[Congressional Record Volume 144, Number 132 (Monday, September 28, 1998)]
[Senate]
[Pages S11021-S11039]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL VACANCIES REFORM ACT OF 1998
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of debate of Senate bill 2176, which the clerk
will report.
The assistant legislative clerk read as follows:
A bill (S. 2176) to amend sections 3345 through 3349 of
title V, United States Code (commonly referred to as the
``Vacancies Act'') to clarify statutory requirements relating
to vacancies in and appointments to certain Federal offices,
and for other purposes.
The Senate resumed consideration of the bill.
Mr. THOMPSON. Madam President, the Senate today will vote on whether
to invoke cloture on the Federal Vacancies Reform Act. This
legislation, which enjoys bipartisan cosponsorship, is necessary to
restore the Senate's authority as an institution in the process of
appointing important Federal officials.
Madam President, I request that I be allotted 20 minutes of our time.
The PRESIDING OFFICER. The Senator has that right.
Mr. THOMPSON. Madam President, I want to make sure that we reserve
plenty of time for the distinguished Senator from West Virginia,
Senator Byrd, who is really in many ways the author of this legislation
and has been such a guiding light and firm supporter for so long a
period of time.
Article II, section 2 of the Constitution provides that
The President shall nominate, and by and with the advice
and consent of the Senate, shall appoint Ambassadors, other
public ministers and consuls, judges of the Supreme Court and
all other officers of the United States, whose appointments
are not herein otherwise provided for, and which shall be
established by law, but the Congress may by law vest the
appointment of such inferior officers, as they think proper,
in the President alone, in the courts of law, or the heads of
departments.
This is an important provision of the Constitution's system of checks
and balances.
The Supreme Court, in 1997, said that the appointments clause ``is
more than just a matter of etiquette or protocol; it is among the
significant structural safeguards of the constitutional scheme.'' By
requiring the participation of the Senate with the President and
selecting officers, the framers believed that persons of higher quality
would be appointed than if one person alone made those appointments.
One of the ways in which those persons would be better would be in
respecting individual liberties.
So the appointments clause serves to protect better government
administration and the rights of the American people.
The appointments clause was also adopted because manipulation of
official appointments was one of the revolutionary generation's
greatest grievances against executive power.
As participants in the appointments process, we Senators have an
obligation, I believe, to ensure that the appointments clause functions
as it was designed, and that manipulation of executive appointments not
be permitted. Nonetheless, we also need to recognize that despite the
appointments clause, there will be times when officers die or resign in
office. Their duties should continue to be performed by someone else on
a temporary basis. It may not be possible as a matter of logistics that
each temporary official serving as an acting officer in a position
subject to the appointments clause will himself or herself receive
Senate confirmation. Early Congresses recognized the need for persons
to serve temporarily in advice and consent positions when vacancies
arose, even when the person had not received Senate confirmation.
The Vacancies Act has existed one way or another since then, with
length of temporary service increasing to 120 days in legislation that
was passed in 1988. The 1886 Vacancies Act was intended to provide the
exclusive means for filling temporary appointments. And it has operated
that way for several years.
However, in 1973, the Justice Department, in seeking to appoint a
temporary FBI Director in the midst of the Watergate scandal, appointed
L. Patrick Gray without complying with the terms of the Vacancies Act.
The Department for the first time made a public declaration that its
organic statute created an alternative method for designating temporary
appointments at the Department of Justice not subject to any time limit
was there position. Since 1973 the Department has continued to make
acting appointments outside the strictures of the Vacancies Act.
The Justice Department relies on its organic statute's ``vesting and
delegation'' provision, which states that the Attorney General can
designate certain other powers to whomever she chooses in the
Department, since specific statutory functions were not given to the
subordinate officials. The Department makes this claim although current
law states that a
. . . temporary appointment . . . to perform the duties of
another under the Vacancies Act . . . may not be made
otherwise than as provided by the Vacancies Act.
But the Justice Department's organic statute was designed simply to
coordinate all Federal Government litigation, and did not change the
Vacancies Act.
The legislative history of the Department's organic statute confirmed
this. In 1988, Congress, recognizing that the Justice Department was
not applying the Vacancies Act as Congress clearly intended, sought to
amend the act to make it more clear. They changed the law to eliminate
this unsupported position of the Justice Department largely through the
efforts of Senator John Glenn of Ohio. The Department of Justice,
however, refused to read the language as Congress intended, relying on
its same old arguments.
As a result, the Department of Justice believes that the Attorney
General can designate acting officers for 2 or even 3 years. The head
of the Criminal Division--an important position with respect to
guidance in Federal prosecutions, including independent counsel--was
vacant for 2\1/2\ years without a nomination.
An acting Solicitor General served an entire term at the Supreme
Court, and no nomination for the position was ever sent to the Senate.
Even the administration claims that an acting person can serve for only
120 days. But after an acting person served for 181 days, the
administration designated another person to serve as the Acting
Assistant Attorney General for Civil Rights.
Today all 14 Departments have similar language in their organic
statutes. Now many Departments, at DOJ's urging, are claiming similarly
that the Vacancies Act doesn't apply to them either as an exclusive
means for filling vacancies.
There is no time limit on temporary services. That has been adhered
to under the organic statutes, making both the Vacancies Act and the
appointments clause effective nullities,
[[Page S11022]]
according to the Comptroller General. The Comptroller General disagrees
with the Justice Department's reading of current law, and all of the
other Departments who have tagged along after the Justice Department.
Each Department has at least one temporary officer now who has served
longer than 120 days, allowed by the Vacancies Act. The nomination
should be able to be sent to the Senate within 4 months. Since the
President lacks any inherent authority to make appointments for offices
that require Senate confirmation, the President's noncompliance with
the Vacancies Act means noncompliance with the Constitution.
As of earlier this year, when the Governmental Affairs Committee held
its hearing on oversight of the Vacancies Act, of the 320 executive
Department's advice and consent positions, 64 were held by temporary
officials. Of the 64, 43 served longer than 120 days before a
nomination was even submitted to the Senate. Other Departments are
following Justice's lead.
The acting head of the Census Bureau is neither the first assistant,
nor a person who has been confirmed by the Senate, which is what the
Vacancies Act currently requires.
Of the nine vacant advice and consent positions at Commerce, seven
have been filled by acting officers for more than 120 days. And one had
been acting temporarily for 3 years.
It is true that the Senate has not always acted on nominees as soon
as it should. But that issue should be addressed separately.
Many of the criticisms of the Senate's handling of the nominations is
unwarranted since vacancies often remain open for lengthy periods
before nominations are submitted.
The Senate is now being publicly criticized for holding up the
confirmation of Richard Holbrooke to be the U.N. Ambassador, for
example, when in fact the administration has not even submitted his
nomination to the Senate. The fact is that the administration is under
a current statutory duty to have acting officers serve for 120 days,
which can be extended simply by the administration sending the Senate a
nominee.
That means that if the Senate does not act it has to bear the
responsibility for an acting person's service at that point.
Responsibility is clearly placed where it belongs if an acting person
continues to serve. But since the administration does not follow
existing law, the Senate in many instances never gets a chance to even
consider a permanent nominee.
Under the administration's view, the entire set of confirmed
officials in our Government could resign the day after they were
confirmed, and acting officials who have not received the advice and
consent of the Senate can run the Government indefinitely.
That situation is completely at odds with what constitutional scheme
and the framers created to protect individual liberties.
There is another reason this bill should be enacted--the Court ruling
recently that undermines the Vacancies Act further. Under the current
law, if a vacancy in a covered position occurs, the first assistant to
that officer becomes the acting officer for up to 120 days. In the
alternative, the President can designate another Senate confirmed
officer to act as the acting officer for 120 days. The 120 days can be
extended if the President submits a permanent nominee for the position
to the Senate. That creates an incentive for the President to submit
nominations to the Senate. Recent court interpretations have greatly
confined the operation of the Vacancies Act.
In March, the United States Court of Appeals for the District of
Columbia circuit approved the legality of actions taken by an acting
director of the Office of Thrift Supervision who had served for 4 years
without a nomination for the position ever having been submitted to
this body. The Senate-confirmed director resigned in 1992 and purported
to delegate all of his authority to OTS' deputy director for Washington
operations. This person, who was neither the first assistant nor the
Senate-confirmed individual, served as the acting director until
October 1996.
The President then invoked the Vacancies Act to designate a confirmed
HUD official to serve as the acting director and submitted the
nomination to the Senate for the position within 120 days. The bank
challenging the legality of the acting officer's appointment argued
that the 120 days had expired 120 days after the Senate-confirmed
director's resignation created a vacancy, long before the Senate-
confirmed person was named the acting officer. But the Court held that
the 120 days is a limitation only on how long an acting officer can
serve, not a limitation on how soon after the vacancy arises that the
President must submit a nomination.
It allowed the later Senate-confirmed director to ratify the actions
of the prior acting director. Thus, if there is no first assistant, the
President can wait for 4 years to send a nomination to the Senate while
an acting official, in this case selected by the head of the agency,
not the President, runs an important agency. This is not what the
framers thought that they had established. It runs contrary to the
Vacancies Act itself and corrective action therefore is necessary.
In any case, this administration, as stated above, has allowed many
acting officers to serve for more than 120 days as permitted by the
Vacancies Act without submitting a nomination to the Senate. The
Vacancies Act presently has no enforcement mechanism, so once again the
Senate's constitutional advice and consent prerogative is undermined.
In Federalist Paper 76 Hamilton cautioned that:
A man, who had himself the sole disposition of offices,
would be governed much more by his private inclinations and
interests than when he was bound to submit the propriety of
his choice to the discussion and determination of a different
and independent body; and that body, an entire branch of the
legislature. The possibility of rejection would be a strong
motive to care in proposing.
So by disregard of the Vacancies Act and installing at its sole
disposition numerous officials to important positions in the Government
who escape the independent body's review is contrary to the original
intent of the framers. Without a possibility of rejection, there is
much less care taken in the proposing. S. 2176 will restore the
constitutional balance and cloture should be invoked on the bill.
Madam President, let me briefly discuss the provisions of S. 2176.
Upon the death, resignation or inability to serve of an officer of an
executive Agency, the first assistant to the officer becomes the acting
officer subject to the bill's time limits. Because of additional
background processing that is now required of nominees, the bill
proposes lengthening the time of acting service from the current 120
days to 150 days.
If the President so directs, a person who has already received Senate
confirmation to another position can be made the acting officer in lieu
of the first assistant. This is basically the framework, Madam
President, that is currently the law except we are extending the time
period that the President has within which to make his decision. The
first assistant has to have served 180 days in the year preceding the
vacancy in order to be the acting officer, in order for someone to be
put in in a very short period of time to be the first assistant so that
they may then be appointed the acting officer.
The acting officer may serve 150 days beginning on the date the
vacancy occurs. The acting officer may continue to serve beyond 150
days if the President submits a nomination for the position even if
that occurs after the 150th day. So at the 150-day expiration, the
President still has it within his sole discretion to make the
nomination; just simply send the nomination up and the acting officer
can come back once again and assume his duties. If a first or second
nomination is withdrawn, rejected, or returned, the person can serve as
the acting officer until 150 days after the withdrawal, rejection, or
return.
Recognizing the large number of positions that are to be filled in a
new administration, the bill extends the 150-day period by 90 days for
any vacancies that exist when a new President is inaugurated or that
arise in the 60 days following a new Presidential inauguration.
The bill will extend the provisions of the Vacancies Act to cover all
advice and consent positions in executive Agencies except those that
are covered by express specific statute that provide for acting
officers to carry out the functions and duties of the office. Forty-one
current statutes now allow
[[Page S11023]]
the President or the head of an executive Department to designate or
provide automatically for a particular officer to become an acting
officer. The bill also exempts multimember commissions, and it retains
holdover provisions of current law.
The bill expressly states that vesting and delegation statutes do not
constitute statutes that govern the appointment of acting officers to
specific positions. The bill will thus end the specious argument of the
Justice Department that it and other Departments' organic statutes
provide an additional means, and really a superseding means of
appointing acting officials apart from the Vacancies Act.
The bill also creates an enforcement mechanism for the Vacancies Act,
something that is also sorely needed. Today, acting officers regularly
exceed the 120-day limitation without consequence. Under 2176, an
office becomes vacant if 150 days after the vacancy arises no
Presidential nomination for the position has been submitted to the
Senate. For offices other than the heads of Agencies, the functions and
duties that are specifically to be performed only by the vacant officer
can be performed by the head of that particular agency. That means that
all functions and duties of every position can be performed at all
times. But if a nomination is not submitted within the Vacancies Act
period, only the head of the Agency can perform the specific duties of
the vacant offices. Hopefully, that will create an incentive for the
President to go ahead and submit a nomination. As soon as the
nomination is submitted, the acting officer can then resume performing
the duties and functions of the vacant office. No one may ratify any
actions taken in violation of the bill's vacant office provisions.
Madam President, this approach will not penalize the acting person in
any way, but it will encourage the submission of nominees within 150
days without jeopardizing the performance of any Government function if
that deadline is missed.
The Vacancies Reform Act also establishes a reporting procedure. Each
Agency head will report to the General Accounting Office on the
existence of vacancies, the person serving in an acting capacity, the
names of any nominees, and the date of disposition of such nominee. The
Comptroller General will then report to the Congress, the President,
and the Office of Personnel Management on the existence of any
violations of the Vacancies Act. This will provide useful information
to the President so he will know the progress of the 150-day clock and
will benefit the Senate as well.
This bill has been modified to take into account objections raised by
members of the committee and elsewhere as well as the administration.
In committee, we lengthened the Presidential transition period. We
permitted the President to name an acting officer by submitting a
nomination even after the 150-day period has expired. We agreed to
consider shortening the length of service prior to the vacancy a first
assistant must satisfy to become an acting officer. This bill is
institutional and not partisan. Members should vote for cloture in
recognition of the fact that the Senate and the Presidency will not
always be controlled by the parties that control these institutions
today, and in recognition of the duty that we all share to uphold the
Constitution and protect the legitimate prerogatives of this
institution.
Madam President, I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan
Privilege of the Floor
Mr. LEVIN. Madam President, I ask unanimous consent that a
legislative fellow on my Governmental Affairs subcommittee staff,
Antigone Potamianos, be granted floor privileges during consideration
of S. 2176.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. THOMPSON. Madam President, I yield such time to the Senator from
West Virginia as he may consume.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Madam President, I thank the distinguished Senator from
Tennessee, Mr. Thompson, who is chairman of the Governmental Affairs
Committee in the Senate. Let me commend him and his committee for
reporting this bill. That committee has worked long and hard and very
industriously in an effort to craft legislation that, in its final
analysis, goes a long way toward protecting the prerogatives of the
Senate under the Constitution, in particular with reference to the
appointments clause, which appears in article II, section 2, of the
Constitution.
