Bob Smith

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. I ask unanimous consent time be charged equally to both sides, in the quorum.

Mr. SMITH of New Hampshire. I yield the floor. I suggest the absence of a quorum.

Mr. SMITH of New Hampshire. I just wanted to protect the time I had. I yield the floor.

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SMITH of New Hampshire. Mr. President, several comments have been made today, I think correctly so. I do not think the information was out. But it is interesting we now have a capital sentencing case, Arreguin v. Prunty, in which Judge Paez was reversed, as of yesterday. Several people had said no criminal case of his had been reversed. Those statements were correct. That has changed now since March 9. So here we have this judge being reversed, this judge we are now talking about putting on the circuit court. In this case, the defendant was an accomplice to robbery and murder and he actively encouraged the murder of an innocent civilian. Under California law, an accomplice can only be sentenced to life without parole or death if he was a ``major participant'' in the capital crime. In Arreguin, an impartial jury unanimously convicted the defendant as an accomplice to robbery and murder. The State trial judge instructed the jury on what a ``major participant'' was. The jury sentenced the defendant to life without parole. The California appellate courts recognized that the State trial judge made a technical error in giving the ``major participant'' instruction, but held that the record clearly showed that the defendant was in fact a ``major participant'' in the robbery-murder and affirmed the sentence under the harmless error rule. On habeas review, however, Judge Paez held that the Constitution somehow created a liberty interest in receiving a perfect jury instruction--even if he was clearly a major participant in the robbery- murder. This is a classic example of the continued liberal activist interpretation of the Constitution by Judge Paez. Yestreday, March 8, 2000, a unanimous panel of the Ninth Circuit reversed Judge Paez and reinstated the sentence of the defendant to life without parole. The Ninth Circuit agreed with and quoted the California appellate court, stating: . . . under any reasonable interpretation of the evidence, [Arreguin] was a major participant and the error was harmless beyond a reasonable doubt. The [California] court further stated: Standing within arms's reach of an armed accomplice exhorting, ``Shoot 'im, shoot 'im'' about the victim, immediately after another accomplice forcibly broke the truck window, warrants no other reasonable conclusion than that appellant was a major participant. Appellant's testimony that he did not participate at all was necessarily rejected by the jury in its verdict. This harmless error analysis is sufficient. . . . Therefore, we reverse the grant of the writ. Once again, this shows a continuing liberal, activist interpretation of the Constitution that even the Ninth Circuit could not agree with. Judge Paez will not move the Ninth Circuit into the mainstream, he will make the problem. Accordingly, I will vote against this nominee. Judge Paez will not move the Ninth Circuit into the mainstream; he is going to make it the problem. That is one of the major reasons why I am not going to vote for Judge Paez, and in my view, respectfully, I do not think others should either. I also want to mention the Senate has received over 10,000 signatures on petitions opposing the Berzon nomination because of her extreme position on labor matters. Here are the 10,000 signatures. That is a lot of signatures. That is a lot of time people take to oppose a judge, and not even a Supreme Court Justice but an appellate court judge or circuit court judge. There is a lot of opposition out there. Also, I might add, there is a lot of knowledge about these nominees. They should be rejected.

