[Congressional Record Volume 144, Number 82 (Monday, June 22, 1998)]
[Senate]
[Pages S6751-S6757]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF SUSAN OKI MOLLWAY, OF HAWAII, TO BE UNITED STATES
DISTRICT JUDGE FOR THE DISTRICT OF HAWAII
The bill clerk read the nomination of Susan Oki Mollway to be United
States District Judge for the District of Hawaii.
The PRESIDING OFFICER. Under the previous order, there are 2 hours
for debate on the nomination, equally divided.
The Senate proceeded to consider the nomination.
Mr. INOUYE addressed the Chair.
The PRESIDING OFFICER. The Senator from Hawaii is recognized.
Mr. INOUYE. Madam President, before I proceed, I thank my dear friend
from Utah, the distinguished chairman of the Judiciary Committee, Mr.
Hatch, for reporting out the nomination of Susan Oki Mollway. I also
thank my friend from Vermont, the ranking Democrat on the committee,
Mr. Leahy, for his encouragement throughout this process. And, if I
may, I acknowledge and thank the majority leader of the Senate, the
distinguished Senator from Mississippi, Mr. Lott, for scheduling this
matter this afternoon. I am certain the people of Hawaii are most
grateful for this.
Madam President, I am pleased to recommend to my colleagues for their
approval the President's nominee to the U.S. district court for the
district of Hawaii, Ms. Susan Oki Mollway. Ms. Mollway was nominated to
fill a vacancy created more than 3 years ago by the untimely and
unexpected death of the Honorable Harold F. Fong.
An empty judgeship is considered a judicial emergency after 18
months. This seat has been vacant for more than twice that time. In
1990, under Public Law 101-65, the Congress determined that Hawaii's
Federal caseload called for increasing its Federal bench from three to
four positions. However, the Honorable Helen Gillmor was not confirmed
for that fourth seat until October 31, 1994.
Then Judge Fong passed away on April 20, 1995, returning Hawaii to
three sitting district judges. Thus, Hawaii has had the benefit of the
fourth judgeship for less than 6 months since its authorization in
1990.
For the year 1997, the weighted case filings for the three sitting
district judges in Hawaii was 706 cases per judge. To give you a sense
of what this means, the Federal Judicial Conference's standard
indication of the need for additional judgeship is 430 weighted case
filings per judge. Ours is 706. Needless to say, Hawaii has justifiably
requested that a fifth judgeship be approved.
When Judge Fong passed away, Senator Akaka and I undertook the job of
interviewing and considering nearly 40 candidates for this judgeship.
After personally meeting with these candidates and reviewing their
individual backgrounds, Senator Akaka and I were pleased to recommend
Ms. Susan Oki Mollway to the President.
Ms. Mollway is ready for the position of U.S. district judge, and I
believe she is absolutely worthy of your favorable consideration. The
majority of the American Bar Association Standing Committee on the
Federal Judiciary has given her the highest rating of ``well
qualified'' for this judicial position.
By way of professional background, Ms. Mollway graduated at the top
of her class from the University of Hawaii with a degree in English
literature. She received later her master's degree in the same field.
Then Ms. Mollway went on to Harvard Law School where she graduated cum
laude in 1981.
For the past 17 years, Ms. Mollway has had a very successful
litigation practice with one of the largest and most respected law
firms in the State of Hawaii. She has been a partner in that firm's
litigation department since 1986. Her impressive litigation experience
includes a wide array of areas from Federal labor law to contract
disputes to lender liability and appearances before every level of the
State and Federal courts, as well as a successful appearance before the
U.S. Supreme Court in 1994.
Ms. Mollway has also taught appellate advocacy at the University of
Hawaii's William S. Richardson School of Law and has participated as an
arbitrator with Hawaii's court-annexed arbitration program. I have no
hesitation in giving my highest recommendation to Ms. Susan Oki
Mollway.
Questions have been raised about Ms. Mollway's former membership on
the board of directorship of the American Civil Liberties Union of
Hawaii. More particularly, she has been asked to give her personal
views on such matters as same-sex marriage, mandatory minimum
sentencing, the death penalty, and employee drug testing. Ms. Mollway
has responded to these questions and I believe has given a complete
account of her own activities with the ACLU. With respect to her
personal views, in most instances, Ms. Mollway has stated that she has
not formed any personal opinions.
More important, as one who may become a Federal trial judge, she
clearly understands that her personal opinions are not relevant to the
decisions she will make as a judge. Rather, Ms. Mollway has
unambiguously and repeatedly recognized in her responses the authority
of the Constitution, Federal statutes as passed by the Congress, and
case precedent from higher courts.
Furthermore, Ms. Mollway has unwaveringly stated that there is
nothing whatsoever that prevents her from abiding by and applying
applicable law and precedent in cases that may come before her as a
Federal district judge. I am certain she will do just that and serve
the Federal judiciary and the State of Hawaii with reason, balance, and
integrity.
Madam President, on a more personal note, I would like to make a few
comments about Ms. Mollway's family background, because I have known
Susan Oki Mollway virtually all her life.
The question that comes before us is why did she join the ACLU?
People do things because of background or some experience in life.
As a young law student, she began to research the life of Japanese-
Americans in the United States. And she came across rather strange
decisions made by the Court and also by the Congress of the United
States. These are chapters in the history of the United States that
many of us would like to forget. But I think it might be well if we
reviewed them at this moment.
Ms. Mollway found out, for example, that in 1922 the Supreme Court of
the United States declared that Japanese were not qualified for
citizenship; in other words, they were singled out among all the
peoples of the United States and said, ``You cannot be a naturalized
citizen.'' Everyone else could be.
Then in 1924, the Congress of the United States, in enacting the
immigration laws, declared that if people are not qualified for
citizenship, they may not immigrate to the United States. So once again
the Japanese were singled out and told that they may not come here as
immigrants.