Madam President, nearly two weeks ago, on September 15th, I had the
high privilege of addressing my colleagues in the Old Senate Chamber as
part of the Leadership Lecture Series sponsored by the distinguished
Majority Leader. In my remarks, I emphasized two points which I thought
were important for all Senators to consider. First, I maintained that,
if the legislative branch were to remain a coequal branch of our
government, then it must be eternally vigilant in protecting the powers
and responsibilities vested in it by the Constitution. Secondly, I
noted that, throughout its history, the Senate has been blessed with
individuals who were willing to rise above party politics, and instead
act in the best interest of this nation and this institution.
The legislation before us today goes to precisely the type of concern
I raised in my remarks. S. 2176, the Federal Vacancies Reform Act,
would strengthen existing law, thus protecting the Senate's
constitutional ``Advice and Consent'' role in the process of nominating
and appointing the principal officers of our government. And, because
this bill speaks to the very integrity of the separation of powers and
the system of checks and balances embedded in our Constitution, it is a
measure which I believe all Senators can support, regardless of party
affiliation.
To give my colleagues some idea of the dimensions of this problem,
earlier this year, I asked my staff to survey the various cabinet-level
departments to ascertain how many of these so-called ``advice and
consent'' positions were being filled in violation of the Vacancies
Act. I can report that the trend is disturbing: Of the 320 departmental
positions subject to Senate confirmation, 59, or fully 18 percent, were
being filled in violation of the Vacancies Act. At the Department of
Labor, for example, one-third of all advice and consent positions were
being filled in violation of the Vacancies Act. At the Department of
Commerce, 9 of 29, or 31 percent, of those positions were being filled
in violation of the Act. And, at the Department of Justice, 14 percent
of the advice and consent positions were being filled by individuals in
contradiction of the Vacancies Act. Clearly a problem exists.
As my colleagues know, the process used by the President to staff the
executive branch is laid out in the Appointments Clause of the
Constitution. That clause, found in Article II, section 2, states, in
part, that the President
. . . shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the Supreme Court,
and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which
shall be established by Law: but the Congress may by Law vest
the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in
the Heads of Departments.
Because vacancies in these advice and consent positions may arise
from time to time when the Senate is not in session, the Constitution
also provides that
The President shall have Power to fill up all Vacancies
that may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next
Session.
Madam President, in an effort to secure the Senate's constitutional
authority under the Appointments Clause, Congress established a
statutory scheme that lays out not only the order of succession to be
followed should one of these senior positions become vacant, but which
also sets a strict limit on the length of time an individual may
temporarily fill such a position. That legislation, which has been in
place since July of 1868, is known as the Vacancies Act, and is
codified in sections 3345 through 3349 of Title 5 of the U.S. Code.
[[Page S11024]]
For those who may not be familiar with the Vacancies Act, this is the
essence of what it says. First, section 3345 provides that if the head
of an executive department--a member of the President's Cabinet, for
example--dies, resigns, or is otherwise sick or absent, his or her
first assistant shall perform the duties of that office until a
successor is appointed. Second, section 3346 states that when a
subordinate officer--generally those positions at the deputy and
assistant secretary levels--dies, resigns, or is otherwise sick or
absent, that officer's first assistant also moves up to take over the
duties of the office until a successor is appointed. And third, despite
either of those self-executing methods for temporarily filling a vacant
position, section 3347 authorizes the President to direct any other
officer, whose appointment is subject to Senate confirmation, to
exercise the duties of the vacant office. In any event, absent a recess
appointment, those three sections of the Vacancies Act provide the
exclusive statutory means of temporarily filling a vacant advice and
consent position.
But whichever method is used--either automatic succession, as
contained in sections 3345 and 3346, or presidential selection, as
contained in section 3347, Madam President, the key to protecting the
Senate's constitutional role in the appointments process lies in
section 3348 of the Vacancies Act. That section plainly states that,
should one of these positions become vacant due to death or
resignation, it shall not be filled on a temporary basis for more than
120 days, unless a nomination is pending before the Senate. Originally,
Madam President, when the legislation was enacted in 1868, the period
of time was only 10 days. And then in 1891 that period was extended to
30 days. And in 1988 that period was extended to 120 days.
It is precisely that time restriction on the filling of these vacant
positions that is, I believe, the linchpin of this issue. Without that
barrier, without the 120-day limitation on the length of time a vacancy
may be temporarily filled, no President need ever forward a nomination
to the U.S. Senate. Instead, the President--any President, Democrat or
Republican--can staff the executive branch with ``acting'' officials,
who may occupy the vacant position for months, or even years at a time,
as the distinguished manager of the bill, Mr. Thompson, has already
alluded to.
In short, to eliminate the time constraint in the Vacancies Act, or
to effectively eliminate it by tolerating noncompliance, is to wholly
undermine the integrity of the U.S. Senate's constitutional advice and
consent authority. So this is a serious matter.
Yet, despite the seemingly plain language of this 130-year-old Act,
the Department of Justice has challenged the force of the Act on the
grounds that those provisions are not the only statutory means of
filling a vacancy. In fact, for more than a quarter of a century,
through Democratic administrations and Republican administrations, the
Justice Department has simply refused to comply with the requirements
of the Vacancies Act. Instead, the Department claims that the Act is
somehow superceded by other statutes which give the Attorney General
overall authority to run the Department of Justice.
On December 17, 1997, I wrote to the Attorney General requesting
clarification of the Department's position with respect to the
Vacancies Act. Specifically, I wanted to know whether or not the
Attorney General believed that this 130-year-old statute had any
application to the Justice Department. On January 14 of this year I
received a response to my letter in which the Department reiterated its
position that the Attorney General's authority under sections 509 and
510 of Title 28 ``. . . is independent of, and not subject to, the
limits of the Vacancies Act.''
For the benefit of those who have never read those two sections of
Title 28, let me refer to the relevant language so that everyone will
understand the fallacy of the Justice Department's argument. Section
509 states that, with certain exceptions that are not at issue here
today, ``all functions of other officers of the Department of Justice
and all functions of agencies and employees of the Department of
Justice are vested in the Attorney General. . . .'' Section 510,
meanwhile, states that ``the Attorney General may from time to time
make such provisions as he considers appropriate authorizing the
performance by any other officer, employee, or agency of the Department
of Justice of any function of the Attorney General.''
Those two very broad, very general provisions--the first placing all
functions of the Department under the control of the Attorney General,
and the second allowing the Attorney General to delegate those
functions--are being used to justify what amounts to an end run around
the Vacancies Act, which is protective of the Senate's rights under the
Appointments Clause of the Constitution.
As I have noted, defiance of the plain language of the Vacancies Act
is not an isolated case. In 1973, for example, the Department of
Justice refused to admit that L. Patrick Gray, who had been appointed
acting Director of the Federal Bureau of Investigation following the
death of J. Edgar Hoover in May of 1972, was serving in that capacity
in violation of the time limitation contained in the Vacancies Act. In
1982, the Department's Office of Legal Counsel dismissed out of hand--
dismissed out of hand the restrictions of the Vacancies Act as simply
``inapplicable'' to the Department--meaning the Justice Department. In
1984, the Department again asserted that ``. . . the specific
provisions of 28 U.S.C. Sec. 510 override the more general provisions
of the Vacancies Act.'' And, in 1989, the Justice Department determined
that the Vacancies Act ``. . . does not extinguish other statutory
authority for filling vacancies and that the Act's limitations do not
apply to designations made pursuant to those authorities.''
Madam President, I submit that that position is untenable, and is
untenable for two simple reasons: First, there is no historical basis--
absolutely none--for the suggestion that Congress ever meant sections
509 and 510 of Title 28 to exempt the Department of Justice from the
requirements of the Vacancies Act. And, secondly, the logical extension
of the Department's argument--now get this, the logical extension of
the Department of Justice's argument would render meaningless--
meaningless the entire advice and consent prerogative contained in the
Appointments Clause, article II section 2, of the U.S. Constitution.
Turning first to the Department's claim that sections 509 and 510 of
Title 28 somehow preempt the Vacancies Act, I note that those
provisions trace their origin to, and are a codification of, a 1950
congressional action known as Reorganization Plan No. 2. As my
colleagues may know, throughout the 1950's, Congress passed a series of
plans designed to reorganize the various executive branch departments.
The purpose of Plan No. 2 was to establish direct lines of authority
and responsibility within the Department of Justice, and to give the
Attorney General overall responsibility for the effective and economic
administration of the Department.
However, there is nothing--I repeat, absolutely nothing--in the
language of Plan No. 2 that would indicate that it was ever meant to
supersede the Vacancies Act. On the contrary, as the Senate's report
which accompanied the measure made clear at that time, and I quote from
that committee report, ``Plan No. 2 does not give to the Department of
Justice any more powers, authority, functions or responsibilities than
it now has.'' What could be more clear?
Finally, it is worth noting that the general language contained in
Plan No. 2 is virtually identical to language found in the
reorganization plans for the Departments of the Interior, Labor,
Commerce, and Health and Human Services. In fact, every one of the 14
cabinet-level departments has these general provisions in its basic
charter. Every one! Every one of the 14 cabinet-level departments. And
it is precisely that common linguistic thread that leads to the second
fatal flaw of the Justice Department's analysis.
If we accept this fallacious argument--that these broad, housekeeping
provisions somehow override, or are, in the Department's words,
``independent of, and not subject to'' the more specific provisions of
the Vacancies Act--then any executive branch department--any executive
branch department whose functions are vested in the department's head,
who, in turn, can
[[Page S11025]]
delegate those functions to subordinate officers, would be exempt from
the provisions of the Vacancies Act. Of course, exemption from the
Vacancies Act would then mean that an individual could be appointed to
an advice and consent position for an indefinite period of time. Who
thinks that the Founding Fathers meant for that to be?
Consequently, to accept the position of the Department of Justice is
to accept the position that the United States Senate--that is this
body--with the concurrence of the House of Representatives, has
systematically divested itself of its constitutional responsibility to
advise and consent to Presidential nominations.
Madam President, I wonder how many Senators believe that. I wonder
how many of my colleagues are prepared to accept such a specious
argument. How many of my colleagues truly believe that the Senate has
simply handed over one of the most effective checks against the abuse
of executive power? How many will agree that we have given away what
the Supreme Court has rightly characterized as ``. . . among the
significant structural safeguards of the constitutional scheme''? It
was referring to the Appointments Clause in the Edmund v. United States
case of 1997.
I, for one, do not subscribe to that specious argument, nor do I
believe that any other Senator would support such a contention.
After all, don't we swear an oath, ``so help me God,'' to support and
defend the Constitution of the United States, before we enter into
office?
At the same time, it is not fair to say the fault for this situation
lies entirely in the executive branch; a part of it lies with us. An
honest assessment of this matter will show that Congress must bear a
good deal of the responsibility for its failure to aggressively demand
strict compliance with the provisions of the Vacancies Act.
For 46 years I have been in the Congress, and I have noticed a steady
decline in the desire, the willpower, and the determination of Members
of Congress to speak out in protection of the powers of the legislative
branch.
When I came here it wasn't like that, but more and more and more, it
seems that there is an inability, or at least an unwillingness, on the
part of Congress to stand up in support of its constitutional powers
against the executive branch and those in the executive branch who
would make incursions into and upon the constitutional powers of the
Congress.
Each of us, individually and collectively, must concede that this
institution, this Senate, and the other body, have been less than
strenuous in protecting the constitutional rights and powers of the
legislative branch.
Congress did, of course, make an attempt to assert the supremacy of
the Vacancies Act when it last amended the statute some 10 years ago.
That was the second year of the 100th Congress. I was majority leader
in the Senate at that time, and on April 20, 1988, the Senate's
Committee on Governmental Affairs, in a report accompanying a broader
bill of which the Vacancies Act amendments were a part, stated thusly:
. . . the present language, however old, makes clear that
the Vacancies Act is the exclusive authority for the
temporary appointment, designation, or assignment of one
officer to perform the duties of another whose appointment
requires Senate confirmation. The exclusive authority of the
Vacancies Act would only be overcome by specific statutory
language providing some other means for filling vacancies. As
such, the Committee expressly rejects the rationale and
conclusions of other interpretations of the meaning and
history of the Vacancies Act. . . .
That was the language that was contained in the 1988 committee
report.
And yet, despite that language, it remains a fact that the Vacancies
Act has not been complied with. As a result, the time has come, and the
time is now, for Congress to take the matter into its own hands and
address the situation foursquare, right head on. That is what we are
attempting to do here. I believe that S. 2176, the Federal Vacancies
Reform Act, is the vehicle that will accomplish that goal.
This bill was introduced on June 16 by Senators Thompson, Thurmond,
Lott, Roth, and myself. Three months before, on March 16, I had
introduced S. 1761, the Federal Vacancies Compliance Act. Although my
bill took a slightly different approach, I believe it is fair to say
that it served as a basis for the bill before us today. I was
privileged, through the courtesy of the distinguished chairman of the
committee, Mr. Thompson, to be the lead witness at the March 18 hearing
held by the Governmental Affairs Committee. Senator Levin was there;
Senator Glenn was there; Senator Durbin was there; and other Senators,
I believe.
This legislation here today is the result of months of study, months
of discussion, and months of difficult negotiation. By extending the
time limitation on how long an acting official may serve, it is a bill
that clearly recognizes the realities inherent in today's nominating
process. It is a bill that goes out of its way to accommodate the
inauguration of a new President by giving the new administration up to
8 months to forward nominations, something not currently contained in
the Vacancies Act. So we are going the extra mile in an effort to
accommodate the problems of the executive branch. And it is a bill that
works to encourage the timely forwarding of nominations. Most
importantly, though, it is a bill which will, once and for all, put an
end to these ridiculous, specious, fallacious arguments that the
Vacancies Act is nothing more than an annoyance to be brushed aside.
Madam President, it is time for this institution to state, in no
uncertain terms, that no agency--no agency--will be permitted to
circumvent the Vacancies Act, or any other Act for that matter,
designed to safeguard our constitutional duties. We cannot, as James
Madison warned in Federalist 48, simply rely upon the ``parchment
barriers'' of the Constitution if we are to remain a coequal branch of
this government.
I urge my colleagues to reflect upon this issue, and, in so doing, to
hopefully conclude, as I have, that what is at stake here is something
much greater than the Vacancies Act. I hope all Senators will
understand that, each time a vacancy is filled by an individual in
violation of the Vacancies Act, yet another pebble is washed off the
riverbank of the Senate's constitutional role, and that, as more and
more of these pebbles tumble downstream, the bank weakens, until,
finally, it collapses. But above all, I hope my colleagues will agree
that we have a responsibility to the American people and to this
institution, the Senate of the United States, to shore up that
riverbank, to stop the erosion that has taken place, and to reverse the
wretched trend of acquiescing on our constitutional duties that seems
to have so ominously infected this Senate.
