[Congressional Record Volume 141, Number 153 (Thursday, September 28, 1995)]
[Senate]
[Pages S14456-S14471]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   NOMINATION OF JAMES L. DENNIS, OF LOUISIANA, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

  The assistant legislative clerk read the nomination of James L. 
Dennis, of Louisiana, to be U.S. Circuit Judge for the Fifth Circuit.
  Mr. COCHRAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, I move to recommit the nomination to the 
Judiciary Committee.
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. Parliamentary inquiry: Does that call for immediate 
action, or is that a debatable motion?
  The PRESIDING OFFICER. The motion to recommit is a debatable motion.
  Mr. COCHRAN. Mr. President, I am prepared to describe to the Senate 
the reasons for my motion, and to give other Senators an opportunity to 
discuss this. We had undertaken to work out an agreement on the basis 
of time constraints allocating time for one side and the other because 
some did not want to set a precedent for doing the time agreement on a 
motion to recommit on the Executive Calendar. We have not reached that 
agreement in any formal way.
  But, for the information of Senators, it is my expectation that there 
will be debate on this motion for at least 1 hour on this side in 
support of the motion to recommit. I expect that there will be a 
corresponding amount of time, or at least certainly the availability of 
that kind of time, on the other side. Then there would be a request for 
the yeas and nays on the motion to recommit the nomination. We expect 
to be able to get a record vote on that motion.
  Mr. BIDEN. Mr. President, will the Senator yield?
  Mr. COCHRAN. I am happy to yield to the Senator for a question.
  Mr. BIDEN. Mr. President, I am the one who was reluctant to enter 
into a time agreement and/or a formal agreement on the motion to 
recommit. It is fully within the right of the Senator from Mississippi 
to do that. The reason I did not wish to do that is that it sets a 
precedent. As long as I have been here, I do not recall us moving to 
recommit a judicial nominee unanimously reported out of the Judiciary 
Committee.
  The second point that I make to my friend is that I have no intention 
of doing anything to delay the vote on this motion to recommit.
  I would like at the appropriate moment to explain why I believe 
Justice Dennis is qualified and should be confirmed and why there is no 
need to recommit. My colleagues from Louisiana, who have a genuine 
interest in this nomination, are both here, and I would look to them to 
speak to the qualifications of Justice Dennis and why a recommittal 
motion would be in effect a very bad precedent.
  I wish to make it clear to my friend from Mississippi that the 
Senator from Delaware does not have any other agenda. I do not have any 
intention of slowing up a vote on this. This is a slightly different 
procedure from the general tradition of the Senate that when a nominee 
comes up from a committee the Senate debates and votes on the nominee. 
However, I will not object to this motion to recommit Justice Dennis 
because it seems to me a version of what the North in the War Between 
the States had hoped for for many years, that is, that two States in 
the heart of Dixie would fight over an issue that the rest of us think 
is not worthy of a fight.
  Mr. COCHRAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. My response to the distinguished Senator from Delaware 
is I have no problem with his describing the committee's action. I know 
the chairman of the committee would probably want to do that at some 
point in this discussion.
  Let me just say, if I can, in support of the motion that this is not 
a fight between two States. This is a question that is being presented 
to the Senate today under this motion to recommit on the basis of newly 
discovered information about the fitness of this judge to serve on the 
fifth circuit court of appeals. The motion to recommit is to give the 
Judiciary Committee an opportunity to review the facts, the evidence 
and the investigation that has just recently been concluded by the 
staff of the Senate Judiciary Committee, at the request of the chairman 
of that committee.
  I have been briefed by the staff on the findings of that 
investigation, and I was advised at the time I was briefed that no 
other Senator had requested a briefing, no member of the committee had 
been briefed, other than the chairman had been given information from 
the investigators. I am convinced on the basis of what I heard that the 
Judiciary Committee should reconvene and reconsider the nomination.
  That is the reason this motion is being made. If this were just a 
debate on the merits of the nominee or the fitness of this nominee on 
the basis of the record as already made by the Judiciary Committee--
whether or not one State was being overly represented on the Court--
these are all facts that we would debate at that time, and it may be a 
subject, a proper subject, for discussion at a later time. But this 
motion is directed to the fact that after the committee reported the 
nomination, information became available which brought into question 
the fitness of this judge to serve and whether or not he should have 
disqualified himself from participating in a case before the Louisiana 
Supreme Court and related matters.
  That is the point we will address this morning. We hope the Senate 
will agree with us that this is clearly a situation where the committee 
ought to reconsider the nomination.
  Mr. BIDEN. If the Senator will yield without losing his right to the 
floor----
  Mr. COCHRAN. I will be happy to yield for a question.
  Mr. BIDEN. The way the Judiciary Committee has operated for the 
roughly 20 years, I guess, that I have been on it is that the 
investigative staffs of the majority and minority work together and 
share all information. I wish to inform my friend from Mississippi that 
in addition to the Senator from Mississippi and the chairman of the 
committee, Senator Hatch, the Senator from Delaware has also been 
briefed on all of the investigative matters including the one to which 
the Senator refers.
  I will be prepared and am ready to speak to that, but I will yield 
back. I do not have the floor. I thank my friend for his time, but 
assure him that I am aware the committee has been briefed. I see 
absolutely no need to refer this back to the committee, but I will 
speak to that in response to my friend's arguments.
  Mr. COCHRAN. Mr. President, I thank the distinguished Senator for his 
comments.
  Let me just say for the purpose of putting this in some historical 
context that Judge James Dennis is a member of the Louisiana State 
Supreme Court. 

[[Page S 14457]]
 He was nominated by President Clinton to serve on the U.S. Court of 
Appeals for the Fifth Circuit. That nomination was made during the 103d 
Congress, the previous Congress.
  The Judiciary Committee had a hearing. At the hearing Judge Dennis 
appeared. No witnesses appeared other than Judge Dennis, as I am 
advised. There were four questions asked of Judge Dennis at that time. 
The committee reported his nomination to the Senate. There was no 
action on the nomination during the last Congress, and this year his 
name was resubmitted to the Senate by the President. No other hearings 
were held, no other inquiries were held, and he was reported out in due 
course to the Senate.
  One day after the nomination had been reported by the Judiciary 
Committee, a Times-Picayune story revealed that Judge Dennis possibly 
committed a serious ethical violation by participating in a court 
decision involving Tulane tuition waivers. Tulane tuition waivers 
involve under Louisiana law the right of a member of the State 
legislature to bestow a favor on a friend by having the tuition that 
would otherwise be due and payable to Tulane University waived under an 
existing authority that goes way back to the last century in that 
State.
  The issue was that Judge Dennis had a son who was given a judicial 
waiver by a member of the legislature for 2 years going to law school. 
Then he laid out of law school for a year, and he was going to go back 
to law school, and he contacted the legislator who had given him the 
waiver in the first instance and asked that he be reinstated. There was 
some question about the extent to which Judge Dennis may have been 
involved in contacting or trying to influence the legislator to grant 
that waiver for his son.
  Anyway, Judge Dennis knew this story was being written. He had been 
contacted by the paper. He had been questioned by the reporter. 
Obviously, it was something that was getting a great deal of attention 
in the State of Louisiana.
  This issue had been in the papers. There was some talk about whether 
this was a practice that needed to be changed, whether it was sort of a 
buddy system there in the State where legislators were giving friends 
of theirs tuition waivers. This abuse should be revisited.
  Well, that is all really beside the point. The point is Judge Dennis 
knew he was right in the middle of this story being written, and he did 
not bring it to the attention of the Judiciary Committee, which was 
about to take action on his nomination to the second highest court in 
the land, the U.S. Court of Appeals for the Fifth Circuit that is based 
in New Orleans. There is an obligation--and I think the chairman and 
the distinguished ranking member of the committee will acknowledge 
this--there is an obligation and understanding with all nominees who 
come before the Judiciary Committee in situations of this kind for 
confirmation for a lifetime appointment to the Federal judiciary that, 
if they know of any circumstance or facts that would affect the 
consideration of the committee or the action that the committee is 
about to take to report out the nomination, they are obliged and under 
an obligation to bring such facts to the attention of the committee. 
Judge Dennis did not do this. There is no question in the record Judge 
Dennis did not do this.
  There is a suggestion that Judge Dennis contacted someone in the 
Justice Department. I do not have a copy of any of the transcript, 
whether it was a letter, whether it was a fax, whether it was a phone 
call. I do not have the phone log or exactly what was said or to whom. 
But I am advised that there was contact made.
  But, nonetheless, the Judiciary Committee proceeded to act without 
any knowledge of the fact that this issue had arisen and certainly not 
of the fact that it was going to be big news in Louisiana the next day, 
after it acted on the nomination. Judge Dennis knew that his ethics 
were in question and did not bring that knowledge of this to the 
Judiciary Committee.
  The ethics of Judge Dennis were being questioned by the reporters who 
asked the questions. And the reason it was an issue is because the 
Supreme Court of Louisiana had been called upon to rule on a freedom-
of-information request where a request had been filed by the newspaper 
asking legislators to provide records from their offices to show which 
citizens of Louisiana had been given these tuition waivers by them 
under the authority of existing Louisiana law.
  Well, you can imagine some of the legislators did not want to reveal 
this information. They did not want to disclose the facts. Anyway, suit 
was filed by the paper, and that was decided in a lower court and 
worked its way up. It finally got up to the supreme court. Judge Dennis 
participated in a decision on the issue affirming a lower court 
decision that the paper had to make that information available.
  Judge Dennis did not disclose his potential interest in this case at 
the time the case was decided by the Supreme Court of Louisiana. He 
participated in the case. He voted on the case. He did not disclose 
this information to the Judiciary Committee or the fact that this was 
an issue and a controversy in Louisiana that might be perceived as 
affecting his fitness to serve on the second highest court in the land.
  He knew--he knew--that he had a continuing obligation to reveal any 
information to the committee which might affect his nomination or the 
committee's decision in this case. He did not call the committee to 
report that the story was coming out. He then knew his nomination had 
been voted out of the committee. There was some communication after he 
had been reported out of the committee and the nomination was pending 
here in the Senate.
  The significance of this story, I think, can be best described in 
terms of its notoriety and its importance in Louisiana with the 
headline that was used by the Times-Picayune to call attention to this. 
As a matter of fact, it had in bold headlines: ``Hall of Shame, Public 
Confidence in Judge Dennis Is Destroyed.''
  I think loss of confidence in a member of the judiciary, of course, 
affects the judicial system and not just at the fifth circuit, but 
throughout the country. The question that I think the committee ought 
to properly answer, and has not had an opportunity to address in any 
formal way, is: Was Judge Dennis' conduct an ethical violation? I think 
it was. I think it clearly rises to the level of improper conduct that 
would affect this committee's decision to report the nomination to the 
Senate.
  I frankly do not believe after the committee reviews all the facts, 
hears all the evidence, calls witnesses who are familiar with this 
entire situation, I do not believe the committee is going to favorably 
report this nomination back to the Senate.
  What I am disturbed about is that there has been pressure to call the 
nomination up, take action on the nomination. I do not want to 
personally, just because I am from a neighboring State and we have had 
discussions about whether this is a seat that should be filled by a 
Mississippian or a Louisiana person--I do not want that to cloud the 
real issue here, and that is the fitness of this nominee to serve on 
the court. That is why I have decided to move to recommit the 
nomination to the committee.
  I am prepared to let the committee look further into this in an 
orderly way and in a deliberate way to determine whether my suspicions 
are correct, whether the suspicions of many people throughout the 
Louisiana-Mississippi-Texas area, where this court has jurisdiction, 
are correct. We have been getting phone calls and letters; people are 
disturbed about this. And we think that the committee ought to look 
further into the situation.
  The Judiciary Committee ought to begin the opportunity to review its 
decision and either decide to report the nomination in light of this 
new information--I think the information reveals that Judge Dennis, 
first of all, failed to recuse himself properly in a case resulting in 
such an impropriety as to warrant public disapproval and the 
disapproval of the committee of his nomination.
  Mr. President, I do not know what the procedure is in terms of being 
able to speak again, but I ask unanimous consent that I be permitted to 
yield the floor to other Senators who want to speak and then to speak 
again at some point under this motion. I do not 

