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Burden of Proof

Federal Judge Nominations: Jogjam on Capitol Hill

Aired October 10, 2000 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Help wanted: federal judges needed. Confirmations of federal judges are stuck on Capitol Hill.

Democrats say it's the Republicans, but Republicans say some of the nominees are not qualified.


SEN. ORRIN HATCH (R-UT), CHAIRMAN, JUDICIARY COMMITTEE: It is an irrelevant issue, what a person's skin color might be. Judicial nominations, federal judicial nominations, they ought to be out of politics as much as we can make them.


ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

Though the Clinton presidency and the 106th Congress will soon come to an end, the battles are not yet over. The White House and Republicans on Capitol Hill are feuding over the makeup of the federal bench.

GRETA VAN SUSTEREN, CO-HOST: President Clinton has appointed 377 judges to the post, roughly 45 percent of the federal judiciary. Four judges were recently approved.

The president charges that confirmation of minority and women nominees has been slower than their white, male colleagues.

COSSACK: The remaining nominees could be left hanging in the balance of a November election.

And joining us today is John Podesta, White House chief of staff.

VAN SUSTEREN: Also joining us is Republican Senator Jeff Sessions, who is a member of the Judiciary Committee.

John, first to you. Is there truly a problem with judicial appointments? Is it any different than any other administration? JOHN PODESTA, WHITE HOUSE CHIEF OF STAFF: Well, I think it is. I think that -- you raised the issue about women and minorities. I think that it's not a charge that the president makes, it's the facts that are a problem -- which is that they take longer to confirm, they fail at a higher rate, notwithstanding the fact that they're highly qualified, nonpartisan, in many cases; and right now we have a situation where a number of very qualified women and minority candidates for U.S. Court of Appeals are sitting, stuck in the Senate Judiciary Committee, and they ought to have a vote.

VAN SUSTEREN: Let me ask a follow-up question.

Senator, going back to what John just says; I have a friend who was nominated in March of 1999. I don't know if he's going to be a great judge or a terrible judge, but he hasn't even had a hearing.

Why hasn't he had a hearing to see if we should say yea or nay to him?

SEN. JEFF SESSIONS (R), ALABAMA: I would assume that there's some objection or concern about his background or his views that have held that back.

The president has nominated -- confirmed 377 judges, one has been defeated. The confirmation times of this year have been no different than any other year. In fact, the four that were just confirmed a few days ago had been held by the Democrats for over a month, President Clinton's own nominations were held.

Now, this is important -- they were held for over a month and they've been blaming us for not confirming judges, so I think that was really unbelievable.

COSSACK: Senator, let me ask this question: The role of the Senate in deciding the federal judiciary is to advise and consent. Well, we know what consent means, but what, exactly, does advise mean? What should you be looking for?

Has it now become truly -- and I'm not saying this Congress -- but has now the judiciary become a part of the political process?

SESSIONS: I think this has been a good tenure. Since I've been in Washington and the Republicans have had a majority in the Senate, we have not had the kind of bitter fights over Bork and Thomas. We've had high-level debate and discussions about nominees.

And so I don't think we have any kind of crisis at this point. The president has gotten virtually everybody he wants; there are now 63 vacancies, we don't have nominations for 27, and of those we just confirmed four.

We are not a rubber stamp. When the president does consult -- he talked with me about two judges from Alabama, and they cleared fairly promptly, and I think he normally does that. And we've had a pretty collegial process for most of it. I objected to some nominees for the very liberal 9th Circuit, and I stated in quite a detailed way why I thought we ought not to confirm those, but they were confirmed.

VAN SUSTEREN: John, what about the problem -- I'm still a little bit stuck on this fact that, this business about hearings -- that I don't know if someone is qualified or not. But, you know, I think you have to, at least, have a hearing to see whether the person is qualified.

And if you're not even getting a hearing, how do we know?

SESSIONS: Sure; and let me just respond to one thing the senator said.

