[Congressional Record Volume 142, Number 100 (Tuesday, July 9, 1996)]
[Senate]
[Pages S7503-S7505]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       UNANIMOUS-CONSENT REQUEST

  Mr. LOTT. Mr. President, I ask unanimous consent that the Senate 
immediately proceed to executive session to consider Executive Calendar 
No. 514, the nomination of Gary Fenner, to be a U.S. district judge for 
the western district of Missouri.
  I further ask unanimous consent that the nomination be confirmed, the 
motion to reconsider be laid upon the table, and that any statements 
relating to the nomination appear at the appropriate place in the 
Record, that the President be immediately notified of the Senate's 
action, and that the Senate then return to legislative session.
  Mr. DASCHLE. Mr. President, reserving the right to object. First, let 
me commend the majority leader for his effort to try to resolve this 
impasse. I believe that he has attempted to act in good faith. He and I 
have had innumerable conversations about this and have tried to find 
ways in which to address it in a meaningful way and a satisfactory way 
to both sides.
  He mentioned the effort the day we left prior to the July 4 break. 
Through no fault of his, necessarily, we were left with trying to clear 
this list while everybody was on airplanes going in about 15 different 
directions. So it was not our lack of effort or some concerted desire 
on the part of Democrats to oppose the list. But given the fact that 
after the Chamber had cleared and people had gotten on airplanes, as we 
attempted to reach people to see whether we could clear it, it was 
virtually impossible from a practical point of view.
  He mentioned the fact that he has tried to bring up small groups and 
has found that it is difficult to get an agreement on even a small 
group, and so he is going to take them individually. Mr. President, the 
issue is not the size of the group, whether it is one, four, or nine. 
The issue is, what assurance do those who are not on the list, whether 
it is 1 of the remaining 22, or 1 of the remaining 19, or 1 of the 
remaining--in this case it would be 12--that they, too, will have an 
opportunity to have their judge considered?
  So, earlier today, I discussed with the distinguished majority leader 
whether or not it would be possible at least to lay out a calendar, 
whereby every judge could be assured that on a given day during this 
work period that particular nomination would be considered. The 
distinguished leader is not able to do that this afternoon. So then we 
talked about whether or not it would be possible to at least have the 
assurance that all 23 would be considered between now and the August 
recess. The majority leader again was unable to give me that assurance.
  Well, then, he did indicate to me that he would be willing to do the 
first 17. But I notice on Tuesday, July 16, Mr. Lawrence Kahn of New 
York, Calendar No. 678, is one of those beyond the first 17. It is in 
that group that was just passed out of committee in the final six. So 
if he is not willing to do all 23, but is willing then to do 100 
percent of the Republican nominees--and there are only 3 or 4--and 
leave all of the balance on the Democratic list to be taken up at some 
uncertain time, with no commitment that we are ultimately going to at 
least be able to try to deal with these issues between now and the 
August recess, our colleagues have indicated to me as late as just a 
few minutes ago that, on that basis, on that limited assurance, they 
are not satisfied that they are going to be able to address their 
judgeships as well, and they are not convinced that this is a 
satisfactory way to go.
  I applaud the majority leader for his innovation. I do not think that 
it is necessarily the fact that they were in small groups that was the 
problem. So taking them up one-by-one may not solve the matter, so long 
as we find the uncertainty about what happens after July 19 and we have 
dealt with the first nine.
  So, Mr. President, based upon those concerns and the reservations 
expressed to me by my colleagues, as I

[[Page S7504]]

