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“NOMINATION OF JEFFREY R. HOWARD OF NEW HAMPSHIRE, TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIRST CIRCUIT” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S3142-S3145 on April 23, 2002.
The publication is reproduced in full below:
NOMINATION OF JEFFREY R. HOWARD OF NEW HAMPSHIRE, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE FIRST CIRCUIT
Mr. REID. Mr. President, I ask unanimous consent the Senate now proceed to executive session to consider the following nomination: Calendar No. 773; that the Senate vote immediately on confirmation of the nomination; that upon the disposition of the nomination, the motion to reconsider be laid upon the table, any statements be printed in the Record, the President be immediately notified of the Senate's action, and the Senate return to legislative session without intervening action or debate; and Senator Gregg be recognized prior to the vote for 1 minute and Senator Smith of New Hampshire be recognized for 1 minute prior to the vote; and I ask further consent this vote time count postcloture.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I ask for the yeas and nays on the nomination.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, today, the Senate is voting on the 46th judicial nominee to be confirmed since last July when the Senate Judiciary Committee reorganized after the Senate majority changed. With today's vote on Jeffrey Howard to the Court of Appeals for the 1st Circuit, the Senate will confirm its 46th judicial nominee and its 9th judge to our Federal Courts of Appeals in the less than 10 months since I became chairman this past summer.
This is the 18th judge confirmed since the beginning of this session in late January. Under Democratic leadership, in less than 4 months the Senate has confirmed more judges than were confirmed in all 12 months of 1996 under Republican leadership. The Senate has confirmed more judges in the last 10 months than were confirmed in 4 out of 6 full years under Republican leadership. The number of judicial confirmations over these past 10 months--46--exceeds the number confirmed during all 12 months of 2000, 1999, 1997, and 1996.
Mr. Howard is the 9th Court of Appeals judge confirmed in the less than 10 months since the Judiciary Committee was permitted to reorganize last July. This is more circuit judges than were confirmed in all 12 months of 2000, 1999, 1997, and 1996, 4 of the 6 years of Republican control of the Senate during the Clinton administration. It is triple the number of circuit judges confirmed in 1993, when a Democratic Senate majority was working with a President of the same party and received some cooperation from the administration. It exceeds the number of Court of Appeals judges confirmed by a Republican Senate majority in the first 12 months of the Reagan administration and it equals the number of circuit judges confirmed in the first 12 months of the first Bush administration.
As our action today demonstrates, again, we are moving at a fast pace and confirming conservative nominees. Since the change in Senate majority, the Democratic majority has moved to confirm President Bush's nominees at a faster pace than the nominees of prior Presidents. The rate of confirmations in the past 10 months actually exceeds the rates of confirmation in the past three Presidencies. It took 15 months for the Senate to confirm 46 judicial nominees for the Clinton administration. The pace at the beginning of the Clinton administration amounted to 3.1 judges confirmed per month. In the first 15 months of the first George H.W. Bush administration, only 27 judges were confirmed. The pace at the beginning of the George H.W. Bush administration amounted to 1.8 judges confirmed per month. In President Reagan's first 15 months in office, 54 judges were confirmed. The pace at the beginning of the Reagan administration amounted to 3.6 judges confirmed per month. By comparison, in the less than 10 months since the shift to a Democratic majority in the Senate, President Bush's judicial nominees have been confirmed at a rate of 4.6 per month, a faster pace than for any of the last three Presidents.
During the preceding 6\1/2\ years in which a Republican majority most recently controlled the pace of judicial confirmations in the Senate, 248 judges were confirmed. Some like to talk about the 377 judges confirmed during the Clinton administration, but forget to mention that more than one-third were confirmed during the first 2 years of the Clinton administration while the Senate majority was Democratic and Senator Biden chaired the Judiciary Committee. The pace of confirmations under a Republican majority was markedly slower, especially in 1996, 1997, 1999, and 2000.
During the 6\1/2\ years of Republican control of the Senate, judicial confirmations averaged 38 per year, a pace of consideration and confirmation that we have already exceeded under Democratic leadership in fewer than 10 months, in spite of all of the challenges facing Congress and the Nation during this period and all of the obstacles Republicans have placed in our path. We have confirmed 46 judicial nominees in less than 10 months. This is almost twice as many confirmations as George W. Bush's father had over a longer period, 27 nominees in 15 months, than the period we have been in control of the Senate.
Our Republican critics like to make arguments based on false rather than fair comparisons. They complain that we have not done 24 months of work in the less than 10 months we have been in the majority. That is an unfair complaint. A fair examination of the rate of confirmation shows, however, that Democrats are working harder and faster on judicial nominees, confirming judges at a faster pace than the rates of the past 20 years.