[[Page S 14458]]
want to lose my right to the floor by so yielding.
  The PRESIDING OFFICER (Mr. Shelby). Is there objection?
  Mr. BIDEN. Reserving the right to object.
  Parliamentary inquiry. The Senator has an opportunity to regain the 
floor at any time under any circumstance, is that not correct?
  The PRESIDING OFFICER. If the Senator from Mississippi gives up the 
floor, he may be rerecognized at the proper time.
  Mr. COCHRAN. I do not want to violate the two-speech rule. You cannot 
under the rules of the Senate make two speeches on one legislative day. 
Is it because we are in executive session that the legislative day two-
speech rule does not apply, I ask the Chair?
  The PRESIDING OFFICER. If the Senator wants to waive the two-speech 
rule, he can do that affirmatively without keeping the floor. You can 
make the unanimous consent request at this time, or----
  Mr. COCHRAN. That is why I made the request.
  Mr. BIDEN. I have no objection.
  The PRESIDING OFFICER. Hearing no objection, it is so ordered.
  Mr. BIDEN. Mr. President, I love to hear the Senator speak. If the 
two-speech rule applied to this place, I imagine we would have only one 
or two Senators who ever spoke. I will be delighted to hear him again.
  I would like to make several points to him, and I will not take long. 
I would like to ask him a question, if I may.
  If I may ask the Senator from Mississippi, is it his--I realize there 
is no unanimous consent in any of this--but just as he postulated what 
he hoped would happen in terms of procedure here this afternoon, is it 
the Senator's intention that, if his motion to recommit fails, that we 
would go then to a vote up or down on the nominee?
  Mr. COCHRAN. I have no objection to proceeding to voting on the 
nomination. As I understand it, though, it would be subject to debate.
  Mr. BIDEN. No. It would.
  Mr. COCHRAN. I do not want to foreclose any Senator's right by any 
agreement like that. My personal inclination would be to proceed to 
vote in due course whenever Senators--if they want to talk about it, 
they could, but there is no agreement to proceed to a vote at that 
time.
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. I know there is no agreement. What I am asking, does the 
Senator know of anyone who would have an interest in not allowing us to 
get to a vote today?
  Mr. COCHRAN. If the Senator would yield. I know Senators are 
interested in this subject. Two or three have come up to me and said, 
``You are not going to let this proceed to a final vote today if this 
motion is defeated?'' I said, ``I am not going to stand in the way of 
that. But if you want to speak you can. You have the right to do 
that.'' So I do not know what other Senators may do. I do not intend to 
filibuster the nomination, I say to my friend.
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. Mr. President, let me make a few points before I respond 
to the specific concerns of the Senator from Mississippi. One, it is 
true that, to the best of my knowledge, only myself and Senator Hatch 
have availed ourselves of the investigative report done by minority and 
majority staff on the question that has been raised by the Senator from 
Mississippi.
  Senator Hatch notified all Republican members on the committee, which 
is our practice, that follow-up work was conducted on a matter that had 
come up after we had voted and that professional staff who had done the 
investigation were there, ready, willing and able to brief people on 
it. My staff briefed the staffs of the Democratic members of the 
committee.
  I will tell you why most people did not think it was so important. 
Justice Dennis has been around for a long time. His nomination came up 
in 1994. There has been, and I am not questioning the motivation of my 
friend from Mississippi, but let me put it this way, he has not been 
fast tracked. He has not moved very swiftly. The Senator from Delaware 
may be under the mistaken impression that the failure to move Justice 
Dennis had little to do with Justice Dennis' integrity, competence and/
or forthrightness and ability to be on the bench, but had to do with a 
legitimate dispute--I guess any dispute between and amongst States is 
legitimate--about whose seat this should be.
  It happens all the time. It happens in the first circuit, it happens 
in the second circuit, it happens in the third circuit. We had a debate 
in the third circuit about whether or not a seat should be a 
Pennsylvania vacancy or a New Jersey vacancy. I am not saying this only 
happens in the South. It happens all across the country, and Senators 
fight very hard for the prerogatives of their States to have folks 
represented on the circuit courts in numbers that they believe are 
appropriate.
  That has, up to now at least, been the major impediment, at least 
from the perspective of the Senator from Delaware, of Justice Dennis 
getting a vote on the floor of the Senate.
  Having said that, let me speak specifically to the question raised by 
my friend from Mississippi.
  It has been argued that Justice Dennis should have recused himself 
from a case that came before the Louisiana Supreme Court involving a 
suit by a local newspaper against five State legislators.
  Under Louisiana law, a judge may be recused for five reasons. I might 
point out that the Federal rules of recusal, and most State rules of 
recusal, are not designed to encourage judges to recuse themselves 
automatically. Otherwise, judges would be able to avoid all the tough 
decisions. So the presumption is that you should not recuse unless you 
meet a certain standard.
  Let me tell you what Louisiana law says, because that is the law that 
Justice Dennis, then on the Louisiana Supreme Court, was obliged under 
his oath of office to follow.
  Here are the five reasons for which a Louisiana judge may recuse 
himself or herself: First, he or she is a material witness in the cause 
of action before him or her; second, he has been employed or consulted 
as an attorney in the cause of action prior to being on the bench; 
third, he has performed a judicial act in the cause of action in 
another court; fourth, he is related to one of the parties involved in 
the suit; or fifth, and this is the important piece here, he has an 
interest in the cause.
  My friend from Mississippi is making the case that Justice Dennis 
should have recused himself because of the fifth provision in Louisiana 
law--that Justice Dennis had an interest in the case before him. Only 
this last reason--where a judge is interested in the case--could 
possibly provide grounds for Justice Dennis to recuse himself from the 
Times-Picayune case. As the nominee explained to the committee, he had 
absolutely no interest in the case brought by the Times-Picayune.
  Let me go through the facts, because I think it is very important to 
know what the specific facts are.
  For over a century, since 1884, each Louisiana State legislator has 
had the right to nominate a Louisiana citizen to receive free tuition 
to Tulane University for 1 year. I might note parenthetically, that 
this is not something in the last several decades that the press has 
thought is a good thing.
  To the best of my knowledge, and I am certainly not a historian or 
student of Louisiana history, no one questioned this practice for a 
long time. Along comes the Times-Picayune, which is their right, and 
they wanted to know who had appointed whom to Tulane University under 
this 1884 law.
  Again, no one is questioning whether or not the law of Louisiana 
permitted a State legislator to nominate a Louisiana citizen to receive 
free tuition to Tulane University for 1 year. These tuition waivers 
are, under Louisiana law, as we understand it, privately funded.
  In 1985, Justice Dennis' son--now, this is 1985, 10 years ago--Steve 
Dennis, received a tuition waiver from his legislator, a gentleman 
named Representative Jones. At that time, Justice Dennis' son, Steven, 
was a 26-year-old married man, financially independent of his father, 
and living apart from his father.
  And, I might add, he lived in Representative Jones' district. Now, 
Steve Dennis received tuition waivers to attend Tulane law school in 
the years 

[[Page S 14459]]
1985, 1986 and 1988. He did not attend law school during the 1987-88 
academic year.
  In December 1993, 8 years after Steve Dennis was first nominated to 
receive this tuition waiver by his State legislator, the Times-Picayune 
and one of its reporters sued five legislators for failure to turn over 
copies of forms they used to nominate people for tuition waivers. The 
five legislators sued were: Emile ``Peppi'' Bruneau, Jr., Naomi White-
Warren Farve, Garey J. Forster, Arthur A. Morell, Edwin Murray.
  The reason I mention their names is that Representative Jones--the 
person who had nominated Steve Dennis--was not sued. He was not a 
party. He was not asked to submit the names of people he had, in fact, 
nominated to receive the tuition waiver.
  There were two issues involved in this case brought by the Times-
Picayune. First, the plaintiffs sought a declaration that the 
nomination forms of these five legislators were public documents, even 
if the forms were currently held by Tulane. Second, the plaintiffs 
sought a writ of mandamus ordering each defendant to produce all 
nomination forms in his or her custody, including those held by Tulane.
  Now, in January 1994, the trial court, of which Justice Dennis was 
not a member, determined that the nomination forms were public and 
granted the writ of mandamus ordering the defendants, the five State 
representatives, to produce all the documents and forms held by them or 
Tulane. The trial court also awarded attorney's fees to the plaintiffs.
  The legislators then appealed from the trial court. In October 1994, 
the State fourth circuit court of appeals--not the Federal circuit 
court of appeals--agreed that the nomination forms were public 
documents subject to disclosure. However, finding no indication that 
the defendants would not comply with the court's declaratory judgment, 
the court of appeal reversed the grant of the writ of mandamus against 
the defendants. The court felt that it was premature to subject the 
five legislators to mandamus, given that its declaratory judgment was 
the first definitive statement of the rights of the parties. The court 
of appeal also reversed the attorney's fee award.
  Finally, the case came before the Supreme Court of the State of 
Louisiana. Enter Justice Dennis. There were only two issues that came 
up to the Supreme Court. One, whether a mandamus was appropriate, and, 
two, whether the plaintiffs should receive attorney's fees. It was no 
longer an issue as to whether the nomination forms were public 
documents. That was settled. That was not even appealed. The fourth 
circuit had already established that they were, and that the defendant 
legislators would have to turn over these documents to the Times-
Picayune.

  Now, in a 6-1 decision in which Justice Dennis was with the majority, 
the Louisiana Supreme Court denied the Times-Picayune application for 
review and refused to consider the untimely application of one 
defendant who challenged the newspaper's standing.
  Remember what is being laid out, the predicate: That Justice Dennis 
committed some big ethical violation, and he did not tell the committee 
about it, either. First, he was hiding something from us, the Judiciary 
Committee, and, second, he was hiding it because it was unethical 
behavior.
  I might add, I doubt whether there is a member of either party who 
would be willing to let his or her reputation be ultimately written in 
the great book based on only the headlines he or she has received 
throughout his or her life. I doubt whether there is a single, solitary 
person who holds public office who has not spoken to an editor and 
heard the editor say, ``I am sorry, Bennett, but I don't write the 
headlines.'' ``I am sorry, Thad, but I don't write the headlines.'' 
What my good friend from Mississippi read was a headline from the 
Times-Picayune which I do not know means anything, except it is 
unintentionally, in my view, misleading about the character of Justice 
Dennis.
  Now, it is the Louisiana Supreme Court decision from which some argue 
that Justice Dennis should have recused himself. As I said earlier, 
under Louisiana statute, there is only one possible reason why Justice 
Dennis, may have recused himself--and that is because he had an 
interest in the case.
  Justice Dennis, through written and oral statements to our staff, 
gave three reasons why he determined that there were no grounds under 
which he should recuse himself.
  One, he had absolutely no interest in the outcome of the only issues 
before the court. The only issues before the court were the writ of 
mandamus and attorney's fees. He had absolutely no interest in that at 
all or in the petition by a latecomer saying that the Times-Picayune 
had no standing.
  Second, his son had no interest in the case's outcome. His son was 
long out of law school. His son was a married man, 26 years old, living 
on his own in the district of a legislator who was not named in the 
lawsuit. What possible interest could his son have had in the outcome 
of this case?
  The third point Justice Dennis makes is that Representative Jones, 
who nominated Steve Dennis for the tuition waiver, did not have an 
interest in the outcome of the case.
  Let me review each of these reasons and then I will sit down. First 
of all, Justice Dennis had no interest in the outcome of the issues 
before the court. He had no relationship to either party, the newspaper 
or any of the five legislators.
  Second, Justice Dennis' son had no interest in the outcome of the 
case. Steve Dennis was first nominated for a tuition waiver by a Monroe 
legislator in 1985, 8 years before the suit was filed and 10 years 
before it came to the Louisiana court. Steve Dennis had no interest in 
the Times-Picayune application before the State supreme court because 
the public record status of the nomination forms had already been 
resolved. The fact that they were public documents meant anybody could 
go and find out whether or not in 1985 Steve Dennis had been nominated 
by Representative Jones.
  Further, Steve Dennis had no interest or stake in the remaining 
issues: The mandamus order for the defendants to turn over the 
documents or the attorney's fees awarded to plaintiffs.
  Last, Justice Dennis did not recuse himself because the Monroe 
legislator who nominated his son had no interest in the outcome of the 
case. Representative Jones was not a party to the case. He was not 
subject to the writ of mandamus or the award of attorney's fees.
  The supreme court's denial of the Times-Picayune writ application was 
simply a decision not to review the mandamus and attorney's fees issues 
any further. The court did not decide any question of law or fact. It 
established no supreme court precedent that could affect future cases. 
Nor did the rejection by the court of appeal of the Times-Picayune suit 
for attorney's fees and mandamus establish any precedent that would 
have provided grounds for nondisclosure by the Representative Jones, or 
any other nonparty.
  Once the court of appeal decision became definitive on March 17, 
1995, no custodian of a tuition waiver nomination form could claim that 
the law was unclear as to whether there was a clear duty to disclose 
the nomination records. If the custodian refused to respond favorably 
to a request by an adult person for the records, he or she was subject 
to mandamus and attorney's fees awards against him.
  Justice Dennis has explained clearly why he did not recuse himself in 
this particular case. He made a thoughtful and reasoned decision, after 
taking all the facts into consideration. And his record shows that he 
does not have a blithe disregard for Louisiana's recusal law. In fact, 
there were two cases in which Representative Jones was a party, and 
from which Justice Dennis did recuse himself. Both cases were bar 
disciplinary matters against Representative Jones that came before the 
Louisiana Supreme Court under its original jurisdiction over 
proceedings relating to disciplinary matters.
  Mr. COCHRAN. Will the Senator yield for a question on the point of 
what was at issue in the case before the supreme court? Just a 
question.
  Mr. BIDEN. Surely, I will be happy to.
  Mr. COCHRAN. One question I have that has not been brought out here 
was that this suit not only requested a ruling as to these five 
legislators, but, more important, with respect to Judge Dennis, it 
involved all legislators' records, as to whether or not they were 
public records. And the reason this is important as far as Judge Dennis 
is concerned--and did the committee 

