I support the confirmation of Judge Richard A. Paez, of California, the President’s nominee to the 9th Circuit Court of Appeals.

Judge Paez was first nominated for this judgeship during the second session of the 104th Congress at a time when all nominees to the 9th Circuit got bound up within the difficulties we were having with deciding whether to divide the Circuit. Once we established a Commission to study the matter, we were able to begin processing nominees to that court.

Judge Paez was renominated at the beginning of the 105th Congress, but due to questions surrounding his record on the bench and comments he made about two California initiatives, his nomination expired when the 105th Congress terminated in 1998.

The President again nominated Judge Paez to the Ninth Circuit at the beginning of the 106th Congress. Because Judge Paez has already had 2 hearings in prior Congresses and answered extensive questions, I did not believe a third hearing to be held during this Congress would shed any further light on this nominee.

Before any judicial nominee can be confirmed, the Senate must exercise its duty in assuring that those who are confirmed will uphold the Constitution and abide by the rule of law. Sometimes it takes what seems to be an inordinate amount of time to gain these assurances, but moving to a vote without them, would compromise the integrity of the role the Senate plays in the confirmation process.

And so, it has taken a considerable amount of time to bring Judge Paez’s nomination up for a vote. Indeed, it was not before a thorough and exhaustive review of Judge Paez’s record that I have become convinced that questions regarding Judge Paez’s record and any controversial views he may hold have been answered.

I do not want to diminish the seriousness of the concerns raised regarding critical comments Judge Paez made about two California initiatives. On April 6, 1995, while a sitting U.S. District Court Judge, Judge Paez gave a speech to an academic audience at his alma mater, Boalt Hall School of Law, criticizing the passage of Proposition 187 and Proposition 209. He described Prop 209 as “the proposed anti-civil rights initiative” and said it would “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.” Judge Paez went on to opine that a “much more diverse bench” was essential in part because how “Californians perceive the justice system is every bit as important as how courts resolve disputes.”

When questioned at his hearing about these and other comments made during the speech, Judge Paez stated that he was referring only to the potential divisive effect Prop 209 would have on California. He acknowledged that the Ninth Circuit had in fact upheld the constitutionality of Prop 209 and that this ruling resolved any question as to the legitimacy of the initiative.

He also stated that he disagreed with the use of proportionality statistics in Title VII or employment litigation. And, perhaps most telling of his judicial philosophy, Judge Paez stated that federal judges must “proceed with caution, and respect that the vote of the people is presumed constitutional.”

Legitimate questions have been raised concerning whether his comments were consistent with Canon 4 of The Model Code of Judicial Conduct governing judges’ extra-judicial activities. Under that Canon, when a judge is off the bench, a judge must conduct himself so as not to “cast reasonable doubt on the judge’s capacity to act impartially as a judge.”

Yet, Canon 4 also states that a judge, through extra-judicial activities, may give speeches and lectures on the law in effort to improve the law, the legal system, or the administration on justice. This exception may be read to exonerate Judge Paez of potential violations. He has said the speech was designed to promote minorities’ perceptions of fairness within the judicial system.

I admit that I have had doubts as to Judge Paez’s willingness to abide by the appropriate limitations on federal judges, but the nominee has given me his word that he will abide by the rule of law and not engage in judicial activism. For these reasons, I am not willing to stand in the way of this nominee’s confirmation.

It was during the Committee’s thorough review of his record that I became aware of Judge Paez’s credentials and career of public service. He is a graduate from Brigham Young University and he received his law degree from Boalt Hall. He served as an attorney for California Rural Legal Assistance, the Western Center on Law and Poverty, and the Legal Aid Foundation of Los Angeles before becoming a Judge on the Los Angeles Municipal Court. In 1994, President Clinton nominated, and the Senate confirmed, Judge Paez to sit on the district court bench in the Central District of California.

Although I share many of my colleagues concerns regarding the stability of the Ninth Circuit, and I must concede that I have had concerns about this nomination, on balance I do not believe that Judge Paez will contribute to the roguery that appears to have infiltrated this circuit. I would not, as Chairman of the Judiciary Committee, vote for the confirmation of any nominee whom I believed would abdicate his or her duty to interpret and enforce, rather than make, the laws of this nation.

For these reasons, I will cast a vote in favor of the confirmation of Judge Paez to serve on the 9th Circuit Court of Appeals.

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