Mr. SMITH of New Hampshire. Mr. President, I am quoting a couple of paragraphs from the letter from Mr. Bruce Josten of the U.S. Chamber: Dear Senator Smith: I am writing to inform you of the Chamber's opposition to the nomination of Richard A. Paez to the U.S. Court of Appeals for the Ninth Circuit. Our opposition to this nomination rests principally on a decision rendered by Judge Paez in John Doe I v. Unocal in March of 1997. Judge Paez's decision in the Unocal case suggests that U.S. companies conducting business in a foreign country may be held liable for the actions of that foreign government, or the actions of any business enterprise owned by the foreign government. Aside from the constitutional question of whether it is appropriate for the courts to pursue their own foreign policy agendas, the Paez decision has the potential to cause significant disruption in U.S. and world markets. The next paragraph: Although the decision in the Unocal case dealt with a pretrial motion to dismiss and is currently on appeal, we view it as a serious threat to international commerce. Moreover, the Unocal decision represents a dangerous and unconstitutional intrusion by the courts into the formulation and implementation of U.S. foreign policy--a prerogative that rests solely with the Congress and the Executive Office. You can't say it any more clearly than that. You don't get involved in U.S. foreign policy on the court. This is a prerogative that rests only with the Congress and executive branch. This man is intelligent, and no one is challenging that. He knows exactly what he is doing. He knows what the Constitution says. We will certainly give him that. He also knows how to implement his agenda as opposed to sticking with the Constitution. That is what we are talking about. Now, this case is currently before the Supreme Court and we are hopeful, as Bruce Josten says, that the First Circuit Court decision invalidating the Massachusetts law will be upheld. That is in another case involving the national chamber and another case that is referred to in the letter which will be part of the Record. So this is serious business. I also think this hostility to religion is pretty serious. I want to get into this because this is very disturbing. Again, this is about a judge's views on issues; it is not about the judge personally. I think we see an open hostility to religion. Mr. President, I want to preface what I am going to say just by saying this: Just to the left of the Chair's left hand is a Bible. In every court, they say we swear to uphold, to tell the truth, the whole truth, nothing but the truth. That Bible is on display for everyone to see here in the Senate Chamber. We swear oaths all the time on Bibles as witnesses. The President of the United States swears on a Bible and takes an oath to uphold the Constitution. Now, in that framework, I want you to think about what I have just said and then listen to what Paez said. This was in the L.A. Times in 1989 when this case came up. It was a trial of five anti-abortion demonstrators accused of trespassing and conspiracy, and it flared into a dispute over whether the defendants can display their Bibles before prospective jurors. They had Bibles in the courtroom. It says: In a rare flash of anger, Los Angeles Municipal Judge Richard A. Paez warned the defendants and their attorneys that he would instruct the court bailiff to confiscate the Bibles if they continued to openly consult or wave them during jury selection. I want you to think about that. He is going to instruct the bailiff to haul people out--the defendants--if they are sitting there looking at their Bibles during jury selection. Here is what he said: ``I don't want them [the bibles] in view of the jurors,'' Paez said sternly, raising his voice and motioning with his hand. ``Don't give me a hard time.'' Now, we could go a little bit further: Paez, who has said he is determined to prevent the trial from being used as a platform to debate the moral and political issues surrounding abortion, ordered . . . the defendants to refrain from displaying their bibles prominently to the jury box. He had given similar instructions the day before. But what happened was the defendants refused, challenging the judge to go ahead and hold them in contempt. Further: Co-defendant Michael McMonegle leaped to his feet, asking that the prosecutor be removed from the case. ``She is obviously an anti-Christian bigot,'' he said loudly. Tensions escalated until Paez recessed for lunch. The showdown between the judge and defense attorney was averted, however, when [one of the lawyers] did not return for the afternoon session, saying he had to attend another trial in Federal Court. A calmer Paez told the defendants that, while they may keep the Bible on the counsel table, they must not attempt to ``affirmatively communicate'' their religious beliefs to potential jurors who are being questioned.'' ``I don't have a problem with the Bible. I don't care if you have it there (on the table),'' Paez said. ``My concern is I do not want any attempt to sway the jury. I don't want demonstrative gestures . . . . That is not proper.'' Paez said, on the other hand, that he would consider permitting the defendants, some of whom are representing themselves, to quote from the Bible during closing arguments or to carry the book to the witness stand when they testify. I wonder whether Judge Paez put his hand on the Bible somewhere when he became a judge. What is the big deal? Are we going to destroy ourselves as a society because a group of defendants want to hold a Bible in their hands when they come into a courtroom? What kind of a judge is this? This is the kind of judge that Bill Clinton is putting on the courts. So when you hear about all this moral decadence and you hear about these problems and you hear about some being outraged by these decisions, why should you be surprised? Your Senators are putting them on the court. That is what is happening. Your Senators are approving these judges. There is no mystery about this. It is a constitutional process. The President nominates and we approve or disapprove. So don't be surprised, and don't blame it on the President. We can stop him if we don't like them. He has a right to nominate anybody he wants to. We have a right under the Constitution--sometimes we forget that we do--to advise and consent. We are talking about extreme activism here. This is not the mainstream. How many people in America listening to me now can honestly say they feel there is a threat to our whole constitutional process or to our court system because somebody carries a Bible into the room? Maybe we ought to take it out of here. That will probably be next. Somebody will stand up in here--who knows--and say I don't want to look at that Bible in here. That is what is happening in this country. You wonder why. Read about the Roman Empire and find out what happened to them. Find out where they went. Moral decadence. That is what happened to them. They went down the tubes. Is that what is in the future for America? I certainly hope not. If we keep doing this kind of stuff, it will happen. There are no surprises here. I don't understand why all these judges are doing this. There is nothing to understand. They are put on the bench. Hello, we put them there. The President nominates them and we approve them and on the bench they go. They make decisions not for 10 days, not for 10 years, but for life. You can't throw them off the bench for the decisions they make. That is just one. Finally, in the case of the Los Angeles Alliance for Survival of the City of L.A., Paez blocked a city ordinance designed to outlaw aggressive panhandling--Senator Sessions spoke about it--claiming that it was facially invalid under California's Constitution. The Supreme Court of California rejected Paez's decision and held that: . . . a court should avoid a constitutional interpretation that so severely would constrain the legitimate exercise of government authority in an area where such regulation has long been acknowledged as appropriate. He is an extreme, liberal activist who is not afraid to say ahead of the time in a matter that comes before his court how he is going to vote. He has done it on occasion after occasion.