[[Page S 14460]]
know this?--that he was a legislator before he was a judge, and he had 
awarded scholarships to Tulane and therefore records that he had 
control over, under the ruling of the lower court, made him a party in 
interest even though he was not a named defendant?
  Mr. BIDEN. If I can respond to my friend, the factual statement he 
made about Justice Dennis having been a legislator, that this affected 
all legislators, and the writ of mandamus would have affected all 
legislators, is absolutely accurate except for one big problem. That 
issue was not before the supreme court on which Justice Dennis sat.
  Mr. COCHRAN. It was if they did not overrule the fourth circuit. The 
fourth circuit had reversed the lower court. The lower court ruled that 
was public property and that all legislators had control over the files 
that were held by Tulane. And the Tulane custodian of records, Carolyn 
LaBlaime, testified in the lower court that, on the request of 
legislators, she and Tulane would make those records available. So the 
question was whether all legislators would have this responsibility.
  Mr. BIDEN. If I may respond to my friend, he is again partially 
correct. That was the issue in the lower court. That was the issue in 
the court of appeal. But that was not an issue which was appealed to 
the Louisiana Supreme Court. The supreme court did not speak to, nor 
was it asked to rule on, or affirm or overrule the question of whether 
or not these were public records.
  Mr. COCHRAN. Mr. President, will the Senator answer one other 
question?
  Mr. BIDEN. Certainly.
  Mr. COCHRAN. I do not want to delay this inordinately. I think there 
is a question that ought to be clarified; that is, at the point when 
the case reached the supreme court, none of those legislators, except 
one, had voluntarily requested Tulane to release the information they 
had regarding the appointments that legislator made to the scholarship 
privilege at Tulane. That was Peppi Bruneau. The others--even though 
the court had ruled at the district court level, and the fifth and the 
fourth circuit, the intermediate court had confirmed were public 
records--none of them had acted to respond to the Times-Picayune 
request. And, as a matter of fact, is not it true that it was only 
after all of these cases had been acted on did the paper realize they 
had won the case but they still did not have the records, and they had 
to sue again to compel delivery of the records? They had to sue Tulane 
because none of the legislators, including Judge Dennis or any of his 
colleagues who had given out these scholarships, had asked for the 
records.
  So the point is Judge Dennis, in my view, certainly, had an interest 
in whether he acted on it in deciding the case and the ruling. He did 
not disclose the interest, but he went on and acted on it nonetheless. 
It seems to me--does it not seem to the Senator from Delaware--that 
would be a proper inquiry for the Judiciary Committee to make.
  Mr. BIDEN. Mr. President, if I can respond, we did make that inquiry 
and reached a totally different conclusion than the Senator from 
Mississippi. Again, let me make clear why.
  First, there was no question. The records were public documents. The 
issue was whether a mandamus should be issued.
  Second, the fact that only one of the five legislators, turned over 
these records further underscores the point that they were the only 
five people involved in this matter. No one was asking for, in this 
court, case records from any other legislator.
  Third, the question that the intermediate court responded to 
differently than the upper court was whether or not the vehicle to get 
these records from Tulane would be a writ of mandamus or a lawsuit. 
That was the issue; not just how do you get the records. And that issue 
did not go to whether or not they would have to be produced, but when 
and under what legal document would they have to be produced. And on 
that score, Justice Dennis affirmed the intermediate court's ruling 
along with five other justices.
  Mr. COCHRAN. Mr. President, will the Senator yield for one more 
question?
  Mr. BIDEN. I would be happy to. But let me finish this point.
  I respectfully suggest, if the Senator looks at what the law says, 
what the court had said and what was before Judge Dennis, the matter 
that concerns him most, as it should, was resolved.
  Mr. COCHRAN. Mr. President, if the distinguished Senator will yield, 
the distinguished Senator said that the committee had looked into this 
issue and had come to a conclusion different from the one I came to.
  Mr. BIDEN. Correct.
  Mr. COCHRAN. How could you have done that if the information about 
this nomination to Tulane and the scholarships did not come to the 
attention of anybody until the day after the Judiciary Committee 
reported the nomination to the Senate?
  Mr. BIDEN. Mr. President, that is a legitimate question. Let me 
respond to that--the way we do in every such case. The standard 
operating procedure is, if we get something that even has the potential 
color of conflict, the majority and the minority get together. The 
standard procedure is they go back and investigate. Sometimes we call 
the FBI back in. ``Would you take a look at this? Is it specious? Is 
there anything to it? Is it real or not real?''
  Staff may also call the person making the allegation. And the staff 
makes a judgment as to whether it is specious, whether it warrants 
further investigation, or whether or not they have enough information 
to make a recommendation to the committee.
  The third thing we may do is call the nominee. We call the nominee 
and say, ``OK, look. This was raised. Here is the deal. These are the 
facts as we know them. Explain yourself.''
  That is what we did here. The explanation was given. The nominee 
wrote a letter to the committee and he was interviewed by staff. We 
read the briefs that were filed and the newspaper accounts.
  The staff concluded that Judge Dennis made the right decision, that 
he did nothing unethical.
  Mr. COCHRAN. Mr. President, will the Senator yield for a question?
  Mr. BIDEN. Yes.
  Mr. COCHRAN. I think the staff has now concluded in another way. I do 
not know whether there is any evidence that the Senator can give the 
Senate about what the staff has concluded. But in today's Times-
Picayune, there is a statement from a reporter who called and talked 
with staff members of the Judiciary Committee.
  And it says, ``At issue is Dennis' vote in a 6-to-1 Supreme Court 
decision in March to deny'' the newspaper's ``request for access to the 
. . . forms.'' And it says one staff member says that there was nothing 
new discovered. Another says there are questions raised about whether 
he should have recused himself.
  So the paper has discovered that committee staff has a difference of 
opinion. I was briefed and I can say that my impression was there is a 
serious question and that is why this motion is being made.
  Mr. BIDEN. Let me respond to the Senator, if I may. I have not seen 
today's Times-Picayune. However, it is not unusual for staff, as well 
as Member of the Senate, to have different perceptions of a given 
situation but I am not sure that is relevant.
  Let me explain the procedure. What happens is the majority staff goes 
to a gentleman named Manus Cooney, who has been on the staff for a long 
time, first-rate lawyer. He goes and speaks to the chairman of the 
committee. Karen Robb, a seasoned lawyer, who has been here a long 
time, comes to me and says now this is what the facts reveal. I then 
ask what I expect Orrin also asks: What do you think? My staff shows me 
the information. I look at it, and I say I think there is nothing here.
  The next step in the procedure is to make this information available 
to committee members directly or through staff. Again, this is standard 
operating procedure. And I am the one who as chairman initiated this 
rule. Orrin has followed the precedent--whatever investigative 
information we have, from the FBI, from any source, where there is any 
question raised. We notify members of the committee, and we say, hey, 
folks, there was a new issue raised or an old issue reraised. We have 
looked at it. If you want to know about it, come here, look at the 
information.
  A lot of this information is FBI-related material on which we only 
brief 

[[Page S 14461]]
Senators. And a lot of it is non-FBI material, like this on which we 
brief staff. This is all non-FBI stuff here. It's not confidential.
  And so I say to my friend there is nothing unusual about this case. 
There has not been a single time since I have been on this committee 
that I can think of where we have not voted somebody out and after 
having voted on it received new information. The most celebrated case? 
A Supreme Court nominee.
  Were we to reopen a full committee hearing and a full committee vote 
every single time after we voted anybody raised an allegation, we would 
effectively shut down the nominating process. Every single time, if we 
had to reopen a hearing, have a new public hearing and have a vote, we, 
the Democrats, would effectively be able to keep nominees from being on 
the bench. And the Republicans could do the same. It is just not a way 
we could possibly operate. Now, let me say one other point. If, for 
example, we came forward and the information received after we voted we 
believed was of such a consequence, Senator Hatch and I, or any member 
of the committee, that it warranted further hearings, we would have 
them. Case in point: a Supreme Court nomination.
  They have to be issues where the staff, Senators, or the ranking 
member and chairperson, somebody says, ``This is a big problem. We 
better take a look at this thing.'' Nobody said that here because 
nobody that I am aware of believes that here. So that is why we did not 
open up a new hearing.
  Mr. COCHRAN. Will the Senator yield for a question?
  Mr. BIDEN. I will yield for a question.
  Mr. COCHRAN. If a member, who is a senior member, of the Judiciary 
Committee staff tells a Senator like I was told during the briefing on 
this issue that if the committee had had the information that came to 
light after the nomination had been reported, the committee would not 
have reported the nomination, does that not seem to the Senator to be 
sufficient grounds to request reconsideration of the issue by the 
committee?
  Mr. BIDEN. The answer is no, if in fact the chairman of the 
committee, the ranking member of the committee and other members who 
had that information made available to them did not reach that 
conclusion.
  I am confident that I could find in the Agriculture Committee, in 
every other committee here, a staff member who would say after we voted 
something out, if they knew all of that information they probably would 
not have voted that way. If we operate with that as the basis for 
whether or not it is worthy to refer back to a committee a nomination 
or a piece of legislation, we are not going to get very far.
  Again, I am not in any way--please let my colleague understand and 
the record show--I am not in any way questioning the motivation of my 
colleague from Mississippi. What I am suggesting is that a close look 
at the facts and the law makes an overwhelming and compelling case that 
Justice Dennis did exactly the right thing when he concluded that there 
was no need to recuse himself.
  I see my other friend from Mississippi and my two colleagues from 
Louisiana, who are very interested in this, are here. I will be 
available if they want to ask me any more questions.
  So I will in the meantime yield the floor and stand ready to answer 
questions if anybody has them.
  Mr. JOHNSTON. Mr. President, I have looked into this matter in great 
detail, and I think the Senator from Delaware is exactly correct. I 
have read the decisions and read the letters. I think he is exactly 
correct. I must say that it is a very fine legal point. Even with what 
my friend from Mississippi said, it is hardly the kind of matter that 
is so serious as to deny a person a role on the court.
  The question of whether or not this issue was really at issue before 
the supreme court--it had not been appealed on actually what we call a 
writ of certiorari. So this question was not really before the supreme 
court. What was really before the supreme court was whether the Times-
Picayune was entitled to its attorney's fees and whether or not the 
writ of mandamus was premature.
  But, Mr. President, I daresay, if we gave our colleagues a pop quiz 
on this question nobody, save those at least on the floor, could answer 
the question, it is such a complicated legal matter.
  Suffice it to say the matter has been, I believe, effectively and 
thoroughly decided by the Judiciary Committee. This matter was pending 
for a long time. I really do not think that is the real issue behind 
whether Judge Dennis ought to be on the fifth circuit.
  Mr. President, the real question is should Judge Jim Dennis be on the 
circuit court of appeals? Mr. President, I have known him for over 30 
years. We served in the State legislature together. He is one of the 
most distinguished jurists the State of Louisiana has ever produced. 
His life has been marked by excellence in everything he has done. In 
law school, he was in the Order of the Coif; that is, a top scholar. He 
was on the Law Review, again a top scholar.
  He was in the State legislature, where he made an outstanding record. 
He has been on the bench in every level--the district court, the court 
of appeals, and the supreme court--for many years. He is one of those 
gifted legal scholars who can write things in ways that are clear and 
he can marshal up the English language and make it march, as someone 
said about Winston Churchill. He is that good, and recognized as such. 
He is a great favorite of both the bench and the bar in Louisiana. Mr. 
President, he would be an enormously popular judge.
  Now, he has certainly come within the cross hairs of the Times-
Picayune, no doubt. I must say, he is in very good company in that, Mr. 
President. You see, Paul Tulane, when he made his bequest to Tulane 
University, went to the legislature and said, ``We want people from 
every parish in the State. And we want a little financial help. Will 
you pass a law that says legislators are entitled to name people to 
Tulane tuition free?''
  The legislature passed that law over 100 years ago. For over 100 
years, it was in place in Louisiana and never questioned. I think my 
colleague said for 80 or 90 years. No, it was for over 100 years. But 
it has to be a real hot issue with the Times-Picayune. They have gotten 
Members of Congress in both Houses, in both parties--some of my 
colleagues on the other side of the aisle and in the other party are 
also in these cross hairs--and a former Republican Governor, one of the 
most honest and best we ever had, in my view. I liked him a whole lot. 
All of you know him and served with him. He is one of those in the 
cross hairs. Also a State treasurer and State legislators of both 
parties. I submit to you not all those folks are ethically deficient. 
That was a legal, ethical, proper thing. That is really what is 
involved.
  The Times-Picayune, though, has a great story, and they are pursuing 
it. This judge ruled against them, denied them attorney's fees. I do 
not know whether that has anything to do with it, but I will tell you 
one thing: If this were an opinion, rather than a newspaper story, they 
would certainly be recused because they certainly had an interest in 
this matter.
  Be that as it may, Mr. President, this is a good judge. He is a good 
man.
  This is a complicated legal question. The staff has looked at it, 
majority and minority. Look, it is not something where Joe Biden is our 
Democratic head of this thing, and sort of squelched this matter. That 
is not it at all, Mr. President. That is not it at all.
  This is a good man. He is not ethically deficient, I can guarantee 
you that. He ought to be confirmed to the fifth circuit. He deserves 
it.
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER. The Senator from Mississippi [Mr. Lott], is 
recognized.
  Mr. LOTT. Mr. President, I will rise in support of the motion to 
recommit the nomination of Justice James Dennis to be a member of the 
Fifth Circuit Court of Appeals back to the Judiciary Committee for 
further review. And I also am going to go ahead at this time and 
express my opposition to Judge Dennis for other reasons. I think 
clearly this nomination has not been sufficiently and properly reviewed 
by the Judiciary Committee.
  There has been information that has been revealed since that 
nomination was approved by the Judiciary Committee back in July that 
has not been reviewed by the full committee, by many members of the 
committee. 

