[Pages S4106-S4108]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

JUDICIAL NOMINATIONS

Mr. ALLARD. Mr. President, last week Senator Campbell and I sent a
letter to the chairman of the Senate Judiciary Committee expressing our
concern about the state of the judicial confirmation process. We shared
with the chairman our thoughts on the serious injustice being served on
the American people by the committee's failure to provide hearings for
the President's judicial nominations.
It is unfortunate that the citizens of the United States must bear
the consequences of the Judiciary Committee's delaying tactics. It is
unfortunate that the citizens must bear the burden of delayed justice.
One year ago, President Bush forwarded his first 11 judicial circuit
court nominees to the Judiciary Committee. Every person in this group
of nominees received a ``qualified'' or ``well-qualified'' rating from
the American Bar Association. Now, 365 days later, 8 of the original 11
nominees are yet to receive a hearing. One year later, we are still
waiting to have a hearing for 8 of those 11 nominees.
This weekend also marks the 1-year anniversary since the President
nominated Tim Tymkovich for the Tenth Circuit Court of Appeals. So,
today, 1 year since he was nominated by the President, I stand before
you still hoping Mr. Tymkovich will have a hearing, still hoping to
fill the 3-year vacancy in the Tenth Circuit, and still hoping that the
people of Colorado, Utah, New Mexico, Oklahoma, and Nebraska will no
longer be victimized by a vacant bench--a bench paralyzed by a lack of
personnel to move quickly through an overwhelming caseload.
So now Mr. Tymkovich, the former solicitor general of Colorado, waits
indefinitely for the opportunity to serve his country. He waits
indefinitely for his opportunity to help administer the justice that
our constitutional Government guarantees. And the people of the United
States wait for the Senate to fulfill its constitutional duties.
The events of the past year clearly demonstrate an active effort by
the enemies of the United States to destroy the liberties and freedom
of our great Nation. The most basic of our country's values and
traditions are under attack. Congress has responded by enacting new
laws and by providing financial assistance to businesses and families
and defense. We acted swiftly to suffocate terrorists and destroy the
hateful organizations that work to undermine our society.
Yet the instruments through which justice is served are being denied
their chance to serve by ugly, partisan politics. For a year, Mr.
Tymkovich's nomination has languished in the committee without action.
Today, once again, I urge you to move forward with his confirmation.
Mr. Tim Tymkovich is highly qualified and will serve his country with
the utmost of patriotism and respect for adherence to constitutional
principles. The committee must provide a hearing for the Tenth Circuit
seat because the seat has remained vacant entirely too long.
A necessary component of providing justice is an efficient court
system--a system equipped with the personnel and resources that enable
it to fulfill its role as a pillar of our constitutional system of
government.
The current state of judicial nominations is simply unacceptable. It
has evolved into a petty game of entrenchment, creating a vacancy
crisis that prevents the service of the very justice upon which our
great Nation depends. The simple fact remains: Justice cannot be
delivered when one of every six judgeships on the appellate level
remains vacant. I will repeat that: One out of every six judgeships on
the appellate level remains vacant.
It is unfortunate--perhaps even shameful--that the confirmation
stalemate continues. How much longer will the American people have to
wait? How much longer? Many people across the country are asking this
same question and responding by urging the chairman to act quickly and
provide hearings for qualified judges. The sentiment is being echoed
across the pages of every major newspaper in the Nation and the State
of Colorado. They all agree that the Senate must act to fill judicial
vacancies and end this vacancy crisis.
Mr. President, I wish to share with you some of the statements made
in the editorial pages of these papers. They all recognize that the
treatment of certain Bush nominees has established a pattern of
political partisanship. I ask that these editorials be printed in the
Record upon completion of my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. ALLARD. The first article is by the Denver Post, dated Monday,
May 6, 2002. The other article I ask to be

[[Page S4107]]

printed is an editorial by the Rocky Mountain News from May 8, 2002.
Next is an editorial by the Colorado Springs Gazette, dated May 8,
2002. Next is an editorial by the Rocky Mountain News, dated May 9,
2002.
Mr. President, the Denver Post editorial states:

The U.S. Constitution grants to the president the power to
appoint judges with the ``advice and consent'' of the Senate.
There is nothing in that provision that anticipates a process
in which a president nominates replacements to the federal
bench and the Senate acts as if it has no responsibility to
cooperate.