Then we all know that on December 7, that day of infamy, the Japanese
attacked Pearl Harbor. Soon thereafter,
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on February 19, 1942, an Executive order was issued authorizing the
Army of the United States to establish, throughout the United States,
10 concentration camps and to place in these camps, for the duration of
the war, all Japanese, whether they be citizens or not; and the vast
majority were citizens. They were never tried. They were never charged
with any crime. Due process was totally ignored. But there they were.
Then on March 17 of that year, 1942, a strange decision was rendered
and made known. The Selective Service System declared that Japanese-
Americans would be designated 4-C. Most Americans may not be aware of
what 4-C stands for. Madam President, 1-A is that that person is
physically and mentally fit to put on the uniform; 4-F is just the
opposite. 4-C is the designation for ``enemy alien.'' And so on March
17, 1942, I was declared an enemy alien. Ms. Mollway's father was also
declared an enemy alien. But we proceeded to petition the Government,
and I am glad to report that, about 9 months later, the President of
the United States issued an order saying that Americanism is not a
matter of race or color, Americanism is a matter of mind and heart, and
authorized the formation of a special combat team of volunteers.
The response was astounding to everyone. In Hawaii, over 85 percent
of those eligible to put on the uniform volunteered. What is more
astounding than that, hundreds of men who were behind barbed wires in
these camps also stepped forward to volunteer to be given the
opportunity of demonstrating their Americanism and their loyalty.
Many Americans may not be aware of this, but this combat team, at the
end of the war, was declared to be the most decorated in the history of
the United States Army. There is no evidence or history of any
subversive activity on the part of any member. Furthermore, in all of
the investigations that were held since the end of that war, they could
find not one instance of Japanese involvement in sabotage of fifth
column activities.
Ms. Mollway read these things, and she did research. And it is
obvious for any young person who comes across information of that
nature to be quite concerned. And she found that the ACLU was an
organization that was concerned about the Constitution, to preserve and
defend that most sacred of documents of Americans. And she was
especially concerned about the Bill of Rights. So it was natural for
her, just as I joined the ACLU because of my concern about the
Constitution. But that does not make me any less an American.
But this chapter in our lives ends with a burst of glory. I am
certain Americans will remember that for the first time a mighty
nation, a superpower, admitted their wrong and apologized, and
apologized to the 120,000 Americans of Japanese ancestry who were
incarcerated without due process of law.
I am pleased to tell you that Susan Oki Mollway's father and I
volunteered and we served in this regiment. And Susan could have no
better role model to guide her life, professionally or personally, than
her own father, who happens to be a lawyer also. I am certain that she
mirrors her father in her love of country, in her commitment to the
Constitution, and in her patriotism.
Once again, Madam President, I wish to thank my distinguished friend
from Utah, the chairman of the committee, for reporting this measure. I
also wish to thank Mr. Trent Lott, the majority leader of the U.S.
Senate, for scheduling this matter. We will be forever grateful.
Thank you very much.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Madam President, I thank my dear colleague for his kind
remarks on the floor. I just want to again express my regard for him
and for the service he has given to his country, not only being an
effective and very important and powerful U.S. Senator, but also as a
hero, in my eyes, having served our country in the war and having
sacrificed greatly for our country.
From my point of view, if he wants a judgeship nominee, he is going
to be given the benefit of the doubt in every way. And I have to say,
in the case of Susan Oki Mollway of Hawaii, I do support her for this
position as a United States district court judge. I plan to vote for
her nomination, as I did in committee. If confirmed--and I believe she
will be confirmed--Ms. Mollway will be the 270th Clinton judicial
nominee to be reported by the Judiciary Committee and confirmed by the
Senate.
In light of this record of accomplishment and in light of some recent
remarks made on the floor of the Senate, I thought it would be
appropriate for me to spend a few minutes reviewing our record in
processing President Clinton's nominees.
I have been working with White House Counsel Chuck Ruff to ensure
that the nomination and confirmation process is a collaborative one
between the White House and the Members of the Senate. I think it is
fair to say that after a few bumpy months in which the process suffered
due to inadequate consultation between the White House and some
Senators, the process is now working rather smoothly. I think the
progress is due to the White House's renewed commitment to good-faith
consultation with Senators of both parties.
I strongly believe that we must do our best to reduce the 73 current
vacancies in the Federal courts. But, frankly, there are limits to what
we can do given the administration's performance so far. The fact of
the matter is that, of the 45 nominees currently pending, 15 of those
were received during the last month alone. And it takes 3 to 6 months
just to process Federal district and circuit court judges. These are
very tough positions. These are positions that are lifetime
appointments, and they deserve the scrutiny that we have always applied
on the committee, whether the committee has been controlled by
Democrats or Republicans.
Of the 45 total judicial nominees that are pending, 10 are
individuals simply renominated from last Congress. Last year, the
administration renominated a total of 23 nominees from the 104th
Congress. Thirteen of them have been confirmed, but some of the others
have some problems. That is why they were held over.
Of those 73 vacancies, 28 have not yet received a nominee, and it was
only a few months ago when better than half of the total vacancies of
around 81 or 82 did not have a nominee. Like I said, we have received
15 nominees within the last month. So, many of the vacancies come as a
result not of the committee's slow pace but of the administration's
inaction.
Moreover, of the 115 judicial nominees sent forward to the committee
this Congress, 82 of them have had hearings. Of the 82 nominees who
have had hearings, 74 have been reported out of the committee. Of those
74 nominees reported out of the committee, 66 have been confirmed and 7
are pending on the Senate floor. One of those seven will be confirmed
shortly, I hope, in the form of Susan Oki Mollway.
