FOR IMMEDIATE RELEASE: May 9, 2002

CLINTON JUDICIAL NOMINEES TO SET THE RECORD STRAIGHT AT COURTS SUBCOMMITTEE HEARING ON "GHOSTS OF NOMINATIONS PAST"

Clinton Judicial Nominees Who Never Even Received Hearings To Testify About Republican Senate Record on Judicial Confirmations

Responding to Complaints by Bush and Senate Republicans, Schumer Shows That Clinton
Judicial Nominees Received Consistently Abominable Treatment From Senate Republicans

At a Courts Subcommittee hearing convened to respond to complaints by President Bush and Senate Republicans about the pace of judicial confirmations, US Senator Chuck Schumer made the following statement:

"We are at a unique time and place in our nation's history. Our government is as closely divided as it's ever been. The House is narrowly governed by Republicans. 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 a social policy makers, 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 courts should not reach out to impose their will over that of elected legislatures. It's easy for judges to express their personal views in their opinions. And while that might be appealing for some to do, it's not what the Founding Fathers intended. But it's exactly what's 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 combating gun violence. And 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, Chairman Leahy has moved nominees – including many conservative nominees, 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 if that's what they want.

"All I know is that in the ten months we've held the Committee, we've confirmed 42 judges with 4 more being confirmed today. As the chart behind me demonstrates, that beats the average number of judges confirmed during the six-and-a-half years that Republicans controlled this Committee.

"Numbers, however, only tell a small part of the story. The real problem is that there's no mandate to throw the third branch of government out of whack with the rest of the country. Nonetheless, that's their plan, and it's a bad one.

"As I've said time and again, I have three criteria for judges. They must be legally excellent, ideologically moderate, and issues of diversity must be properly accounted for. I don't like ideologues – whether they're too far to the Right or too far to the Left. And while a couple of Scalias or Thomases can be useful, they're dangerous if they're not balanced by thinkers on the other side.

"But this Administration isn't about balance. They're not about keeping the courts within the mainstream. They're not about nominating independent-thinking, non-ideological judges. And you don't have to take my word for it because they're telling you so themselves. From the President on down, the message is ringing clear as a bell: they're going to send up wave after wave of conservative nominees. And it doesn't matter if we shoot down a few, because ultimately enough will get through to stack the courts.

"It's a bad plan: for the Courts, for the country, and for all average, everyday Americans for whom 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, these lower court judges have immense power. The conservatives know that – and they knew that when they controlled the Senate during the Clinton presidency. They knew how important these lower court judgeships are, and they did everything possible to keep the seats open so they could fill them with conservative ideologues.

"All that said, I want to publicly concede that my friends to my Right – both literally and politically – are correct about a few things. The Republicans have a point when they say the vacancy rate on the federal courts is too high. And they have a point when they say we could move faster. I know they're probably shocked to hear me say this, but I believe they're right on both counts.

"Here are my two responses. First, send us moderate, non-ideological judges and we'll confirm them – quickly. The proof isn't in the pudding, it's in the record. Moderate nominees who are well-qualified and don't appear to adhere to any ideological agenda 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're forced to slow down – sometimes to a snail's pace – to fully examine their records. We'd like nothing more than to confirm every judge immediately. But when you hear what we're hearing about some of these nominees – and when you know (because he's 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 their fitness for the bench.

"The upshot is that while we're moving quickly, we could move faster if they'd only work with us to select nominees who will be broadly supported.

"The Constitution says the Senate shall advise AND consent. I can promise you that a little more advise would lead to a lot easier consent.

"The second point – and this goes to why we're here today – is that we have so many vacancies on the federal courts precisely because the Republican-controlled Judiciary Committee failed to confirm qualified, ideologically moderate Clinton nominees. They engaged in a quite deliberate slowdown to keep slots open. They wanted to make sure that if they won the Presidential election, they'd be able to put their ideologically-conservative nominees on the courts. It's not just the four here today. As you can see from the chart behind me, the list of names is impressive, both in numbers and in qualifications.

"In the debate over how well we're performing in moving nominees, this point seems to be totally lost. These vacancies exist because the Republicans refused to confirm President Clinton's nominees. Now this isn't about tit for tat. It's not about what's good for the goose being good for the gander. This is about explaining why these vacancies exist and why it's so important for us to make sure we maintain balance on the federal bench.

"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'd have some confidence that the bench wouldn't be dominated by conservative ideologues.

"But that's not what happened. They weren't confirmed. And there's no good reason they weren't confirmed other than a desire by the Republicans to keep seats open so they could be filled by a Republican President implementing their Right Wing agenda.

"I'll pit the qualifications of our witnesses – Jorge Rangel, Kent Markus, Bonnie Campbell, and Enrique Moreno – against those of any four nominees from the Bush Administration. They're legally excellent, they're ideologically moderate, and it's a diverse group. They belong on the bench. So 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 created a problem by not confirming qualified nominees. They propose to solve the problem by nominating out-of-the-mainstream conservative ideologues. Then they complain when we don't move quickly enough to implement their unacceptable solution.

"It's rank hypocrisy. There's no other way to put it. We're not going to be bamboozled into rubber stamping a slate of Scalias and Thomases who, by any measure, are conservative activist judges. We're not going to be bullied into letting this Administration stack the courts for decades to come.

"The choice is this: nominate reasonable, moderate men and women who belong on the bench and we'll confirm them right away. Nominate ideologues willing to sacrifice the interests of many to serve the interests of a narrow few, and you'll have a fight on your hands. It's that simple.

"I know that each of these fine people sitting before us must be shocked to hear the arguments they've heard from our friends on the other side. And I, for one, am anxious to hear about their experiences and their reactions to some of the conduct we've been seeing from our friends across the aisle.

"Before introducing our first panel, I'll turn to my ranking member, my friend, Senator Jeff Sessions. Jeff, we've had a pretty good run so far keeping our hearings bipartisan. I know you're unhappy that we were unable to agree about who belonged on which panel, but I want you to know that I continue to respect your professionalism and courtesy. Even if things do get a little hot today, I'm still going to consider you my friend when the day is done – and if you think it'll help you in November, you're welcome to tell your Alabama constituents that you have a pal in Chuck Schumer."

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