The Post continues in its editorial:

. . . it is difficult to think of a single reason why [Mr.
Tim Tymkovich] has been denied a confirmation hearing and an
up-or-down vote in the full Senate. Such a vote is the
prescribed solution for cases where there is disagreement
between the Senate and the president.
The Post also expresses the frustration that the American people are
feeling:

Unless the Democrat leadership abandons its delay tactics,
we think the treatment of judicial nominees ought to be a
front-and-center issue in the upcoming elections.
If the Senate won't vote to end the judicial logjam, maybe
the citizens should.

The Rocky Mountain News notes that Mr. Tim Tymkovich is not the only
Tenth Circuit nominee awaiting a hearing, there are two vacancies, both
of whom were appointed 1 year ago. This means the committee is
depriving the court of two qualified judges. Unfortunately, it is the
people of the United States who suffer, the people who turn to the
courts to address their grievances. The committee does not face the
daily injustice served on the people, nor does it face the costly court
delays caused by an overwhelming docket. The committee does not face
the frustration of citizens as they pursue justice in front of an empty
bench.
The Rocky Mountain News reveals that the chairman is blaming the
President for the delay. According to the chairman, ``Controversial
nominations take longer.'' But as the paper points out, there is little
controversy regarding the nomination of Tim Tymkovich. Yet he still has
not received a hearing.
Outside the city of Denver, newspaper headlines herald the same
message, citing the stalemate as ``justice delayed'' and calling for
action. The Colorado Springs Gazette states:

There is a slate of looming vacancies on the federal bench
across the country thanks in large part to backlogged
nominations, and its risks paralyzing the courts.

The Gazette concludes by adding that swift justice is supposed to be
a hallmark of our system; its prospects do not look good while
policymakers are making it harder to get before a judge at all.
Mr. Tymkovich is an outstanding choice for the Tenth Circuit Court of
Appeals, and he will serve this Nation well, but he must be given the
opportunity to do so. In Colorado, his nomination enjoys broad
bipartisan support and the support of our State's legal community.
He has also passed the litmus test of the chairman of the Judiciary
Committee, Senator Leahy, and is deemed qualified by the American Bar
Association. The committee must move to end the confirmation stalemate
and restore the people's faith that our judicial system is, indeed,
built to provide all the judicial resources that are needed to provide
access to the courts of law.
It must diligently perform its duty to provide hearings so that the
vacancies that plague our courts may be filled. The President has asked
for the forging of a bipartisan consensus in favor of fair and
efficient consideration of all judicial nominations--I do not think
that is an unreasonable request--regardless of the pattern of party
control of the political branches of Government. I urge the committee
to answer this call and move forward with the judicial nomination
process and prove to the American people that the committee is, indeed,
interested in serving justice.
I thank the Chair. I yield the floor.

Exhibit 1

[From the Denver Post, May 6, 2002]

Politics and the Bench

There is a fresh reminder of how political the judicial
selection process has become. Colorado's two senators, Ben
Nighthorse Campbell and Wayne Allard, both Republicans, have
written a letter to Senate Judiciary Committee Chairman
Patrick Leahy, D-Vermont, pointing out that it was a full
year ago that President Bush nominated Denver attorney
Timothy Tymkovich to a seat on the 10th Circuit Court of
Appeals.
The two senators complained, and we agree, that ``the
current state of judicial nominations . . . devolved into a
petty game of entrenchment'' that has created a vacancy
crisis.
The recent treatment of a Charles Pickering, a Bush nominee
to the Fifth Circuit Court of Appeals, consumed a great deal
of the committee's time and established a pattern of
political partisanship.
The issue for the committee and the nation is whether such
treatment--and ultimate rejection on a straight party-line
vote in committee--is a pattern the Democratic leaders of the
Senate want to repeat. It will be no bargain for the country
if the Senate committee adopts a strategy of simply delaying
all Bush judicial nominations.
The U.S. Constitution grants to the president the power to
appoint judges with the ``advice and consent'' of the Senate.
There is nothing in that provision that anticipates a process
in which a president nominates replacements to the federal
bench and the Senate acts as if it has no responsibility to
cooperate.
Because Tymkovich is well-known in Colorado, having served
as the state's solicitor general, it is difficult to think of
a single reason why he has been denied a confirmation hearing
and an up-or down vote in the full Senate. Such a vote is the
prescribed solution for cases where there is disagreement
between the Senate and the president.
Unless the Democratic leadership abandons its delay
tactics, we think the treatment of judicial nominees ought to
be a front-and-center issue in the upcoming elections.
If the Senate won't vote to end the judicial logjam, maybe
the citizens should.
____