Let us wait not a day longer in defending the Senate's rights of the
Constitution. We are told by the great historian Edward Gibbon that the
Seven Sleepers of Ephesus were seven youths in an old legend who were
said to have fled to the mountains near Ephesus in Asia Minor to escape
the prosecution of the emperor Decius, who reigned in the years 249-251
A.D. Pursuers discovered their hiding place and blocked the entrance.
The seven youths fell into a deep slumber, which was miraculously
prolonged, without injury in the powers of life. After a period of 187
years, the slaves of Adolius removed the stones to supply materials for
some rustic edifice. The light of the sun darted into the cavern and
awakened the sleepers, who believed that only a night had passed.
Pressed by the calls of hunger, they resolved that Jamblichus, one of
their number, should secretly return to the city to purchase bread. The
youth, Jamblichus, could no longer recognize the once familiar aspect
of his native country. His singular dress and obsolete language
confounded the baker, and when Jamblichus offered to pay for the food
with coins 200 years old and bearing the stamp of the tyrant Decius, he
was arrested as a thief of hidden treasure and dragged before a judge.
Then followed the amazing discovery, said Gibbon, that two centuries
had almost elapsed since Jamblichus and his companions had escaped from
the rage of a pagan tyrant. The emperor Theodosius II believed a
miracle had taken place, and he hastened to the cavern of the Seven
Sleepers, who related their story, following which they all died at the
same moment and were buried where they had once slept.
Madam President, the moral of the story, as far as I am concerned, is
this:
[[Page S11026]]
The Senate has slept on its rights for all too many years.
Let us awaken to the threat posed by circumventions by the executive
branch of the appointments clause and act to preserve the people's
rights and the people's liberties, assured to them by the checks and
balances established by our forefathers.
In the proverbs of the Bible, we read: ``Remove not the ancient
landmark, which thy fathers have set.'' The landmark of the
appointments clause was established by our forefathers. We can suffer
its removal only at our peril, at the Senate's peril, and at the
people's peril. Let us, as Senators, not be found wanting at this hour.
It would require more than ``a mere demarkation on parchment'' to
protect the constitutional barriers between the executive and
legislative departments. It will require nothing less than an ambition
that counteracts ambition. Senators, vote for this legislation. Vote
for cloture today so that we can move on with the legislation. In the
words of Hamilton, in the Federalist No. 76, ``It would be an excellent
check upon a spirit of favoritism in the President, and would tend
greatly to preventing the appointment of unfit characters from State
prejudice, from family connection, from personal attachment, or from a
view to popularity. And, in addition to this, it would be an
efficacious source of stability in the administration.''
Madam President, I yield the floor.
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I yield myself 15 minutes.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. Madam President, I, too, think we need to amend the
Federal Vacancies Act, because the current act has too many loopholes
and insufficiently protects the constitutional prerogative of the
Senate to have Senate-confirmed officials serving in top positions in
the executive branch. It is because I believe we should amend the
Federal Vacancies Act that I voted to report the bill out of committee
and, along with, I think, all or most of our colleagues, voted to
proceed to Senate consideration of the bill.
But I will oppose cloture on the bill at this time, because if we
adopt cloture now, it would mean that relevant amendments could not be
considered. After cloture, only what are called germane amendments, as
we all know, can be considered. That is a very narrow and a very strict
rule. And for us to preclude the possibility of relevant amendments,
relevant to this subject, being offered, without the opportunity even
to offer those amendments, it seems to me, does not do justice to this
subject.
I commend Senator Byrd and Senator Thompson for bringing this issue
to our attention. Senator Byrd was the witness who appeared before our
committee--and the Chair is also a distinguished member of this
committee--and brought to our attention, very forcefully, the current
loopholes that exist, at least the alleged loopholes that exist, in the
Federal Vacancies Act.
These loopholes have been used by Presidents--I think inappropriately
used. And surely Senator Byrd has laid out a very powerful case in this
bill. And Senator Thompson and others laid out a very powerful case
that we should close those loopholes. But we should close those
loopholes considering relevant amendments in the process. And obtaining
cloture immediately upon proceeding to the consideration of the bill
will preclude the consideration of relevant amendments.
The bill before the Senate would make several important changes to
the current Vacancies Act to close a number of those loopholes. First,
it would make clear that the act is the sole legal statutory authority
for the temporary filling of positions pending confirmation. Both
Senator Byrd and Senator Thompson have stated forcefully why it is so
important for us to close that loophole. In our judgment, that loophole
does not exist. I think in the opinion of probably most Senators that
loophole does not exist. But, nonetheless, whether it is a real one or
an imaginary one, it has been used by administrations in order to have
people temporarily fill positions pending confirmation for just simply
too long a period of time, which undermines the Senate's advice and
consent authority.
So the first thing this bill would do would be to make clear that the
act, the Federal Vacancies Act, is the sole legal statutory authority
for temporarily filling positions pending confirmation. Agencies would
no longer be able to claim that their organic statutes trump the act
and empower them to have acting officials indefinitely.
Second, the act's time period authorizing an individual to be acting
in the vacant position would be increased to 150 days from the date of
the vacancy. The current act provides for 120 days, and it is unclear
on whether the period runs from the date of the vacancy or the date a
person assumes the acting position.
Finally, the bill would provide for an enforcement mechanism for
violations of the time period. And that is really an important point,
because without some kind of an enforcement mechanism, these violations
can take place without being corrected.
So the enforcement mechanism provides that if no nomination is
submitted within the 150-day period, the position would have to remain
vacant and any duties assigned just to that position by statute could
be performed only by the agency head. As soon as a nomination is
submitted, the bill provides that an acting official could then assume
the job temporarily until the Senate acts on the nomination.
While the staff was making efforts to try to negotiate a unanimous
consent agreement and perhaps a managers' amendment for Senate
consideration of this bill, a cloture motion was filed. In my judgment,
it was filed prematurely. And now if, indeed, this cloture motion
passes, amendments which are relevant to this subject, important
amendments, relevant to this subject, would not be subject to
consideration and debate by the U.S. Senate.
Again, I am one who would like very much to see a reform of the
Vacancies Act and to see that reform enacted in this Congress. Senator
Byrd and Senator Thompson and others deserve the thanks of all of us
for bringing the Senate's attention to this issue. Senator Byrd, again,
took the lead in prompting the Governmental Affairs Committee to hold a
hearing on this topic last March and pointed out the Justice
Department's regrettable practice of having persons serve as acting
officials in top-level positions for significant periods of time
without Senate confirmation.
By having acted, officials serve in this way; and ignoring the
purpose of the existing Vacancies Act, the Department delays or avoids
Senate confirmation.
The Vacancies Act was originally enacted in 1868. Its whole purpose
is to encourage the President to submit nominations in a timely
fashion. In 1988, the Governmental Affairs Committee amended the act to
preclude an agency--in particular, the Justice Department--from
avoiding Senate confirmation and the requirements of the Vacancies Act
by arguing that the act did not apply to their Departments.
Unfortunately, the technical language that the committee used back then
to accomplish this didn't do the job, at least in the eyes of the
Department of Justice, and some agencies--and the Department of
Justice, for one--have continued to operate outside of the intent of
that law.
The bill before the Senate, then, attempts to rein in agencies like
the Justice Department. It also attempts to set clearer guidelines on
what agencies can and can't do with respect to vacancies, and it
creates an action-enforcing mechanism that will encourage Presidents to
act promptly on submitting nominations.
Now, in the eyes of many Members of this body, the Senate also has an
important responsibility to act promptly on the nominations once they
are received. That is why it would be relevant to debate the question
as to whether or not a bill which amends the Vacancies Act to force the
President to make timely nominations--in order to evade the clear
constitutional role of the Senate in advising and consenting to such
nominations--that such a bill could also appropriately address the
Senate's duty to act on such nominations once they are submitted. That
doesn't mean approve the nominations, that simply means to act on those
nominations.
When we take up this subject of nominations, we need a bill which
will
[[Page S11027]]
ensure that nominations are made in a timely way, but we also have to
avoid crafting an unrealistic bill that could leave many key positions
vacant. I don't think any of us want to do that. That is why this bill
extends the time that a new administration would have in order to fill
these positions without triggering the action-enforcing mechanism.
We need to recognize, however, that this vetting process for
nominees--the exploratory process, the FBI checks--has become much more
complicated and complex than it was even a decade ago when the act was
last amended. Increasingly adversarial confirmation proceedings have
required that background investigations and other steps in the vetting
process are more thorough and lengthy.
We asked the Congressional Research Service to look at the length of
time it took for the first Clinton administration to make nominations
and the time for Senate confirmation of those nominations, and to
compare those numbers to the time it took the first Reagan
administration in 1981 to make those nominations and for the Senate to
act on those nominations. The results reflect that both the nomination
and the Senate confirmation process are simply taking longer. In 1981,
President Reagan took an average of 112 days to submit a nomination;
President Clinton, in 1993, took an average of 133 days to make a
nomination.
In addition to Presidents taking longer because the process simply
takes longer, the Senate is also taking much longer to confirm
nominees. In 1981, the Senate took an average of 30 days to confirm
nominees; in 1993, the Senate took an average of 41 days to confirm
Clinton administration nominees. So the reality that it takes a greater
period of time for these nominations to be made should be reflected in
the bill. It is reflected by a 30-day extension for the time period,
which we have all referred to. Whether or not that is enough is subject
to debate, and there will be amendments on that subject as well.
As I have indicated, in addition to crafting a bill that reflects
today's more adversarial nominations climate, there are many who feel
strongly that we in the Senate should acknowledge our own
responsibility to act on nominations that we receive from the
administration. We, in the Senate, rightfully want to protect our
constitutional prerogative to advise and consent on nominations and not
to have positions filled by people whose nominations have not been
confirmed by the Senate. By the same token, we should discharge our
duties in a prompt matter once those nominations are submitted to us.
Currently, there are many, many examples of the Senate failing, both
in committee and on the floor, to act on nominations. We are
appropriately critical of the administration for not sending up
nominations in a timely way, but it is also appropriate for us as an
institution to act one way or the other on those nominations once they
are received. It is the desire of some of our colleagues to offer
amendments that would require the Senate to act in a timely fashion on
nominations, both by considering them in committee and by requiring a
vote on them on the Senate floor. Again, not a positive vote
guaranteed, just a vote.
Madam President, I think this bill moves us in the right direction.
It is a bill that would close loopholes which many of us did not think
even existed but which are being utilized by administrations to make
appointments of these temporary people for long periods of time without
submitting the nominee's name to the Senate for advice and consent.
There are many provisions about which concerns have been raised, and it
is perfectly appropriate, I believe, for those issues to be debated and
to be resolved here on the Senate floor.
I also would plan on offering an amendment to provide for a cure of a
violation; that is, to allow an official to temporarily act in a vacant
position once a nomination has been submitted, even if that nomination
is submitted during a long recess. The bill is not clear, in my
judgment, as to what happens when the 150-day period runs prior to, for
instance, a sine die recess but when the intention to nominate a
particular person is submitted to the Senate to the extent that is
permitted during a sine die recess.
It would seem to me that, just as the bill appropriately holds the
150-day period when a nomination is submitted and permits somebody to
serve in that capacity where there is an intent to nominate, so if the
150-day period happens to run out before a recess but the intention to
nominate a particular person is submitted to the Senate during that
recess, then also a temporary appointment ought to be permitted.
Madam President, I will offer an amendment at an appropriate time to
have a person as an acting official permitted after the 150-day period
has expired, when a recess occurs and the nominee or a nominee's name
is submitted to the Senate during that recess.
There are a number of concerns which a number of our colleagues have
raised with the bill as drafted, and some of these concerns, again,
would be reflected in relevant amendments but which are not technically
germane and would be precluded and foreclosed if cloture were invoked.
For example, the bill restricts who can be an acting official, in
case of a vacancy, to a first assistant or another advice and consent
nominee. That is too restrictive a pool of acting officials and does
not give this administration, or any administration, the ability to
make, for instance, a long-time senior civil servant within the agency
an acting official. Such senior civil servants may be the best
qualified to serve as acting officials. First assistants may not exist
for all vacant positions. Further, designating another advice and
consent nominee to serve as an acting official takes that person away
from the duties of their regular job. The category of persons who can
act needs to be made larger, in my judgment, and in the judgment of
others who will be offering amendments along this line--who, at least,
want to offer amendments along this line, assuming that they are
afforded the opportunity to do so.
This provision that I have referred to, the restriction that I have
referred to, may be operating particularly harshly at the start of a
new administration when many vacancies exist. At such times, not many
first assistants may be holding over from previous administrations.
Therefore, the first assistant slots may be empty, also. Similarly, few
other Senate-confirmed officers will exist that the President could
choose from to serve in a vacant position. One of our colleagues
intends to offer an amendment to allow qualified civil servants to be
acting officials, also. And again, this amendment, like some of the
other amendments that are sought to be offered here, may not be
technically germane and can be foreclosed after cloture.
I don't think it is appropriate that relevant amendments should be
foreclosed. That is why I am somebody who believes we need to amend the
Federal Vacancies Act in order to close the existing loophole, and in
order to protect the constitutional prerogative of the President, and I
also want to protect the prerogative of Senators to offer relevant
amendments. That is the issue we are going to be voting on--whether or
not Senators ought to have an opportunity to offer relevant amendments,
or whether they should be precluded from doing that by cloture being
invoked so prematurely, when a bill has just been brought to the floor,
and then being denied the opportunity to offer amendments on issues
that are clearly relevant to this issue.
So the bill is an important one. The issue is an important one. I
think we are all in the debt of the sponsors for bringing this bill to
the floor. It is appropriate that the Senate debate this bill and that
Senators who have relevant amendments, although not technically
germane, be offered the opportunity to offer those amendments, have
them voted on, and to have these issues, some of which I have
discussed, resolved.
I hope we will vote against cloture and that we will proceed to
continue on the bill and have people offer amendments--hopefully
relevant amendments--and to try to work out a unanimous consent
agreement to see if we can't come up with a list of relevant amendments
that people could offer on this subject so that they would not be
foreclosed, being in a postcloture situation, from offering amendments
that are relevant to this important issue, but not technically germane.
[[Page S11038]]
I yield the floor.
Mr. THOMPSON addressed the Chair.
The PRESIDING OFFICER. The Senator from Tennessee is recognized.
Mr. THOMPSON. Madam President, I yield the Senator from South
Carolina 10 minutes.
The PRESIDING OFFICER. The Senator is recognized for 10 minutes.
Mr. THURMOND. Madam President, I rise today in support of cloture on
S. 2176, the Federal Vacancies Reform Act. This legislation should be
entirely nonpartisan because it is essential to the advice and consent
role of the Senate.