I ask myself how Republicans can justify seeking to hold the Democratic majority in the Senate to a different standard than the one they met themselves during the last 6\1/2\ years. There simply is no answer other than partisanship. This double standard is most apparent when Republicans refuse fairly to compare the progress we are making with the period in which they were in the Senate majority with a President of the other party. They do not want to talk about that because we have exceeded the number of judges they confirmed per year.
They would rather unfairly compare the work of the Senate on confirmations in the less than 10 months since the shift in majority to full, 2-year Congresses. I say that it is quite unfair to complain that we have not done 24 months of work on judicial vacancies in the less than 10 months since the Senate reorganized. These double standards asserted by the Republicans are wrong and unfair, but that does not seem to matter to Republicans intent on criticizing and belittling every achievement of the Senate under a Democratic majority.
Republicans have been imposing a double standard on circuit court vacancies as well. The Republican attack is based on the unfounded notion that the Senate has not kept up with attrition on the Courts of Appeals. Well, the Democratic majority in the Senate has more than kept up with attrition and we are seeking to close the vacancies gap on the Courts of Appeals that more than doubled under the Republican majority.
In less than 10 months since the change in majority and reorganization, the Senate has confirmed 9 judges to the Courts of Appeals and held hearings on two others, with another circuit judge hearing scheduled for this week. In contrast, the Republican-controlled majority averaged only seven confirmations to the Courts of Appeals per year. Seven. In the less than 10 months the Democrats have been in the majority, we have already exceeded the annual number of Court of Appeals judges confirmed by our predecessors. The Senate in the last 10 months has confirmed more Court of Appeals judges than were confirmed in 2000, 1999, or 1997, and nine more than the zero from 1996. In an entire session of the 105th Congress, the Republican majority did not confirm a single judge to fill vacancies on the Courts of Appeals. That year has greatly contributed to the doubling of vacancies on the Courts of Appeals during the time in which the Republican majority controlled the Senate.
The Republican majority assumed control of judicial confirmation in January 1995 and did not allow the Judiciary Committee to be reorganized after the shift in majority last summer until July 10, 2001. During the period in which the Republican majority controlled the Senate and in which they delayed reorganization, the period from January 1995 through July 2001, vacancies on the Courts of Appeals increased from 16 to 33, more than doubling.
When Members were finally assigned to the Judiciary Committee on July 10, we began with 33 Courts of Appeals vacancies. That is what I inherited. Since the shift in majority last summer, five additional vacancies have arisen on the Courts of Appeals around the country. With this week's confirmation of Jeffrey Howard, we have reduced the number of circuit court vacancies to 29. Rather than the 38 vacancies that would exist if we were making no progress, as some have asserted, there now remain 29 vacancies. That is more than keeping up with the attrition on the Circuit Courts.
Since our Republican critics are so fond of using percentages, I will say that we will have filled almost a quarter--29 of 38, or 23.8 percent--of the vacancies on the Courts of Appeals in the last 10 months. In other words, by confirming four more nominees than the five required to keep up with the pace of attrition, we have not just matched the rate of attrition but surpassed it by 80 percent.
While the Republican Senate majority increased vacancies on the Courts of Appeals by over 100 percent, it has taken the Democratic majority less than 10-months to reverse that trend, keep up with extraordinary turnover and, in addition, reduce circuit court vacancies by more than 10 percent overall--from 33 down to 29, or 12.1 percent. This is progress. Rather than having the circuit vacancy numbers skyrocketing, as they did overall during the prior 6\1/2\ years--more than doubling from 16 to 33--the Democratic-led Senate has reversed that trend. The vacancy rate is moving in the right direction--down.
Despite claims to the contrary, under Democratic leadership, the Senate is confirming President Bush's Circuit Court nominees more quickly than the nominees of other Presidents were confirmed by Senates, even some with majorities from the President's own party. The number of confirmations to the Circuit Courts has exceeded those who were confirmed over 10 month time frames at the beginning of past administrations. With the confirmation of Jeffrey Howard, 9 Circuit Court nominees will have been confirmed in less than 10-months. This number greatly exceeds the number of Court of Appeals confirmations in the first 10 months of the Reagan administration (three), the first Bush administration (three), and the Clinton administration (two). This is three times, or 300 percent, the number of Court of Appeals nominees confirmed in the comparable 10-month periods of past administrations. With nine circuit judges confirmed in the less than 10 months since the Senate reorganized under Democratic leadership, we have greatly exceeded the number of circuit judges confirmed at the beginning of prior presidencies. Our achievements also compare quite favorably to the 46 Court of Appeals nominees confirmed by the Republican majority in the 76 months during which they most recently controlled the Senate. Their inaction led to the number of Courts of Appeals vacancies more than doubling. With a Democratic Senate majority, the number of circuit vacancies is going down.