I think the reason -- one of the reasons we haven't had the kinds of contentious nomination fights like Bork and Thomas is because the president has nominated people who are, generally, well-qualified, non-political and belong on the bench. And so I think we haven't had those kinds of fights; but what we see now is people being delayed for years at a time, and that's just wrong.

If you have a specific objection, you ought to have a hearing, you ought to bring them up, and they deserve an up-or-down vote. Bork and Thomas got that; and that's what our problem is today -- we talk about some of the specific cases; Senator Sessions had a problem with, I think, a distinguished district court judge in Los Angeles, Richard Paez. He had to sit there for four years. He finally got a vote, he was confirmed by a majority...

VAN SUSTEREN: Is it enough, senator, if you have an objection to someone, just looking at the papers, to hold off a hearing? I mean, that's -- as I keep going back -- it seems to be my mantra, but, at least, air the problems so the rest of us can look at it, too?

Is it enough, just, that you may serve as some particular problem --don't you want to have a hearing to sort of, at least, hammer your point home or develop...

SESSIONS: Well, let's look at that.

First of all, there's not that many. We only -- as I said, we've got 63 vacancies, and 27 with no nominations; so there's hardly over 30 that have been nominated that haven't been voted on. And we are moving nominations.

But I think there was a lot of hard feelings over the Democrats holding these last four and complaining to us that we weren't moving judges; and I think it's probably less likely, now, that they will be confirmed. And everybody knows that, in the last year of a president's term, they don't get all their judges confirmed.

VAN SUSTEREN: But why? That sounds terrible to the American people that you have -- first of all, it sounds terrible, John, that there are these vacancies without nominations. There are lots of people who want jobs -- lots of lawyers that want... COSSACK: Well, wait a minute; first of all, you have to jump in and say some statistics. There's 41 vacancies, 18 people have been on...

VAN SUSTEREN: Sixty-three.

COSSACK: ... hold for more than a year.

VAN SUSTEREN: Sixty-three vacancies now.

COSSACK: I'm talking about the fact that there are -- excuse me, there are 41 nominees for 64 vacancies. Only 18 have been on hold for more than a year.

But, senator, let me just ask you, now, some statistics: 48 percent of Clinton's 374 picks have been women or minorities. Of that, 35 percent of Clinton's minority nominees have not been confirmed by the Senate, compared with 14 percent failure rate among whites.

How do you answer that?

SESSIONS: Those numbers don't strike with the numbers Orrin Hatch has meticulously calculated. He has shown that there may be about an 11-day difference between some of the minority and women confirmations and others.

For example, the first two Congresses -- first two years, women and minorities were confirmed faster than the others by about 14 days faster. In the last year, there was an 11-day longer for those.

This is just statistical aberration, that's what that suggests. And what is offensive to me is that we were holding nominations because of their race or sex, and that would be wrong. I reject that, it's not true.

VAN SUSTEREN: John, you want to respond.

PODESTA: Let me say two things. An independent, blue-ribbon commission studied this question and found that women and minorities took between 60 and 65 days longer to go from nomination to confirmation.

VAN SUSTEREN: Who are they?

PODESTA: It was put together by, I think -- funded to some extent by Georgetown law school, or housed at Georgetown law school. So they wanted to get an accurate, outside group that was nonpartisan to take a look at this and, frankly, the failure rate amongst women and minorities is just, clearly, higher.

Right now, we have people like Enrique Moreno on the 5th Circuit who can't get a hearing. We have Bonnie Campbell in the 8th Circuit, she can't get a hearing.

We have, I think, maybe the worst example is the 4th Circuit: The Circuit in this country with the most African-Americans living in the Circuit Court itself. We appointed a distinguished District Court African-American judge to that vacancy a couple of years ago, Jessie Helms said no. We've appointed, this year, a North Carolina state court judge, Jesse Helms said no. Now we've appointed...

VAN SUSTEREN: Is that no to just hearings?

I've got to take us to break, but is that just no to hearings? See, I'm still stuck on the hearing.