Mr. SMITH of New Hampshire. I thank the Chair. As we continue this debate, I refer back to the Ninth Circuit chart behind me. This is a situation where we see, again, nearly 90 percent of the Ninth Circuit cases have been reversed by the Supreme Court. I have had this chart up all morning because I think that is a very significant number, to say the least. Earlier in the debate, my colleague, Senator Reid, made the argument that oftentimes we have higher numbers, as much as 100-percent reversal, with some of the circuit courts. He is correct. But what he did not say is that sometimes the reversals are one or two cases. For example, he said there were several times when the First and the Second Circuits were reversed 100 percent of the time. He is right. In the two cases he cited, one was when there was only one case, another was when there were six. Several of them were in the D.C. Circuit, the Federal Circuit, and others, a 100-percent overturn rate. The 100-percent overturn rate was based on one case. What we are talking about here in the Ninth Circuit is, in 1996 and 1997, 27 of 28 cases overturned, a 96-percent overturn ratio. I think it is very important to understand what we are talking about. This is not 100 percent based on one case or two cases; this is based on 27 of 28 cases in 1996 and 1997. In the 1997-98 term of the Ninth Circuit, 13 of 17 were reversed, for a 76-percent rate. Then again, the Senator from Nevada referred to some other circuits that year. Of course, the Eleventh had two overturned out of two, for 100 percent. So it is pretty misleading to suggest that 90 percent is very common in overturning these circuit cases because there are higher percentages in other cases when, again, it is based on 1 or 2 cases, not on 27 or 28, as it was in 1996-97. It is based on 13 out of 17 in 1997-98. As of June 1999, it was 14 out of 18, for a total of 78 percent. Yes, wherever you see a 100-percent overturn ratio, it is usually almost exclusively one or two cases at the most. Those are very dramatic and significant statistics. I think what we have here is a situation where we have a rogue circuit that is basically way out of the mainstream of American political thought. Now we are putting two more judges on that court who--I think it is pretty obvious based on the information we have heard--are going to add to that out-of-the-mainstream majority. Let us look at specifically each of these judges. Richard Paez is one of the nominees we are considering. It is no secret I am opposed to that nomination. In general, I oppose nominees who are judicial activists. I don't think judicial activism is what the Constitution or the Founding Fathers meant. I don't think they meant judicial activism on the right, and I don't think they meant judicial activism on the left. I think what they meant is, interpret the Constitution, don't legislate from the bench, and uphold the Constitution as it was written. That is what they meant. That is not what we have gotten from many, certainly not from these two judges, and it is certainly not what we have gotten from several other judges who were put on the bench over the years. In 1981, Richard Paez became Los Angeles Municipal Court judge, where he served until 1994. Since then, he has served as a U.S. district judge for the Central District of California. We can go back through a lot of cases; we have done a lot of research. If we go back to Prop. 187 and Prop. 209 in California, Proposition 187 was the California initiative to limit public assistance to illegal immigrants, and Proposition 209 was the California initiative to end State-run racial preference programs. In 1995, Judge Paez spoke to the University of California at Berkeley Law School. This is what he said: The Latino community has for some time now faced heightened discrimination and hostility which came to a head with prop 187. The proposed anti-civil rights initiative will inflame the issues all over again without contributing to any serious discussion of our differences and similarities or ways to ensure equal opportunity for all. Here we have a sitting Federal judge. He has his right to his opinion. We all do. But he is a sitting Federal judge talking about a California ballot initiative that was likely the subject of litigation. Why is he taking that position publicly on that particular proposition? The answer is simple: Because he has an agenda. Those comments were inappropriate for a Federal judge because his agenda is that he didn't like Prop. 187. So, therefore, he said so. I think we all know--I have heard judge after judge after judge after judge after judge come before the Judiciary Committee and, much to my consternation and frustration in trying to find out their philosophy, not answer questions about any case that might be pending or be before them. As frustrating as it is not to get an answer, that is correct. I don't think a sitting judge should be doing this. I think that issue alone on that one statement is enough to reject this nominee, just on that. Again, Proposition 187 later became California Proposition 209, and it passed. And Proposition 209 ended affirmative action in California State programs. Paez should know that the Judicial Code of Conduct prohibits him from comments that cast any doubt on his capacity to decide this case or any case on an impartial basis. So he went over the line on an issue that he knew was going to come before him or certainly was reasonable to assume was going to come before him. Is there any doubt about how Judge Paez would now rule on any California proposition that affects affirmative action? Regardless of how one feels about affirmative action, that is not the issue here. We now know how he feels. He has already told us. So I don't know how he gives us a fair decision when he has already said what his decision is. He did say he was an activist judge in his own words, even though some on the floor have said he is not. I will repeat this again. He said: I appreciate the need for courts to act when they must when the issue has been generated as a result of the failure of the political process to resolve a certain political question. There is no choice but for the courts to resolve a question that perhaps ideally and preferably should be resolved through the legislative process. In the Constitution, it doesn't say ``ideally'' and ``preferably'' in terms of the legislative process. If you can find that in the Constitution somewhere, that it says ideally and preferably the legislature should pass the laws, ideally and preferably the executive branch should enforce the laws, or ideally and preferably the judicial branch should interpret the laws--it doesn't say any of that. There is a very clear distinction in the Constitution: Three separate but equal branches of the United States Government. It is very clear who is supposed to legislate, who is supposed to write the laws. It is not the Supreme Court. It is not the circuit court. It is not the district court. It is not any Federal court. We have a Federal judge talking about a California ballot initiative that was likely the subject of litigation. I think that is inappropriate. Now, again, let's go back to another example. This was a decision rendered by Judge Paez in the case of John Doe I v. Unocal in March of 1997. I will read an excerpt from a letter that the U.S. Chamber of Commerce sent to me Monday, March 6, about Judge Paez. I ask unanimous consent that this letter be printed in the Record.