Assuming most of these nominees the committee has processed are
confirmed, I think you will see that our efforts compare quite
favorably to prior Congresses in terms of the number of judges
confirmed at this point in the second session of the Congress,
especially if you look at the recent Democrat-controlled Congresses.
For example, during the second session of the 102nd Congress, when
President Bush was in office and the Democrats controlled the Senate
and therefore the Judiciary Committee, guess how many nominees had been
confirmed by July of 1992? Thirty. That is all. How many Clinton
nominees this year will we have confirmed were we to stop confirming
judges after today? Thirty-one. And we are not through with this
session yet. As of July 1, 1990, the Democratic Senate had only
confirmed 25 of the Bush nominees nominated that year. As of July 1,
1988, only 21 of Reagan nominees confirmed that year had been confirmed
by the Democrat-controlled Senate. So the plain fact is that we are
right on track, if not ahead of previous Congresses.
Now, while I am concerned that some vacancies need to be filled, I
think there has been considerable distortion of the overall situation.
There is by no means an unprecedented level of vacancies. In fact,
there are more sitting judges today than there were throughout
virtually all of the Reagan and
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Bush administrations. As of today, we have 767 active Federal judges.
In addition, there are also well over 400 senior judges who can, and
often do, hear cases.
Keep in mind that the Clinton administration is on record as having
stated that 63 vacancies--a vacancy rate just over 7 percent--is
considered virtual full employment of the Federal Judiciary. They were
right; when we have around 60 vacancies, we have virtually full
employment. It is natural that there will always be some vacancies in
light of the turnaround time involved in receiving and reviewing
nominees. That is as it should be. Seventy-three vacancies, however, is
a vacancy rate of 9 percent. Now, how can a vacancy rate from 7 percent
to 9 percent convert ``full employment'' into a ``crisis''?
Moreover, compare today's 73 vacancies to the vacancies under a
Democratic Senate during President Bush's Administration. In May 1991
there were 148 vacancies, and in May 1992 there were 117 vacancies. I
find it interesting that at that time I don't recall a single news
article or floor speech on judicial vacancies. So, in short, I think it
is quite unfair and, frankly, inaccurate to report that the Republican
Congress has created a vacancy crisis in our courts.
While the debate about vacancy rates on our Federal courts is not
unimportant, it remains more important that the Senate perform its
advise and consent function thoroughly and responsibly. Federal judges
serve for life and perform an important constitutional function,
without direct political accountability to the people. Accordingly, the
Senate should never move too quickly on nominations before it. I do not
believe that we are moving too quickly on this nominee. This nominee is
getting considered today, and I hope that she passes.
Just this past year, we saw two examples of what can happen when we
try to move nominations along perhaps too quickly. In one instance, a
sitting Federal district judge nominated for a very important Federal
appeals court was forced to withdraw the nomination after he had a
hearing in the Judiciary Committee when it was discovered that he had
lied about certain details of his background.
In another instance, a nominee for a Federal district court was
reported out of the Judiciary Committee before all the details of her
record as a judge on a State trial court were known. As it happens, the
district attorney in the nominee's city and the district attorneys'
association in her home State have all recently come to publicly oppose
the nomination, setting forth facts demonstrating a very serious
antiprosecution bias in her judicial record.
It is cases like these that underscore the importance of proceeding
very deliberately with nominations for these most important life-
tenured positions. Even so, you can be too deliberate; you can delay
these too much. I think under my tenure as chairman of the committee we
have not done that. I hope that our colleagues on the other side
realize that.
In closing, I feel I should respond to some unfortunate remarks made
recently on the floor of the Senate. I am referring to a speech where
one of my colleagues accused the Senate majority of ``stalling Hispanic
women and minority nominees'' because of ``ethnic and gender biases.''
Day in and day out, the Judiciary Committee routinely has evaluated
and reported on literally hundreds of Clinton judicial nominees without
any regard whatever to the nominee's race, gender, religion, or ethnic
origin. And the Senate has gone on to confirm those Clinton nominees--
269 of them, up until today. Should Susan Oki Mollway be confirmed, the
number will be 270 judges. Indeed, according to statistics compiled by
the liberal judicial watchdog group, the Alliance for Justice, no fewer
than 70 of these nominees were women, 42 were African Americans, 13
were Hispanics, and 4 were Asian Americans. These figures do not
include the more than 235 Department of Justice and White House
nominees--non-judicial nominees, if you will--approved by the Senate
Judiciary Committee whom Republicans have confirmed for President
Clinton.
Anyone can cite individual isolated examples of unexpedited
consideration but I flatly reject that these amount to what my
colleague called a ``disturbing pattern'' of ``ethnic and gender
bias.'' I do not think it would be appropriate for me at this point to
discuss why each of his examples fails to support his point. Suffice it
for me to say here that members of the Judiciary Committee are well
aware that many nominees lack the support of home-State Senators, have
a record that raises serious questions of character and judicial
temperament, or have some other background difficulty that necessitated
further investigation.
I do not believe it does the Senate well, nor do I believe it does
the Committee well, to engage in this sort of ``wedge'' politics. I
hope my colleagues will refrain from such unproductive attacks. They
are not only unproductive, they are unfair and, in my opinion, somewhat
vicious.
To suggest that the Committee or this majority is motivated by
improper bias of any kind is simply wrong, and the record shows it. In
addition, I will not allow such accusations to force us to abdicate the
Senate's responsibility to ensure that the Senate adequately and fully
discharges its constitutional advise and consent function for nominees
for life-tenured judicial office.
Having said all of this, I would like to lend my support for Susan
Oki Mollway and to the distinguished Senators from Hawaii, both of whom
I admire very much. I have to say that the distinguished Senator from
Hawaii, Senator Inouye, has known Susan Oki Mollway virtually all her
life. He has known her father, who also, likewise, is a hero.