Recent Administrations, both Republican and Democrat, have failed to
send nominations to the Senate in a timely manner. Instead, they have
appointed people to serve in an acting capacity for long periods of
time without seeking confirmation.
This is a matter of great significance. One of the primary fears of
the Founders was the accumulation of too much power in one source, and
the separation of powers among the three branches of government is one
of the keys to the success of our great democratic government. An
excellent example of the separation of powers is the requirement in
Article 2, Section 2 of the Constitution that the President receive the
advice and consent of the Senate for the appointment of officers of the
United States. As Chief Justice Rehnquist wrote for the Supreme Court a
few years ago, ``The Clause is a bulwark against one branch
aggrandizing its power at the expense of another branch.''
The Vacancies Act is central to the Appointments Clause because it
places limits on the amount of time that the President can appoint
someone to an advice and consent position in an acting capacity without
sending a nomination to the Senate. For too many years, the Executive
Branch has failed to comply with the letter or the spirit of the law.
I raised this issue for the first time this Congress in April of last
year at a Justice Department oversight hearing. At the time, almost all
of the top positions at the Justice Department were being filled in an
acting capacity. They included the Associate Attorney General,
Solicitor General, Assistant Attorney General for Civil Rights,
Assistant Attorney General for the Criminal Division, and Assistant
Attorney General for the Office of Legal Counsel.
President Clinton allowed the Criminal Division of the Justice
Department to languish for over two and one half years before
submitting a nomination. The government had an Acting Solicitor General
for an entire term of the Supreme Court. Most recently, the President
installed Bill Lann Lee as Acting Chief of the Civil Rights Division in
blatant disregard of the Judiciary Committee's decision not to support
his controversial choice. Mr. Lee has been serving as Acting Chief for
ten months, and the President apparently has no intentions of
nominating someone the Judiciary Committee can support.
Let me be clear. The issue is not about any one President or any one
nominee. It is about preserving the institutional role of the Senate. A
Republican President has no more right to ignore the appointments
process than a Democrat President.
I responded to this problem by introducing a resolution about one
year ago. However, I soon realized that a total rewrite of the
Vacancies Act with an enforcement mechanism would be required to force
the Executive Branch to follow the law in this area. Thus, earlier this
year, I sponsored a bill on behalf of myself and the Majority Leader to
rewrite the law regarding vacancies.
Today, I am pleased today to be an original cosponsor of S. 2176, the
bill that we are debating today. It contains the two primary objectives
that I outlined when I testified before the Governmental Affairs
Committee earlier this year: the need to totally redraft the Vacancies
Act and to provide a mechanism for enforcement. Senator Thompson has
done a fine job in drafting S. 2176 and in shepherding it through the
Governmental Affairs Committee. He has worked hard to create a
bipartisan consensus for this legislation. In that regard, I am pleased
that my distinguished colleague who is an expert on the institution of
the Senate, Senator Byrd, is an original cosponsor of this legislation.
S. 2176 would correct the Attorney General's misguided interpretation
of the current Vacancies Act. In fact, she practically interprets the
Act out of existence. Based on various letters to me, it is clear that
if her interpretation were correct, no department of the Federal
government would be bound by the Vacancies Act. There would be no
limitation on the amount of time someone could serve in an acting
capacity. There would be no limitation on how long the advice and
consent role of the Senate could be ignored.
Additionally, the bill has an enforcement mechanism, while the
current law has none. Because there is no consequence if the Vacancies
Act is violated today, the Executive Branch simply ignores it. This
change is essential for the Act to be followed in the future. The bill
provides that the actions of any person serving in violation of the
Vacancies Act are null and void, until a nominee is forwarded. There
can be no argument that this will paralyze an office because the
President can make the office active by simply forwarding a nomination.
It is also important to note that the bill gives the President an
extra 30 days to submit a nomination. It extends the time from 120 days
to 150 days, with even more time at the start of the administration.
These were concessions to the Executive Branch. Indeed, the bill
overall makes no more change than necessary in the Vacancies Act to
make sure it will be followed in the future.
The question before us is cloture on S. 2176. We should invoke
cloture now and move to any amendments that members wish to propose.
Cloture on the motion to proceed was easily invoked last week in a
completely bipartisan vote, and I hope we can get a similar consensus
today.
Madam President, we must act in a bipartisan fashion to preserve the
advice and consent role of the Senate. We must require any
administration in power, whether Democrat or Republican, to respect
this Constitutional role of the Senate. As the Supreme Court has
stated, ``The structural interests protected by the Appointments Clause
are not those of any one branch of Government but of the entire
Republic.'' By passing the Vacancies Reform Act, we can reaffirm the
separation of powers for the sake of the Senate and the entire
Republic.
Madam President, I yield the floor.
Mr. LEVIN. Madam President, I yield 15 minutes to the Senator from
Illinois.
The PRESIDING OFFICER. The Senator from Illinois is recognized for 15
minutes.
Mr. DURBIN. Thank you, Madam President.
I thank the Senator from Michigan for yielding.
Madam President, I rise today to oppose this effort to bring to a
close debate on the Vacancies Act reform legislation, S.2176. I urge my
colleagues to join me in voting against cloture.
Without so much as a blink, a breath, or a blush, a cloture motion on
the bill itself was immediately filed last Thursday morning on the
heels of the Senate's agreement to proceed to this bill. This quick
flinch maneuver is an attempt to deny Members the opportunity to offer
meaningful relevant amendments to improve this legislation, such as
those I intend to pursue to address the Senate's responsibility to act
expeditiously on pending nominations.
Before I outline the importance of assessing both sides of the
process and outline my specific reservations about the bill as
presently drafted, I wish to emphasize that I share the convictions and
concerns of the sponsors, notably Senators Byrd, Thurmond, and
Thompson, about the critical need to preserve and protect the
constitutional prerogative of the Senate to advise and consent to
Presidential nominations to executive branch positions. I am sure that
I am not alone in this view.
I appreciate the sponsors' zeal to remedy what has grown to be,
numerous instances and examples throughout the government, of outright
challenges to Senate authority by ignoring the Vacancies Act. There has
been flagrant and contagious disregard for the application of the
existing law as the sole mechanism for temporarily filling advise and
consent positions while awaiting the nomination and confirmation of the
official candidate.
[[Page S11029]]
I wholeheartedly concur that this law needs clarification so that
moves to end-run its application are halted. The bill as advanced by
the Governmental Affairs Committee laudably addresses this exclusivity
question.
Thus, I do not oppose efforts to bolster the Vacancies Act as the
exclusive mechanism (with limited and explicit exceptions) for the
president to designate officials to temporarily fill vacancies in
positions requiring Senate confirmation.
Unfortunately, in its current form this bill goes well beyond that
justifiable but limited goal in several respects. Moreover, it fails to
go far enough to address the Senate's duty to timely act on
nominations.
While the Administration may well bear some responsibility for the
slow pace of nominations, I am dismayed that the Senate would want to
so severely restrict the ability to fill vacant positions temporarily
and to conduct the people's business while at the same time impeding
the nominations process and confirming nominees at a snail's pace.
The Senate bears partial responsibility for the time it takes to
nominate officials for Senate confirmed positions. This Congress has
subjected the Administration's nominees to unprecedented scrutiny,
using almost any prior alleged indiscretion--no matter how trivial--by
a nominee as an excuse to delay or prevent a vote.
Senators have also interjected themselves into the President's
nominations process to an unparalleled degree. As a result, that front-
end process--the selection, recruitment, and vetting of candidates--
takes longer than ever before.
The nomination and confirmation process, it has been observed, is one
of ``the President proposing, the Senate disposing.'' If the Senate
expects adherence to the rigid parameters this bill would impose on
advancing candidates, we as its Members need to be ready and willing to
diligently consider these candidates for public office and take prompt
and deliberate action to confirm or reject them.
The Senate has frequently declined to exercise its advice and consent
responsibility in a timely and appropriate manner. Too often,
nominations die in Committee, languish interminably on the Executive
Calendar, or simply take months or years to move through this Chamber.
Just as the President has a responsibility to forward nominees to the
Senate in a timely fashion, we in the Senate have a concomitant
obligation to discharge our constitutional prerogative of advice and
consent on those candidates in an efficient and expeditious fashion.
We cannot simply confront practical deficiencies in the front-end
phase of the process for recruiting and evaluating qualified candidates
and ignore our own responsibilities.
We owe it not only to the Executive, but to the American public, to
offer--not withhold--our advice and where appropriate, our consent.
I have filed and certainly hope to have an opportunity to offer some
relevant amendments designed to address those instances of dilatory
Senate Committee processing and floor inaction once a nominee is
advanced to the calendar.
One amendment would provide that any nomination submitted to the
Senate that is pending before a Senate committee for 150 calendar days
shall on the day following such 150th day, be discharged and placed on
the Senate executive calendar and be considered as favorably reported.
Another amendment would require the Senate to take up for a vote any
nomination which has been pending on the Executive Calendar in excess
of 150 days. Such Senate consideration must occur within 5 calendar
days of the 150th day. In effect, it creates an end point after which
we can no longer hold up a nominee.
I am not suggesting that we would give our consent to all of these
nominees. I am basically saying that this process should come to a
close. The Senate should vote. It should make its decision.
If we want to reasonably time-limit the front end of the process--
with which I do not disagree--and promptly fill vacancies, we need to
be equally willing to build some finality into the back-end of the
process and impose some time limits on our own consideration of these
candidates.
The first problem I find with this bill is that filling positions in
the Government requires time far longer than that specified in this
bill.
I have an amendment which suggests increasing the 150-day period to
210 days. I am sure people are wondering, if they are following this
debate, why it would take so long for any kind of process to review a
nominee. Well, as it turns out, the average number of days that a
vacancy exists prior to a Senate nomination for the White House is 313
days. What could possibly take 313 days in investigating the
qualifications of an individual to fill the job?
Consider all of the things that are going to be investigated. Not
only the lengthy forms the individual must fill out, ethics
disclosures, financial statements, fingerprints and the like, but also
an FBI investigation, a Federal Bureau of Investigation report on that
person, the opportunity for groups to contact the White House and say
that they either oppose or support the individual, the opportunity for
Members of Congress to come forward and suggest to the administration
that they either support that nominee or they oppose it. And as it
turns out, some of these things such as an FBI report may not happen as
quickly as some people imagine. We have heaped on that agency
additional responsibilities every year. We entrust them with very
important jobs. We tell them that we want them to fingerprint and make
certain that those who want to be citizens of the United States, in
fact, have no criminal record in any foreign country. That is a valid
question, but it is an additional administrative responsibility.
The list goes on and on and on. As a consequence, when the
administration comes to this agency, and it is only one example, and
asks for a timely review of an individual nominated for a position,
they sometimes have to wait in line. And while they wait the clock is
ticking.
And consider this as well. As a result of this legislation, saying
the administration shall only have 150 days, what if in the midst of
this process--say, for example, 4 or 5 months into the process--the
administration reaches a conclusion that the individual should not go
forward and the nomination should not be sent to the Senate. Does the
clock start to run again? No. The clock continues to run 150 days, so
the new nominee, starting over going through all these processes,
trying to clear all these hurdles, is still burdened by the original
clock ticking at 150 days. I don't think it is realistic. I don't think
it is fair. Merely adding 30 additional days to the current 120-day
timeframe within which an acting official may temporarily perform the
duties and functions of the vacant office unless the Senate has
forwarded a nominee to the Senate within that span is impractical. It
is unrealistic, and I do not believe it is adequate.
Mr. BYRD. Madam President, will the Senator yield?
Mr. DURBIN. I will be happy to yield.
Mr. BYRD. The Senator from Illinois has suggested an amendment, Madam
President, as far as I am concerned, I could accept. Why not let us
invoke cloture; that amendment is certainly a germane amendment, and
have the Senator put it up for action by the Senate? I am one who would
vote for it.
Mr. DURBIN. I thank the Senator from West Virginia, and I certainly
appreciate those comments. But we are told by the Senate
Parliamentarian that the amendment would be relevant but not germane,
and therefore any action for cloture which would put a burden on the
Senate to act within a certain period of time on nominees that are sent
would be wiped away, or could be wiped away by this cloture motion.
Mr. BYRD. Madam President, will the Senator yield further?
Mr. DURBIN. I will be happy to yield.
Mr. BYRD. I may have misunderstood the Senator. I thought the Senator
was suggesting that the 150 days is not enough and that he would like
to see 30 additional days. That would certainly seem to be germane as
far as I am concerned.
Mr. DURBIN. If the Senator will allow me to respond, that amendment
is germane. The only other amendments which would impose a
responsibility on the Senate to move a nominee out of committee within
150 days after it is sent from the White House or
[[Page S11030]]
to move it off the Executive Calendar for a vote within 150 days, I am
told by the Senate Parliamentarian, may not be allowed if cloture is
invoked.
Mr. BYRD. Yes. I expect the Parliamentarian is right on that. I would
not argue with that, nor would I probably support it.
If the Senator will allow me, the Constitution doesn't say that the
Senate has to confirm the nominees. It simply says the President cannot
have the full responsibility and power himself to name people to
important positions. This is a matter that has to be shared under the
Constitution between the President and the Senate. This constitutional
provision--the appointments clause--I am trying to protect today is
being given the runaround by the Justice Department and several other
Departments, and I want to protect that constitutional power that is
given to the Senate. As to whether or not the Senate acts on
nominations, the Constitution doesn't require the Senate to act, but I
think that the Senate does act, and would continue to act, on
nominations within a reasonable period of time.
Having been the majority leader of the Senate during three different
Congresses, I can say to the distinguished Senator that when I was
majority leader we had nominations left on the calendar at the end of a
Congress, in all three of the Congresses in which I served as majority
leader. When we adjourned sine die that Executive Calendar was not
wiped clean. We all did the best we could, but we did leave some
nominations on the calendar. And I certainly share the Senator's
feeling that the Senate ought to act expeditiously, in a reasonable
fashion, but when it comes to requiring the Senate to act on all
nominations, I don't think the Constitution requires that. And I might
have to part company with the Senator at that point. But some of his
other suggestions, I think, are very well made.
Mr. DURBIN. I thank the Senator from West Virginia. It pains me to
believe we would have a difference of opinion, but those things do
occur. I am certain the Senator as majority leader did his
constitutional responsibility--there has never been a doubt about
that--and also acted with dispatch in a timely manner.
I think the Senator makes a good point. We not only want to protect
the clear constitutional responsibility and right of the Senate in this
process, we want to bring the best men and women forward to continue
serving our Government, and we want it all done in a timely fashion. My
concern with this bill is it addresses one side of the equation. It
says to the executive branch, you have to move in a more timely fashion
to bring these men and women to the Senate for consideration. If we are
clearly looking for filling vacancies in a timely fashion, that is only
half the process. Once the nomination is brought to the Senate, we
should move in a timely fashion, too. Otherwise, using the old
reference to equity, we don't come to this argument with clean hands,
and that is why I think there should be some symmetry here in the
requirement of the executive as well as the legislative branch.