PODESTA: No to hearings; they can't have a hearing, they can't have a vote. I think these men would, clearly, be confirmed if they had a vote.

VAN SUSTEREN: All right, I'm going to let you answer, senator.

We're going to take a break, we'll be right back with more on this issue; stay with us.


COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

VAN SUSTEREN: Democratic Sen. Charles Robb recently charged that the Judiciary Committee is, quote, "standing in the door of the courthouse." Recently, four federal judges, though, were confirmed, but other nominees are waiting on the sidelines.

Democrats have criticized the GOP-controlled Senate committee for a logjam on women and minority candidates for the federal bench.

Senator, I cut you off before we went to break. You wanted to respond to John.

SESSIONS: Well, when Sen. Biden controlled the committee in the majority Democrats and President Clinton was in the White House, when they left office there was a 7.4 percent vacancy rate.

VAN SUSTEREN: What is it now?

SESSIONS: 7.4, the exact same. There is no problem here.

VAN SUSTEREN: And so, John, is that true or not true? I mean, how do you reconcile that if the senator is right?

PODESTA: I believe the statistic was 4.7 and we've transposed them. But I'll go back and check that, Senator.

COSSACK: Sen. Sessions, "USA Today" says, on average, it takes about eight months for minorities and women to get through the confirmation process. The average for white men is five months. SESSIONS: Sen. Hatch has done a study, meticulous study to rebut those charges. And what he found was there was about a 14-day faster approval rate for minorities and women during one period of Congress, 11 days longer during another. And this is a political talk at the last of this election to try to play a race and sex card to create an interest here.

COSSACK: But then why do you believe that the Black Caucus of congressional leaders have taken the position that they have and attacking the Republican-led Senate, saying that they are standing in the way of getting minorities and women on the bench?

SESSIONS: Well, the reason is they're putting the heat on the Senate, just like democracy in America is all about. It's a free country. They are beating up the Senate to try to get every single judge they can get through, and we're still -- we've been confirming judges, but we're not going to confirm every nomination, just like Sen. Biden didn't when President Clinton was in office.

PODESTA: Sen. Robb was -- the person he was talking about is Roger Gregory, who's a distinguished trial lawyer from Richmond. He's been nominated by the administration to this Fourth Circuit, which I mentioned. He has support from both the Republican and Democratic senators in his home state and yet he still can't get a hearing, he still can't get a vote. And this is a circuit that has never had an African-American judge sitting on the court in the area where most African-Americans live -- highest percentage.

SESSIONS: But this is a North Carolina seat and it's come out of Virginia, which has caused Sen. Helms a lot of concern.

VAN SUSTEREN: I'll tell you what bothers me a little bit, John, about this is that in the ones that were recently confirmed, three out of four were from the state of Arizona. So it sounds like there must have been some horse trading, it must have been a senator was able to do something and move some Arizonans to the hearings.

PODESTA: Well, it helped...

SESSIONS: A Hispanic woman. It was a Hispanic woman.

VAN SUSTEREN: And one Hispanic woman. So out of all -- so out of the vacancies, why is it that out of three out of four that actually, you know, got the pass recently, they're from the state of Arizona? You have the man that I know from the District of Columbia. And, again, I mean, I don't know what would happen at a hearing. He can't even get a hearing. He doesn't have a senator. It sounds a little bit too much like horse trading at the experience of the judicial system, John.

PODESTA: Well, I think, in that Arizona case, I think it helped that Republican senator, sat on the Judiciary Committee from Arizona. And I think these are all three qualified people.

The senator has repeatedly talked about the Democrats holding up these four nominees. I think, really, they were trying to make a point, that there are other very qualified people sitting in that committee for longer periods of time that deserve a hearing, and they deserve an up or down vote. If they're not qualified, if people want to vote them down, do it. Put them on the floor, let them vote against them, put their votes behind their opposition.

VAN SUSTEREN: What about that?

COSSACK: But Sen. Sessions, you would say that...