[From the Rocky Mountain News, May 8, 2002]

Bush Nominees to Denver-Based Court Still Waiting for Hearings

(By Robert Gehrke)

Washington.--A year ago, it looked like smooth sailing for
Michael McConnell.
President Bush had made the conservative University of Utah
law professor one of his first appeals court nominees, naming
him to the 10 Circuit Court of Appeals in Denver. Approval by
the Senate Judiciary Committee, then chaired by Sen. Orrin
Hatch, R-Utah, seemed certain.
Bush also nominated Colorado attorney Tim Tymkovich to the
10th Circuit.
A year later, Democrats control the Senate, and McConnell,
Tymkovich and five other judges Bush nominated last spring
are still awaiting a hearing.
Hatch, McConnell's leading backer, has criticized Judiciary
Chairman Patrick Leahy, D-Vt., for moving too slow on
judicial nominees, and frequently cites McConnell's case as
an example.
``They know that Mike McConnell is one of the truly great
Constitutional scholars. They know he's on the fast rack to
the Supreme Court, so they're going to delay this as long as
they can,'' said Hatch.
Keeping McConnell off the bench, Hatch said, keeps him from
compiling the type of judicial experience he would need
before moving up to the Supreme Court.
Sens. Wayne Allard and Ben Nighthorse Campbell, both R-
Colo., urged Leahy last month to hold a hearing for
Tymkovich.
``The current state of judicial nominations is
unacceptable,'' they wrote in a letter to Leahy. ``It has
devolved into a petty game of entrenchment, creating a
vacancy crisis that prevents the service of the very justice
upon which our great nation depends.''
McConnell and Tymkovich would fill the only two vacancies
on the 10th Circuit, which handles appeals from U.S. district
courts in Utah, New Mexico, Colorado, Oklahoma and Nebraska.
Other circuits have more vacancies.
Leahy spokesman David Carle defended the pace of
nominations, saying Democrats confirmed 16 more justices in
their first 10 months in control than the Republicans did in
their first 10 months in 1995.
Women's groups, gay-rights advocates and church-state
separationists have all voiced concerns about McConnell and
Tymkovich's records.
McConnell, 46, has represented several groups that have
claimed government discrimination because of their religious
beliefs. He has argued against a secular government in favor
of an arrangement that accepts all religious on an equal
footing.
He opposes abortion and co-wrote a law review article
challenging the constitutionally of legislation that
prohibited protests blocking abortion clinics.
He represented the Boy Scouts of America when they argued
they should not be forced to accept homosexual leaders.
As Colorado's solicitor general, Tymkovich defended a state
constitutional amendment prohibiting municipalities from
adopting ordinances outlawing discrimination against
homosexuals.
He also defended a Colorado law prohibiting state financing
of abortions in cases of rape or incest.
Adam Shah of the Alliance For Justice, which helped defeat
the nomination of Judge Charles Pickering to the Fifth U.S.
Circuit of Appeals in New Orleans, said the group has not
worked against McConnell or Tymkovich but is examining their
records.

[[Page S4108]]

``We understand that the president has the right to name
nominees that he chooses,'' Shah said recently. ``We are
willing to look at the record and their political views and
see if they will make good judges . . . and not turn back the
clock on civil rights, women's rights and environmental
protections.''
____

[From the Colorado Springs Gazette, May 8, 2002]