Mr. BYRD. Madam President, will the Senator yield?
Mr. DURBIN. I will be happy to yield.
Mr. BYRD. And I thank him for yielding. The Senator, as I think I
understand, suggested that if we are going to deal with one part of the
equation, namely, the nominating process by the executive, and protect
ourselves in that regard, we ought to be equally interested in dealing
with the other half of the equation by requiring action by the Senate
to confirm or reject nominees.
May I with great respect suggest--and I am doing this for the record.
I am sure I am not ahead of the Senator in thinking this--I am trying
to address the constitutional side of the equation and stop the
administration, not only this administration but also previous
administrations, from conducting a runaround of the constitutional
advice and consent powers of the Senate. I am suggesting we deal with
that constitutional side of the equation.
Now, the other side, which the distinguished Senator mentions, if he
will pardon my saying so, I think what he is talking about is the
political side of the equation. That part is not included in the
Constitution. The Constitution doesn't require the Senate to act on any
nomination. But that is the political side. I would like to deal with
the constitutional side, and that is the purpose of this legislation.
And then we can do the best we can on dealing with the political side.
The Senator is quite right; neither side comes into this matter with
perfectly clean hands. That is an old equity maxim.
It reminds me of Themistocles who happened to say, one day, ``that he
looked upon it as the principal excellence of a general to know and
foresee the designs of the enemy;'' Aristides answered, ``that is
indeed a necessary qualification; but there is another very excellent
one, and highly becoming a general, and that is to have clean hands.''
The same thing would apply here. Neither party has clean hands when it
comes to moving all nominations sent by a President to an up or down
vote. As majority leader during the Presidential years of Mr. Carter
and again during the 100th Congress, I can remember that the calendars
were not always cleared of items that had been reported by committees
when adjournments sine die occurred. I hope that we will not get bogged
down in this way about a purely political matter when a far more
important constitutional matter, important to the prerogatives of the
Senate in the matter of appointments is at hand.
And let me state to the Senator the number of nominees that were left
on the executive calendar when I was majority leader, at the time of
sine die adjournment.
When I was majority leader--I will just take one Congress, for
example, the 100th Congress.
The PRESIDING OFFICER. The time of the Senator from Illinois has
expired.
Mr. BYRD. Mr. President, I ask unanimous consent the Senator have an
additional 5 minutes.
Mr. LEVIN. Reserving the right to object, and I surely hope I will
not, I wonder how much time remains.
Mr. BYRD. And that that time not be charged against either side.
The PRESIDING OFFICER. The Senator from Michigan has 21 minutes; the
Senator from Tennessee has 9 minutes. Is there objection to the
request?
Mr. LEVIN. The modified request, we have no objection to.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. I will just say this. To show that we all sometimes fail to
have clean hands, when I was majority leader in the second session of
the 100th Congress--I don't mind saying this--the civilian nominations
totaled 516, including 112 nominations carried over from the first
session; 335 of these were confirmed, 170 were unconfirmed, and 11 were
withdrawn. So, this is a failing that can be ascribed to both Democrats
and Republicans when they are in control of the Congress.
But, yet, I come back to my original premise; namely, that the
Constitution did not require me to call up all those nominations off
the calendar. It didn't say I had to do that. But it did say, with
respect to nominations, that appointments to vacancies were to be
shared by the President and the Senate, and that is what this bill is
contemplating to enforce and what I am fighting for today.
I thank the distinguished Senator.
Mr. DURBIN. I thank the Senator from West Virginia.
I would just say that I can't believe that I hurried back from
Chicago this morning to come to the floor of the U.S. Senate to
actually engage my friend and fellow Senator from West Virginia in any
debate about the Constitution. I plead nolo contendere. I am not able
to join you in that. And I can't even reach back in Greek or Roman
history for any kind of solace or defense.
I am not sure who the author was, it could have been a Greek or
Roman, maybe a West Virginian, or even an Illinoisan, who once said the
profound statement, ``What is sauce for the goose is sauce for the
gander,'' and that is what I am attempting to argue here. That is, if
we are going to impose on the executive branch a requirement to produce
the nominee in 150 days, or if the time goes beyond that to suffer the
possibility of not having an acting person in that slot, then we should
accept the responsibility on the Senate side as well, to act in a
timely manner on these nominees.
[[Page S11031]]
Mr. BYRD. Mr. President, will the Senator yield? I hope he will
forgive me.
Mr. DURBIN. I will be happy to yield.
Mr. BYRD. I am not here to engage in challenging his statements. He
is one of the fine Members of this Senate; one of the newer Members, in
a way. He served a long time in the House of Representatives. He comes
to the Senate well prepared to be a good Senator, and he is a good
Senator.
But, again, I am concerned about that part of the responsibility
which the Constitution places on both the executive and the
legislative. I think the legislative is being given the run-around by
the Judiciary Department. It has not just been during this
administration. It has been, as I say, going on for over 25 years, and
this is an opportunity for us to correct that, I hope we would vote for
cloture and perhaps some of the Senators' amendments--which are
certainly worthy of consideration and probably of adoption, some of
them--could be given a chance to be offered and debated. I hope we
would invoke cloture, indeed, to have an opportunity to do that.
Mr. DURBIN. I thank the Senator from West Virginia.
I think what we have found is that rarely do we visit this rather
obscure area of the law, the Vacancies Act. I am hoping in this
visitation on one side, that we have some balance and impose
requirements on the Senate to act in a timely fashion, as we impose a
requirement on the executive branch to report a nominee in a timely
fashion. But I also hope the time periods that we choose are realistic.
I think anyone involved in this process at any level understands that
when a person's name comes up in nomination, they are subjected to far
greater scrutiny than ever before. It discourages many good people from
even trying public service, and I am sure that many have been
disappointed.
But let us, I hope, during the process of this debate, be sensitive
to this reality. And it is a reality that, under the bill, the meter
keeps on ticking even when this scrutiny is underway, even if it is
interrupted and a new nominee is proposed for a post. And if, in fact,
at 150 days the nomination is not forthcoming, then, as I understand
this bill, we would preclude the President from filling the spot with
an acting person. That, to me, is a sort of decision which on its face
makes sense but may have some practical ramifications. It may affect
the ability of the administration to choose the person most able to
handle a matter that involves public health, public safety, or the
national defense. I also think that this bill too narrowly restricts
who can function in an acting capacity.
The PRESIDING OFFICER. The additional 5 minutes of the Senator has
expired.
Mr. LEVIN. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator from Michigan has 21 minutes
remaining.
Mr. LEVIN. I will be happy to yield an additional 5 minutes to the
Senator from Illinois.
Mr. DURBIN. Mr. President, I am concerned this bill too narrowly
restricts those who can function in an acting capacity. I am worried
that, in fact, the administration will not be able to pick that person
best able to fill the spot, to conduct the duties, and to perform the
functions of the office in the best way. I don't think that serves our
country well. This bill could preclude the President from naming the
most qualified person to serve as an acting officer. I do not think
that will help us in any way.
Third, while it would not affect this President, experience has shown
that at the beginning of a new administration filling positions in the
Government requires far longer than specified in this bill. At the
outset of any new administration, the President must nominate
individuals to at least 320 positions in 14 different executive
departments. The new President cannot possibly make all the required
nominations within the 240 days allowed by this bill.
In 1993, when the nominations process was, if anything, simpler than
today, the new administration was able to forward only 68 percent of
the nominees within the first 240 days. Unless this time period is
changed, the next administration could face departmental shutdowns
because of this bill.
The enforcement mechanism of this bill, which establishes that no one
can perform the functions and the duties of the vacant office, is a
sanction which would lead to administrative immobilization.
I would like to also note it is ironic that we are here today
debating whether to close off consideration of a measure designed to
limit how long an acting official may temporarily fill an executive
branch vacancy and legally perform the duties while awaiting an
advancement of a nominee. The impetus is on the President to send
nominees more expeditiously; yet with acting officials in many of these
agencies, the work can continue. Such is not the case with the sister
branch of Government which has eluded our debate here today, the
Judiciary. In fact, a more serious crisis sits on the doorstep of the
U.S. Senate, one that has been sorely neglected this year by many of
the same people on the other side of the aisle who are proposing this
change in the Vacancies Act.
We must recognize there is no similar vehicle or parallel authority
like the Vacancies Act for filling vacancies on the Federal bench.
There are presently 22 candidates to fill judicial vacancies on the
Executive Calendar of the U.S. Senate, and 24 pending before the Senate
Judiciary Committee--3 of those from my State. Unlike the executive
branch where qualified acting officials may step in, in the judicial
branch we don't have ``acting'' or ``interim'' judges.
I think, frankly, if we are going to assume some responsibility here,
as we should, and impose responsibility on the executive branch, we
should meet our responsibility. I think that responsibility requires us
to act in a timely fashion on nominees sent before us. The reason I
oppose cloture is I would like to see that the Senate shall also be
held to the responsibility of acting in a timely fashion. If, after 150
days languishing in a committee there is no report on an individual,
the name should come to the floor. If, after 150 days languishing on
the Executive Calendar that name has not been called for a vote, it
should be. Vote the person up or down. They are qualified or they are
not. But to impose all of the burden on the executive branch and to
step away from our responsibility I don't think is fair. It doesn't
engage the symmetry, which I think is important.
I will concede, as Senator Byrd has said, the constitutional question
is directly addressed by this bill, but I think there is a larger
question about the process and whether or not we meet our twin goals:
timely consideration and ultimately the very best and most able people
who are selected to serve us in Government.
Mr. President, I yield back my remaining time.
The PRESIDING OFFICER. Who yields time?
Mr. THOMPSON addressed the Chair.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. THOMPSON. I yield myself 5 minutes.
The PRESIDING OFFICER. The Senator is recognized.
Mr. THOMPSON. Mr. President, I have a couple of points. With regard
to the desire for symmetry, I point out that the symmetry and the
balance are provided for in the Constitution itself. It is not
symmetrical to take a constitutional provision and our constitutional
duties, on the one hand, and equate it with legislation that people
might be for or against, on the other. The Constitution provides that
the President has the power to make the appointment, but only with the
advice and consent of the Senate. It is part of our separation of
powers, part of our checks and balances. Therein is the balance.
What we have today is a situation where the President, the current
President, as Presidents in the past, has made nominations and figured
out ways around the prerogatives of the Senate. We are in a situation
today where we are not doing our duty. The U.S. Senate is not doing its
duty in upholding its right and protecting and preserving its right.
We can bring this matter back. We cannot have cloture and bring this
matter back time and time again. But we must recognize, with the
provision, of course, of being able to offer germane amendments, we
must recognize
[[Page S11032]]
that this situation is ongoing. We can debate legislation at any time.
If it is deemed desirable to put a time limit on the U.S. Senate to
consider appointments, we can debate that.
I think it is very bad legislation. As most Senators, I think, know,
there is more than one reason why nominations languish up here
sometimes. Sometimes they languish for very good reasons. Sometimes it
is an attempt to work with the White House with regard to someone who
has problems. Instead of just saying no and sending it back or telling
them to take it back, we find ways to work around the problems we have.
There are many reasons why that would be bad legislation, but it is
something that can be considered at any time.
We have had this vacancies situation with us about 130 years now in
terms of this legislation, and there are all kinds of things that can
be added to it at this date, that it would probably be better if it
were considered separately and invoke cloture today so we can address a
problem that is really important in terms of the constitutional
responsibilities of this body.
With regard to the other objections of the bill and talking about
that this is too confining on the front end, actually we either are
continuing practices that have been with us for 130 years or we are
making them more liberal. We are giving the President greater leeway.
We are giving him 150 days instead of 120 under current law. If we do
not pass this legislation, he will keep 120 days instead of the 150 we
are trying to give him. People are concerned about a new President
coming in. We have added an additional 90 days to the 150 days in which
a new President will have to make his nominations. We also added
another liberalizing provision that, if he lets the 150 days expire and
then there is a period of time and then he makes the nomination, the
acting person can go back and resume his duties. These are all
liberalizing provisions.
I understand the need to consider amendments. I was hoping that the
possibility of germane amendments would get us through this, in light
of the fact that we have spent a lot of time working on a bipartisan
basis and making several changes.
We have made changes since this legislation was introduced to allow
the President to cure a vacancy by sending up a nomination even after
150 days; by modifying the exclusion provision to exclude chief
financial officers, for example; to allow a 150-day period when it
expires during a recess to be extended to the second day after the
Senate reconvenes; to reduce from 180 days to 90 days the length of
time a first assistant held that position and can be eligible to be a
nominee; extended the transitional period following a new President's
inauguration, as I said, from 180 days to 240 days. In most of these
cases, we have worked out on a bipartisan basis extensions and
liberalizations from what is the current law.
While there would not be an opportunity to offer relevant amendments
that are not germane, I suggest that this is something whose time has
come and that we would be doing a disservice if we did not go ahead and
move this legislation--something that, as I say, has to do--it is not
just a normal piece of legislation, it has to do with the carrying out
of our constitutional duties.
I yield the floor.
Mr. GLENN. Mr. President, I rise today to discuss S. 2176, the
``Federal Vacancies Reform Act of 1998'' introduced this summer by
Senator Thompson, Chairman of the Governmental Affairs Committee with
jurisdiction over the Act. I want to thank Senator Levin for managing
the bill today. I also want to thank Chairman Thompson for the
accommodations his staff has afforded Democratic staff in the
negotiations leading up to this brief debate. We, on our side of the
aisle, were blindsided, to say the least, by the filing of the cloture
petitions last week as staff were negotiating the terms of a unanimous
consent agreement on, and the substance of a managers' amendment to
this very bill.
As we know, the Vacancies Act governs the temporary filling of what
we call ``advise and consent'' or PAS positions (Presidentially-
appointed, Senate-confirmed) in the Executive Branch. As I have said
many times before, I remain concerned about two important goals of any
new law we pass: (1) As Senator Byrd--the best expert this body has on
Senate procedure and constitutional law--has repeatedly noted, this is
one of the Senate's most important and serious constitutional
prerogatives in that we are expected--required, in fact, under the
Constitution--to provide our advise and consent on the nominees the
President submits to us for our consideration; and (2) maintaining the
smooth functioning of government with the large number of vacancies we
seem to have to deal with. On one hand, we have more slots in
government than ever before which means more vacancies. On the other
hand, our confirmation process is long and tedious keeping acting
officials (many of whom are very qualified to fill their slots) in
their positions for longer than we intend.