I examined her record, and, yes, there are things that naturally
raised the hackles of some on the committee, but I have to say that she
is an extremely intelligent women with an extremely well balanced
background. I have to say that I believe she ought to be supported here
on the floor today, and I intend to do everything I can to support her.
Susan Oki Mollway was nominated for district judge from the District
of Hawaii on January 7 of last year. I personally apologize to my two
colleagues for this having taken so long to get to the floor. She has a
B.A. and an M.A. in English from the University of Hawaii. That alone
is pretty impressive, but she received her J.D. cum laude from Harvard
University in 1981. That is also pretty impressive.
Currently, she is a partner with the Honolulu firm of Cades, Schutte,
Fleming and Wright. She also currently serves as director to the Hawaii
Justice Foundation and the Hawaii Women's Legal Foundation, both unpaid
positions, organizations that focus on local issues and/or raise money
for charitable organizations. In addition, she was the recipient of the
Outstanding Woman Lawyer of the Year award in 1987. She is an
exceptional person--in my opinion, one who should be able to fill this
position in a way that will bring honor to the Federal courts. I hope
that is true. I have no way of being absolutely sure, but I am relying
on the recommendations of our two colleagues from Hawaii and the
extensive background investigation the Committee performed on Susan Oki
Mollway. I hope our colleagues in the Senate will support her. I
believe she is worthy of support.
I think my colleagues know that I take these nominations very
seriously. We look at them very seriously. We do extensive background
checks and investigations, as did our friends on the other side when
they were in control of the committee. I try to be down the line, down
the middle, and I try to make sure people are treated fairly.
Naturally, I resent it when somebody indicates in any conversation that
there may be some impropriety or improper bias involved with regard to
some of the nominees who have been or are currently pending before the
Senate and/or the Judiciary Committee.
I am very concerned, as Judiciary Committee chairman, that we do our
jobs well. I am very concerned that we do them in a way that is fair. I
am very concerned that we get the best people we can on the Federal
bench. After all, these are lifetime appointments. It is often said
that Federal judges are the ``closest thing to God'' in this life
because they have so much power, and once they are there, you really
can't
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get rid of them. They are not really politically accountable or
directly accountable to the American people because they don't have to
stand for reelection, which I think is a very good thing because that
keeps the Federal judicial system above politics, hopefully, or at
least less involved in politics than any other branch of our
Government. I think the judiciary has served our country well. I have
seen great liberal judges and great conservative judges, and I have
seen lousy liberal judges and lousy conservative judges on the Federal
bench. Ideology isn't necessarily the determining factor as to whether
a judge will serve in the best possible manner as a member of the
Federal bench.
So it is important that we find people of high caliber, high quality,
high ethics, with good work habits, that are honest and decent, to fill
these positions. I believe Susan Oki Mollway fits all of those
categories.
I yield the floor.
Mr. INOUYE addressed the Chair.
The PRESIDING OFFICER. The Senator from Hawaii, Mr. Inouye.
Mr. INOUYE. Madam President, I thank my distinguished friend from
Utah for his warm and generous remarks. I am most grateful.
I yield to my colleague from Hawaii.
The PRESIDING OFFICER. The Senator from Hawaii, Mr. Akaka, is
recognized.
Mr. AKAKA. Madam President, it is with great pleasure that I take the
floor today to speak on behalf of Ms. Susan Oki Mollway, the
President's nominee to the U.S. District Court for the District of
Hawaii.
I wholeheartedly support Ms. Mollway, who, if confirmed, will fill
the fourth seat on the Hawaii court. I also want to join with the
remarks of my senior Senator, who eloquently and passionately spoke
about Susan Oki Mollway and her family. He also spoke about our
interviewing her for this position and how impressed we were with her
caliber, the kind of person that she is. I also want to thank chairman
Orrin Hatch of Utah for his support and for reporting this out of
committee, and also Senator Pat Leahy, the ranking member from Vermont
on the committee, and members of the committee for reporting this
nominee out to the floor. I also want to thank our majority leader,
Trent Lott of Mississippi, for permitting it to be on the floor today.
This has been a long journey for us. This position has been vacant
since the untimely passing of Judge Harold Fong in April of 1995. As
the senior Senator from Hawaii noted, the caseload in the District of
Hawaii continues to increase. This has been very, very difficult for
Hawaii. The recently adjusted 1997 Federal Court Management Statistics
Report found that the U.S. District Court, District of Hawaii, is the
eighth busiest court out of 91 in the country, and the third busiest in
the ninth circuit.
Therefore, it is critical that the vacancy on the Hawaii court is
filled. Senator Inouye and I believe that Susan Oki Mollway is the most
qualified candidate for this position.
Ms. Mollway enjoys the highest rating of ``well qualified'' from the
majority of the American Bar Association's Standing Committee on the
Federal Judiciary. To quote some of her colleagues in Hawaii, ``We have
come to know her as a highly ethical, careful, dedicated, intelligent,
articulate, caring, and energetic lawyer.'' Ms. Mollway is known for
her professional skills, her sense of ethics, and a moral compassion--
qualities needed for service on the Federal bench.
Senator Inouye has already recounted Ms. Mollway's education,
professional, and family background. However, I do wish to point out
that, as a Harvard Law School graduate, she could have stayed on the
mainland like so many of Hawaii's young people. Instead, she returned
to Hawaii, the home of her parents, where she joined one of Honolulu's
best-known law firms --Cades Schutte Fleming & Wright.
As a specialist in civil litigation, Ms. Mollway handles a wide range
of cases and has appeared before every level of the State and Federal
courts, including a successful appearance before the U.S. Supreme Court
in 1994.
Ms. Mollway has responded fully to those who have questioned her on
her former position on the board of directors of the Hawaii chapter of
the American Civil Liberties Union. Senator Inouye has mentioned this
about her. Prior to her board membership, the ACLU-Hawaii filed a
friend of the court brief in support of plaintiffs in the Hawaii same-
sex marriage case. Although she was aware of ACLU-Hawaii's position and
activities in the same-sex marriage case, as a board member Susan
Mollway was never called on to play an active role.