[[Page S 14462]]

  As a matter of fact, I understand from what was said a few moments 
ago, that while the Senator from Delaware reviewed the accusations with 
regard to the Tulane matter, and perhaps the chairman of the committee, 
Senator Hatch of Utah, reviewed it, as a matter of fact, what happened 
after this information was given to the Judiciary Committee, I 
understand, is the staff sent a letter to Judge Dennis asking him to 
respond. Then there was a conversation by telephone regarding the 
allegations here without ever actually having an opportunity to 
interview him in person.
  He did not come back before the committee. And, as a matter of fact, 
the staff members on the two sides of the committee do not agree on 
what we should have done or how this matter was handled by Judge 
Dennis.
  So I do think there is very good reason to recommit this nomination. 
Before I talk about the specifics of the case, I want to take note that 
even the Judiciary Committee, I think, perhaps gave this nomination 
only cursory consideration. When the hearings were held, only five 
questions were asked of this nominee, and only one member asked the 
questions.
  So I really would have thought since there have been questions raised 
about this nominee almost from the beginning--in fact, I think from the 
beginning--that there would have been a fuller hearing and more 
questions would have been asked. And the questions certainly did not go 
into much probing detail. So I think just on that basis there is 
justification to ask the Judiciary Committee to review the matter 
further.
  The committee staff that conducted the investigation in this case, as 
I understand it, determined that Judge Dennis should have recused 
himself in this matter. Now, at least on the majority side, that is the 
information I received. So maybe there is disagreement by the staff on 
the other side. But I wonder, when you have staff coming to that 
conclusion that he should have recused himself in this case involving 
Tulane University and the scholarships, should not the full committee 
have reviewed their recommendation?
  This matter was reported by the Judiciary Committee on July 20, 1995. 
It was 3 days later that this matter appeared in the Times-Picayune. I 
believe Senator Cochran has already asked that this be printed in the 
Record. He has not.
  I ask unanimous consent that the Times-Picayune article of Thursday, 
July 23, be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the Times-Picayune, July 23, 1995]

                 Judge Defends His Tulane Records Vote

                           (By Tyler Bridges)

       State Supreme Court Justice James Dennis, whose son 
     received Tulane tuition waivers, later voted to deny a 
     request by The Times-Picayune for review of a lower court 
     decision in the newspaper's suit seeking access to five New 
     Orleans legislators' Tulane scholarship nomination forms.
       The newspaper eventually received the scholarship 
     nomination forms of all Louisiana legislators by filing a 
     subsequent lawsuit against Tulane.
       The records obtained from that suit show that Stephen 
     Dennis was awarded Tulane tuition waivers for three years in 
     the late 1980s by then-state Rep. Charles D. Jones, D-Monroe.
       An associate justice of the Louisiana Supreme Court since 
     1975, James Dennis last year was nominated to a federal 
     judgeship by President Clinton. That nomination, to the 5th 
     Circuit Court of Appeals, was approved by the Senate 
     Judiciary Committee Thursday night and now goes to the Senate 
     floor. Dennis, however, continues to face strong opposition 
     from Mississippi's two senators, who argue that an appointee 
     from their state deserves the judgeship and that Dennis is 
     soft on crime. The appeals court hears cases from Texas, 
     Louisiana and Mississippi.
       Prior to his election to the Louisiana Supreme Court, 
     Dennis, 59, a native of Monroe, was a state district judge, 
     an appellate judge, and a state representative.
       The Tulane scholarship that Dennis' son received is awarded 
     under a century-old program that permits every legislator to 
     award a tuition waiver every year.
       Jones, now a state senator, declined to explain why he 
     nominated Stephen Dennis.
       In a written statement to the newspaper, Dennis said that 
     his son in 1985 had sought the scholarship on his own, 
     ``without my suggestion or help . . . At that time, Steve was 
     26 years old, married, and a resident of (Jones') district. 
     He and his wife were struggling but fully self-supporting and 
     financially independent of me. I was unable to assist Steve 
     in going to law school because of my obligations of support 
     owed to my wife and three younger children. I did not ask 
     (Jones) to nominate Steve for the waiver. I believe that the 
     nomination was made on the basis of Steve's academic record, 
     his financial need of educational assistance and his 
     outstanding extracurricular and other achievements.''
       Dennis in March 1995 voted in the majority of a 6-1 
     decision to deny The Times-Picayune's request that the 
     Supreme Court review an appeals court ruling in the 
     newspaper's suit against the New Orleans legislators.
       In a written statement to the newspaper, Dennis said the 
     case did not pose a conflict of interest for him because the 
     appeals court already had upheld The Times-Picayune's primary 
     contention that the nominating forms were a public record. 
     Dennis said further review of the ``collateral issues'' 
     raised by The Times-Picayune's request for review was not 
     warranted.
       While the appeals court upheld the newspaper's position 
     that the forms were public records, it also had ruled that 
     legislators were not required to get their scholarship 
     nomination forms from Tulane if they did not have the forms 
     in their possession. This issue was important to the 
     newspaper because numerous legislators had declined to 
     identify their recipients, no longer held the forms 
     themselves and had declined to get the forms from Tulane. In 
     fact, even after the appeals court ruling, four of the five 
     defendants refused to obtain their forms from Tulane and make 
     them public.
       ``I did not have any interest in the outcome of the only 
     issues to come before the Supreme Court,'' Dennis wrote the 
     newspaper. He would not answer questions beyond his written 
     statement.
       Under the Louisiana Code of Civil Procedure, a judge may 
     recuse himself when he ``is biased, prejudiced or interested 
     in the cause or its outcome or biased or prejudiced toward or 
     against the parties . . . to such an extent that he would be 
     unable to conduct fair and impartial proceedings.''
       After the Supreme Court denied The Times-Picayune's request 
     for review, the newspaper filed suit to force Tulane to 
     release the scholarship nomination forms of all Louisiana 
     legislators. Civil District Judge Gerald Fedoroff ruled in 
     the newspaper's favor in June, and Tulane released the 
     records this month.

  Mr. LOTT. Mr. President, so it was 3 days after the committee had 
acted when this whole issue started coming to the forefront and 
questions were being raised about Judge Dennis and his involvement in 
that ruling on the Louisiana Supreme Court.
  Clearly, while you can argue that it came to the supreme court in a 
very narrow way, I think clearly this is a question of judgment. That 
is very key here. We are fixing to put a nominee on the Fifth Circuit 
Court of Appeals, a Federal court, for life, and a nominee's judgment 
is very critical in whether we vote for or against him.
  He knew about the practice in Tulane. He knew about the Times-
Picayune investigation. He had, in fact, participated in this process. 
I do not judge it, prejudge it, or condemn it. I know it went on. What 
was really involved here was a decision about whether or not this 
information should be made available, as I understand it. Clearly, he 
had had an involvement as a legislator and his son had been involved. 
It appears to me judgment would have dictated that he would have 
recused himself.
  As a matter of fact, the Louisiana rules of court, canon 2 says:

       A judge should avoid impropriety and the appearance of 
     impropriety in all activities.

  Surely there was at least an appearance of impropriety in this 
matter.
  I have experienced some unusual things with regard to this judge. In 
the 7 years I have been in the Senate, this is, I think, maybe only the 
second time I have spoken against a judge, the only time where I have 
gotten into it to the degree that I have on this one. So it is unusual 
for me, and I do not take great pleasure in it. I am sure he is a fine 
man with a good education. Obviously, he is a good friend of the senior 
Senator from Louisiana and Senator Breaux from Louisiana. They are both 
outstanding Senators and good personal friends. I do not take any 
pleasure in raising questions about a judge that they are recommending. 
There is nothing personal involved with them. In fact, I will always 
bend over to try to be cooperative with these two fine Senators.
  But in this case, I think there are many reasons why this nomination 
should be recommitted to the committee and, furthermore, why this judge 
should not be approved for the Fifth Circuit Court of Appeals.
  The second thing that is unusual about this one is I have been 
inundated with correspondence from people in 

[[Page S 14463]]
Louisiana from all stations in life saying that this nominee should not 
be confirmed--small business men and women, executives of corporations 
in Louisiana, just private citizens, prosecutors. We have a file that 
is probably 6 inches thick of letters from people raising questions 
about the qualification of this nominee.
  I have been struck by that. I started off, quite honestly, being 
opposed to this nominee because it did damage to the proper balance on 
the Fifth Circuit Court of Appeals. But as I got into the merits, or 
demerits, of this nomination, I found that there were a lot of 
questions that surrounded this nominee.
  I am just going to read some of the excerpts from some of the letters 
I received. One says:

       As a Justice on the Louisiana Supreme Court he has been 
     notorious for writing law from the bench. His actions have 
     had a serious negative impact on the Louisiana economy.

  This is a person who apparently is in the printing business.
  Another one from the Louisiana Association of Business and Industry. 
Just one sentence from this letter:

       In the area of expansion of government, taxation and tort 
     law, he is far out of touch with both legislative intent and 
     the sentiments of most Louisiana citizens.

  From a college official, it says:

       Judge Dennis is an enemy of not only small business, but 
     Louisiana's workman's compensation program.

  From an attorney:

       Justice Dennis is the type of judge who is not content with 
     following and applying the law to the facts of the case 
     before him. Rather, he is the kind of judge who desires to 
     bring about a specific result, and then conjures up dubious 
     theories of law to reach that result. Justice Dennis is not 
     the kind of judge who hesitates to ``make law'' when existing 
     law does not suit his philosophy.

  I think one of the most striking things came from an assistant 
district attorney in Louisiana who has had, obviously, a great deal of 
experience in criminal law practice in Louisiana. His letter was 
lengthy and gave example after example, citing specific cases where 
this is a judge that he felt should not be moved to a higher court. I 
will read two paragraphs from his letter:

       I have been a violent crimes prosecutor for the past 20 
     years, beginning as an assistant district attorney in Baton 
     Rouge, Louisiana, in 1974. Also for 2 years, I was dispatched 
     all over our State prosecuting as an assistant attorney 
     general. For the last 12 years, I have been the chief felony 
     prosecutor in the rural but large parish of St. Landry, which 
     lies between Baton Rouge and Lafayette. I wholeheartedly 
     agree with statements that I have seen ascribed to you that 
     James Dennis ``has a record of court activism inconsistent 
     with the views of the majority.'' He has consistently crafted 
     judicial decisions, while intellectually forceful, that are 
     wrongheaded and unresponsive to the crime problems from which 
     our communities are suffering.

  So you see, this is not just a matter of a disagreement whether this 
judge should be from Mississippi or from Louisiana, and this is not a 
case where I have gotten a lot of mail from my own State about this 
judge. This is a case where I have been flooded with letters and calls 
and correspondence from elected officials, of people throughout 
Louisiana in all walks of life saying this nominee should not be 
confirmed.
  One other thing before I go to this next part. Just a couple of weeks 
ago, I had another call from a State official who raised questions 
about another court action involving gaming versus gambling. I have 
submitted this material to the Judiciary Committee staff. I do not know 
whether it is a serious matter or not, but when a State official calls 
and says this is something the Judiciary Committee should consider, I 
think they should take a look at it. Maybe they have at the staff 
level. There is clearly enough question here surrounding this 
nomination that the committee should take another look at it.
  Let me go to these other points that I think I must make. I generally 
err on the side of giving the President the benefit of the doubt on 
nominations in his administration. I think Presidents should have great 
latitude in selecting individuals for service in their administration, 
including Federal judicial appointments, especially the circuit courts. 
So barring character flaws or illegality or extreme policy positions 
which are inconsistent with American values, I generally am inclined to 
go along with him. But in this case, I do think there are some 
questions about character and judgment, and I think clearly some of the 
policy positions here are out of order.
  After reviewing this nominee and his rulings, I reached two 
conclusions: He is clearly a judicial activist predisposed to create 
law from the bench instead of interpret it, and, second, his rulings 
fail to support severe and harsh punishment for convictions for violent 
and wanton criminal acts.
  Last, I do not believe the nomination of Judge Dennis is fair or 
appropriate given the makeup of the Fifth Circuit Court of Appeals. The 
fact of the matter is, this position is vacant because the chief judge 
retired, Judge Charles Clark from Mississippi, and has been vacant 
since then.
  If a Mississippian is not appointed to this position, our State will 
have only two members on the Fifth Circuit Court of Appeals, not nearly 
enough to try to stop a circuit court of appeals nomination. But this 
is a question that is affecting Senators and the circuit courts all 
over this country. I hear--and I believe this is true--a growing 
concern about disparity in the various circuits. So I think this is a 
question that should be reviewed by the Judiciary Committee. I know 
that several of the members of the committee were concerned about that 
and came to me and asked questions about it. I acknowledge that that 
alone certainly is not enough to oppose this nomination. But as a 
Senator from my State, I do have to put on the record the fact that I 
think that our State is not going to be properly represented in this 
circuit court.