SESSIONS: That's the most bizarre way of protesting delay in judges by delaying judges I've ever heard.

VAN SUSTEREN: What do you mean?

SESSIONS: Well, I mean these protest, judges are being delayed and holding up judges you're ready to confirm? That is really bizarre, even by Democratic standards.

COSSACK: But Senator...

PODESTA: Well, it caused us to be on this program, probably.


COSSACK: Well, no, it causes us -- but it's causing you to be on this program to investigate whether or not there is a problem here, and that's obviously what we're hoping to find.

But Senator, what I'm suggesting to you is that we know at least, and everyone will agree, that at least, according to my numbers, there's at least 18 people who have been waiting for a year. Why so long?

SESSIONS: Well, that's always been the case. When there are judges for whom there's problems, either background, some of which may not be public -- some may be public objections or concern by senators -- they don't always go through as fast as others.

VAN SUSTEREN: But you know, that may be true...

SESSIONS: And we're now within a few weeks of an election. We'll have a new president. Some of these judges who are pending now, most of them will be confirmed if President Gore would be elected.

VAN SUSTEREN: But you know what, Senator? It may be that it's always happened that maybe when the Senate was run by the Democrats, maybe it was as bad then. Maybe it's a terrible thing. But, you know, to me as a citizen, I don't care. Why is everybody all of a sudden going home to the districts? We have these vacancies on the bench, people complain about the courts being overloaded, you guys are off campaigning, and we've got these vacancies? Sure, the Democrats may have done it, but, you know, that doesn't justify doing it now.

SESSIONS: Well, we have a constitutional responsibility to advise and consent. It's not a rubber stamp.

VAN SUSTEREN: But you're not even having hearings to advise and consent.

SESSIONS: We have our hearings and we're doing work on them and staff is doing background work and we're receiving complaints and input from people around the country who may be concerned about these.

COSSACK: And statistically, the number of judges...

SESSIONS: And we're not going to be rushed through.

PODESTA: You can throw out...

COSSACK: And John, you have to say, statistically, the number of judges have been on an equal par as in any other time that have been appointed.

PODESTA: You can throw out vague allegations about background problems, but if there are background problems, put them on the record. We've got -- I mentioned a couple -- Bonnie Campbell in the 8th Circuit. She -- today, the House is voting on extending the Violence Against Women Act. She is the person that runs that at the Justice Department, a former attorney general from Iowa. She brought that program up and made it run. She has no background problem. There's been a hearing on her, she's supported by both the Republican and Democratic senator in her state. Give her a vote.

VAN SUSTEREN: What's the problem with voting on her, Senator.

SESSIONS: There's concern about Bonnie Campbell's liberalism. She's never tried a lawsuit, to my knowledge.

VAN SUSTEREN: Well, that's going to be a disqualifier for -- half the Supreme Court might get the boot in terms of -- if we're going to go back to whether anyone's tried a case.

COSSACK: Well, but, nevertheless, it's a legitimate issue that you may not agree with.

Let's take a break. Can I interrupt and take a break and we'll come back to you, Senator?

SESSIONS: Very good.

COSSACK: Thank you. I'm pretty nice to senators, you know.

Up next, is there a Capitol Hill solution to this problem? And how will next month's election affect the federal bench? Stay with us.



HATCH: When you are -- I would say 65 vacancies or less, you pretty well have a full federal judiciary. And it is a constant battle to go through the confirmation process, do the investigations, and have to be done, the follow-up investigation that have to be done. We take this very seriously, both Democrats and Republicans do, because these people are appointed for life.


COSSACK: President Clinton has been feuding with the Senate Judiciary Committee over the confirmation process of federal judges. Next month's election will not only impact the White House, it could change the look on Capitol Hill, and in turn, could affect the federal bench.