said, just a matter of moments ago, I will have to object to this 
unanimous-consent request.
  The PRESIDING OFFICER. Objection is heard.
  Mr. LOTT. Mr. President, before we move to the closing script, let me 
respond to some of the comments made by the distinguished Democratic 
leader.
  First, I will ask a question. You mentioned a Judge Kahn of New York, 
that he was not on the list. Is that what the Senator said?
  Mr. DASCHLE. No. What I said was that the majority leader had 
indicated to me that he was not prepared to consider at this point the 
final six judges which were added to the Executive Calendar. Yet, we 
find on Tuesday, July 16, Calendar No. 678 is one of those judges who 
were reported out most recently by the Judiciary Committee, and is a 
component of that final six. He happens to be a Republican. Now, I do 
not imply by that that the majority leader had special design on just 
this Republican nominee. But if we are willing to do it for the 
Republican nominee just reported out of committee, it would seem to me 
that we ought to do it for the five Democrats as well. That was the 
issue I attempted to raise.
  Mr. LOTT. Mr. President, let me comment because I wanted to clarify 
that. The problem has been that we had, I think, 16 or 17 judges that 
had been reported out of the Judiciary Committee, and objections had 
been heard from any Senators that did not have their judge in that 
group of 4 or 9. So in order to not have objections, I guess we would 
have had to have had all 16 or 17 of them cleared that had been 
reported before June 27. We could not clear them, all 16 or 17 of them, 
so I thought we would get a block of as many as we could. But we are in 
a position where any Senator that does not have his cleared is going to 
object, apparently, to any combination I come up with.
  Mr. DASCHLE. Will the distinguished majority leader yield on that 
point?
  Mr. LOTT. Certainly.
  Mr. DASCHLE. Because, for the record, I think we ought to see if we 
can resolve at least our understanding of where both sides are.
  We have expressed a desire to work with the majority in terms of 
putting a list together whereby at least a Senator, if not having 
cleared the nominee, at least would know that his nominee would come up 
sometime between now and the August recess.
  The distinguished leader will acknowledge that we have talked about 
at least scheduling for purposes of consideration a given nominee. 
Everyone recognizes that in order for this system to work, we are going 
to have to have cooperation on both sides.
  Mr. LOTT. Sure.
  Mr. DASCHLE. We are not asking today that everybody be cleared. All 
we are asking is that we have some assurance that every one of the 
nominees on the Executive Calendar will have the opportunity at least 
to be considered. Then we will go to the next step at a later date.
  Mr. LOTT. If I could continue, Mr. President, the other suggestion 
was made that all of the so-called Republican nominees are on the list. 
In fact, I am not all that sure which ones are Republican and which 
ones are Democrat. I started this thing off thinking that they were all 
probably supported by Democrats. For instance, I understand that one 
not on the list is the nominee from Ohio which maybe is at least 
supported by Senator DeWine.
  So I mean, the intent would be to bring it up later on. But I felt 
that I gave this list for 2 weeks and I did not have time to give four 
or five names for the third week. So that is why I stopped. So there is 
at least one and maybe more that are supported by Republicans. I do not 
really ask for that. What I try to do is see if there are real holds on 
it; see if they are legitimate. If they have legitimate concerns, I try 
to move on and get the others.
  Also, if you are ever going to bring these up in such a way that you 
can bring it up and insist that the Senator or Senators who have 
objections voice those objections and then be prepared to move them, I 
really think I need to do that one by one. That is what I am trying to 
do here. If I bring up all 17, or 16 that were pending before June 27, 
you can be almost certain that there will be objections heard.
  So I do not know what to do. I have tried to do it in groups. I have 
tried it singly, and I am going to continue to try to do that.
  Two other opinions, and then I will yield for other comments.
  Seven of these new ones were reported next to the last day, I think, 
that we were in session on Thursday, the 27th. I have not had time to 
look at all of those. But I am going to. I plan to do that in 
relatively short order to see what the prospects are. I am prepared to 
move on to some of those that are not on this list of nine, and it may 
be that I will continue to try to do one a day at least for a while and 
see if there is objection. Conversely, if we begin to get some of them 
agreed to, we might try another block.
  But I am trying to be cooperative. I would like to get as many of 
these done--I cannot tell you this afternoon that I am going to be able 
to bring up all 23 of them at all.