Furthermore, Ms. Mollway understands that her personal opinions are
not relevant to the decisions she would make as a Federal judge. She
has stated that she recognizes the authority of the Constitution,
Federal statutes as passed by the Congress, and case precedent from
higher courts as the judicial guidelines to follow in court
deliberation.
I believe my colleagues will agree with me that Susan Mollway's
credentials are impressive. She is an individual of the highest
integrity, whose dedication to her profession is admired by all. I am
pleased to lend my support to Ms. Mollway and urge my colleagues to
vote in favor of this nominee whose confirmation will bring the U.S.
District Court in Hawaii to its full complement.
Mr. SESSIONS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Madam President, I am honored to have the opportunity
to make some remarks on the occasion of this nomination. First, I want
to say how much I respect both of the Senators from Hawaii. I believe
that they take very seriously the nomination of a U.S. district judge,
and I believe they have sought to fulfill their responsibilities well
in that regard.
Having been a practitioner in Federal court myself--full-time as a
U.S. attorney for 15 years, and another 5 years or so in private
practice--I have a deep feeling about the judiciary, what it needs to
be, and the standards it ought to uphold. I believe it ought to be a
disinterested applicator of the law, regardless of politics, ideology,
and those sorts of things. I believe we ought to look for nominees that
do that. Both for my respect for the distinguished Senators from Hawaii
and my respect for this nominee make it difficult for me to stand here
and suggest, as I will, that we ought not to confirm this nominee for
the Federal bench. I have no doubt that she is a person of integrity
and character. But I want to share some concerns that I have about this
nomination, and why I think it ought not be confirmed.
Also, let me express my respect for the distinguished chairman of the
Senate Judiciary Committee. There is no finer constitutional lawyer in
this body than Senator Hatch. He is a man of integrity and ability. He
works hard every day in our committee to make sure nominees are given a
fair shake, and that the nominations are moved along at a steady pace,
as they continue to do. I know that he considered carefully the
problems that this nominee had before he agreed to vote in favor of
this nominee. I know he respects the opinion of both Senators from
Hawaii.
I note that the committee voted 12 to 6, with six Senators voting
against the nomination. I think that suggests that there was a genuine
unease by a considerable number of the committee with regard to this
nominee.
It is impossible to know for sure what anyone will do on the bench.
This nominee may turn out to be a very restrained and rigorous judicial
nominee and judge, consistent with some of the great judges in history.
But we have to look at the nominees' backgrounds and the positions they
have taken over the years to try to analyze how they might perform on
the bench.
The Senate is given under the Constitution the power to advise and
consent with the President. These nominees are lifetime appointees.
They will serve throughout their entire life making decisions day after
day, week after week, month after month, year after year. And, as
Senator Hatch said, they are not accountable to the people. It is
really the most anti-democratic aspect of our entire American
government, but I support it. I am not in favor of electing Federal
judges. I therefore believe it is our responsibility to give careful
thought to those to whom we give that position.
First, let me note one thing. It does appear that the district of
Hawaii is in
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need of a judge. Their caseload is 700 weighted cases per judge. It is
a heavy caseload. We have a judicial circuit in Alabama that has a
higher caseload, and it is, indeed, a high caseload. I am sure another
judge is needed to do that work. I know all of us are active in various
activities. And I think it is appropriate that we be asked about those
activities when we are nominated for a position like this.
What do we know about this nominee? We know that she was a voluntary
member of the American Civil Liberties Union for a number of years--may
still be--and was an active member of the board of directors and a
fundraiser for the Hawaii ACLU during 1995 and 1996.
During that time, the Hawaii ACLU took a number of positions. I am
certain that as a board member she did not sign those pleadings, and
maybe did not personally conduct in-depth research. In fact, I think
she suggested she has not researched each one of these issues. But I
think it is appropriate for us to ask about those positions, as we did
on the committee. She did not disavow any of them.
In 1996, in Hawaii, an ACLU executive or administrator stated, ``The
laws that discriminate based on sexual orientation are as reprehensible
as laws that at one time protected segregation.''
The point of that discussion was testimony on the recognition of
homosexual marriages. And, in fact, the ACLU official was taking the
position that Hawaii should take on the question of affirming,
ratifying, respecting, and acknowledging homosexual unions. He was
suggesting that those who would oppose it would be the same as those
who opposed integration.
I would have to say that is outside the mainstream of law. As
attorney general of Alabama, I had the occasion to have my staff do
some research on this. We found no place in the history of America that
any State or government agency ever recognized a homosexual union. It
is not recognized, to my knowledge, any place in any culture in the
world and reflects an odd and historically inaccurate view of the law.
But that was the organization's position, of which she was a board
member and a fundraiser.
In 1995, the ACLU opposed legislation that would have required HIV
testing for persons indicted for sexual crimes. I would suggest that
there is an extreme anxiousness and justifiable concern about these
kinds of activities.
When a person is arrested for a sexual crime and there is a victim
that may have been infected with HIV, I think it is perfectly
appropriate for a judicial authority require as a condition of the
suspect's release that person to be tested to see if they have passed
on such a horrible disease to the victim.
Also, I suggest that we have a large number of people in the ACLU
active in opposing all drug testing. That is a very, very important
matter of public interest. It is unfounded in constitutional law and at
least in most properly applied cases of drug testing. We will have more
drug testing in the future, because we are concerned about young people
and others who are using drugs.
In 1995, the ACLU in Hawaii, of which this individual was a board
member and fundraiser, opposed an ordinance that banned overnight
sleeping in parks.