Overall, in little less than 10 months, the Senate Judiciary Committee has held 16 hearings involving 55 judicial nominations. That is more hearings on judges than the Republican majority held in any year of its control of the Senate. In contrast, one-sixth of President Clinton's judicial nominees--more than 50--never got a committee hearing and committee vote from the Republican majority, which perpetuated longstanding vacancies into this year. Vacancies continue to exist on the Courts of Appeals in part because a Republican majority was not willing to hold hearings or vote on more than half--56 percent--of President Clinton's Court of Appeals nominees in 1999 and 2000 and was not willing to confirm a single judge to the Courts of Appeals during the entire 1996 session.
Despite the newfound concern from across the aisle about the number of vacancies on the circuit courts, no nominations hearings were held while the Republicans controlled the Senate in the 107th Congress last year. No judges were confirmed during that time from among the many qualified circuit court nominees received by the Senate on January 3, 2001, or from among the nominations received by the Senate on May 9, 2001. Had the Republicans not delayed and obstructed progress on Courts of Appeals nominees during the Clinton administration, we would not now have so many vacancies. Had the Republicans even reversed course just this past year and proceeded on the circuit court nominees sent to the Senate in January, the number of circuit court vacancies today could be in the low twenties, given the pace of confirmation of circuit nominees since the shift in majority last summer.
The Democratic leadership acted promptly to address the number of circuit and district vacancies that had been allowed to grow when the Senate was in Republican control. The Judiciary Committee noticed the first hearing on judicial nominations within 10 minutes of the reorganization of the Senate and held that hearing on the day after the committee was assigned new members.
That initial hearing included a Court of Appeals nominee on whom the Republican majority had refused to hold a hearing the year before. We held unprecedented hearings for judicial nominees during the August recess. Those hearing included a Court of Appeals nominee who had been a Republican staff member of the Senate. We proceeded with a hearing the day after the first anthrax letter arrived at the Senate. That hearing included a Court of Appeals nominee. In less than 10 tumultuous months, the Senate Judiciary Committee has held 16 hearings involving 55 judicial nominations--including 11 circuit court nominees--and we are hoping to hold another hearing this week for half a dozen more nominees, including another Court of Appeals nominee. That is more hearings on judges than the Republican majority held in any year of its control of the Senate. The Republican majority never held 16 judicial confirmation hearings in 12 months. We will hold our 17th judicial confirmation hearing this week.
The Senate Judiciary Committee is holding regular hearings on judicial nominees and giving nominees a vote in committee, in contrast to the practice of anonymous holds and other obstructionist tactics employed by some during the period of Republican control. The Democratic majority has reformed the process and practices used in the past to deny committee consideration of judicial nominees. We have moved away from the anonymous holds that so dominated the process from 1996 through 2000. We have made home State Senators' blue slips public for the first time.
I do not mean by my comments to appear critical of Senator Hatch. Many times during the 6\1/2\ years he chaired the Judiciary Committee, I observed that, were the matter left up to us, we would have made more progress on more judicial nominees. I thanked him during those years for his efforts. I know that he would have liked to have been able to do more and not have to leave so many vacancies and so many nominees without action.
I hope to continue to hold hearings and make progress on judicial nominees in order to further the administration of justice. In our efforts to address the number of vacancies on the circuit and district courts we inherited from the Republicans, the committee has focused on consensus nominees for all Senators. In order to respond to what Vice President Cheney and Senator Hatch now call a vacancy crisis, the committee has focused on consensus nominees. This will help end the crisis caused by Republican delay and obstruction by confirming as many of the President's judicial nominees as quickly as possible.
Most Senators understand that the more controversial nominees require greater review. This process of careful review is part of our democratic process. It is a critical part of the checks and balances of our system of government that does not give the power to make lifetime appointments to one person alone to remake the courts along narrow ideological lines, to pack the courts with judges whose views are outside of the mainstream of legal thought, and whose decisions would further divide our nation.
The committee continues to try to accommodate Senators from both sides of the aisle. The Court of Appeals nominees included at hearings so far this year have been at the request of Senators Grassley, Lott, Specter, Enzi, and Smith of New Hampshire--five Republican Senators who each sought a prompt hearing on a Court of Appeals nominee who was not among those initially sent to the Senate in May 2001. Each of the previous 45 nominees confirmed by the Senate has received the unanimous, bipartisan backing of the committee.
Mr. Howard was given a hearing by the Senate Judiciary Committee due to Senator Bob Smith's efforts. The Senator from New Hampshire is not someone with whom I agree on all issues. Indeed, we have had our disagreements on judicial nominations. He has applied a litmus test over the years and voted against nominees he felt were not against abortion. He voted against at least 20 Clinton judicial nominees. Nonetheless, when Senator Smith spoke to me about his support for Mr. Howard, I accommodated Senator Smith's request that we proceed promptly with a hearing on him. Mr. Howard is being confirmed by the U.S. Senate today, because Senator Smith worked to have this nomination considered favorably.