Mr. SMITH of New Hampshire. Yes; the last one.

Mr. SMITH of New Hampshire. So there will be a vote, then, on Berzon and, after that, there will be the Sessions motion. And then, if that does not prevail, a vote on Paez?

Mr. SMITH of New Hampshire. Why was it overturned, reversed on appeal?

Mr. SMITH of New Hampshire. Mr. President, in a moment I will yield to my colleague from Alabama. I want to respond to a couple of points that were made during the debate, in terms of process, by the distinguished Senator from California, Mrs. Boxer, and Senator Leahy of Vermont. The criticism on the filibuster is a bit unwarranted. I could have come down here and thrown the Senate into quorum calls and delayed and delayed just for the sake of delay. None of us on our side, including me, did any such thing. We worked out an agreement with the majority leader for a limited amount of time, which on our side was 3 hours--it could have been 30, No. 1--after cloture. Secondly, I agreed to move the cloture time up, and the leader agreed with me. The real purpose of that was to get facts out about these two judicial nominees, Berzon and Paez. I know in the case of Senator Sessions, who will speak for himself on this, he has new information about Judge Paez. I believe that when new information is there, in spite of the fact that this judge has been before the Senate for 4 years, it should be shared with the Senate. I think Senator Sessions has every right to share it. Frankly, I think Senators will want to hear it. So I hope they will listen when Senator Sessions speaks in detail about the new information he has because I think it is very important in the case of the nomination of Judge Paez. I want to speak for just a moment on the issue of the random rule that my colleague from Vermont talked about. He indicated, to his credit, that he called and asked about the random rule, and he got a statement from the clerk that that was in fact random. Well, that is one statement, and it may well be true. I think we have a right to check that out to make sure it was random. If it were random, I ask my colleague, should this judge who is before the Senate to be confirmed for the circuit court, nominated by President Bill Clinton--is it the right thing to do, perception-wise, to sit on a case involving Maria Hsia, who has just been convicted for part of the fundraising scandal, along with John Huang who was also involved in that scandal? It seems to me, even if it did come out randomly, it would be good, common sense to say I will recuse myself from these cases because I don't think it looks good. The random aspect has a problem, which Senator Sessions will address. The random aspect presents a problem for me because there are 34 judges there, and the fact that those 2 cases would be randomly assigned to this judge is pretty suspicious. But if you give them the benefit of the doubt, a bad judgment was made by Judge Paez in taking them. Finally, much has been made here this morning as to comments about Hispanic judges. I think the implication is, somehow there is bias here. I remind my colleagues and the American people that we had a vote of whatever it was--95-0--on Judge Fuentes the other day. I voted for that judge, as did all of my colleagues. I certainly didn't assign any racial bias when Judge Thomas was opposed by many on the other side of the aisle, who happened to be a conservative black, which was the first sin--and probably the only sin, as far as I know--he committed. For that, he went through a living hell for a long time. Had he been a liberal black judge, I don't think there would have been a problem at all. So I don't think we need to get into name calling and give the insinuation that somehow because Paez happens to be Hispanic--that is uncalled for, and I hope we can get away from that kind of debate. I look at each person on the basis of their qualifications and their decisions. For all I know--OK, Paez, is that a Hispanic name? I don't even know. I could care less. So I hope we can get beyond that. At this time, I yield to my colleague from Alabama, Senator Sessions, whatever time he may consume.

Mr. SMITH of New Hampshire. Mr. President, a parliamentary inquiry: As I understand it, the debate continues, and at the completion of the debate, there will be a vote on Senator Sessions' motion, and a debate on Paez and then Berzon--or is it Berzon and then Paez?

Mr. SMITH of New Hampshire. That is the order? It is Berzon, Paez, or the other way around?

Mr. SMITH of New Hampshire. Mr. President, I suggest the absence of a quorum.