  So I invite Senators from other circuits in other States to be aware 
that if this pattern begins to develop, we will get to a situation 
where the big States--California, Texas, or New York--will not only 
have the margin of the majority, but dominate or have total control of 
these circuits. I think that we need to think about that.
  Now, I want to cite my biggest concern, and that is the way this 
supreme court judge has been ruling. I think that is the real reason 
why he should not have been confirmed. Over the last several months, I 
have reviewed many of Justice Dennis' writings and opinions issued by 
the Supreme Court of Louisiana.
  In two areas, I am particularly concerned with the views of this 
nominee. I urge my colleagues to take a look at his rulings on crime 
matters and on business. There is no question that James Dennis is 
intellectually a bright jurist, and you will see it in his opinions. 
They are very interesting in the way they are written. However, the 
intellectual energy he devotes to the law fails to lead to consistent 
rulings of justice and compassion for the victims of crime. You do not 
need to look far to see that when it comes to ruling on violent crimes, 
Judge Dennis is not the victims' judge.
  So I would like to cite some of the cases that I think are really 
important.
  At 5 a.m. on July 2, 1977, the defendant, Dalton Prejean, and three 
other people left a nightclub in a stolen 1966 Chevrolet. They had been 
drinking heavily for the entire evening in Lafayette Parish, LA. 
Prejean was driving. The vehicle was stopped by State Trooper Donald 
Cleveland--the car's taillights were not working.
  Prejean, who was driving without a license, attempted to switch 
places with an occupant in the front seat. Trooper Cleveland saw the 
driver attempt to switch places and ordered the driver out of the car. 
Dalton Prejean emerged from the car with a .38 caliber revolver and 
shot Trooper Cleveland twice. Trooper Cleveland later died from his 
wounds.
  Prejean was convicted of first-degree murder in the Fourth District 
Court of Louisiana and was sentenced to death. Prejean appealed on four 
issues, including his claim that he was due a new trial because one 
juror had failed to disclose his relationship with law enforcement 
officers on the voir dire. Justice Dennis dissented from the court's 
refusal to grant a rehearing, arguing that a ``proportionality rule'' 
should be applied. That is, Judge Dennis argued that before the death 
penalty should be imposed on the defendant, the sentence should be 
compared to sentences in all similar cases throughout the State of 
Louisiana. The 

[[Page S 14464]]
intellectual foundation of Judge Dennis' argument was found not to be 
proper and it was reversed.
  The U.S. Supreme Court has repeatedly affirmed the use of the death 
penalty, and the U.S. Congress has repeatedly voted to support the 
death penalty, particularly on crimes of wanton and reckless violence, 
particularly against law enforcement officers.
  So I thought this was an extreme stretch to try to say that we should 
have an overruling of the death penalty based on some sort of 
proportionality rule. We have heard that theory discussed, but it has 
never been accepted as one we should go forward with.
  Now, going to the business area. In a case entitled Billiot versus 
B.P. Oil, Billiot, while working in a B.P. Oil refinery, was burned 
with a valve when it failed and sprayed a hot substance on Billiot. His 
subsequent injuries were not the result of exposure to the substance, 
but to the heat of the substance. He sued the oil company, seeking 
compensatory relief under the workers compensation law, and punitive 
damages under a law allowing punitive damages to individuals injured by 
the storage, transportation, or handling of hazardous substances.
  On September 29, 1994, Judge Dennis wrote a majority opinion for the 
Louisiana Supreme Court on the case. In his ruling he, in effect, 
reinterpreted two State laws--the workers compensation law and the law 
allowing individuals injured by hazardous materials to seek punitive 
damages.
  Dennis breathed new and fictional life into a 1914 workers 
compensation statute by postulating that the exclusive remedy provision 
of the Louisiana workers compensation law did not apply to punitive 
damages. In addition, he interpreted that Billiot could sue for 
punitive damages under the hazardous materials damage law--even though 
the injury was not caused by the hazardous material.
  The impact of this ruling was disastrous for business in the State of 
Louisiana and equated to the mother lode of case opportunities for 
lawyers in that State. The landmark ruling did not crack the dike of 
tort litigation--it blew it wide open, and thousands of small business 
owners stood downstream of these flooding waters. That ruling was a 
shining example of judicial activism at work, one where two laws were 
interpreted anew from whole cloth, creating this new area for 
litigation.
  There are a whole series of cases where Judge Dennis has ruled in 
ways that can be of great concern to those who are interested in 
getting fair rulings and doing business. We have a whole list of these 
cases. I will submit these as part of the Record. I think we have about 
15 cases.
  I ask unanimous consent that the list of cases be printed in the 
Record.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

Anti-Economic Development Decisions Authored or Concurred in by Justice 
                                 Dennis

       Billiot v. B.P. Oil Company, No. 93-C-1118 (La. Sup. Ct. 
     Sept. 29, 1994) (Authored by Justice Dennis.):
       This decision is a double-whammy against the business 
     community. First, it is an absolute assault on the exclusive 
     remedy provision of workers' compensation that says an 
     employer cannot be sued in tort for a work-related injury of 
     an employee. Justice Dennis reasoned that since the Workers' 
     Compensation Act (enacted in 1914!) did not specifically 
     provide for inclusion of punitive damages in the tort 
     exclusion, it doesn't exist. Further, he argues that, 
     although the statute that triggers the punitive damages 
     refers to the transportation, handling or storage of 
     hazardous substances, the hazardous nature of the substance 
     does not have to cause the injury! Trying to assess risk 
     under this decision is going to be a nightmare--but one thing 
     is sure; your insurance (or your liability exposure if you 
     are self-insured) is going to go up!
       B.P. Oil Company v. Plaquemines Parish Government, 642 
     So.2d 1230 (La. 1994) (Sales Tax) (Concurred in by Justice 
     Dennis.):
       This decision would extend the state sales tax on utilities 
     and other items to the local level where the law currently 
     prohibits it from being collected. This decision--if not 
     reversed when the Supreme Court rehears it--will cost 
     businesses and all utility customers hundreds of millions of 
     dollars. LABI has joined over 60 other businesses and 
     associations--including the NAACP and the Public Service 
     Commission--in filing amicus briefs to ask the court to 
     change this disastrous decision.
       Halphin v. Johns Manville Sales Corp., 484 So.2d 110 (La. 
     1986) (Products Liability) (Authored by Justice Dennis.):
       This case was one of the worst assaults on economic 
     development ever handed down by a court in Louisiana. Prior 
     to Halphin, liability in products liability cases was 
     determined by looking at alleged design defects, failures to 
     warn properly or manufacturing defects. Halphin added a new 
     category by saying that some products were ``unreasonably 
     dangerous per se.'' Under Justice Dennis' decision, even 
     though a product that caused an injury had no design or 
     manufacturing defect and had proper warning labels, the 
     manufacturer could be forced to pay damages because the 
     machine was ``unreasonably dangerous per se.''
       The case sent a shock wave through the manufacturing and 
     retail communities in Louisiana and throughout the United 
     States. The decision was so radical that, in spite of strong 
     trial lawyer opposition, the state legislature overturned the 
     decision in 1988.
       Ross v. La Coste, 502 So.2d 1026 (La. 1987) (Strict 
     Liability) (Authored by Justice Dennis.):
       In this case, which expanded the doctrine of strict 
     liability, the owner/lender of a ladder was successfully sued 
     for damages by the borrower for injuries caused when the 
     ladder collapsed. The owner had no knowledge of the ladder's 
     defects, yet was held liable.

  Mr. LOTT. Mr. President, I will conclude with these three points. I 
think that Justice Dennis' judgment in the Tulane matter clearly should 
be questioned and should be reviewed by the Judiciary Committee as a 
whole. I think there is no question that this is a judge who has been 
an activist, and there are many decisions that back up just the two 
that I cited that raise questions about his activism. I think that 
should cause real concern in the Senate in confirming his nomination.
  I urge that this nomination be recommitted to the Judiciary 
Committee.
  I yield the floor.
  Mr. BREAUX. Mr. President, I think, first of all, it is a little 
interesting to note that if this issue was of such monumental 
importance that it should be recommitted to the Judiciary Committee for 
further consideration, the chairman of the Judiciary Committee, the 
distinguished Senator from Utah, Orrin Hatch, would be here advocating 
that. He is not. In fact, he does not support the motion to recommit.
  The distinguished ranking member of the Judiciary Committee, Senator 
Biden, spoke here on the floor about this very issue and said that, as 
the ranking Democratic member of the Judiciary Committee, he, too, felt 
that the committee had exercised their responsibility and looked at 
this nominee very carefully. After the committee had voted, additional 
material that was submitted to the committee was considered by the 
professional staff, by the chairman of the committee, the distinguished 
Senator from Utah, and by the ranking member of the Committee on 
Judiciary, the Senator from Delaware, Senator Biden. They and the 
professional staff circulated all of that information to all the 
Judiciary Committee members. As I look around to see if there are any 
of these members here who are saying they somehow have not had an 
opportunity to consider this nominee, I see none.
  I think it is clear that this case has been carefully considered by 
the committee. I think that Senator Biden, very eloquently and in great 
detail, covered all of the allegations we have heard this morning with 
regard to information that the Senator from Mississippi was arguing was 
a reason to recommit this to the committee. I think Senator Biden's 
comments were right on target. There is no basis whatsoever to send it 
back to the committee. The only allegation I heard that supported that 
argument was basically the fact that Judge Dennis should have recused 
himself in a case before the supreme court that he ruled on.
  Senator Biden made it very clear that he had no conflict in that 
case, that the supreme court voted 6-1 and he very carefully documented 
why not only should he not have recused himself, that it would have 
been wrong had he done that, that he had an obligation as a justice to 
rule on the case, that he had no interest in the case whatever. That, I 
think, has certainly been clearly established.

  If the distinguished chairman of the Judiciary Committee disagreed 
with that, I think that he would make that opinion known. He does not, 
and neither does the ranking member of the committee.
  Mr. President, I have known Jim Dennis for a number of years, a long 
number of years. I have known him personally and known him as a very 

[[Page S 14465]]
distinguished jurist on the State supreme court. Somehow to argue on 
the other hand that he is out of touch with our State is to not 
consider all the number of times he has gone before the people of our 
State and offered himself for election, because we elect judges.
  If he was out of touch with Louisiana, basically a conservative 
Southern State, he would not have been elected to the district court 
which he has been elected; that he would not have been elected as a 
court of appeals judge that he was elected to and subsequently 
reelected; that he would not have been elected to the State supreme 
court which he was elected and has served and then reelected without 
opposition to a 10-year term.
  Louisiana does not elect people that they disagree with. I suggest 
that his opinions as a judge, his record as a State-elected official, 
as a Member of the House of Representatives, indicates that not only is 
he acceptable to the people of Louisiana, that he is enthusiastically 
accepted as someone that they have taken great pleasure in having them 
represent in legislative bodies and on every court in Louisiana: the 
district court, elected; court of appeals, elected; and the State 
supreme court, elected and reelected without anybody running against 
him.
  I think it is clear that this person fits the mold of the type of 
judges and members of the judiciary that the people of Louisiana like 
to see.
  Some say that he is not a mainstream jurist. I point out that in the 
20 years he has served on the supreme court, the information that we 
have by the supreme court itself says that he has sat on 7,655 cases in 
which an opinion was published. He voted with the majority in 7,148 
cases. That is 93 percent of every case they wrote an opinion on, he 
agreed with the majority.
  All of these judges are elected, from all parts of our State. If he 
was out of touch with the people of my State of Louisiana, they would 
have said so. If he was out of touch with the other members of the 
judiciary, he would not have voted with them in deciding the majority 
of the opinions in 93 percent of 7,655 cases.
  To somehow allege that he is not part of the mainstream I think is 
totally contrary to the record in the case.
  Some say that he is not strong enough on crime, and we have some 
letters from some nameless people who write and say that he is weak on 
the death penalty or not good for law enforcement.
  I have a letter from the attorney general of the State of Louisiana, 
the highest elected law enforcement official in our State, Richard 
Ieyoub. He says:

       John Dennis is universally regarded as one of the brightest 
     and most effective judges in the State of Louisiana. His 
     opinions are excellent examples of legal scholarship and 
     reasoning. I have carefully monitored the decisions of the 
     Louisiana Supreme Court relative to victims' rights and the 
     operation of the criminal justice system in general, and I 
     feel very comfortable with the decisions rendered by Justice 
     Dennis on these matters. His opinions in the criminal law 
     area have generally benefited law enforcement.

  One of the sheriffs of one of the largest areas in our State, greater 
New Orleans, Jefferson Parish, a distinguished sheriff, Harry Lee, who, 
probably more than any other sheriff in Louisiana, is noted for being 
tough on crime and good for victims of crime and tough on criminals. 
Harry Lee, the sheriff, says:

       In my opinion, Justice Dennis has done an excellent job, 
     both from the standpoint of law enforcement and individual 
     citizens. He has faithfully followed the law as written by 
     the legislature. He is generally regarded as a fair-minded, 
     scholarly, hard-working and effective jurist. In short, he is 
     extremely well-qualified, perfectly suited, and well able to 
     serve with distinction as a judge of the U.S. Court of 
     Appeals.