Combined, these concepts make the continuity of the functioning of
government a challenge to achieve, but certainly not impossible. We
should be creating a process that reflects reality and provides the
proper safeguards and enforcement mechanisms.
I believe the bill as it stands now improves on current law, but I
think there is still work to be done. The White House has issued a veto
letter on this bill. While I consider this important legislation, I
remain concerned about many of the issues raised by the Administration,
and I have filed amendments to address many of these concerns.
For instance, are we being too limiting in who can become an acting
official? Current law mandates that an acting official can be the first
assistant or anyone the President designates. We will be narrowing
current law to include the first assistant or any PAS official the
President designates. The importance of this change is that in the
absence of a first assistant or at the President's discretion, we will
be requiring someone whom the Senate has already approved to fill a
slot for which the Congress has required the Senate's advise and
consent. But do we really want a President to designate a PAS from HUD
to assume the additional responsibilities of a PAS position at
Department of Education? Or vice versa? Do we want these folks who
already have plenty of responsibility as it is to assume the added
responsibility of a second position? With the vetting process taking
longer and the noteworthy downsizing in government that has occurred
over the last 6 years, perhaps it's time to consider a hybrid category
of who can be a temporary acting official.
I intend to offer an amendment to add a third category which would
include qualified individuals of a certain level or higher who are
already within an agency in which a vacancy occurs. Such individuals--
who could include high-level members of the civil service--would be
familiar with the agency, its processes and culture; possess some
institutional memory; and be fully capable of the task. This gives the
President a larger pool from which to choose an acting official,
particularly in a case where there is no first assistant, and the
President must turn to another PAS official to temporarily fill the
slot. In addition, it allows a larger category of who can act at the
beginning of an administration to keep government functioning at a time
when there are not many PAS officials. I think this amendment is
critical to the success of the legislation, and I hope Senators on both
sides will give it serious consideration. I will not be able to support
the bill if this issue is not addressed in it.
In addition, I hope to offer amendments which would give the
President the authority to extend the period for a temporary official
if a case of national interest arose and a nomination for the position
had not yet been sent up. In such cases, under the amendment the
President upon certification to Congress of the particular national
interest--be it national security, natural disaster, economic
instability or public health and safety--would be able to extend the
temporary appointment one time for 90 days.
Finally, I hope to offer an amendment which would further decrease
the requirement for a first assistant who will be an acting officer and
the nominee to 45 days. At the beginning of a new administration, there
may not be enough PAS officials to perform their own duties let alone
those of another position. This will be the case particularly where
there is a change in party
[[Page S11033]]
in the White House. In addition, because of the restriction in the bill
on first assistants who serve in acting capacities who will also be the
nominees, the administration will be required to fill the first
assistant slot as well as the vacant PAS slot. My amendment would allow
first assistants to be appointed, act in the vacant slot for 45 days
and then be nominated to fill the slot on a permanent basis before the
end of the 60-day period for which extensions are granted at the
beginning of a new administration.
I hope that other amendments that may be offered which would impose
the same constraints on the Senate as this legislation would impose on
an administration will also have a fair opportunity to be considered.
While some see no connection between the Vacancies Act and the
responsibilities of the Senate to act on nominations, I believe the two
are inextricably linked. I do not believe we can go forward in
reforming one process until we commit to reforming our own.
I want to note that as the negotiations on this bill proceeded, we
were not only looking to see how this law would operate in this second-
term Democratic administration. Indeed, some day this law will be
utilized by a Republican administration. With this in mind, we
attempted to help craft a fair piece of legislation.
In that vein, I want to emphasize again that the process by which
this bill has come to the floor for such limited debate with no
opportunity for action prior to the cloture vote, is discouraging both
for our faith in a fair process and for the fate of this legislation.
Nomination of Bill Lann Lee
Mr. LEAHY. Mr. President, as the Senate considers possible amendments
to the Vacancies Act, we have occasion to focus on the Senate's advice
and consent role for all presidential nominations and the American
people have an opportunity to review how well, or how badly, this
Senate has fulfilled that constitutionally-mandated role.
It is important to explore ways to help the Executive Branch improve
the process by which the President nominates, the Senate confirms and
then the President appoints people to serve in important positions
within the executive and judicial branches of our federal government.
Indeed, I have often joined with Senator Byrd to defend the authority
of the Senate on this issue and to protect the Senate's role against
the executive encroachments by way of excessive use of the recess
appointment power.
I recall when the Reagan and Bush administrations were abusing the
power of recess appointment and note, by contrast, how sparingly
President Clinton has used that constitutional authority. I am advised
that while President Reagan made 239 recess appointments in 8 years and
President Bush made 78 recess appointments in 4 years, President
Clinton has used his recess appointment power only 45 times over the
last 5 years.
I also recall how President Clinton acted with great restraint last
year when he and the Attorney General joined to appoint Bill Lann Lee
the Acting Assistant Attorney General for Civil Rights rather than
using his power to make that a recess appointment.
Let us focus on the nomination of Bill Lann Lee. He was initially
nominated to head the Civil Rights Division in July 1997. At the end of
1997, that nomination got caught up in one of the narrow, partisan-
driven whirlwinds that hit Washington every now and then. The result
was that the nomination became a victim of the anti-affirmative action
lobby and was denied a vote by the full Senate. Bill Lee was
mischaracterized last fall as a wild-eyed radical and as someone ready
to impose an extreme agenda on the United States. He was misportrayed
as a supporter of quotas. The Republican majority demonized this fine
man and killed his nomination by denying him a Senate vote.
After looking at Bill Lee's record, I knew he was a man who could
effectively lead the Civil Rights Division, enforce the law and resolve
disputes. I reviewed his record of achievement and saw a practical,
problem solver and noted last year that no one who has taken the time
to review his record could call him an idealogue. I recognized that
Bill Lee would be reasonable and practical in his approach to the job,
and that he would be a top-notch enforcer of the Nation's civil rights
laws.
Bill Lann Lee has been serving for almost 10 months now as the Acting
Assistant Attorney General for Civil Rights, and he has established a
solid track record. He is doing an outstanding job for all Americans. I
have had a chance to take a close look at what he has been doing while
serving as the acting head of the Civil Rights Division. What I find is
a record of strong accomplishments. I see professionalism and effective
problem solving. I find him enforcing the law in a sensible and fair
manner.
Accordingly, I urge the Senate finally to consider the nomination of
Bill Lann Lee and to confirm him to this important post. The President
renominated Bill Lann Lee to be Assistant Attorney General in charge of
the Civil Rights Division on January 29 of this year. Given his
outstanding performance over the past 10 months, I urge the Senate to
show him the fairness of a vote on his nomination. I am confident that
when Senators consider his nomination and review his record, a majority
of the United States Senate will vote to confirm this outstanding
nominee.
It is to raise this matter to the attention of the American people
and for action by the Senate, that I have filed an amendment to the
Vacancies Reform Act bill to provide for a vote on the longstanding
nomination of Bill Lann Lee before the Senate ends this year's session.
As we consider how to improve the Vacancies Act, the Senate would do
well to consider its lack of action on the many outstanding nominations
that the President has sent to us over the past several years on which
the Senate has taken no vote. In addition to unprecedented delays in
the consideration of judicial nominations--46 judicial nominations are
pending and 22 are on the Senate calendar--there have been a number of
executive branch nominations who have been denied consideration and a
vote for many, many months.
Bill Lann Lee is an example. He was first nominated for the important
position of Assistant Attorney General for Civil Rights on July 21,
1997, over 14 months ago. When no Senate vote was taken on his
nomination last year, he was renominated on January 29, 1998. For the
past 8 months his nomination has, again, been bottled up in committee.
This is an historic nomination. Bill Lann Lee is the first Asian-
American to head the Civil Rights Division. He deserves to be confirmed
by the Senate and to be accorded the full measure of recognition for
all that he has achieved and all that he is doing on behalf of all
Americans.
The Senate was denied the opportunity to vote on that nomination
before adjournment in 1997. With one notable and courageous exception,
the Republican majority of the Judiciary Committee would not report the
nomination to the Senate so that the Senate could vote whether to
confirm this outstanding nominee. Although the Republicans have a
majority in the Senate, they have been unable to pass legislative
proposals to undermine the nation's commitment to equal opportunity and
civil rights. As a result, the Republican majority decided to stall the
Lee nomination without a vote as a trophy to its extremist factions.
This nomination could not be defeated in a fair up or down vote, so
they determined to avoid that Senate vote altogether and at all costs.
I understand that Senator Durbin, a thoughtful member of both the
Senate Government Affairs Committee, from which this bill emerged, and
the Senate Judiciary Committee, which refused to report the Lee
nomination to the Senate for action, has filed a series of amendments
to the Vacancies Reform Act to begin to deal with this aspect of the
problem--Senate inaction on nominations. I will study those proposals
with great interest.
I was disappointed this year that the Senate Judiciary Committee
repeatedly postponed and eventually canceled hearings regarding the
performance of the Civil Rights Division of the Justice Department
under the leadership of Bill Lann Lee. I was disappointed because such
a hearing would have offered us a chance to look at the outstanding on-
the-job performance of our
[[Page S11034]]
Acting Assistant Attorney General for Civil Rights.
Over the past 10 months, the Division has focused most intensely on
three areas of the law: violations of our Nation's fair housing laws,
enforcement of the Americans with Disabilities Act (``ADA''), and cases
involving hate crimes. Bill Lee and his team of civil rights attorneys
have made advances in each of these areas of the law.
The Division has resolved a number of housing discrimination cases
over the past few months, including the following: An agreement was
reached with two large New Jersey apartment complexes resolving
allegations that the defendants had discriminated against potential
renters based on family status and race.
A housing discrimination case in Michigan was settled involving an
apartment manager who told black applicants that no apartments were
available at the same time that he was showing vacant apartments to
white applicants. An agreement was also reached with the second largest
real estate company in Alabama, which had been steering applicants to
agents and residential areas based on race.
The Civil Rights Division has also focused on educating the public
about the ADA and enforcing it where necessary. These cases have
included: resolution of a case in Hawaii to allow those who are vision
impaired to travel to the State without having to quarantine their
guide dogs for four months in advance of arrival;
a consent decree with the National Collegiate Athletic Association so
that high school athletes with learning disabilities have the
opportunity to compete for scholarships and participate in college
athletics; an agreement with private hospitals in Connecticut to ensure
patients who are deaf have access to sign-language interpreters; and
assistance to the State of Florida to update their building code to
bring it into compliance with the ADA. Florida joins Maine, Texas and
Washington State in having a certified building code thereby ensuring
better compliance with the ADA by architects, builders and contractors
within the State.
The Civil Rights Division has also resolved several hate crimes cases
over the past 7 months, including:
In Idaho, six men pleaded guilty to engaging in a series of
racially motivated attacks on Mexican American men, women and
children, some as young as 9; in Arizona, three members of a
skinhead group pleaded guilty to burning a cross in the front
yard of an African American woman; and in Texas, a man
pleaded guilty to entering a Jewish temple and firing several
gun shots while shouting anti-Semitic slurs.
The Division has also been vigorously enforcing its criminal
statutes, including: indictments against three people in Arkansas
charged with church burning; guilty pleas by 16 Puerto Rico
correctional officers who beat 22 inmates and then tried to cover it
up; cases arising from Mexican women and girls, some as young as 14,
being lured to the U.S. and then being forced into prostitution; and
guilty pleas from 18 defendants who forced 60 deaf Mexican nationals to
sell trinkets on the streets of New York. Out of concerns about slavery
continuing in the U.S., Bill Lann Lee has created a Worker Exploitation
Task Force to coordinate enforcement efforts with the Department of
Labor. I commend the Acting Assistant Attorney General for putting the
spotlight on these shameful crimes.
Other significant cases which the Civil Rights Division has handled
in the past few months include the following: several long-standing
school desegregation cases were settled or their consent decrees were
terminated, including cases in Kansas City, Kansas; San Juan County,
Utah; and Indianapolis, Indiana. Japanese-Latin Americans who were
deported and interned in the United States during World War II finally
received compensation this year. Lawsuits in Ohio and Washington, D.C.
were settled to allow women access to women's health clinics.
The record establishes that Bill Lann Lee has been running the
Division the way it should be run. Here in Washington, where we have
lots of show horses, Bill Lee is a work horse--a dedicated public
official who is working hard to help solve our Nation's problems. I
commend him and the many hardworking professionals at the Civil Rights
Division.
Bill Lee has served as acting head of the Civil Rights Division for
10 months now. Given the claims made by many in the Senate last fall
that Mr. Lee would lead the Division astray, you might expect that he
would be in the headlines every day associated with some extreme
decision. Instead, we have seen the strong and steady work of the
Division--solid achievements and effective law enforcement.
A few weeks ago, I received a letter from Governor Zell Miller of
Georgia that is emblematic of the record that Bill Lee has established.
Governor Miller discusses Bill Lee's efficient and effective ability to
settle an action which involved Georgia's juvenile detention
facilities. He notes that he was not exactly a fan of the Civil Rights
Division before Bill Lee came along and writes that he ``was fearful
that Georgia would be unable to get a fair forum in which to present
our position, and that we would once again be compelled to engage in
protracted and expensive litigation.'' Governor Miller writes that his
fears were unfounded, that the parties engaged in ``intensive and
expeditious negotiations'' and reached a fair agreement. Governor
Miller also notes:
I have indicated to Mr. Lee both personally and publicly
that he and his staff treated Georgia with professionalism,
fairness, and respect during our negotiations. Under the
direction of Bill Lann Lee, what began as a potentially
divisive and litigious process was transformed into an
atmosphere where the State was able to have its case heard
fairly, resulting in a reasonable agreement benefiting all
parties. This is the way in which the Civil Rights Division
should operate in its dealings with the states, and I am
pleased to commend Mr. Lee and his staff for their efforts in
this matter.
The Acting Assistant Attorney General continues to build on his
reputation as a professional and effective negotiator, who routinely
earns praise from opposing parties. I had high expectations for Bill
Lann Lee when he was nominated and I have not been disappointed. He is
doing a terrific job. It is time for the Senate to end his second-class
status and confirm him.
We need Bill Lee's proven problem-solving abilities in these
difficult times. It is wrong for the Senate to ignore his nomination
any longer and a shameful slight to him, to his family and to all who
care about fairness and equal rights.
I remember vividly when Mr. Lee appeared at his confirmation hearing
almost one year ago. He testified candidly about his views, his work
and his values. He understood that as the Assistant Attorney General
for the Civil Rights Division his client is the United States and all
of its people. He told us poignantly about why he became a person who
has dedicated his life to equal justice for all when he spoke of the
treatment that his parents received as immigrants.
Mr. Lee told us how in spite of his father's personal treatment and
experiences, William Lee remained a fierce American patriot,
volunteered to serve in the United States Army Air Corps in World War
II and never lost his belief in America. He inspired his son and Bill
now inspires his own children and countless others across the land. Mr.