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SMITH of New Hampshire. Mr. President, as we have gone through this debate, although my name was not attached to anything in terms of a filibuster, it is no secret that I have been the person who has filibustered these two nominees, Judge Berzon and Judge Paez. The issue is, why are we here? What is the role of the Senate in judicial nominations? The Constitution gave the Senate the advise-and-consent role. We are supposed to advise the President and consent if we think the judge should be put on the court. We do not get very much opportunity to advise because the President just sends these nominations up here--he does not seek our advice--and then we are asked to consent. Based on some of the comments that have been made to me privately and some of the things I have read publicly, it seems as if the Senate should be a rubber stamp, that we should just approve every judge who comes down the line and not do anything with the advise-and-consent role. That is not the way I read the Constitution. I believe that is wrong. We have an obligation under the Constitution to review these judges very carefully. I have certainly voted for more than my share of judicial nominations this President has put forth. But I point out that the two nominees before us, in terms of their legal opinions--and that is all we are talking about; we are not talking about any personal matters other than their legal opinions--I believe are activist judges; they are out of the mainstream of American thought, and I do not think either one should be put on the court. The bottom line is they are controversial judges. I was criticized by some for filibustering, that ``we are on a dangerous precedent'' of filibustering judges. The filibuster is over. We are now on the judges. The filibuster is a nonissue. Filibuster in the Senate has a purpose. It is not simply to delay for the sake of delay. It is to get information. It is to take the time to debate and to find out about what a judge's thoughts are and how he or she might act once they are placed on the court. I was told by some of my colleagues yesterday that we are going down ``a dangerous path'' to debate these judges and slow them down, whether it be through a filibuster or debate in this Chamber. My colleagues will find there will be very few people who will speak in the roughly 3 hours on our side under my control. That is sad. I believe we should air the concerns we have. As far as the issue of going down a dangerous path and a dangerous precedent, that we somehow have never gone before, as I pointed out yesterday and I reiterate this morning, since 1968, 13 judges have been filibustered by both political parties appointed by Presidents of both political parties, starting in 1968 with Abe Fortas and coming all the way forth to these two judges today. It is not a new path to argue and to discuss information about these judges. In fact, Mr. President, Chief Justice William Rehnquist sat in your chair about a year ago finishing up the impeachment trial of President William Jefferson Clinton. When William Rehnquist was nominated to the Court, he was filibustered twice. Then after he was on the Court, he was filibustered again when asked to become the Chief Justice. In that filibuster, it is interesting to note, things that happened prior to him sitting on the Court were regurgitated and discussed. So I do not want to hear that I am going down some trail the Senate has never gone down before by talking about these judges and delaying. It is simply not true. I resent any argument to the contrary because it is simply not true. I will talk a bit about the Ninth Circuit on which these two judges are about to go. Make no mistake about it, this is going to be a tough vote to win. I know that. But it does not mean the fight should not be made. We are all judged as Senators based on what we do, what we say, and how we act. History will judge us, as it has judged the great Senators such as Clay, Calhoun, and Webster who debated the great issues before and during the Civil War. We are judged on what positions we take. Maybe history will prove a Senator is right; maybe history will prove a Senator is wrong. When it comes time to make that vote, one does not have anyplace to hide. One has to make it and take the consequences one way or the other. I do what I do with the best information I have. I can assure my colleagues that I have researched both of these judges very carefully. I have looked at the Ninth Circuit very carefully, and I have grave concerns about two very controversial judges being placed on a very controversial circuit court, the ninth. This is a renegade circuit court that is out of the mainstream of American jurisprudence. It has been reversed by the Supreme Court 90 percent of the time. It is important to let that sink in. Ninety percent of the decisions this Ninth Circuit has made have been overturned by the U.S. Supreme Court. I want to repeat some of those statistics. From 1999 to now, 7 of 7, 100 percent of their cases, have been reversed. In 1998 to 1999, 13 of 18 were reversed, 72 percent. From 1997 to 1998, 14 of 17, or 82 percent, were overturned. We can go on and on. From 1996 to 1997, 27 of 28 cases this court gave a decision on were overturned, 96 percent. From 1995 to 1996, 10 of 12 were overturned, 83 percent--and on and on and on. The average is: 90 percent of the cases were overturned in the past 6 years. There have been 84 reversals in the last 98 cases. That is an abysmal record, to put it mildly. The Ninth Circuit is routinely issuing activist opinions. While the Supreme Court has been able to correct some of these abuses, the record is replete with antidemocratic, antibusiness, and procriminal decisions which distort the legitimate concerns and democratic participation of the residents of the Ninth Circuit. Some of the more outrageous opinions include striking down NEA decency standards, creating a ``right-to-die,'' blocking an abortion parental consent law, and a slew of obstructionist death penalty decisions. I hope the American people and my colleagues understand that when you hear these terrible stories about prisoners getting out after 5 years, or people committing terrible crimes and never going to jail or getting pardoned or getting lenient sentences, this is not an accident. This happens because of the people we put on the court. We are here as Senators to advise and consent, or not to consent, on the basis of these nominees. How many times do you read in the paper some judge let some criminal out, and the guy committed a crime again and again, and he got out again and did it again? It goes on and on-- stalking, rape, murder, robbery, armed robbery, assault, over and over and over again. Time after time after time we hear about that happening. We sit around our living rooms at night, we watch television, we talk to each other, our families, and ask: Why did this happen? What in the world is the matter with the judges? I say, with all due respect, when you have judges who are this far left out of the mainstream, surely out of the hundreds and hundreds of judges all over America, on the various district courts in this country, we can find somebody to serve on the circuit court who is not this controversial. That is the bottom line. That is what this debate is about. That is why I am here on the floor. That is why, even though I know I am going to lose, I want this case made. That is why I have asked for the time to do it. Again, the Senate, and particularly Republican Senators from Ninth Circuit States, are on record in favor of splitting this court; it is so controversial, making it into two circuits. There was a commission called the White commission that recommended a substantial overhaul of the circuit's procedures, and that has not been implemented. It found that the circuit has so many judges that they are unable to monitor each other's decisions and they rarely have a chance to work together. That is what is going on. There