Justice Delayed

blocking nominees is an old political game--and it's undermining our
courts

Let's not be naive about how presidential picks, especially
for the judiciary, quickly can become political pawns for
members of Congress. Holding up a nominee to the bench or to
any other office requiring the Senate's advice and consent
has become nothing less than a venerated tradition. And it's
a bipartisan affair even as each side howls with indignation
when the other does it.
Sometimes it's indulged for philosophical reasons--a
judicial nominee's stance on abortion or capital punishment,
for example. Other times the stonewalling is mundanely
political--perhaps some senators want a president to back off
of a threatened veto of major legislation. A pending
nomination can prove a useful bargaining chip. It all makes
for a very old game, and it has been that way almost every
time the White House has changed tenants over the years.
But that doesn't make it right. More to the point, the
inclination of senators to make judicial appointees cool
their heels interferes with the administration of justice.
The latest joust between the Senate and the presidency is no
exception.
To their credit, Colorado Republican U.S. Sens. Ben
Nighthorse Campbell and Wayne Allard have written a letter to
the Chairman of the Senate Judiciary Committee, Patrick
Leahy, D-Vt., making just that point.
``The current state of judicial nominations is
unacceptable. It has devolved into a petty game of
entrenchment, creating a vacancy crisis that prevents the
service of the very justice upon which our nation depends,''
they wrote.
Of particular concern to the Colorado delegation is the
status of Colorado's former solicitor general, Tim Tymkovich,
who was nominated by President Bush in 2001 to fill the
Colorado vacancy on the 10th Circuit Court of Appeals.
Saturday will mark the one-year anniversary since Tymkovich's
nomination was sent to the Judiciary Committee.
It's not as if there are some glaring blemishes on the
man's resume. On the contrary, his nomination enjoys the
broad support of our state's legal community, and he was
deemed qualified when rated by the American Bar Association.
and still he remains in limbo.
To reiterate, we're not being naive here. This is an old
syndrome that conforms to no political boundaries. Indeed, a
couple of years ago, it was Allard who for a time helped
delay the nomination of a Clinton administration pick for the
10th Circuit bench.
But the underlying point the Senators make in their letter
to Leahy is well taken. Quite simply, there's a slate of
looming vacancies on the federal bench across the country
thanks in large part to backlogged nominations, and it risks
paralyzing the courts.
Whatever reservations members of either party might harbor
about any given nominee, and however substantive those
concerns may actually be on occasion, at some point they pale
next to the need for any judge at all to attend to the logjam
in federal courts.
Swift justice is supposed to be a hallmark of our system;
its prospects don't look good while the likes of Leahy are
making it harder to get before a judge at all.
____

[From the Rocky Mountain News, May 9, 2002]

GOP May Protest Delay on Hearings

coloradan is among bush judicial nominees

(By M.E. Sprengelmeyer)

Washington.--Republicans might slow action in the U.S.
Senate today to protest a yearlong delay in confirming
President Bush's judicial nominees, including one from
Colorado.
Saturday will be the one-year anniversary of Bush's
nomination of Tim Tymkovich to the 10th Circuit Court of
Appeals in Denver.
But he's still waiting for a confirmation hearing, as are
eight of the first 11 judicial nominees Bush made a year ago
today.
Republican Senators will call attention to the issue in a
morning press conference, and then they are expected to
invoke procedural maneuvers to slow the Senate's work
throughout the day.
``It will be a slowdown in order to make their point,''
said Sean Conway, spokesman for Sen. Wayne Allard, R-
Loveland.
Last week, President Bush called the situation a ``vacancy
crisis,'' especially in the 12 regional Courts of Appeals,
where one in six judgeships remains vacant. The Denver-based
10th Circuit is still waiting for nominees Tymkovich and
Michael McConnell of Utah to get hearings.
In response, Senate Judiciary Committee Chairman Sen. Pat
Leahy, D-Vermont, pointed out that the Senate had confirmed
52 of Bush's nominees since Democrats took control 10 months
ago. He said Bush should share the blame for other delays.
``Controversial nominations take longer, and the President
can help by choosing nominees primarily for their ability
instead of for their ideology,'' Leahy said in a release.
Some groups have questioned McConnell's nomination,
claiming that the University of Utah professor would weaken
the separation of church and state. They also question his
views because he once represented the Boy Scouts of America
in its bid to exclude homosexuals. McConnell backers say the
fears are based on misunderstandings and that he has been
endorsed by several Democratic academics.
But there is little controversy over Tymkovich, Colorado's
former solicitor general.
Last month, Allard and Sen. Ben Nighthorse Campbell, R-
Ignacio, wrote Leahy, demanding that Tymkovich get a hearing.
``It has devolved into a petty game of entrenchment,
creating a vacancy crisis that prevents the service of the
very justice upon which our nation depends,'' they wrote.

The PRESIDING OFFICER. The Senator from Arkansas.
Mr. HUTCHINSON. I thank the Chair.
I congratulate Senator Allard for an excellent statement. I have a
similar story to tell of one of our nominees from the State of
Arkansas.

____________________