Lee noted:
My father is my hero, but I confess that I found it
difficult for many years to appreciate his unflinching
patriotism in the face of daily indignities. In my youth, I
did not understand how he could remain so deeply grateful to
a country where he and my mother faced so much intolerance.
But I began to appreciate that the vision he had of being an
American was a vision so compelling that he could set aside
the momentary ugliness. He knew that the basic American tenet
of equality of opportunity is the bedrock of our society.
Bill Lann Lee has remained true to all that his father and mother
taught him. I continue to work to end the ugliness of Senate inaction
on his nomination. If opponents want to distort his achievements and
mischaracterize his beliefs, let them at least have the decency to
engage in that debate on the floor of the Senate so that this
longstanding nomination can be acted upon--either vote it up or vote it
down, but vote on it. His career of good works and current efforts
should not be rewarded with continued ugliness. Such treatment drives
good people from public service and distorts the role of the Senate. I
have often referred to the Senate as acting at its best when it serves
as the conscience of the nation. In this case, I am afraid that the
Senate has shown no conscience.
[[Page S11035]]
Bill Lann Lee is a man of integrity, of honesty and of fairness. Born
in Harlem, to Chinese immigrant parents, he has lived the American
dream and stayed faithful to American values. He has done nothing to
justify the unfair treatment by the Senate.
As a child he worked in his parents' laundry after school. He went on
to graduate magna cum laude from Yale College and to obtain a law
degree from Columbia University. Bill Lann Lee has spent his life
helping others--helping them to keep their jobs, to keep their homes,
to have a chance at a well-earned promotion and to raise healthy
children.
As western regional counsel for the NAACP Legal Defense Fund, a
public interest law firm founded by Thurgood Marshall in 1939, Mr. Lee
litigated hundreds of cases ranging from employment discrimination
claims to efforts to ensure probation offices are widely dispersed
throughout Los Angeles to ensuring that poor children are tested for
lead poisoning. His extensive experience and renowned skill at settling
cases has served him well as Acting Assistant Attorney General for the
Civil Rights Division.
Most impressive is the array of former opposing counsels and parties
who support Mr. Lee's nomination. In addition to Governor Miller,
consider the words of Los Angeles Mayor Richard Riordan: Our
``negotiations could not have concluded successfully without Mr. Lee's
practical leadership and expertise.'' I believe Mayor Riordan's
enthusiastic support and assurance that Mr. Lee has ``practiced
mainstream civil rights law'' should carry some weight.
Mr. Lee is a top quality candidate. He has all the essential
qualities for this job--a legal career devoted to top-notch civil
rights work, an outstanding degree of integrity and a commitment to
practical solutions. This year he also has a proven track record as the
Acting Assistant Attorney General.
No one can argue that the President has sent to us a person not
qualified by experience to lead the Civil Rights Division. Bill Lee's
record of achievement is exemplary. He is a man of integrity and honor
and when he said to this Committee that quotas are illegal and wrong
and that he would enforce the law, no one should have any doubt about
his resolve to do what is right. The Senate should vote on this
outstanding nominee. He is the right person to lead the Civil Rights
Division into the next century. We need his proven problem-solving
abilities in these difficult times.
Unfortunately, last year's consideration of this outstanding nominee
took a decidedly partisan turn when the Speaker of the House chose to
intervene in this matter and urge the Senate Republican Leader to kill
this nomination. In his unfortunate letter, Speaker Gingrich unfairly
criticized Mr. Lee and accused him of unethical conduct. The
allegations of wrongdoing carelessly lodged against Mr. Lee are
contradicted by the Republican Mayor of Los Angeles, Richard Riordan,
as well as the Vice-President of the Los Angeles Police Commission, T.
Warren Jackson, the Assistant City Attorney, Robert Cramer, and the
City Attorney, James K. Hahn, but the damage had been done.
I recall when times were different. I recall when charges were raised
against Clarence Thomas and the Judiciary Committee held several days
of additional hearings after that nomination had already been reported
by the Judiciary Committee to the full Senate. There was a tie vote in
Committee on the Thomas nomination, which would not have even been
reported to the Senate had we not also voted virtually unanimously,
with six Democrats joining seven Republicans, to report the Thomas
nomination to the floor without recommendation. Of course, ultimately
the nomination of Judge Thomas to become Justice Thomas was confirmed
by the Senate.
It remains my hope that the Senate will now give Bill Lann Lee the
same fairness that we showed Clarence Thomas and allow his nomination
to be voted upon by the United States Senate. It would be ironic if,
after the Senate proceeded to debate and vote on the Thomas
nomination--one that included charges that he engaged in sexual
harassment--the Republican leadership prevented the Senate from
considering a nominee because he has worked to remedy sexual harassment
and gender discrimination.
After consultation with Senators, the President acted after
Congress's adjournment last fall to name Bill Lann Lee the Acting
Assistant Attorney General for Civil Rights. The President then
followed through on his commitments and renominated this distinguished
civil rights attorney and public servant on January 29, 1998. This
Senate is now approaching adjournment, again, and, again, the Senate is
not voting whether to confirm or reject this nomination. The President
has fulfilled his end of the bargain and acted with restraint and
respect in this regard. The Senate has done nothing with respect to
this nomination but ignore it. So, when we criticize this President for
not sending up nominees fast enough, let us not forget that the Senate
has now had ample opportunity for over two years to act on the
nomination of Bill Lann Lee and the Senate has not.
Last year, I was honored to stand on the steps to the Lincoln
Memorial, where the Rev. Martin Luther King Jr. spoke 35 years ago and
inspired the nation toward the promise of equality. I heard our
colleagues Senator Kennedy and Senator Feinstein speak about the
continuing struggle to provide equal opportunity to all Americans. I
took inspiration from the wisdom of Rep. John Lewis whose compass is
ever true on these matters. We heard Rep. Maxine Waters declare in no
uncertain terms the support of the Congressional Black Caucus for Bill
Lann Lee, Representative Patsy Mink take pride in reiterating the
support of the Congressional Asian Pacific Caucus and Representative
Xavier Becerra add the support of the Congressional Hispanic Caucus.
I heard Justin Dart, a dedicated public servant who worked with
President's Reagan and Bush, declare that people with disabilities
support Bill Lann Lee and Representative Bob Matsui recount the dark
days before the civil rights laws when his family had to suffer the
indignity of internment because of the Japanese ancestry.
Just last week when Congress presented Nelson Mandela with the
Congressional Gold Medal, we drew upon the American tradition of
Lincoln, King and so many who labored long and sacrificed much in the
struggle toward equality for all Americans. We honored that past last
week. We could extend it today by taking up and voting upon the
nomination of Bill Lann Lee to be Assistant Attorney General for the
Civil Rights Division. I call upon the party of Lincoln to be fair to
Lee and vote on this nomination.
Let the Senate debate and vote on the nomination of Bill Lann Lee. If
the Senate is allowed to decide, I believe he will be confirmed and
will move this country forward to a time when discrimination will
subside and affirmative action is no longer needed; a time when each
child--girl or boy, black or white, rich or poor, urban or rural,
regardless of national or ethnic origin and regardless of sexual
orientation or disability--shall have a fair and equal opportunity to
live the American dream.
Judicial Nominations
Mr. President, as we debate how to change federal law to require
executive nominations within certain time frames and to preclude
responsibilities from been fulfilled when a confirmed nominee is not
present, we also need to consider how the Senate fulfills its duties
with regard to nominees who have been before us for many months without
Senate action. Since July I have been comparing the Senate's pace in
confirming much-needed federal judges to Mark McGwire's home run pace.
As the regular season ended over the weekend, Mark McGwire's home run
total reached 70. Unfortunately, the Senate's judicial confirmation
total remains stalled at 39.
As recently as 1994, the last year in which the Senate majority was
Democratic, the Senate confirmed 101 judges. It has taken the
Republican Senate 3 years to reach the century mark for judicial
confirmations--to accomplish what we did in one session.
The Senate went ``0 for August,'' risks going ``0 for September'' and
is threatening to go ``0 for the rest of the year.'' Indeed, I have
heard some say that the Republican Senate will refuse to confirm any
more nominations all year. That would be wrong and would
[[Page S11036]]
certainly harm the administration of justice and perpetuate the
judicial vacancies crisis. Senate action has not even kept up with
normal attrition over the past 2 years, let alone made a real
difference in filling longstanding judicial vacancies. Both the Second
Circuit and the Ninth Circuit have had to cancel hearings due to
judicial vacancies. Chief Judge Winter of the Second Circuit has had to
declare a circuit emergency and to proceed with only one circuit judge
on their 3-judge panels. Recently, he has had to extend that
certification of emergency.
Yet in spite of that emergency, the Senate continues to stall the
nomination of Judge Sonia Sotomayor to the Second Circuit. Her
nomination has been stalled on the Senate calendar for over six months.
Chief Judge Winter's most recent annual report noted that the Circuit
now has the greatest backlog it has ever had, due to the multiple
vacancies that have plagued that court.
For a time Judge Sotomayor's nomination was being delayed because
some feared that she might be considered as a possible replacement for
Justice Stevens, should he choose to resign from the Supreme Court.
After the Supreme Court term had ended and Justice Stevens had not
resigned, the Senate might have been expected to proceed to consider
her nomination to the Second Circuit on its merits and confirm her
without additional, unnecessary delay. Unfortunately, that has not been
the case.
When confirmed she will be only the second woman and second judge of
Puerto Rican descent to serve on the Second Circuit. Just as Sammy Sosa
is a source of great pride to the Dominican Republic and to Latin
players and fans everywhere, Judge Sotomayor is a source of pride to
Puerto Rican and other Hispanic supporters and to women everywhere.
Judge Sonia Sotomayor is a qualified nominee who was confirmed to the
United States District Court for the Southern District of New York in
1992 after being nominated by President Bush. She attended Princeton
University and Yale Law School. She worked for over 4 years in the New
York District Attorney's Office as an Assistant District Attorney and
was in private practice with Pavia & Harcourt in New York. She is
strongly support by Senators Moynihan and D'Amato.
I note that one of her recent decisions, Bartlett v. New York State
Board of Law Examiners, that had been criticized by her opponents, was
affirmed in principal part on September 14 by a unanimous panel of the
Second Circuit. In an opinion written by Judge Meskill, the Court
agreed ``with the district court's ultimate conclusion that Dr.
Bartlett, who has fought an uphill battle with a reading disorder
throughout her education, is among those for whom Congress provided
protection under the ADA and the Rehabilitation Act.'' In this, as in
her other decisions that opponents seek to criticize, Judge Sotomayor
applies the law. That is what judges are supposed to do. This
affirmance belies the charge that she is or will be a judicial
activist.
Ironically, it was Judge Sotomayor who issued a key decision in 1995
that brought an end to the work stoppage in major league baseball. If
only the breaking of the single season home run record could signal the
end of the work stoppage in the Senate with respect to her nomination.
Instead of sustained effort by the Senate to close the judicial
vacancies gap, we have seen extensive delays continued and unexplained
and anonymous ``holds'' become regular order.
I began this year challenging the Senate to maintain the pace it
achieved at the end of last year when 27 judges were confirmed in the
last nine weeks. Instead, the Senate has confirmed only 39 judicial
nominees in 25 weeks in session. Had the Senate merely maintained the
pace that it set at the end of last year, the Senate would have
confirmed 75 judges--not 39 judges--by now.
We have 22 qualified nominees on the Senate calendar awaiting action.
Including those still pending before the Committee, we have a total of
46 judicial nominations awaiting action, some of whom were first
received over three years ago.
The Senate continues to tolerate upwards of 75 vacancies in the
federal courts with more on the horizon--almost one in 10 judgeships
remains unfilled and, from the looks of things, will remain unfilled
into the future. The Senate needs to proceed more promptly to consider
nominees reported to it and to do a better job fulfilling its
constitutional responsibility of advice and consent.
Unfortunately, the record that the Senate is on pace to set this year
with respect to judicial nominations is the record for the amount of
time it takes to be confirmed once the nomination is received by the
Senate. For those few nominees lucky enough to be confirmed as federal
judges, the average number of days for the Senate confirmation process
has continued to escalate. In 1996, that number rose to a record 183
days on average. Last year, the average number of days from nomination
to confirmation rose dramatically yet again. From initial nomination to
confirmation, the average time it took for Senate action on the 36
judges confirmed in 1997 broke the 200-day barrier for the first time
in our history. It was 212 days.
The time is still growing and the average is still rising, to the
detriment of the administration of justice. The average time from
nomination to confirmation for judges confirmed this year is 259 days.
That is three times as long as it was taking before this partisan
slowdown.
I have urged those who have been stalling the consideration of the
President's judicial nominations to reconsider and work to fulfil this
constitutional responsibility. Those who delay or prevent the filling
of these vacancies must understand that they are delaying or preventing
the administration of justice. Courts cannot try cases, incarcerate the
guilty or resolve civil disputes without judges.
The federal judiciary's workload was at least 60 percent lower than
it is today when the Reagan-Bush administrations took office. The
federal court's criminal docket alone is up from 28,921 cases in 1980
to 50,363 last year. That is an increase of over 70 percent in the
criminal case filings in the federal courts.
During the Reagan and Bush administrations, whether it had a
Democratic or Republican majority, the Senate promptly considered and
confirmed judges and authorized 167 new judgeships in response to the
increasing workload of the federal judiciary. While authorized
judgeships have increased in number by 25 percent since 1980, the
workload of the federal courts has grown by over 60 percent during the
same period. That is why the prolonged vacancies being perpetuated by
delays in the confirmation process are creating such strains within the
federal courts.
Unlike other periods in which judicial vacancies could be attributed
to newly-created judgeships, during the past four years the vacancies
crisis has been created by the Senate's failure to move quickly to
consider nominees to longstanding vacancies.
In the early and mid-1980's, vacancies were between 25 and 34 at the
beginning of each session of Congress. By the fall of 1983, the
vacancies for the entire federal judiciary had been reduced to only 16.
With attrition and the 85 new judgeships created in 1984, vacancies
reached 123 at the beginning of President Reagan's second term, but
those vacancies were reduced to only 33 within two years, by the fall
of 1986. A Democratic Senate in 1987 and 1988 reduced the vacancies
still further to only 23 at the end of the 100th Congress.
It was not until additional judgeships were created in 1990 that the
next significant increase in vacancies occurred and then, again, a
Democratic Senate responsibly set about the task of helping fill those
vacancies with qualified nominees. Although President Bush was
notoriously slow to nominate, the Democratic Senate confirmed 124
nominees in President Bush's last two years in office and cut the
vacancies in half.