  One of the problems that we have is we have a lot of work to do; must 
do work. The Democrats can slow roll us, if they want to. They can stop 
bills, or they can delay bills, or whatever. But there are a certain 
number of things that we have to do before we get through this year.
  I think, also, I am entitled to be given a little bit of benefit of 
the doubt for a while. We have been keeping our word to each other. I 
am telling you that I am working these nominations. I am going to 
continue to work them. And until I do not do something which I tell you 
I am going to do--that is one reason I cannot make a commitment to you 
on the 23 because I am not sure I can keep that commitment.
  So I am saying, give me a little time here. Give me a show of good 
faith. Give me a little trust. I have nine ready to go. I am going to 
continue to do it for a while. I am going to bring up the Louisiana 
nominee tomorrow and see if you object to a Democratically supported 
nominee. Then I am going to bring up the nominee from Colorado, which I 
presume is supported by a lot of Colorado Democrats because I 
understand philosophically he is a pretty liberal judge. But he is also 
supported by Senator Brown.
  Then I am going to go to the West Virginia judge that is supported 
very aggressively by the distinguished Senator from West Virginia, 
Senator Byrd.
  That will take us through this week, and then sort of see where we 
are.
  If you object to all of them, I will weigh that. If you object to one 
or two of them and let the other two go, we will kind of assess that.
  The objection has already been heard. I will just say to the 
distinguished Democratic leader that I understand, and I am going to 
continue to work on it for a while. But you know we have a lot of other 
things that we need to get done, too.
  I will try again and maybe by tomorrow afternoon your folks will have 
a new way of looking at it, and then we might come back to the Missouri 
judge at that point.
  Mr. DASCHLE. Mr. President, let me emphasis that I want to give the 
distinguished majority leader plenty of benefit of the doubt, and I 
want to work with him in good faith. Obviously, he is attempting to 
work through a number of challenging scheduling questions. I applaud 
him for making that effort.
  To the best of my ability, I intend to work with him as closely as I 
can. He has indicated that he does not know whether we can get through 
them all. I hope that he would say, ``At least I am going to try.'' 
That is all I am asking at this point, that the leader attempt to work 
with me to try to deal with all 23. If we fail for a lot of reasons, we 
may fail. But I think my colleagues would like very much to know that 
at least at some point between now and the August recess, given the 
fact that we are hoping to cooperate on a whole range of issues--the 
distinguished leader gave me a two-page, single-spaced list of 
legislative items that he wishes to bring up between now and the August 
recess. That is going to take a lot of cooperation on both sides of the 
aisle for us to get it done.
  We have a defense bill that he wants to bring up this week. Hopefully 
we can work through that.
  But the degree to which there is bipartisan cooperation has 
everything to

[[Page S7505]]

do with how much cooperation there is on both sides on issues that we 
both care about. My colleagues care very deeply about this list of 
judicial nominees.
  I have said it before, but in 1992, with the same set of 
circumstances, even in September, I am told, our colleagues--the 
majority of my Democratic colleagues--passed out 66 district and 
circuit court judges--66.
  In this session of Congress, so far it is zero. We have not confirmed 
one judge in this entire session of Congress. So, I will not belabor 
the point, except to say that so far there has been very little 
cooperation.
  We are on a new watch. I know the majority leader wants to work very 
closely with us to try to resolve this matter. All I am saying is what 
we would simply like is his commitment to work with us, at least to 
take up the 23 and work through them one by one as he has proposed. We 
are not going to object as long as we know that all 23 at least will be 
considered.
  So I expect to work with the leader, and perhaps tomorrow we can make 
some more progress. But at this point we have some more work to do.
  Mr. LOTT. Mr. President, I do not want to belabor it any further at 
this point except for one point. I understand that he is suggesting 
that if we are going to get cooperation on the legislative agenda, they 
would want cooperation on the judicial nominations. I would submit the 
reverse also is true. If we get cooperation on the bills that need to 
be done for the good of the country--the Department of Defense 
appropriations bill, the foreign operations appropriations bill, the 
Treasury-Postal Service appropriations bill--then that would probably 
make it a little easier for me to be able to continue to move some of 
these things. So it works both ways. If we get cooperation on those 
bills, I feel a little more inclined to bear down and say we need to 
move some of these things.
  But I want to say again, it is like the legislation: You can only do 
so much in a day or a week. The same thing is true of this. I can only 
go through the process of seeing what the problems are and seeing if we 
can get them cleared in a period of time.
  Also, the last day we went out, I was talking with Senators on the 
telephone, on airplanes, I tried to get a couple of Senators on the 
same plane through the cockpit, and had staff waiting when they landed 
to clear the list of 10 that we had. So it is never easy around here. 
But I am working those, and I can assure the Senator I will continue to 
work this as long as I feel there is some show of good faith.
  But I repeat, I tried four, I tried nine, and I am going to try them 
one a day for the next 4 days, and we will see where we are. But we can 
keep talking and see what kind of cooperation we get on the bills, and 
then you can see what kind of cooperation we get on the judges, and 
maybe we can go forward together.

                          ____________________