We have learned in recent months pretty clearly that it is important
and necessary for a city and police departments to take control of
their streets. We learned in New York that the panhandlers and those
who are in the parks can, in fact, undermine public safety. Mayor
Guiliani in New York has taken great leadership in that regard, and has
substantially driven down the crime rate in New York.
It is small matters like this which sometimes turn into much larger
matters. This is the kind of frustration that cities and counties and
police departments around the country feel when they are challenged
about the steps they have to take to preserve public safety.
In 1965, the Hawaii ACLU, of which this nominee was a board member
and fundraiser, opposed drug testing in the workplace, saying, ``The
ACLU opposes random and indiscriminate drug testing in the workplace,
not only on privacy grounds but also because such drug testing does not
detect current impairment.''
Madam President, one of the most beneficial acts that has been done
to fight drugs in America, in my opinion, is drug testing in the
workplace. A businessman who cares about his employees, who sets a high
standard, who wants to eliminate theft, who wants to reduce accidents,
who wants to protect the health of his or her employees sends out a
clear message that drug use is not acceptable in their company, and
they drug test fairly and objectively. The tests are very reliable
today and make the workplace safer by protecting the lives and safety
of employees, eliminating and reducing crime and theft by the
employees, and avoiding injury to those who come into contact with
those employees. Furthermore, they also encourage employees to stay
drug free. You are encouraging them by insisting on a high standard.
And perhaps that employee when they go home will tell their wife or
husband who suggests that they might use drugs, ``No, we shouldn't do
it. I am going to be tested at work.''
Drug testing has been a great success. But it has been a long, hard
legal fight. In case after case, the ACLU position has been rejected.
I must admit, as a person who has been involved in the fight against
drugs, that it concerns me that our nominee is a person who was a board
member of an organization that voluntarily went out and tried to
obstruct workplace drug testing.
In 1995, the Hawaii ACLU opposed another common occurrence in
America, the very popular minimum sentence in criminal cases. State
after State after State has followed the Federal law that says that
under certain circumstances, crimes with certain prior convictions will
be punished with at least a minimum sentence if convicted. And that
process has worked; I believe it has helped us identify repeat
offenders, to lock them up for longer periods of time, and I am
confident that that is one of the primary reasons we have seen a
reduction in crime among adults. We are doing a better job of
identifying serious, repeat, violent offenders through these ``three
strikes you're out'' laws and mandatory sentencing laws, and it is no
small concern to me as a prosecutor, a Federal and State prosecutor,
that our nominee for this position has supported the position of the
ACLU that mandatory minimum sentences ought not to be approved.
In addition, the Hawaii ACLU has opposed a Federal Stop Turning Out
Prisoners Act and the Community Notification of Sex Offenders Act.
Those are some of the positions that they have taken during the 1995
period in which this nominee was a member of the board and a
fundraiser. Now, when asked at our confirmation hearing if there were
any policy positions of the Hawaii ACLU that she disagreed with while
on the board of directors, Ms. Mollway answered, ``I cannot think of
any.''
Now, I believe that is a sufficient basis for a Senate Member to have
a serious concern about this nominee, and that is why at least six
members of the Judiciary Committee cast a ``no'' vote. We respect those
who have nominated her; we respect her; but we have serious concerns
about her nomination to the Federal bench.
In addition, in recent years the ACLU has taken other positions that
are outside the mainstream of legal and current American thought. They
oppose the death penalty. They oppose three-strikes sentencing laws
around the country. They oppose school vouchers for sectarian schools.
They have opposition to V chips in televisions to screen out violence.
They oppose voluntary labeling of music albums as to their content.
They support the legality of partial-birth abortion. They support the
constitutionality and use of racial preferences and oppose some of the
laws that eliminate that. And they support the decriminalization of
drugs; that is, the legalization of drugs.
Such positions are not mainstream thought in this country. That is
not mainstream law that is being advocated. They have done some good
things over the years. They have taken some positions that were
courageous and were proved to be right and furthered our country, but
this nominee in the last few years was an active member of an
organization that took some of the positions I just mentioned, in
court.
[[Page S6756]]
Now, I have voted for an ACLU member, maybe more than once, to be
confirmed, but I want to share some other things that concern me and
affect my decision, and I hope other Senators will consider this as
they decide what standard they will use when they consider whether to
consent to this nomination.
This nominee will be a district judge within the Ninth Circuit Court
of Appeals that includes Hawaii, California, Oregon, Washington, Idaho,
Arizona, Nevada and Alaska. Over the years that circuit has been
recognized as the most liberal circuit in America. It has also been
recognized as a court that has been out of touch with mainstream
American law. In the last term of the U.S. Supreme Court, the Supreme
Court reviewed 28 cases that arose from the ninth circuit, and of those
28 cases, they reversed 27 of them. This has been a pattern over quite
a number of years.
Just last month, the ninth circuit became the first circuit in
America to rule that the Prison Litigation Reform Act is
unconstitutional. That was passed by this Congress. It was a
magnificent act to eliminate this repetition of appeals by prisoners
that have clogged courts for years, and I have seen it personally, and
so many of them are extraordinarily frivolous. But it was carefully
considered by this body. Every other circuit that has addressed this
issue has upheld the constitutionality of the Prison Litigation Reform
Act, including the 1st circuit, the 4th circuit, the 6th circuit, the
8th circuit, and the 11th circuit. They have upheld it as
constitutional, but once again the ninth circuit is out of step with
that group.
Recently, in the last month or so, the Supreme Court harshly
criticized the ninth circuit for granting a habeas corpus petition--
that is, a petition by a prisoner--that had overturned the death
sentence of a convicted rapist and murderer. In reversing this
conviction, the ninth circuit opinion reversed a conviction that had
gone to the California Supreme Court four times, that had gone to the
U.S. Supreme Court two times. The defendant had been on death row for
well over 10 years and there was little dispute about his guilt or
innocence. And so the Supreme Court really was frustrated by this. This
was a midnight stay of execution, within 24 or 48 hours of the carrying
out of this death penalty case that had been on death row for years and
was reversed by them.