Some on the other side of the aisle have falsely charged that if a nominee has a record as a conservative Republican, he will not be considered by the committee. That is simply untrue. Take, for example, the nomination of Jeffrey Howard. Just 2 years ago, he campaigned for the Republican nomination for Governor of New Hampshire. He has been a prominent figure in Republican politics in New Hampshire for many years. He served as the New Hampshire Attorney General, the State Deputy Attorney General, and the Chief Counsel in the Consumer Protection Division. He also served as the U.S. Attorney for the District of New Hampshire and the Principal Associate Deputy Attorney General during the first Bush administration. Thus, it would be wrong to claim that we will not consider President George W. Bush's nominees with conservative credentials. We have done so repeatedly.
The committee voted unanimously to report Mr. Howard's nomination to the floor, even though a minority of the ABA committee found the nominee to be not qualified for appointment to the U.S. Court of Appeals for the First Circuit. No Senator is bound by the recommendations of the ABA, but we have always valued their contribution to the process and the willingness of the members of the ABA standing committee to volunteer their time, efforts and judgment to this important task. Based on the judgment of each individual Member about the qualifications of a particular nominee, the Judiciary Committee has reported out other Bush nominees who received mixed ABA peer review ratings and even some with negative recommendations. Mr. Howard is well-regarded by his home-State Senators. The next time Republican critics are bandying around charges that the Democratic majority has failed to consider conservative judicial nominees, I hope someone will ask those critics about Jeffrey Howard, as well as the many other conservative nominees we have proceeded to consider and confirm.
Mr. HATCH. Mr. President, I rise in support of the confirmation of Mr. Jeffrey Howard to the First Circuit Court of Appeals. Mr. Howard's record is impressive. He will make a valuable contribution to an already prestigious First Circuit Court of Appeals.
Mr. Howard graduated summa cum laude from Plymouth State College. While attending Georgetown University Law Center, he became Editor of that institution's American Criminal Law Review.
After law school, Mr. Howard began an illustrious period of service in the New Hampshire Attorney General's Office. There he quickly moved through the ranks to head that office's Consumer Protection and Antitrust Division. Upon successful completion of this assignment, he was promoted to Associate Attorney General in charge of the division of Legal Counsel. He eventually became Deputy Attorney General, in essence, the second in command in this office.
Mr. Howard was then nominated and confirmed as U.S. Attorney for the District of New Hampshire. During his tenure in that office, he became Principal Associate Deputy Attorney General at the Justice Department. Here his responsibilities included advising Attorney General Barr and supervising the Department of Justice's Executive Office for Asset Forfeiture.
Mr. Howard then returned to New Hampshire and was appointed that State's attorney general. He wrote and implemented one of the Nation's first effective comprehensive statewide interdisciplinary protocols to combat domestic violence.
Clearly, Mr. Howard is a leader in the areas of fighting for consumers that were the victims of fraud and the rights of abused women.
The people of New Hampshire can be proud of this nominee; Jeffrey Howard has been a servant of New Hampshire's people. President Bush has done right by the people of New Hampshire and of New England with this nomination. Mr. Howard is a good example of the kind of high-quality judicial nominees selected by President Bush.
Mr. President, I am proud to say that Jeffrey Howard has my support and I believe he will be an outstanding addition to the first circuit.
Mr. SMITH of New Hampshire. Mr. President, I rise in very strong support of the nomination of Jeffrey Howard to the First Circuit Court. I thank the distinguished chairman of the Judiciary Committee, Senator Leahy, for bringing this nomination forward promptly, and also Senator Hatch, the ranking member. I spoke to Senator Leahy a couple of weeks ago, and he promised he would bring this nomination forward, and he did. I am deeply appreciative because Jeff Howard is very qualified for this position and I look forward to him having a long and distinguished career on the First Circuit Court. I am proud to support the nomination. I urge my colleagues to do likewise.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, I join my colleague, Senator Smith, in strongly endorsing the nomination of Jeff Howard. I hope my colleagues will vote for him for the First Circuit Court. Jeff Howard has been an extraordinary public servant in New Hampshire. He has served as attorney general, as U.S. attorney. He continues the long tradition of quality individuals who bring integrity, intelligence, and ability to the appeals court in Boston. We are very proud of the fact he will be serving down there upon an affirmative vote from this body.
I yield the floor.
The PRESIDING OFFICER. The question is, will the Senate advise and consent to the nomination of Jeffrey R. Howard to be United States Circuit Judge for the First Circuit.
On this question, the yeas and nays have been ordered.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from North Carolina (Mr. Helms) is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?
The result was announced--yeas 99, nays 0, as follows:
YEAS--99
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NOT VOTING--1
Helms
The nomination was confirmed.
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