Senator, I want to go back to sort of what I tried to ask you at the beginning of this question, the advise and consent part of it. And you, during our show, you've mentioned the fact that you have concerns about a particular nominee who may be too liberal. What part do you play, in terms of you, meaning a senator, play? Is that really a legitimate concern to say: This one may be too liberal. Aren't you really more concerned about: Is this one going to be honest? Is this one going to thoughtful? Is this one going to be a judicious temper? And the fact that they may be a little too conservative or a little too liberal, is that really more politics than judiciary?

SESSIONS: They are all liberal. Virtually all of the nominees are liberal judges. What we try to ask: Are they good legal scholars? And will they follow the law because they have a lifetime appointment? This is the only opportunity in the system in which the people have a chance to evaluate those judges. They become a lifetime appointment.

If they are going to use their power of office to redefine the meaning of words in the Constitution or statutes, and make it say what they want it to say, then they can subvert democracy. So we are very concerned, and try to watch as we can -- and it is difficult to establish who might do that.

COSSACK: Is it just enough for you to disagree with them philosophically for you to reject them, you the Senate, I don't mean you personally.

SESSIONS: This is the way I look at it. On the death penalty, I voted to confirm a number of people who don't believe in the death penalty. But if they have a history of using the law as a judge, to subvert the legally-constituted death penalty, than I have a problem with them. And that's the question I look at.

VAN SUSTEREN: And this whole issue about liberal Democrat, there was a study done by Ohio State University, which says "Clinton's nominations have actually disappointed many left-leaning Democrats, who believe he should be pursuing a more liberal agenda in lower-court nominations." That is a study out of Ohio State, which is a little different.

But, John, I want to go back to the thing that I can't seem to get off of is: What are you doing, in terms of, meaning the White House, to get hearings? I mean, do you make phone calls? Do you hound them? I mean, give me an idea of the kind of problems that...

PODESTA: Well, you know, I talk to the chairman of the committee, Senator Hatch, all the time, the president's talk to him. I think that a couple of years ago, frankly, when things were also in a knot that the chief justice -- Chief Justice Rehnquist admonished both sides really, the White House and the Senate, to get on with nominating more people and confirming more people.

I think we have done our job in putting up qualified people, middle of the road people, as you said, some of our liberal critics criticize us for. I think we've done our job. We have tried to work with Senator Hatch. I think that, frankly, he has taken some grief in his own caucus, I will compliment him here, for trying to move this process forward.

But now I think he is probably a little embarrassed by the state of affairs that these court of appeals nominees, most of whom are women and minorities, are just being blocked.

VAN SUSTEREN: How come there's some vacancies...

SESSIONS: Senator Biden has stated plainly that he has seen no evidence in this committee of anyone being rejected because of their race or sex. I think that is an unfair charge to make. It is offensive to me. It is demeaning to Senator Hatch, who is as fine a person as sits in government. And I'm really offended by that.

VAN SUSTEREN: John, how come there are a bunch of nominations that are stuck in what we have characterized now as a logjam, but there are a number of seats that don't even have nominations. What -- why aren't there people nominated for those empty seats?

PODESTA: Well, some of those are recent vacancies.

VAN SUSTEREN: I will give you the ones that are three months old, I will give you three months. I mean, how much time do you take to nominate?

PODESTA: I will tell you, the majority of the ones that are vacant are probably -- fall within that window, maybe it is a little less. But I think, at this stage, we are trying to work with senators, we are trying to find nominees who actually might move forward, who might get a hearing. As Senator Sessions said...

COSSACK: Isn't that what you should be doing?

PODESTA: Sure, and that is what we've tried it, and that's why 377 of the nominees have been confirmed. And I think, look, as I said, you know, I commend Senator Hatch after, again, with a little boot to both of us from the chief justice, I think we've tried to work. Last year, 65 I think nominees were confirmed. So I think we have made progress on this, but right at this point, I think what we've got now is a slowdown, and a lockdown, and it is unfair to the people that up there.

VAN SUSTEREN: And, John, you get the last word because that's all the time we have today. Thanks to our guests and thank you for watching.

COSSACK: Join us again tomorrow for another edition of BURDEN OF PROOF. We will see you then.



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