[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.
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