Some would say, as Ms. Mollway did, I will follow the laws. Sometimes
we have to wonder what the law is in the ninth circuit. We know that
they have been extraordinarily sensitive to death penalty cases beyond,
in my opinion, rationality. We know that in many cases the court-
appointed attorneys' fees in death cases in California or in the ninth
circuit have exceeded $1 million for the court-appointed attorneys to
defend those who have been charged, since the appeals go on for years
and years. And, as I recall, the amount of money spent on that in the
ninth circuit matches all the other circuits in America in expense.
So we have a problem with that, and we need judges who know what the
law is, who make every effort to guarantee that the innocent are found
innocent, their convictions reversed if need be, and are given a fair
trial. That is absolutely guaranteed by our Constitution and should
never be denied. But, Madam President, when you have these kinds of
appeals, it makes a mockery of the law, it undermines the public
respect for the law, it places the courts in disrespect, and I think
this circuit is rightly criticized for that.
Recently, the New York Times referred to the ninth circuit as ``the
country's most liberal circuit'' and noted that it was viewed by a
majority on the Supreme Court as ``a rogue circuit.''
I would say that is a serious matter. I believe, based on this
nominee's background, her positions on issue after issue, her
activities with the ACLU in Hawaii, that we have indications that
instead of being a part of a renaissance in the ninth circuit, to
improve the ninth circuit and bring it back into the mainstream of
American law, that she would, in fact, be more of the same: the same
liberal, activist, anti-law-enforcement mentality that has gotten this
circuit out of whack with the rest of the Nation.
District judges are not circuit judges; I don't mean to suggest that
they are; but they are part of the circuit. It was a district judge
recently who ruled the California Proposition 209, the civil rights
initiative that would eliminate racial preferences, violated the
Constitution of the United States. Fortunately, a panel of even the
ninth circuit unanimously agreed that was not correct and the court
found there is no doubt that Proposition 209 was constitutional. And
the Supreme Court refused to reverse that--in effect, affirmed that
decision.
So I would just say to my distinguished friends from Hawaii, we do
need to be careful about what is happening on our benches. We do have,
in certain parts of this country, courts that are going beyond the
traditional role of judges, going beyond the traditional role of
courts. It is breeding a disrespect, it is undermining law enforcement,
it is delaying the carrying out of justly imposed sentences, and we
need to make sure that we do something about that. I, for one, have
stated publicly for some time now that I feel a special obligation and
a special concern to look at the nominees for the ninth circuit, to
make sure that those nominees are going to be part of a solution to
this problem rather than part of the problem.
Based on my analysis and my sincere belief about it, I have concluded
that I should vote ``no,'' and I will urge my fellow Senators also to
vote no.
This nominee is a person of quality and intellect, but I believe she
is not the right nominee at this time for this position.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii is recognized.
Mr. INOUYE. I am most grateful to the distinguished Senator from
Alabama for his reasoned argument on the matter before us.
In order to further clarify the record, if I may, Madam President, I
ask unanimous consent that a letter dated March 9, 1998, addressed to
the chairman of the Committee on the Judiciary, with responses to
additional questions from Senator Thurmond and Senator Sessions, be
printed in the Record.
There being no objection, the Letter was ordered to be printed in the
Record, as follows:
Cades Schutte Fleming & Wright,
Honolulu, HI, March 9, 1998.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC
Dear Senator Hatch: Thank you very much for giving me the
opportunity to respond to additional questions from Senators
Thurmond and Sessions. I am enclosing my responses to the
questions delivered to me on March 9, 1998.
Very truly yours,
Susan Oki Mollway.
Attachments.
Answers of Susan Oki Mollway to Additional Questions from Senator
Sessions
1. In your legal opinion, is the Prison Legal Reform Act
constitutional?
Yes. This law is presumed to be constitutional. It has been
upheld by several appellate courts (e.g., Hadix v. Johnson,
133 F.3d 940 (6th Cir. 1998); Benjamin v. Jacobson, 124 F.3d
162 (2d Cir. 1997); Plyler v. Moore, 100 F.3d 365 (4th Cir.
1996), Cert. den., 117 S. Ct. 2460 (1997)). I have no
personal views that would prevent me from following
applicable law in this or any other area.
2. In your legal opinion, is the 1995 Habeas Corpus Reform
constitutional?
Yes. This law is presumed to be constitutional. It has been
upheld as constitutional in Felker v. Turpin, 116 S. Ct. 2333
(1996). Again, I have no personal views that would prevent me
from following applicable law in this or any other area.
If confirmed, you will preside over many employment
discrimination cases as a federal judge.
3. In a suit challenging a government racial preference,
quota, or set-aside, will you follow the 1995 Adarand v. Pena
decision and subject that racial preference to the strictest
judicial scrutiny?
Yes, if confirmed, I will follow Adarand v. Pena and
subject any government racial preference, quota, or set-aside
to the strictest judicial scrutiny.
4. In your legal opinion, how difficult is it for any
government program or statue to survive strict scrutiny?
It is extremely difficult for a government racial
preference, quota, or set-aside to survive strict scrutiny.
The program or statute must be narrowly tailored to meet a
compelling state interest. Adarand v. Pena makes it clear
that this is a very heavy burden to overcome.
5. Is the California Civil Rights Initiative
constitutional?
Yes. In Coalition for Economic Equity v. Wilson, 122 F. 3d
692 (9th Cir.), Cert. den., 118 S. Ct. 397 (1997), the Ninth
Circuit upheld the initiative.
[[Page S6757]]
6. Is there a constitutional right to homosexual marriage
under the U.S. Constitution?