are so many judges they cannot even monitor the decisions. The Ninth Circuit covers 38 percent of the country, more than twice as much as any other circuit. It covers 50 million people, more than 20 million more than any other circuit. Not surprisingly, it has the most filings in the country. President Clinton has already appointed 10 judges to the circuit. Democratic appointees compromise 15 of the 22 slots currently occupied. There is no need to put more controversial nominees on the court from a lame duck President. Paez and Berzon have attracted significant opposition both within and outside the Senate. Both were reported out of the Judiciary Committee by a 10-8 vote. That is a pretty narrow vote. Neither would move the circuit to the mainstream. In fact, they are activist judges. In Paez' case, the U.S. Chamber of Commerce is officially opposed to the Paez nomination, principally due to his decision in the Unocal case in 1997 allowing U.S. companies to be sued for the human rights abuses of foreign governments. Think about that. How would you like to be a U.S. company and be sued for the human rights violations and abuses of a foreign government? That is the way Paez ruled. The letter notes the chamber's serious concern about a judge pursuing a foreign policy agenda in this fashion and argues that it ``has the potential to cause significant disruption in the U.S. and world markets.'' The Judicial Selection Monitoring Project at Free Congress Foundation circulated a letter signed by 300 grassroots organizations opposing this nomination. The letter highlights Paez's 1995 Boalt Hall inappropriate remarks regarding pending ballot initiatives, on the belief that he ``is an activist judge,'' and his lack of ``judicial temperament.'' The ACLU of Southern California applauded his nomination as ``a welcome change after all the pro-law enforcement people we've seen appointed to the state and federal courts.'' Think about that statement by the ACLU. No matter what you think about the ACLU, let me repeat that statement. They stated, this nomination is ``a welcome change after all the pro-law enforcement people we've seen appointed to the state and federal courts.'' What does that tell you about this guy? I am telling you, my colleagues, I really wish we would stop and think about what we are doing. Even the Washington Post, not exactly a bastion of conservatism, stated, in an October 29, 1999, editorial: ``Republican opposition to [Paez] is not entirely frivolous.'' It argued that his Boalt Hall speech was ``inappropriate'' and that a ``principled conservative could suspect, based on Judge Paez' comments, that he might be sympathetic to such [liberal activist] thinking and would be more generally a liberal activist on the bench.'' That is the Washington Post's nice way of saying: This guy may not be that good after all. There is a lot of evidence out here. You have to understand the framework: A liberal activist court that has been overturned 90 percent of the time--the Ninth Circuit--and now we put a judge on there who is being lauded as ``a welcome change'' after all the prolaw enforcement people we have seen on the court. I say to the American people and my colleagues, when you hear stories about people getting out of jail or not going to jail or committing crimes over and over and over again--and you ask yourself: Oh, those liberal judges, what are we going to do about them?--ask your Senators what they did about liberal judges when they came before the Senate, before we put them on the court. That is a legitimate question: Do you support people who are lauded because they are antilaw enforcement? Maybe you ought to ask them that question because that is exactly what is happening. In Berzon's case, the Berzon nomination was described by the National Right to Work Committee as the ``worst judicial nomination President Clinton has ever made.'' She has been associate general counsel of the AFL-CIO since 1987 and has represented unions in the automobile, steel, electrical, garment, airline, Government, teachers, and other sectors both in a day-to-day capacity and in appellate practice. Among the positions she has espoused which courts have rejected: One, State bars should be able to use compulsory dues of objecting members for lobbying. That is the way she ruled. You are forced, as a member of a union, to give dues. You are forced to allow those dues to be used for lobbying for something with which you disagree. The bottom line is: I want my job. I pay my union dues. And on top of that, they rub my nose in it further by saying: Now, in addition to that, we are going to spend money lobbying for something you disapprove of. She ruled yes; she would do that. Secondly, unions should be able to prohibit members from resigning during a strike. So somebody goes on strike, they decide they want to perhaps do something else, resign, for whatever reason--how about if it is for their health?--she is prohibiting them from resigning during a strike. What does that mean? If somebody has a heart attack, they cannot quit? What have we come to in this country? You should not be surprised when you hear about these outrageous decisions coming down through the courts because we are putting the people on the courts who give us these outrageous decisions. We do not deal with it in a forthright manner. There are better judges than this. Bill Clinton can bring better judges than this before the Senate. Frankly, he has, and they have been approved. They may not believe everything to my way of thinking, but he is the President. But we do not want judges who are so far over to the left that they swing the pendulum way over there against what American people want. Another opinion she has espoused which courts have rejected is: Unions should be able to use nonmembers to subsidize union litigation in organizing. That is the way she ruled. She describes herself as a believer in the labor movement, which is fine, but when you come on the court with an agenda, the Constitution should be your agenda, not labor, not a conservative or liberal or moderate cause. No, the Constitution should be your cause. If it is not constitutional, then you should not be for it. The bottom line: The Senate should not confirm more judges to the Ninth Circuit unless and until its structure is reformed, and unless the nominee will help bring the circuit's jurisprudence back into the mainstream. This is clearly not the case with Judge Paez or Marsha Berzon. Neither nominee should be confirmed. It is that simple. Now, let's look at some of the politics of the Ninth Circuit. In the Washington Times yesterday, Wednesday, March 8, was an article by Thomas Jipping: Politics of the Ninth Circuit. Senators should reject judicial nominees. I want to read one paragraph out of that op-ed piece: The Senate this week will vote on two of the most controversial judicial nominations in recent memory. The result may well demonstrate whether Republicans deserve their majority status. President Clinton has nominated U.S. District Judge Richard Paez and labor lawyer Marsha Berzon to the U.S. Court of Appeals for the Ninth Circuit. Nearly twice as large as other circuits, it may also be the most influential, which is unfortunate because even the liberal New York Times calls it ``the country's most liberal appeals court.'' Two- thirds of its judges are Democratic appointees. The Supreme Court has reversed its decision 90 percent of the time over the past 6 years--far more than any other circuit. And in 1996, Chief Justice Rehnquist wrote, ``Some panels of the Ninth Circuit have a hard time saying no to any litigant with a hard luck story.'' In its 1997-98 term, the Supreme Court reversed 27 of the 28 Ninth Circuit decisions it reviewed, 17 unanimously and 7 without either briefing or oral argument. Because this aggressive activism so grossly distorts the law, many Senators have long urged special scrutiny of Ninth Circuit nominees. I ask unanimous consent that this entire article be printed in the Record.