  This is probably the toughest sheriff in the State of Louisiana. 
Would he say a respected jurist on the fifth circuit is an outstanding 
person and well-qualified if he was weak on crime and weak on the 
rights of victims of crime? Of course not. He has staked his public 
reputation on the fact that this person is just the type of judge we 
need.
  My friend from Mississippi, Senator Lott, distinguished majority 
whip, has cited two cases he says are evidence of his judicial activism 
or taking positions that is not in keeping with what we want in members 
of the judiciary.
  I respectfully disagree with his conclusion and think that the cases 
that he has cited give us exactly the opposite result. He cited one 
case, the Billiot versus B.P. Oil Co. where victims were protected by 
the law of the State of Louisiana, and there are some who were 
penalized because they violated the law of Louisiana and are now 
raising opposition to Judge Dennis because he interpreted the law as it 
was written.
  When someone disagrees with the law, you do not criticize the judge 
for applying the law. You try and give the law a change if you 
disagree. That is what legislative bodies are for. In this case, it was 
a workmen's comp case. The person was injured and he was injured very, 
very severely.
  The law of Louisiana, the State law passed by a majority of the 
people in the legislature, allows for punitive damages in limited 
cases, in limited categories, involving wanton or reckless conduct or 
reckless disregard of public safety in the handling or transporting or 
storage of hazardous or toxic substances.
  In this case, it involved hazardous material that ended up--because 
it was mishandled--injuring a person very severely. In this case, the 
State supreme court said that the law does not preclude a worker from 
being able to get punitive damages for the wanton or reckless conduct 
or reckless disregard of public safety. In this case, they applied the 
law properly and correctly.
  It was not a judge's fault, if you will, that the case did not come 
out as some of the defendants would have liked it to come out. That is 
what the law said. If Judge Dennis had been an activist judge, he could 
have said, ``I don't think the law should say that; therefore I will 
come to a different conclusion.'' The exact opposite was true. Not only 
not being an activist by trying to rewrite the law, he applied the law. 
For those that do not like the law, go change the law.
  Mr. President, it is interesting, that is exactly what happened. They 
put a coalition together in the last session of the Louisiana 
legislature and they got the legislature to change that law because 
they made the argument, and a number of the members of the legislature 
agreed with them, that the law was too generous in that opinion--not 
mine, but in theirs. They changed the law.
  But you do not get mad at the judge for interpreting it correctly. If 
you do not like the law, you think it is not correct, you change the 
law. Do not change the judge who carefully interpreted it. That is what 
happened in the Billiot case.
  In addition, the case was decided by a 5 to 2 decision of the supreme 
court of the State. Were all the judges wrong? I think not. I think 
they correctly interpreted the law as it was.
  The State versus Prejean case that the distinguished Senator Lott 
cited, Justice Dennis voted merely to grant the defendant a rehearing 
based on a recent U.S. Supreme Court decision that set out the 
parameters under which a death penalty can be instituted by court. The 
only thing that Judge Dennis was saying is that he wanted to have a 
rehearing in light of the new supreme court decision to see if it 
affected this particular case. It has nothing to do with Judge Dennis' 
support of the death penalty or being tough on crime.
  In fact, I point out that Judge Dennis has repeatedly voted in court 
to uphold the death penalty. Since the death penalty was reinstated, 
Louisiana Supreme Court has heard on direct appeal the capital cases of 
some 98 defendants, affirming 84 percent and reversing 16 percent of 
those capital convictions on lower court. Judge Dennis sat on 93 of 
those cases and voted to confirm the convictions 80 times, 86 percent, 
just about the same average of everybody else on the court.
  In the cases where Judge Dennis has dissented, it is interesting here 
because if you say that he is out of step with the majority of the 
court, he clearly is not. When he has dissented, however, his dissent 
has been upheld by the U.S. Supreme Court.
  Judge Dennis, the facts show, authored the dissenting opinion in six 
cases since he has been on the supreme court. In six cases he dissented 
from the majority. In all six cases subsequently reviewed by the U.S. 
Supreme Court, in all six cases, the U.S. Supreme Court reversed the 
Louisiana 

[[Page S 14466]]
Supreme Court. It said, ``Justice Dennis, you are right. The supreme 
court of your State made an error in all six cases.''
  I think when you look at this man's record, his distinguished record 
in every court in Louisiana, I think you would have to agree with me 
that this person deserves a seat on the fifth circuit court of appeals. 
He would make an outstanding judge, an outstanding jurist, as he has 
all his life.
  I will not go into an argument as to whether it should be a 
Mississippi judge or a Louisiana judge for this vacant seat because I 
think the record is clear. You determine what area justices come from 
based on the caseload. I think the caseload between Texas and Louisiana 
and the State of Mississippi is very clear; very, very clear. I do not 
think there is even an argument. This vacancy should be from the State 
of Louisiana.
  In 1993, the last year we had numbers, there were 1,309 appeals filed 
from district courts in Louisiana to the fifth circuit court of 
appeals. There were only 450 appeals filed from district courts in the 
State of Mississippi. That is a 2.9-to-1 ratio--essentially a 3-to-1 
ratio. If the present vacancy is filled with Justice Dennis, Louisiana 
would have six seats on the fifth circuit; Mississippi would have two 
seats, a 3-to-1 ratio. The ratio is as close to being proper, when you 
look at the caseload, as is humanly possible to reach.
  Louisiana has 34 active and senior district judges in our State. 
Mississippi has only 10 district judges, a 3.4-to-1 ratio.
  So, when you look at very objective numbers on where should this seat 
come from, I think it is very clear that the caseload and the number of 
judges clearly indicate that a judge from Louisiana is the proper 
recommendation.
  Second, I would argue very strongly, and I think it is very clear, 
the background, the history of this judge has been carefully, carefully 
scrutinized by the Judiciary Committee, and I think we should all 
support the ranking member and chairman of that committee in voting 
against the motion to recommit.
  I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Mississippi [Mr. Cochran] is recognized.
  Mr. COCHRAN. Mr. President, I understand there may be one or more 
other Senators who wish to speak to this motion to recommit the 
nomination. For the information of those Senators, and others, I am 
going to again point out the reasons why I am filing this motion and 
why I think the Senate should approve it. But I do not expect to take 
much time in arguing this point further.
  We have had a pretty full discussion of the issue, particularly in 
the colloquy on the floor with the distinguished Senator from Delaware, 
the ranking member of the Judiciary Committee. I remain concerned about 
the attitude of the committee concerning the issue involving the case 
that was filed in Louisiana that made its way to the supreme court, in 
which Judge Dennis participated as a member of the Supreme Court of 
Louisiana, wherein legislators, who had provided tuition-free 
scholarships to Tulane University to friends and supporters, were sued 
by the Times-Picayune newspaper to compel the production of documents 
relating to that scholarship program.
  I want to be sure the Senate understands exactly what the issues were 
and why Judge Dennis' refusal to recuse himself and his action in 
participating in the ruling on that case strikes me as inappropriate 
and a clear violation of the code of conduct of judges, both U.S. 
judges and judges who at the time were serving in Louisiana.
  The Times-Picayune had tried to obtain, as I understand the facts, 
information from legislators, or from Tulane University itself, about 
the names of those who had been given scholarships by legislators. I am 
not suggesting this was violative of the law in itself. As a matter of 
fact, there was a specific statute authorizing these scholarships to be 
given. I do not know all the history, but, as I understand it, it had 
something to do with the fact that Tulane University has certain tax 
benefits under the laws of the State of Louisiana. The legislators who 
make the laws of the State of Louisiana were, in the last century, 
given the right to name certain scholarship recipients each year to 
attend Tulane without having to pay tuition.
  Over the years, the tuition at Tulane has become quite substantial. 
As a matter of fact, Stephen Dennis, who is the son of Judge Dennis, 
received 3 years of tuition-free scholarship benefits to Tulane 
University from a member of the legislature in Louisiana, 
Representative Jones, that is estimated to have a value of about 
$60,000.
  The suit involved a refusal of legislators to say or to disclose or 
provide records of information about who they had given scholarships 
to. Tulane had likewise refused to give this information to the paper. 
Tulane took the position that this was information that should be made 
available by the legislators. They had customarily made it a practice 
of providing that information to legislators who requested it, but not 
to others, third parties.
  So, the case proceeded to a trial. The legislators refused to provide 
the information, so a district court judge at the trial level ruled 
that these records were public documents and public access was a matter 
of right.
  A second question that had been asked--and relief demanded--was that 
the legislators be made to turn over those documents to the newspaper. 
The district court agreed with that and made a part of its judgment an 
order granting a writ of mandamus. A writ of mandamus requires a public 
official to do what they ought to do under the law. Having ruled that 
this was public information, public records to which the Times-Picayune 
were entitled, the court followed it to the next step and ruled that 
the legislators who had access to these documents should be required 
and mandated by the law and by the court to turn those documents over.
  And the third issue was whether or not the Times-Picayune should be 
awarded attorneys' fees, having been forced to file the suit by the 
refusal of the legislators to turn over these documents. And the judge 
also ruled that they were entitled to attorneys' fees. So the case, 
because the legislators disagreed with the ruling, was appealed to the 
next step. It was a fourth circuit court of appeals in the State of 
Louisiana.
  That court decided the district court had ruled correctly in the 
first instance, that these were public documents, but they did not 
grant the writ of mandamus. So they reversed the decision of the 
district court as to the writ of mandamus and they also reversed on the 
question of attorney's fees. So in this situation, the Times-Picayune 
disagreed with that ruling and they appealed, or filed for a writ of 
certiorari for a hearing before the State supreme court.
  Enter Judge Dennis. Judge Dennis' son had been granted a tuition 
waiver. Of course his name would be among those in the records held by 
Tulane University. These tuition waivers had a value to his son of 
about $60,000. Judge Dennis himself had been a member of the 
legislature and, as such, had the right to grant scholarships himself 
when he was a member of the legislature, so the records of his own 
decisions were also among those records that would be subject to being 
disclosed to the public, not only as a matter of right that the public 
would have, but as it relates to the responsibility of each legislator. 
If the supreme court sided with the district court, it would actually 
rule that the legislators were required to make this information 
available on request to newspapers such as the Times-Picayune. And, of 
course, the issue of attorney fees was also raised before the supreme 
court.

  Now the Judiciary Committee, not having had any of that information 
before it but simply the nomination from the President--President 
Clinton nominated Judge Dennis in the last Congress--had a cursory 
hearing. Judge Dennis was asked five questions. There was no witness 
who appeared for him or against him to testify to any other matters. 
The committee did not inquire into any of these issues raised by that 
suit, by Judge Dennis' participation in the rulings on that suit at 
all. No one had heard about it. Judge Dennis knew about it. He had been 
questioned by the newspaper about it. He did not tell the Judiciary 
Committee that. 

[[Page S 14467]]

  So the Judiciary Committee reported out the nomination. And after 
they had done that, then the Times-Picayune wrote this story based on 
the information they had obtained as a result of this lawsuit and other 
and independent investigations they had undertaken.
  So the issue, it seems to me, is whether or not Judge Dennis adhered 
to the rulings of the courts, adhered to the standards of ethical 
conduct, adhered to the code of judicial ethics that he had to be aware 
of, that was in effect in Louisiana at the time, and which is in effect 
for all U.S. courts throughout the land. I am going to read from canon 
1 of the Code of Conduct for Federal Judges.

       An independent and honorable judiciary is indispensable to 
     justice in our society. A judge should participate in 
     establishing, maintaining, and enforcing high standards of 
     conduct, and should personally observe those standards so 
     that the integrity and independence of the judiciary may be 
     preserved.

  In the commentary below it says:

       Deference to the judgments of rulings of courts depends 
     upon public confidence in the integrity and independence of 
     judges. The integrity and independence of judges depend in 
     turn upon their acting without fear or favor.

  And in canon 2:

       A judge should respect and comply with the law, and should 
     act at all times in a manner that promotes public confidence 
     in the integrity and impartiality of the judiciary. A judge 
     should not allow family, social, or other relationships to 
     influence judicial conduct or judgment.