Bowers v. Hardwick, 478 U.S. 185 (1986), and the Defense of
Marriage Act, which is presumptively constitutional, indicate
that there is no constitutional right to homosexual marriage
under the United States Constitution. I have no personal
belief that would prevent me from following applicable law in
this or any other area.
Mr. KENNEDY. Madam President, I strongly support Susan Oki Mollway's
nomination to the federal district court in Hawaii. Her nomination has
now been pending before the Senate for two-and-a-half years. It is long
past time to confirm this able nominee.
Ms. Mollway's credentials are impressive. She is a Harvard Law School
Graduate and a partner at a prestigious Hawaii law firm, where her
practice has included complex civil litigation. In 1987, she was voted
Outstanding Woman Lawyer by the Hawaii Women Lawyers. She successfully
argued a case before the Supreme Court of the United States in 1994.
Ms. Mollway has the support of every member of Hawaii's congressional
delegation, and the federal judges in Hawaii hold her in the highest
regard. She would be the first Asian-American woman to sit on the
federal bench.
Some of our colleagues opppose this nomination because Ms. Mollway
served on the Board of Directors of the ACLU in Hawaii, at a time when
the ACLU was active in the same-sex marriage debate in that state. In
fact, much of the ACLU's involvement in that debate took place long
before Ms. Mollway became a member of the Board of Directors. In
addition, Ms. Mollway has emphatically stated that she never voted on
the position the ACLU should take on this issue or on any other
litigation or legislation. The opposition to her nomination is
unjustified, and it is no basis for denying confirmation.
Unfortunately, Ms. Mollway is just one of the many well-qualified
women and minority nominees who have been arbitrarily delayed by the
Senate and subjected to unfair ideological hazing.
In fact, in this Republican Senate, women are four times more likely
than men to be held up for more than a year. Forty-three percent of the
nominees currently on the Senate calendar are women. In the last three
months, the Senate Republican leadership has allowed only one woman to
be confirmed to the federal bench, while confirming 15 men. And, 16 out
of 21 --that's 76 percent--of the nominees carried over from last
year's session are women or minorities.
I urge my colleagues to support Ms. Mollway's nomination. It is time
to end the logjam of qualified women and minority nominees. It is time
to provide relief to the federal district court in Hawaii, whose
caseload has doubled in the last five years. It is long past time to
confirm Susan Oki Mollway. Her qualifications are outstanding and I am
confident that she will serve with great distinction on that court.
Frankly, the Senate should confirm her--and apologize to her as well.
Mr. INOUYE. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DASCHLE. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DASCHLE. Madam President, I want to say a couple of words about
this nomination. I am very pleased that Susan Mollway's nomination has
finally reached the Senate floor. As others have noted, it is a long,
long time in coming. I am told that it has taken 2\1/2\ years. But
today she is finally going to get a vote, and I am confident that she
will be confirmed.
I think it is quite an impressive story. Susan Mollway, first
nominated for the U.S. District Court for the District of Hawaii in
December of 1995, was reported favorably by the Senate Judiciary
Committee on April 25 of 1996. Nothing happened, of course, with that
nomination, and she was renominated again on January 7 of 1997 and
again reported out favorably by the Judiciary Committee.
She must be the most patient woman in the world. For all this time,
with all this uncertainty, with all of the implications professionally,
it has been a long wait, not only for her, but for Hawaii.
The seat which Ms. Mollway has been nominated to has been vacant now
for 3 years, since April of 1995. Were it not for the extraordinary
persistence of our colleagues from Hawaii, the senior Senator, Daniel
Inouye, and the junior Senator, Daniel Akaka, we would not be here this
afternoon. It is only their persistence and the extraordinary
credibility and, frankly, persistence that they have demonstrated for
all this time that we are now celebrating this moment.
Their persistence is well invested. Susan Mollway is fully qualified
and will be an extraordinary credit to the bench. She is a partner in
the Honolulu law firm of Cades, Schutte, Fleming and Wright where she
went upon graduation from Harvard Law School.
She has practiced in a broad range of areas, including a successful
argument before the U.S. Supreme Court. She has won numerous awards,
including the Hawaii Women Lawyers' Outstanding Woman Lawyer Award in
1987.
The granddaughter of a ``picture bride'' and a plantation worker in
Hawaii, Ms. Mollway and her family have learned strength and commitment
from their story. Her father left high school during World War II to
join a Japanese-American unit of the U.S. Army. Together with Senator
Inouye, he fought in Europe as part of the 442nd Regiment Combat Team,
the most decorated military unit of its size in World War II. At the
same time, people he knew were among the thousands of Japanese-
Americans interned by our own Federal Government. Later, Ms. Mollway's
father used his veteran's benefits to attend Harvard. Clearly, his
daughter now understands the great joy and honor of being an American,
but also the burdens and barriers faced by some in our society.
We are all proud of the distance we have come as a society in ending
the kind of discrimination faced by Japanese-Americans of Ms. Mollway's
father's generation, but the confirmation of this judge to be now U.S.
district judge will mark yet another step in this progress. Susan
Mollway is an outstanding nominee and deserves to be confirmed.
I, again, congratulate my two colleagues from Hawaii, and I call upon
all of my colleagues to vote in her favor in 40 minutes.
I yield the floor.
Mr. INOUYE. Madam President, I ask unanimous consent that Senator
Sessions and I be permitted to yield back the remainder of our time and
that at the hour of 5 p.m., a rollcall vote be taken on this matter.
The PRESIDING OFFICER. Is there objection to the unanimous consent
request?
Mr. INOUYE. Madam President, may I change that to 5:10?
The PRESIDING OFFICER. Without objection, it is so ordered.
Does the Senator wish to request the yeas and nays at this time?
Mr. INOUYE. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
____________________