Mr. SMITH of New Hampshire. Mr. President, I might say to my colleague, she knows we respect each other and like each other personally. The points she makes about the families, when a nominee comes before the Senate and there is a long delay, we understand that. That is not easy for anybody. But I might also say, as far as I know--and I speak for myself, and I am pretty sure I speak for everyone else--I remember Clarence Thomas and people going in to find out what videos he purchased. He had a family. And Robert Bork had a family. And Doug Ginsburg had a family. I remember some very nasty things being said about those nominees. We are looking at court cases of these nominees, and that is all we are looking at. I have not said, nor has anyone said on the Senate floor, one word about their personal lives. I have no desire to go there. This is about their court cases. In terms of Judge Paez in particular, his judicial philosophy, his activist philosophy, I will use his own words: I appreciate the need for courts to act when they must. When the issue has been generated as a result of a failure of the political process to resolve a certain political question, there is no choice but for the courts to resolve the question that perhaps ideally and preferably should be resolved through the legislative process. The legislative process is to write the laws. That is what we do here. It is not up to the courts to write the laws. It is up to the legislature to write the laws. You should not put your activist views, conservative or liberal, on the court. I want judges who will interpret the Constitution. These are his own words. I also want to point out--and I am just now analyzing the case--I know it is not a criticism because I did not know it either until this morning, but apparently there was a criminal case of Judge Paez that was overturned yesterday. I am trying to analyze that now, or maybe Senator Sessions may get into it later. So there was at least one, in terms of a criminal overturn. I yield the floor.