With respect to the question of vacancies, it is also important to
note that in 1997 the Judiciary Conference of the United States
requested an additional 53 judgeships be created. The Republican
Congress has refused to consider that workload justified request. My
bill to meet that request, S. 678, the Federal Judgeship Act of 1997,
has received no attention since I introduced it over a year ago. Had
those additional judgeships been created, as
[[Page S11037]]
they were in 1984 and 1990 under Republican Presidents, current
judicial vacancies would number 128 and total almost 14 percent of the
federal judiciary.
Last week Senator Graham spoke about authorizing the additional
District Court judges recommended by the Judicial Conference and needed
around the country. These are the judges who try federal criminal cases
and hear complex federal civil litigation. Given the Republican
Senate's tenacious refusal to consider and confirm judges for the
vacancies that currently exist, it seems unlikely that the Republican
majority would be willing to authorize the additional federal judicial
resources that are needed around the country. That is a shame. The
Senator from Florida is right to try and I join him in his efforts.
No one should take comfort from the number of confirmations achieved
so far this year. It is only in comparison to the dismal achievements
of the last two years that 39 confirmations could be seen as an
improvement. The President has been doing a better job of sending the
Senate scores of nominees more promptly. Unfortunately, qualified and
capable nominees are still being delayed too long and stalled.
I have pledged to continue to work to end the judicial vacancies
crisis and to support efforts to provide the federal judiciary with the
resources it needs to handle its growing caseload and serve the
American people.
When the Senate is asked to consider amendments to the Vacancies Act,
it should also reconsider its own inaction on the many outstanding
nominees that the President has sent the Senate and that the Senate is
refusing to consider.
Indeed, earlier this year I proposed a bill that requires the Senate
to vote on nominations for Court of Appeals vacancies that created an
emergency under federal law. The week after Chief Judge Winter of the
Second Circuit certified such an emergency last spring, I introduced
the Judicial Emergency Responsibility Act, S. 1906. The purpose of this
bill is to supplement the law by which Chief Justice Winter certified
the judicial emergency, a judicial emergency that still persists in the
Second Circuit, and to require the Senate to do its duty and to act on
judicial nominations before it recesses for significant stretches of
time. The Senate should not be taking vacations when a Circuit Court is
suffering from a vacancy emergency.
I introduced the bill just before the Senate adjourned for a 2-week
recess and I urged prompt action on the nominations then pending to
fill those Second Circuit vacancies. At that time, the nomination of
Judge Sonia Sotomayor was among those favorably reported and had been
on the Senate Calendar awaiting action for a month. That was five
months ago. Still, there has not been any action.
I did not believe that the Senate should be leaving for a two-week
recess in April or a four-week recess in August and leaving the Second
Circuit with vacancies for which it had qualified nominations pending.
I do not believe that the Senate should adjourn this year without
voting on the many qualified judicial nominees that have been pending
before the Senate for so long without action. I have been urging action
on the nominees to the Second Circuit for more than a year. The Senate
is failing in its obligations to the people of the Second Circuit, to
the people of New York, Connecticut and Vermont. We should call an end
to this stall and take action.
I intend to consult with the managers of the bill, but believe that I
should offer S. 1906 as an amendment to the pending measure.
What the Senate is proceeding to do to the judicial branch in
refusing to vote on nominees and perpetuating judicial vacancies is too
reminiscent of the government shutdown only a couple of years ago and
the numerous times of late when the Republican congressional leadership
has recessed without completing work on emergency supplemental and
disaster relief legislation. As we approach the end of the session, the
Republican Congress has yet to pass a budget or enact the 13 annual
appropriations bills that are our responsibility. Must we wait for the
administration of justice to disintegrate further before the Senate
will take this crisis seriously and act on the nominees pending before
it? I hope not.
I look forward to Senate debate on suggestions to impose
responsibility upon itself in its treatment of judicial nominations.
The PRESIDING OFFICER. Who yields time?
Mr. LIEBERMAN addressed the Chair.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair.
Mr. President, I yield myself up to 10 minutes from the time
allocated to Senator Levin.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. LIEBERMAN. I thank the Chair.
Mr. President, let me say at the outset that the bill before us
addresses a very important problem, which is to say the need to protect
the Senate's constitutional role in the appointment of Federal
officers. The Constitution, as my colleagues have indicated, provides
that the President's power to appoint officers of the United States is
to be exercised ``by and with the Advice and Consent of the Senate. . .
.''
Unfortunately, in too many cases over the course of the past several
administrations, the Senate's constitutional prerogatives have too
often been ignored through the executive's far-too-common practice of
appointing acting officials to serve lengthy periods in positions that
are supposed to be filled with individuals confirmed by the Senate. I
think it is, therefore, entirely appropriate--indeed necessary--for
Congress to act to remedy this situation.
I appreciate very much the leadership given by the Senator from West
Virginia, the Senator from South Carolina, and the chairman of our
committee, the Senator from Tennessee. I also appreciate those
Senators' willingness to work with the members of the Governmental
Affairs Committee, including this Senator, to accommodate some of the
concerns we have had as the bill moved through committee.
The fact is, throughout that whole period of time, the effort to
reform the Vacancies Act has been a truly bipartisan one, as it should
be. Even though I believe there are some problems remaining with the
bill, I also am confident that the process of resolving those problems
has been conducted in good faith and with fairness on all sides.
I therefore regret that, along with many of my colleagues, I find
myself in the situation I am today, which is to say, prepared to vote
against cloture on this bill, because I believe there remain serious
substantive problems with the bill, and the procedural situation we are
in now with a cloture motion having been filed in an attempt to limit
debate will frustrate our ability to work together to solve some of
those remaining problems.
I think it is particularly unfortunate that we find ourselves in this
position on this bill because I am confident that, were we not forced
immediately into a cloture vote, we likely could work out the problems
that remain with the bill. It remains my hope, if cloture is not
obtained on the vote that will occur in a little more than 10 minutes,
that we can continue to work together to achieve a unanimous consent
agreement that will allow perhaps for amendments that are relevant, if
not germane, according to the procedures of the Senate.
Let me briefly give an example of one of the problems that I think
remains with the bill which is of concern to some. As the bill is
currently drafted, only one of two individuals can serve as acting
officials in the case of a vacancy: Either the first assistant to the
vacant position, a term of art that generally refers to the top deputy;
or someone already confirmed by the Senate for another position.
Because individuals holding Senate-confirmed positions already have a
lot to do, it almost always will be the first assistant who takes over
as the acting.
But, by the terms of the bill, a first assistant apparently can take
over only if he or she was the first assistant at the time of the
vacancy. This severe limitation on the universe of individuals who may
serve as acting is, in my view, a mistake that could be harmful to the
functioning of the executive branch because it will have the effect of
forcing many important positions to remain vacant, potentially for
several months at a time. That is because
[[Page S11038]]
there are many times when a vacancy occurs at a time that the first
assistant position is also vacant.
There may be other times when a first assistant, who was there when
the vacancy occurred, may want to leave his or her job during the
pendency of that vacancy. In both situations, as I read the literal
terms of the bill as it is before us, it would require that during the
duration of the vacancy, which could be many months long, we would be
requiring that no one other than people who had already been confirmed
for other positions would be eligible to serve as the acting in the
vacant position. We would be effectively denying the executive branch
the ability to put someone else in that position on an acting basis.
Also troubling is what can happen when a new President comes into
office. If individuals in Senate-confirmed positions leave before the
new President takes office, as often happens, then the only people who
would be qualified to serve as acting officials as the new
administration gets off the ground, because they were the first
assistants at the time of the vacancy, are holdovers, often political
appointees from the previous administration. That could create an
awkward situation that would require a new administration to staff
itself with a previous administration's political appointees.
I am confident that we could work this problem out were the bill to
come to the floor under the normal processes. But, unfortunately, in
the posture that it is now in, it is not so.
So I must say I again will vote against cloture, but I do remain
hopeful that if cloture is not granted on this next vote, we will be
able to find a way together to continue the bipartisan path that this
bill has taken, until this moment when it has reached the Senate floor,
and find a way to find a common ground to move forward with this bill
on which a lot of work has been done, and, though it is detailed and
intricate, in which the public interest finds a great expression.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. THOMPSON. May I inquire how much time remains?
The PRESIDING OFFICER. The Senator from Tennessee controls 4 minutes.
The Senator from Michigan controls 8 minutes 23 seconds.
Mr. THOMPSON. I ask the Senator from West Virginia if he has
additional comments.
I yield myself 2 minutes.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. THOMPSON. A couple quick points.
My friend from Connecticut makes good points, as usual. I point out,
though, that the concern about, someone could not be a first assistant
if they had not been there for so many days, that would not keep them
from being the acting officer. If they were appointed to the permanent
position, they would have needed to have been there for 90 days. But
just to be the acting officer, anyone who serves in that position would
become the acting officer without having been there any length of time.
With regard to the second concern with regard to a new
administration, my understanding is there is always a holdover person
who is a Senate-confirmed person who traditionally takes care of those
problems--essentially the same situation we have had for the last 130
years with regard to those concerns, I believe.
I yield the Senator from West Virginia the remainder of my time,
which I think is probably 2, 3 minutes.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. BYRD. Mr. President, I again thank the distinguished chairman for
his outstanding service that he has performed in the interest of the
Constitution, the interest of this institution, and the interest of the
liberties of the people which we are all trying to protect in this
measure.
Mr. President, I believe there--we only have less than 2 minutes; is
that right?
The PRESIDING OFFICER. The Senator has 2\1/2\ minutes remaining.
Mr. BYRD. How much time does the distinguished Senator from
Connecticut wish to----
The PRESIDING OFFICER. The Senator has 8 minutes remaining.
Mr. BYRD. If the distinguished Senator from Connecticut will yield me
a little of his time.
Mr. LIEBERMAN. I yield the Senator as much time as he wants.
Mr. BYRD. Mr. President, I am reminded of that situation which
occurred in 63 B.C. Sallustius writes about. And it is referred to as
the conspiracy of Catiline. After Caesar had spoken in the Roman
senate, protesting against the death penalty for the conspirators, for
the accomplices of Catiline, Cato the Younger was called upon by
Cicero, the consul, to speak. Cato demanded that the accomplices of
Catiline be put to death under the ancient laws of the republic.
From Cato's speech I quote only the following strain: ``Do not think
that it was by arms that our ancestors raised the state from so small
beginnings to such grandeur, but there were other things from which
they derived their greatness. They were industrious at home, just
rulers abroad, and into the Senate Chamber they brought untrammeled
minds, not enslaved by passion.''
Now, Mr. President, I urge my colleagues in the Senate not to let
their minds be trammeled with passion. Keep them untrammeled and
focused on the injury that is being done to the Senate by the executive
department in the flaunting and circumventing of the appointments
clause, which this legislation addresses and is intended to secure for
the Senate its rights and prerogatives under the Constitution.
Democrats and Republicans who reverence the Constitution and who
pride themselves in having been given the honor to serve in this
institution--the legislative branch--I hope will stand up for the
institution and bind ourselves to the mast of the Constitution, as did
Odysseus when the divine Circe bade him to stay away from the Sirens'
isle.
I hope that we will keep in mind that we are making several
improvements in this bill as it is written. And as the distinguished
chairman of the Governmental Affairs Committee has so eloquently
pointed out within the last few minutes, even without amendments this
bill is a liberal advancement--liberal from the standpoint of the
administration, whatever administration it might be, Democratic or
Republican. It gives more time to the administration.
So if we turn down this opportunity, I hope the opportunity will come
again. But if it does not, then the administration is the loser, as
well as the Senate--but the Senate is the greater loser because of the
constitutional requirements under the appointments clause which give
the Senate a share in the appointments of individuals to important
positions in the executive branch and the judicial branch.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut has 6 minutes
remaining.
Mr. LIEBERMAN. I thank the Chair.
Privilege Of The Floor
Mr. LIEBERMAN. I rise simply to make an unrelated motion. I ask
unanimous consent that privileges of the floor be granted to Laureen
Daly of my staff during the pendency of S. 442 and H.R. 3529.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. I thank the Chair.
Mr. President, I think on this side we have spoken our piece. For the
reasons indicated, we hope that our colleagues will vote against
cloture and then that both sides can come together to achieve common
ground and pass this important piece of legislation.
I, therefore, yield back the remaining time from our side.
The PRESIDING OFFICER. All time is yielded back.
CLOTURE MOTION
The PRESIDING OFFICER. Under the previous order, pursuant to rule
XXII, the Chair lays before the Senate the pending cloture motion,
which the clerk will report.
The assistant legislative clerk read as follows:
cloture motion
We the undersigned Senators, in accordance with the
provision of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on S. 2176, the
Vacancies Act:
Trent Lott, Strom Thurmond, Charles Grassley, Thad
Cochran, Wayne Allard, Ben Nighthorse Campbell, Don
Nickles, Orrin G. Hatch, Pat Roberts, Tim
[[Page S11039]]
Hutchinson, Richard Shelby, Conrad Burns, Jim Inhofe,
Connie Mack, Fred Thompson, Spencer Abraham.
Call of the Roll
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call under the rule has been waived.
Vote
The PRESIDING OFFICER. The question is, Is it the sense of the Senate
that debate on Senate bill 2176, the Federal Vacancies Reform Act of
1998, shall be brought to a close? The yeas and nays are required under
the rule. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Missouri (Mr. Bond),
the Senator from New York (Mr. D'Amato), and the Senator from Alabama
(Mr. Sessions) are necessarily absent.
Mr. FORD. I announce that the Senator from South Carolina (Mr.
Hollings), the Senator from Massachusetts (Mr. Kennedy), the Senator
from Illinois (Ms. Moseley-Braun), the Senator from Nevada (Mr. Reid),
the Senator from New Jersey (Mr. Torricelli), and the Senator from
Oregon (Mr. Wyden) are necessarily absent.
I further announce that, if present and voting, the Senator from
Nevada (Mr. Reid) would vote ``no.''
The yeas and nays resulted--yeas 53, nays 38, as follows:
[Rollcall Vote No. 289 Leg.]
YEAS--53
Abraham
Allard
Ashcroft
Bennett
Brownback
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Collins
Coverdell
Craig
DeWine
Domenici
Enzi
Faircloth
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kempthorne
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
NAYS--38
Akaka
Baucus
Biden
Bingaman
Boxer
Breaux
Bryan
Bumpers
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Feingold
Feinstein
Ford
Glenn
Graham
Harkin
Inouye
Johnson
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moynihan
Murray
Reed
Robb
Rockefeller
Sarbanes
Wellstone
NOT VOTING--9
Bond
D'Amato
Hollings
Kennedy
Moseley-Braun
Reid
Sessions
Torricelli
Wyden
The PRESIDING OFFICER. On this vote, the yeas are 53, the nays are
38. Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is not agreed to.
The majority leader is recognized.
____________________