY. No. That is, since John Marshall anyway, probably 

the central job of a Supreme Court nominee. But, luckily, that is 

a job for Supreme Court nominees. It is not generally the job of district and appellate judges, although they can and they do, but the 

final say is the Supreme Court, which makes the Supreme Court 

a fairly high-stakes game, of course. 

But I think exercising the right of constitutional judicial review 

is not an act of judicial activism. The kind of judicial activism I 

think of is when a district court judge takes over a school system 

and starts to run it or takes over an industry like the telecommunications industry and tries to run it over an extended period of time. 

You might be in a situation where in an emergency you have to 

do something temporarily, but to view it as a long-term exercise, 

I think, is the kind of judicial activism that I am talking about. 

Senator SESSIONS. We certainly have court systems, prison systems, mental health systems, and school systems all over America 

still being run today by Federal judges, some of them 10, 15, 20 

years ongoing. I am not sure that is democracy. A Federal judge 

is not elected. They are appointed for life. They are unaccountable 

to the public, and so if they are going to run a political institution, 

at some point we need somebody accountable to the public, it seems 

to me. I do think there have been abuses there. 

I just strongly believe that a disciplined, responsible, non-activist 

judge can on occasion conclude that the Commerce Clause is a part 

of the U.S. Constitution, and that on some occasions the U.S. Congress just might pass a law that too much encroaches on the limitations imposed by commerce, or the limitations on Federal action 

limited by commerce, and I don’t think that is activist. 

Now, Senator Schumer views some of those rulings that have cut 

back on some of the law as activist. I just don’t believe that is activist. I would point out that a number of the conservatives voted 

on this rather surprising recent Supreme Court decision on child 

pornography, the virtual computerized pornography. Some of the 

conservatives voted on that. Justice Scalia voted, amazingly to me, 

that the act of burning a flag is speech, with the liberals, which 

I don’t agree with. 

I do think that the right to take your money and buy a television 

ad in the last 60 days of an election is speech, big-time speech, but 

I don’t think the act of burning a flag is speech. We all have little 

disagreements. I just believe that if we aren’t careful and respect 

the judges—and the fact that one of the witnesses we just had on 

the previous panel was counsel to the Democratic National Committee didn’t qualify him. He never tried a case. That didn’t disqualify him, but in the last days of an administration with little 

other compensating basis to justify his nomination, it faltered. I 

think that is probably the way the system works. 

53

Mr. Chairman, I hope that you and the Democratic leadership 

will reconsider some of the changes in the ground rules that you 

have attempted to move forward here that make the confirmation 

of judges much more difficult. I think we should not do that. In the 

long run, we will be sorry about it. 

What we need to call on judges to do is to go to work everyday 

and to enforce the law as written. A restrained, responsible judge 

is not a threat to our liberties. The judge that is the threat is the 

one that is willing to reinterpret the meaning of words and to impose their political views in a case when they are not authorized 

to do so. 

Chairman SCHUMER. Well, thank you. I thank Senator Sessions. 

We disagree, but he always puts it well and like a gentleman, politely, strongly and well. 

I thank the witnesses for really putting up with us here. We 

apologize for that long gap, but your testimony was excellent and 

I will commend it to my colleagues. 

Senator SESSIONS. Mr. Chairman, I would offer for the record 

several statements—Senator Grassley; a letter from a nominee, 

and a couple of other items. 

Chairman SCHUMER. The record will be open for other statements from others of our colleagues, as well as for what Senator 

Sessions asked. 

Senator Leahy also has a statement for the record. 

With that, the hearing is adjourned. 

[Whereupon, at 1:38 p.m., the subcommittee was adjourned.] 

[Submissions for the record follow.]

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