Mr. SMITH of New Hampshire. But it was reversed.

Mr. SMITH of New Hampshire. I think the Senator is making my case that the Ninth Circuit is a rogue circuit which does not really follow the mainstream.

Mr. SMITH of New Hampshire. Mr. President, let me briefly discuss the other nominee, Marsha Berzon. I think we have made a pretty overwhelming and compelling case about the Ninth Circuit itself being out of touch in having almost 90 percent of its cases overturned, as the chart in the back shows. And we are adding two more judges to that court, if they are approved, who are basically going to also, obviously, have cases overturned if they follow along the lines we are talking about. When I think of all the judges who are qualified, whatever their political philosophy, if they are qualified to be a circuit court judge, why do we pick a judge who opposes having somebody carry a Bible into the courtroom? Because he is afraid somehow that is going to ruin the whole judicial process and somehow threaten the Constitution or the liberties of the United States of America? It doesn't make sense. It really, in my view, says a lot about the nominee. We have approved many Clinton nominees who have come through this Senate. I voted for a lot of them myself. Some of them went through even without a challenge. But I think when you start talking about people who are this extreme, this is a mistake. I believe it is a mistake we will regret. I commend my colleague, Senator Sessions, for what he has done with the most recent information he brought forth regarding the Maria Hsia case and the John Huang case. I am going to bring something up that may set a few people off. But I am being told, as I stand here now, that there is a possibility the Vice President of the United States may be called, or has been called, to come to the chair during the vote on the Sessions motion or perhaps on the vote on Paez. I want you to think for a second about the implications of that. He could be the tie breaker. He could be, in theory, the tie breaker. Here you have the Vice President of the United States who was a close personal friend of Maria Hsia who shook down Buddhist nuns for money, was prosecuted for it, and convicted. And the judge whom Bill Clinton is trying to put on the court was involved in at least one case--not that one, but one case involving Maria Hsia, which gave her a break, if you will, a lenient sentence, and then in the other case, John Huang, $1.5 million from the Chinese Communist Government into the coffers of this administration, of which Vice President Gore is a part, and he goes in before Judge Paez, supposedly randomly selected, and gives the guy a plea bargain for a $7,500 contribution in the mayoral race in L.A., as Senator Sessions has pointed out. Now the Vice President of the United States is going to sit in the Chair and break a tie for that judge? How far will this administration go to cover up and to be blatant and in your face on what they have done? If he sits in this Chair today and votes on this nomination, if it should come to a tie, that is an outrage. It is outrageous, and it is an in-your-face outrage that I think the American people are not going to tolerate. As Senator Sessions has so ably pointed out, I don't know whether it was random or not--there were 34 judges who could have gotten those 2 cases, and he got both of them. That is point No. 1. Point No. 2: If it were random, then perhaps he should have said: You know, Bill Clinton nominated me, and I am before the Senate for a circuit court nomination. Both of these cases involve scandals in the President's administration. I will take a walk on these. Assign them to somebody else. But he didn't do it. He gave lenient punishment after he took them. And we are going to tolerate that by allowing Judge Paez to come in? It is just outrageous. It is just outrageous. Yet it is probably going to happen here on the floor. I yield the floor.

Mr. SMITH of New Hampshire. Mr. President, I yield myself 5 minutes.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Thursday, March 9, 2000, at 9:30 a.m., in open session to receive testimony on the Department of Energy's fiscal year 2001 budget request for atomic energy defense activities in review of the Defense authorization request for fiscal year 2001 and Future Years Defense Programs.

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet in executive session during the session of the Senate on Thursday, March 9, 2000, at 10:00 a.m.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, I rise today to pay tribute to a newspaper that has provided the town of Merrimack, New Hampshire, with information and insight for the past twenty-one years. The Village Crier is a paper for which many of the town residents of Merrimack have waited in anticipation each week. It certainly has greatly impacted the community as a whole. The Village Crier has been on the front lines of every political battle in Merrimack, and the opinions and advice that they brought to the tale will be greatly missed. Both Seth and Lucille have put countless hours into the production of the Crier, and have gained the respect and admiration of not only their staff, but of the entire community. It is with sincere regret and deep sadness that I bid farewell to the Village Crier. I wish both Seth and Lucille the best as they continue with their future endeavors. The Village Crier will be greatly missed, and it is an honor to represent both Seth and Lucille Heywood in the United States Senate.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, I rise today to pay tribute to Mayor Raymond J. Wieczorek upon the occasion of his leaving office. Mayor Wieczorek faithfully served the City of Manchester, New Hampshire, and its citizens for the past 10 years. A truly gifted leader, he inspired those who were fortunate enough to work with him, and created a legacy that will triumphantly carry Manchester into the 21st century. Mayor Wieczorek has played an important role in the economic development of the City of Manchester. Through his hard work and diligence, he has been able to develop a positive working relationship with many community leaders and guide them through the process of expansion and development in the city. He has been the driving force behind the Riverwalk project, restoring and bringing businesses to the Historic Mill District and bringing business leaders back to the inner city. He oversaw the expansion of both the Mall of New Hampshire and the Manchester Airport, as well as the preliminary plans for the Manchester Civic Center. Thoroughout his many years as a dedicated public servant, Mayor Wieczorek has cultivated a vast knowledge of information and resources that has constantly been vital in the operation of my New Hampshire offices. An individual who truly knew how to connect with those around him, Mayor Wieczorek's door was always open to the citizens of Manchester. Whether through a word of advice, a birthday greeting or negotiations on an expansion and development project, the Mayor treated each of the individuals who approached him with care and concern, and always remembered them with a smile and a quick anecdote upon a second meeting. I wish Mayor Wieczorek much happiness as he embarks on this new journey in life. His leadership and perseverance will be sorely missed as his decade of public service comes to an end. I want to leave him with a poem by Robert Frost, as I know that he has many more miles to travel and endeavors to conquer. The woods are lovely, dark and deep. But I have promises to keep, And miles to go before I sleep. And miles to go before I sleep. Mayor, it has been a pleasure to represent you in the United States Senate. I wish you the best of luck in your future endeavors. May you always continue to inspire those around you.