  Mr. President, I submit that the circumstances of this case involving 
the tuition waivers in Louisiana, the legislators and their rights 
under the law--this case that was filed asking for information about 
the records and past practices of legislators was acted upon by Judge 
Dennis in disregard of the canons of code of conduct of judges--that 
should be reviewed and considered by the Judiciary Committee.
  I am hopeful that Senators will approve the motion to recommit this 
nomination to the Judiciary Committee to give the committee an 
opportunity, each member of the committee an opportunity, to become 
familiar with the facts, to ask questions of Judge Dennis or others who 
may have information touching on this subject, so that we in the Senate 
will have a full report and can base a decision about whether or not to 
vote to confirm Judge Dennis on a full and complete inquiry, which, in 
my judgment, ought to be undertaken by the Judiciary Committee at this 
time.
  Mr. President, I understand that Senator Kyl is here and is 
interested in addressing this issue.
  I ask unanimous consent that I may be permitted to yield the floor so 
that he may speak, and then I will reclaim my recognition without 
losing my right to continue my remarks.
  The PRESIDING OFFICER (Mr. Frist). Is there objection? Without 
objection, it is so ordered.
  Mr. KYL. Thank you, Mr. President. I thank the Senator from 
Mississippi for yielding. I would like to address this for 2 or 3 
minutes.
  I am a member of the Judiciary Committee. But, as is the Presiding 
Officer, I am a freshman and, therefore, was not present when the 
Judiciary Committee held its meetings on this matter in September 1994. 
There are five new members of the Judiciary Committee. So roughly one-
third of the committee is new and did not have an opportunity to review 
the application, to question the witness, and to resolve matters that 
may have been raised at that time.
  I understand that most of the questions have actually been raised 
since then. But I suggest that probably raises the question of perhaps 
having an additional hearing to deal with these questions.
  I have the greatest respect for Senators Breaux and Johnston, and I 
certainly admire their support for this nominee. I know that Senator 
Hatch has thought long and hard about this as chairman of the Judiciary 
Committee, trying to abide by his commitment to the administration to 
move these nominees along with a minimum of difficulty. But, given the 
fact that about one-third of the members of the Judiciary Committee 
have not had an opportunity to question Judge Dennis, and, second, that 
the transcript from the hearing where that opportunity was afforded is 
very meager to say the least, it seems to me that perhaps the motion to 
recommit would be the best course of action to consider at least these 
new allegations.
  I have a copy of the transcript of the proceedings that were held on 
September 14, 1994. Only one member of the committee was present, the 
Senator from Alabama. He asked five rather perfunctory questions. I do 
not mean that to demean his questioning. They are the same questions 
that I have asked nominees after I have satisfied myself that they 
possessed the requisite qualifications for the position. The questions 
were simply to the point of would he follow precedent, would he abide 
by the Supreme Court law, and so on. Of course, the judge answered yes. 
So those five minimal questions really do not establish much of a 
record upon which to make a decision.
  Since then we have these allegations--again most recently in the 
newspaper--that, frankly, pose some very serious questions about 
whether the judge should have recused himself in an extremely important 
matter in his own State.
  I first became aware of this nomination because of the question in my 
mind about whether or not the proper relationship of judges in 
Mississippi and Louisiana was being satisfied as a result of the 
nominee from Louisiana as opposed to a nominee from Mississippi. I am 
very concerned that the proper relationship always exist within the 
circuits. We are in the circuit of California, and, obviously, 
California is a very big part of the ninth circuit. We always want to 
make sure that we have the proper relationship there, and, if there is 
an Arizona position available, that position be filled from within 
Arizona.
  I understand that issue has essentially been worked out based upon 
commitments that would be made about future nominees, and I may be 
wrong in this. But I also understand that Judge Abner Mikva was the 
person from the White House who wrote the letter expressing the 
commitment. Judge Mikva, of course, is no longer there, which 
illustrates the fact that commitments are important between people but 
sometimes circumstances change and it is not always possible to fulfill 
those commitments. So I thought that was resolved. I am not sure that 
it is. I would like to satisfy myself on that as well.
  But, Mr. President, in view of the fact that these allegations are 
new, they were not before the committee at the time, and, therefore, 
certainly the Judiciary Committee cannot be blamed, but given the fact 
that a third of the committee has not participated in hearings on this 
judge, it seems to me that we would all be better served by having 
another hearing allowing the judge to come before us so we may question 
him about these matters. And I would feel much better about the 
decision that I would have to make later on as a member of the 
Judiciary Committee having that knowledge before me. Then, when 
colleagues who are not on the Judiciary Committee ask me what I think 
as a result of the fact that I participated in the nomination process, 
I would be in a better position to with some confidence say to them I 
reviewed it, we had him before us, I am convinced he will be just fine, 
or perhaps I still have some questions about it. But I will not know 
that unless we have this kind of an opportunity.
  So I support the motion that has been made to recommit by the Senator 
from Mississippi reluctantly because it is more work for our chairman 
and our committee. But I think that is probably the proper thing to do 
with such an important nomination as a member of the fifth circuit 
court of appeals.
  Again, I appreciate the Senator yielding the time.
  Mr. COCHRAN. Mr. President, I thank the distinguished Senator for his 
comments, and I appreciate the information that he has made available 
to the Senate which has not yet been brought up on the floor; that is, 
that this is a new Congress, this is a new committee, and there are 
members of the committee and their staffs who have not had an 
opportunity to become familiar with this nominee.
  He was reported out during the last Congress, and, frankly, had not 
been on the screen and had not been something that has been on the 
minds of members of the committee. As a matter of fact, I have had 
several Senators ask me who the nominee was and what the 

[[Page S 14468]]
issue was. This is just simply something that has not been discussed 
around the Senate this year. It may have been remembered by some 
Senators who were here last year. But it is a matter of first 
impression, and that is why I think it is important to take a little 
bit of time to explain why the concerns are being raised and why the 
motion to recommit this nomination to the committee is being made.
  The Senator from Delaware was good enough to discuss this nomination 
from his point of view as a former chairman of the Judiciary Committee 
and his recollections and his information from his staff about this 
case, but his attitude about it obviously is different from mine on the 
question of whether or not this is a serious issue and should be 
carefully considered by the Judiciary Committee after the new 
information about whether the judge should have recused himself in that 
case involving the Times-Picayune or whether this leads to a reasonable 
conclusion that this is not the kind of judgment that we want to see 
reflected by judges who occupy the second highest court in the land.
  The court of appeals is just beneath the supreme court in terms of 
power and position in the hierarchy of our Federal judicial system. 
Most cases are disposed of at the court of appeals level which are 
appealed from the district courts. Very few cases go beyond the court 
of appeals to the supreme court. So this court, for really all 
practical reasons, is the court of last resort for most litigants, and 
so the power and the influence of courts of appeals are immense in our 
judicial system.
  So those who are nominated to serve on that court should be subjected 
to the most careful scrutiny to determine their qualifications to serve 
on that court, their quality of judicial temperament, how they would 
approach the role of court of appeals judge, and, third, their 
adherence to the code of conduct of judges, their own personal judgment 
about ethical standards and the extent to which they should set a very 
high standard and an example, so that persons having business before 
the courts in our Federal judicial system will have confidence in the 
integrity of the judges, in their impartiality and in their abilities 
to be able to discharge these responsibilities at a high degree of 
excellence.
  That is a pretty tall order when you have clearly laid out here a 
situation where Judge Dennis refused or neglected to let the Judiciary 
Committee know about this controversy that had arisen which involved 
him, not just as a judge on the Supreme Court of Louisiana but as a 
legislator, where he had actually participated in a decision made by 
the State supreme court not to grant certiorari in a case being 
appealed to that court from an intermediate court of appeals in the 
State, which involved issues in which he was personally involved and 
his son was personally involved, not to say that they had, either one, 
done anything illegal but nonetheless the fact that records of 
information involving their activities were at issue, and the question 
was whether or not there was a duty under the law to make this 
information available on the request of the Times-Picayune newspaper.
  That was the question before the court. He was on the court, and he 
participated in ruling that they did not want to hear that case. The 
supreme court did not want to grant the right of appeal on this case to 
that court.
  And so the net effect was to affirm or not disturb the decision that 
had been made by the intermediate court. And one aspect of that 
intermediate court's decision was not to require legislators to provide 
that information to the paper. The district court said they had to and 
they should and granted a writ of mandamus requiring legislators to 
respond affirmatively to requests and provide that information. They 
did not have the records in their custody.
  The testimony at the trial level from the custodian of records at 
Tulane University was that Tulane did not give this information to 
anybody who asked for it. They gave the information to the legislators 
who wanted their records that were kept there about whom they gave 
these scholarships to, but Tulane was not going to respond to a request 
from the paper. And the legislators were not cooperating. They were not 
asking Tulane to give them the information so they could give it to the 
paper. So the question was whether these legislators could be compelled 
by a court of law or under a writ of mandamus to provide that 
information to the paper when it was requested.
  That was the issue. And the distinguished Senator from Delaware says 
that was resolved before it got to the supreme court. Well, it was 
decided but it was not resolved.
  I wish to read from the brief of the appellants who were asking the 
supreme court to take jurisdiction and to hear this appeal in assigning 
the errors committed by the intermediate court of appeals on page 9 of 
their brief.

       Assignments of error. The Fourth Circuit erroneously 
     reversed that portion of the District Court's judgment which 
     ordered that a writ of mandamus issue directing the 
     respondent legislators to produce to the Times-Picayune those 
     of the legislators' scholarship nomination forms in the 
     possession of the legislators and/or in the possession of 
     Tulane University.

  That puts at issue the interests of Judge Dennis as a legislator. 
Forget about the fact that his son has gotten a scholarship from 
another legislator worth $60,000, and his name is in the records and 
that will be subject to being produced by that legislator upon request 
from the Times-Picayune. Forget that. Set that aside. I am talking 
about the judge's personal interest is at issue in that assignment of 
error. For the Senate to be told today that that issue was settled, it 
was not before the State supreme court, is just not true.
  I am not suggesting it is an intentional misrepresentation, but I am 
reading from the brief where the assignments of error are laid out, and 
this is to the Supreme Court of the State of Louisiana. And all supreme 
court justices reviewed it and decided not to hear the case, and Judge 
Dennis decided to vote on that case without revealing his personal 
interests, without discussing his personal interests with litigants.
  Now, that is an erroneous view of the responsibilities of a judge, 
under my state of reference, with the code of conduct clearly spelling 
out here about the duty to remain impartial, the duty to disqualify 
oneself in cases where there is a personal interest. That is a personal 
interest. The Judiciary Committee did not know at the time it reported 
out this nomination that this was even an issue. They did not know 
about this case. They did not know that it was becoming a controversy.
  Only after they reported the nomination in the last Congress did this 
issue really become public. And because this new information came to 
light after the Judiciary Committee has acted, it is incumbent upon the 
Senate, in my judgment, to approve this motion to recommit the 
nomination to the Judiciary Committee and allow Senators like the 
Senator from Arizona, who spoke, who are new members of the committee, 
who never had an opportunity to look into these issues, to do so, and, 
I suggest, to have a hearing, to have a hearing that goes beyond five 
perfunctory questions that were asked of this nominee when he was 
before the committee in 1994.
  The Senate ought to demand that more be done to satisfy us as to 
whether or not this nominee has the kind of attitude about judicial 
ethics and personal responsibilities of judges in cases in which they 
have an interest to deserve confirmation to a lifetime appointment on 
the second highest court in the land.
  Mr. President, that is just as clear to me as anything can be, that 
to require the Senate to vote up or down on this nomination at a time 
when we have not had a full review of this issue by the committee in a 
hearing, if that is the disposition of the chairman and other members--
and to give them that opportunity, we ought to vote for this motion.
  I hope that Senators will look on their desks. I have put a copy or 
asked the pages to put a copy of an article that was written today by 
the Times-Picayune on this issue. I did not know the article was going 
to be written when this was being pushed to be brought up. But it has 
been written, and we made available copies. There are other newspaper 
articles that have been published by the Times-Picayune on this issue, 
and they all point to the fact that this is a case of great notoriety 
and importance in Louisiana.
  I think it is a case that we should take a more active interest in 
than we 

[[Page S 14469]]
have up to this point, and hence the opportunity today for the Senate 
to review the situation under this motion to recommit.
  I hope the Senate will look with favor on the motion, and I urge 
approval of the motion to recommit the nomination.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I had not planned to speak on this, but 
there have been some issues raised by both sides that I would like to 
clarify and put to rest.
  One of the most difficult committees in the Congress is the Judiciary 
Committee. Its work is very important. We handle the confirmation of 
all judges in the Federal courts and confirmation of many, many other 
officials.
  Nobody takes this responsibility any stronger or any more 
significantly than I do. Since I have been in the Senate, 19 years, a 
high percentage of judges who currently sit on the Federal bench have 
come before the committee while I have been a member. I consider the 
review of judicial nominees to be one of the most important functions 
of the Senate.
  The committee has completed its investigation of Judge Dennis and 
into Justice Dennis' decision not to recuse himself from a lawsuit 
involving a Louisiana newspaper. Additionally, we have thoroughly 
investigated the nominee's failure to notify the committee of the 
newspaper's inquiry.
  In my humble opinion, a case can be made that Justice Dennis should 
have recused himself pursuant to canon 2 of the Louisiana Code of 
Judicial Conduct. I do not believe that he intentionally violated any 
code of conduct. But, having said that, a case can be made that he 
should have recused himself in order to avoid the appearance of 
impropriety.
  Now, this is a point Senator Biden and I may disagree on. 
Nevertheless, so everyone understands this, the committee has completed 
its investigation. Given the evidence before us, I am not satisfied 
that this isolated incident warrants Justice Dennis' disqualification 
from the Federal bench. In this instance, I do not think it does. 
Justice Dennis has provided answers on these questions to the 
Committee. It depends on whether you accept his answer or not and 
whether you will give him the benefit of the doubt. I accept his 
answer.
  As chairman, I instructed my staff to offer to brief every member of 
the committee or members of their staff who wanted to be briefed on 
this matter prior to it coming to the floor. Additionally, we offered 
to brief anyone else who wanted to be briefed on this prior to the 
floor consideration.
  I just want to make it very clear that, if the nominee is 
recommitted, it is my intention that the committee take no further 
action. I am not going to look into this any further. Everybody knows 
what there is to know about this. We are not going to hold any further 
hearings on the matter. If the nomination is recommitted, that is going 
to be it, as far as I am concerned. Accordingly, I am going to oppose 
the motion to recommit.
  Now, I understand that the distinguished Senators from Mississippi 
believe there is an imbalance on the fifth circuit. I think Mississippi 
has not been treated as fairly as it should have been. In that regard, 
I have gone to the White House and made it very clear that the very 
next vacancy that is created, if we pass a new judgeship bill, that 
Mississippi is going to get that vacancy. And I will personally try to 
correct that deficiency.
  But let us have nobody miss any bets here. The fact is, there is no 
excuse for anybody saying that we should recommit this and have 
rehearings and redecide this all over again. We are not going to do 
that. That decision is going to be made right here, right now. And if 
the motion to recommit is granted, that is going to be it for Justice 
Dennis.
  I am going to oppose the motion to recommit because we have come a 
long way. I have seen judge after judge, whether a Republican 
administration or a Democratic administration, who had some problem in 
their lifetime that somebody can find some fault with. Some problems 
are valid to a degree. In this case, the judge claimed to have voted 
the right way, said that it was an oversight on his part, and basically 
he has an answer for it. Whether you agree with the judge's opinions or 
not, this justice appears to be an honorable, decent justice.
  Frankly, I just want to make that clear so everybody knows as they 
vote here what is going to happen. There were no dissenting votes 
against the nominee from the committee. Justice Dennis was favorably 
reported out by unanimous consent. These questions came up afterwards. 
The committee reviewed this matter, and we offered every Senator or 
their staff members an opportunity to be briefed on the findings. I do 
not think there is any reason for anyone to think that this is 
something that is a first impression that has to upset this particular 
nominee.
  I am willing to abide by the decision of the Senate in this matter, 
however I want to make the record clear, I am going to vote against 
this motion to recommit.
  I yield the floor.
  The PRESIDING OFFICER. Is there further debate on the motion?
  Mr. COCHRAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, I do not intend to prolong the debate. I 
do want to add to the Record a copy of the newspaper article that has 
not been printed. I know Senator Lott put a copy of an article from the 
Times-Picayune in the Record. I think he put in the article dated 
September 25. There is another article, July 23. I ask unanimous 
consent that both articles, to be sure we have them in the Record, be 
printed in the Record.

  There being no objection, the articles were ordered to be printed in 
the Record, as follows:

                [From the Times-Picayune, July 23, 1995]

                 Judge defends his Tulane records vote

                           (By Tyler Bridges)

       State Supreme Court Justice James Dennis, whose son 
     received Tulane tuition waivers, later voted to deny a 
     request by The Times-Picayune for review of a lower court 
     decision in the newspaper's suit seeking access to five New 
     Orleans legislators' Tulane scholarship nomination forms.
       The newspaper eventually received the scholarship 
     nomination forms of all Louisiana legislators by filing a 
     subsequent law-suit against Tulane.
       The records obtained from that suit show that Stephen 
     Dennis was awarded Tulane tuition waivers for three years in 
     the late 1980s by then-state Rep. Charles D. Jones, D-Monroe.
       An associate justice of the Louisiana Supreme Court since 
     1975, James Dennis last year was nominated to a federal 
     judgeship by President Clinton. That nomination, to the 5th 
     U.S. Circuit Court of Appeals, was approved by the Senate 
     Judiciary Committee Thursday night and now goes to the Senate 
     floor. Dennis, however, continues to face strong opposition 
     from Mississippi's two senators, who argue that an appointee 
     from their state deserves the judgeship and that Dennis is 
     soft on crime. The appeals court hears cases from Texas, 
     Louisiana and Mississippi.
       Prior to his election to the Louisiana Supreme Court, 
     Dennis, 59, a native of Monroe, was a state district judge, 
     an appellate judge and a state representative.
       The Tulane scholarship that Dennis' son received is awarded 
     under a century-old program that permits every legislator to 
     award a tuition waiver every year.
       Jones, now a state senator, declined to explain why he 
     nominated Stephen Dennis.
       In a written statement to the newspaper, Dennis said that 
     his son in 1985 had sought the scholarship on his own, 
     ``without my suggestion or help * * * At that time, Steve was 
     26 years old, married, and a resident of (Jone's) district. 
     He and his wife were struggling but fully self-supporting and 
     financially independent of me. I was unable to assist Steve 
     in going to law school because of my obligations of support 
     owed to my wife and three younger children. I did not ask 
     (Jones) to nominate Steve for the waiver. I believe that the 
     nomination was made on the basis of Steve's academic record, 
     his financial need of educational assistance and his 
     outstanding extracurricular and other achievements.''
       Dennis in March 1995 voted in the majority of a 6-1 
     decision to deny The Times-Picayune's request that the 
     Supreme Court review an appeals court ruling to the 
     newspaper's suit against the new Orleans legislators.
       In a written statement to the newspaper, Dennis said the 
     case did not pose a conflict of interest for him because the 
     appeals court already had upheld The Times-Picayune's primary 
     contention that the nominating forms were a public record. 
     Dennis said further review of the ``collateral issues'' 
     raised by The Times-Picayune's request for review was not 
     warranted.
       While the appeals court upheld the newspaper's position 
     that the forms were public records, it also had ruled that 
     legislators 

[[Page S 14470]]
     were not required to get their scholarship nomination forms from Tulane 
     if they did not have the forms in their possession. This 
     issue was important to the newspaper because numerous 
     legislators had declined to identify their recipients, no 
     longer held the forms themselves and had declined to get the 
     forms from Tulane. In fact, even after the appeals court 
     ruling, four of the five defendants refused to obtain their 
     forms from Tulane and make them public.
       ``I did not have any interest in the outcome of the only 
     issue to come before the Supreme Court,'' Dennis wrote the 
     newspaper. He would not answer questions beyond his written 
     statement.
       Under the Louisiana Code of Civil Procedure, a judge may 
     reuse himself when he ``is biased, prejudiced or interested 
     in the cause or its outcome or biased or prejudiced toward or 
     against the parties . . . to such an extent that he would be 
     unable to conduct fair and impartial proceedings.''
       After the Supreme Court denied The Times-Picayune's request 
     for review, the newspaper filed suit to force Tulane to 
     release the scholarship nomination forms of all Louisiana 
     legislators. Civil District Judge Gerald Fedoroff ruled in 
     the newspaper's favor in June, and Tulane released the 
     records this month.
                                                                    ____


               [From the Times-Picayune, Sept. 28, 1995]

                       Tulane Role May Kill Post

                           (By Bruce Alpert)

       Washington.--Louisiana Supreme Court Justice James Dennis, 
     role in the Tulane University scholarship scandal may kill 
     his dream of winning Senate approval as a federal appeals 
     court judge.
       Sen. Thad Cochran, R-Miss., believes that the Senate 
     Judiciary Committee ``should reconsider'' its earlier 
     decision to support Dennis' nomination to the 5th Circuit 
     Court of Appeals ``because of information that came to light 
     after the committee acted,'' said Stephen Hayes, the 
     senator's spokesman.
       Cochran referred to revelations that Dennis voted to deny a 
     request by The Times-Picayune for review of a lower court 
     decision in the newspaper's suit seeking access to Tulane 
     scholarship information; even though his son received one of 
     the tuition waivers.
       Cochran and fellow Mississippi Sen. Trent Lott, the 
     Senate's second most powerful member, have long opposed the 
     Dennis nomination; arguing that the appointment should go to 
     a resident of their state. But the revelations about Dennis' 
     role in the Tulane case have given their efforts new life.
       Hayes said Cochran would make a motion to delay a floor 
     vote and return the issue to the Senate Judiciary Committee 
     if Senate Majority Leader Bob Dole, R-Kan., bows to pressure 
     from Louisiana's two Democratic senators, John Breaux and J. 
     Bennett Johnston, to move the matter for a yes-or-no vote.
       Breaux, in particular, was instrumental in getting 
     President Clinton to nominate Dennis for the appeals court, 
     which handles cases from Louisiana, Texas and Mississippi. 
     But the nomination, first made in 1994, has never reached the 
     Senate floor.
       On Wednesday, Bette Phelan, spokeswoman for Breaux, said 
     both her boss and Johnston ``continue to urge Senator Dole to 
     schedule a vote on Judge Dennis' nomination as soon as 
     possible.''
       Judiciary Committee staff conducted a review of the judge's 
     role in the Tulane scholarship case, a committee spokeswoman 
     said. But she would not discuss the findings, saying only 
     that interested senators can call the committee and get an 
     oral summary.
       Two people familiar with the committee staff finding offer 
     different assessments of what the committee staff found. One 
     described the findings as ``more critical than positive'' 
     about the judge, while another said the staff simply 
     summarized information previously reported in The Times-
     Picayune.
       At issue is Dennis' vote in a 8-1 Supreme Court decision is 
     March to deny The Times-Picayune's request for access to five 
     New Orleans legislators' Tulane scholarship nomination forms.
       Dennis declined to comment Wednesday. But earlier, in a 
     written statement to the newspaper, Dennis said the case did 
     not pose a conflict of interest because the appeals court 
     already had upheld The Times-Picayune's primary contention 
     that the nomination forms are public records.
       Charles D. Jones, the one-time state senator who granted 
     the scholarship to Dennis' son, wrote a letter to the 
     committee last week. In it, he supports the judge's account 
     that Dennis had nothing to do with the awarding of the 
     scholarship to Stephen Dennis.
       ``Stephen contacted me, expressed his need for financial 
     assistance to pursue his education, requested the tuition 
     waiver and I was glad to recommend him for it,'' Jones wrote 
     Committee Chairman Orrin Hatch, R-Utah. ``Justice James 
     Dennis did not participate in any request directly or 
     indirectly in my initial decision to recommend Stephen for 
     the tuition waiver.''
       Ironically, both Louisiana senators have children who 
     benefited from the scholarship program. Johnston's two 
     children received legislative tuition waivers, and a son of 
     Breaux got a waiver from former New Orleans Mayor Sidney 
     Barthelemy.

  Mr. COCHRAN. Mr. President, it seems to me that the facts that led me 
to file this motion have been fully provided to the Senate. The code, 
the canons of ethics involving impartiality, the responsibility of 
judges under these circumstances have been discussed.
  I do want to point out that the Fifth Circuit Court of Appeals for 
the State of Louisiana itself handed down a case in August 1986 in 
which the obligation of judges to disqualify themselves in cases in 
which they have a personal knowledge is one that the court takes very 
seriously.
  One of the head notes in that case is as follows:

       Under the disqualification statute, recusal is required 
     even when a judge lacks actual knowledge of the facts, 
     indicating his interest or bias in the case, if a reasonable 
     person knowing all the circumstances would expect that the 
     judge would have actual knowledge.

  It strikes me in reading that and then looking at the underlying 
decision of the court of appeals--incidentally, this case came out of 
the State of Louisiana, so it should have been within the knowledge of 
the judge as to what the law is, not just the canons of ethics, but 
what the law is regarding recusal and disqualification.
  But it strikes me that this clearly applies to this situation. Not 
only did the judge have personal knowledge about the scholarship 
benefits that State legislators could award, he had to know that these 
records were kept at Tulane, he had to know that legislators did not 
like to provide information from those records to the general public, 
he had to know the importance of this to the class to which he 
personally belonged, the legislators of the State of Louisiana.
  So irrespective of the fact that his son had been given a scholarship 
worth $60,000 to Tulane by another legislator and that that information 
would be made available, or arguably could be, under a writ of mandamus 
or would be required to be made available if the court upheld the 
district court's rule, all of this information and the involvement of 
the judge personally in this program, the benefits that had been given 
to his family as a result of this program, all would become public 
knowledge at a time when he had been nominated to serve on the court of 
appeals and the Judiciary Committee of the United States had his 
nomination under consideration. And were it divulged that this 
information was coming to light at that time, this could have had an 
adverse effect on the proceedings to consider his nomination.
  All of that is clear now, but it was withheld from the Judiciary 
Committee by his neglect to advise that he had been contacted by a 
reporter at the Times-Picayune. But it is just as clear as it can 
possibly be that this should have been the subject of inquiry by the 
Judiciary Committee at the time. And a senior staff member, when we 
were getting a briefing in my office about the follow-up investigation 
that the chairman ordered, said that if the Judiciary Committee had 
that information at the time they reported out the nomination, they 
would not have done it.
  This is an opportunity to give the Judiciary Committee the 
opportunity to make a decision based on the full facts, a full 
investigation. If a hearing is required, any member of the Judiciary 
Committee can ask the chairman to have a hearing. He says it is not the 
intent to have a hearing. Well, I think it ought to be looked into 
further. I think closer scrutiny ought to be brought to bear on this 
nomination by this committee so that all members of the committee will 
have a set of facts on which to base a decision about the fitness of 
this person to serve on the court of appeals.
  Mr. President, I urge the Senate to approve the motion to recommit.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. For the benefit of all our colleagues, so they will know 
on their schedules what is coming, I ask unanimous consent that the 
vote occur on the motion to recommit the Dennis nomination at 3 p.m. 
today, 25 minutes from now.
  Mr. FORD. Mr. President, I want to inform the Chair that this side 
has no objection to the distinguished Senator's motion.
  The PRESIDING OFFICER. Is there objection to the request? Without 
objection, it is so ordered.
  Mr. COCHRAN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll. 

[[Page S 14471]]

  The legislative clerk proceeded to call the roll.
  Mr. COCHRAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COCHRAN. Mr. President, I ask for the yeas and nays on the motion 
to recommit.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. COCHRAN. Mr. 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. LOTT. Mr. President, I ask unanimous consent the the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Thompson). Without objection, it is so 
ordered.
  Under the previous order, the question occurs on the motion to 
recommit.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  The result was announced--yeas 46, nays 54, as follows:

                      [Rollcall Vote No. 473 Leg.]

                                YEAS--46

     Abraham
     Ashcroft
     Bond
     Brown
     Burns
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Helms
     Hutchison
     Inhofe
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Roth
     Santorum
     Shelby
     Smith
     Snowe
     Specter
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--54

     Akaka
     Baucus
     Bennett
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Campbell
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Hatch
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Packwood
     Pell
     Pryor
     Reid
     Robb
     Rockefeller
     Sarbanes
     Simon
     Simpson
     Stevens
     Wellstone
  So, the motion to recommit was rejected.
  Mr. REID. Mr. President, I move to reconsider the vote.
  Mr. INOUYE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of James L. Dennis, of Louisiana, to be U.S. 
circuit judge for the fifth circuit?
  The nomination was confirmed.
  Mr. BREAUX. Mr. President, I move to reconsider the vote.
  Mr. DOLE. I ask unanimous consent that the President be immediately 
notified that the Senate has given its consent to this nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________