[Congressional Record Volume 146, Number 12 (Thursday, February 10, 2000)]
[Senate]
[Pages S582-S584]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 MOTION TO PROCEED TO EXECUTIVE SESSION

  Mr. LOTT. Mr. President, I ask unanimous consent that the Senate 
immediately proceed to executive session to consider the following 
nominations en bloc: Executive Calendar Nos. 408 and 410. I further ask 
unanimous consent that the nominations be confirmed, en bloc, the 
motions to reconsider be laid upon the table, any statements relating 
to the nominations be printed in the Record, the President be 
immediately notified of the Senate's action, and the Senate then return 
to legislative session.
  The PRESIDING OFFICER. Is there objection to the request?
  Mr. INHOFE. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. LOTT. Mr. President, in light of that objection, I move to 
proceed to executive session to consider Executive Calendar No. 408. 
There is a request for a vote by our distinguished colleague, Senator 
Inhofe. Therefore, I ask for the yeas and nays on the motion.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. LOTT. Mr. President, before the Chair puts the question, I 
understand following this vote there will be some debate by my 
colleague from Oklahoma with respect to these two judges. I further 
understand, following the Senator's statement, we will proceed to two 
further rollcall votes on the confirmation of these judicial nominees. 
Senators should, therefore, be notified that a rollcall vote will begin 
on the pending motion and that after some time for debate, two 
additional votes will occur today.
  The PRESIDING OFFICER. The distinguished Democratic leader.
  Mr. DASCHLE. Reserving the right to object, I ask the majority 
leader, may we have an understanding that vote will not occur prior to 
1:45 p.m.? Let me clarify. The motion to proceed can take place now, 
but if there are subsequent votes, those votes not take place----
  Mr. LOTT. Is the Senator asking consent?
  Mr. DASCHLE. I ask unanimous consent.
  Mr. LOTT. Mr. President, I have no objection to that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. Mr. President, before we do go to a vote on the motion, I 
want to have a colloquy with the distinguished Senator from Oklahoma. 
The vote then on the motion will occur immediately following this 
colloquy, which should not take very long. Then the vote on the two 
nominees will not occur before 1:45 p.m. It may be later than that; I 
emphasize that.
  The Senator from Oklahoma may want to talk for a while, and others 
may want to comment on this. We want to accommodate, as we always do, 
Senators who wish to be heard on important nominations. I yield the 
floor to the Senator from Oklahoma.

  Mr. INHOFE. Mr. President, I thank the majority leader for yielding 
to me.
  Last year, at the end of the session, I came to the floor and 
informed the White House, as well as my colleagues, that of a list of 
13 proposed appointments, 8 were acceptable. I did this by checking 
with my colleagues to find out who would be placing holds on which of 
those 13 nominees. There were five that would have had holds on them.
  I further stated that if anyone other than the eight were appointed, 
I would put a hold on all judicial nominations for the 2nd session of 
the 106th Congress. This policy was the result of an exchange of 
letters with the administration last summer in which the White House 
agreed to provide a list of potential recess appointments prior to 
adjournment so that the Senate could act on these appointments and 
avoid contentious action on recess appointments. The 8 to which I 
agreed were from a list of 13 that was provided by the White House, and 
I read those into the Record.
  On December 9 the White House gave a recess appointment to Stuart 
Weisberg to the OSHA Review Commission, and on December 17 the White 
House gave a recess appointment to Sarah Fox to the National Labor 
Relations Board. They were not on the list of 13 that was received on 
November 18 and to which I referred on November 19. Based on these 
actions, I believe the White House violated their commitment by making 
these recess appointments. Therefore, I said I would put a hold on 
every judicial nomination this year. I believe this is the correct 
reaction to the action taken by the White House.

[[Page S583]]

  Mr. LOTT. Mr. President, will the Senator yield?
  Mr. INHOFE. Yes.
  Mr. LOTT. First of all, I appreciate sincerely the efforts of the 
Senator from Oklahoma to limit the recess appointment power of the 
Executive. Over a period of years, Executives of both parties have 
probably abused this authority. It is one that has been used by 
President Bush, President Reagan, as well as President Carter and 
President Clinton. I know in the past Senator Byrd, as a matter of 
fact, worked on this area of concern of the Senate and worked out an 
agreement, with the cooperation, as I recall, of Senator Dole and 
President Reagan, who was in the White House at that time.
  Because of the Senator's concern and insistence about this matter, my 
colleagues will recall that last year, once again, we went through a 
process that led to a similar agreement in writing between the Senate 
and this President about how these recess appointments would be 
handled. It is important that we make every effort to live up to the 
letter of that agreement, as well as the spirit.
  I emphasize that Senator Inhofe has already helped in bringing that 
about. There is no doubt in my mind that his efforts and his comments 
last year and this year had an impact on the number of recess 
appointments with which the administration did, in fact, go forward.
  I know for sure--in fact, the President indicated as much to me--that 
they had wanted to do more, but they showed restraint and they realized 
that it could cause even more serious problems. So he has had an 
impact, there is no question about that. It is very helpful.
  Indeed, Senator Inhofe did inform me of his intentions last November 
before he made his speech on the floor--I remember, I walked over to 
this area and talked with him. I admit, I was dealing with a lot of 
different issues at the time and perhaps should have paid a little bit 
more attention to exactly the exchange that was occurring and the lists 
that were being discussed--after I had shared with him the list of 
possible recess appointees provided by the White House on November 19 
in compliance with a similar Byrd-Reagan agreement. There is no 
question his memory of that discussion and his efforts did take place, 
and I appreciate that.

  As majority leader, I must also say I worked with the White House to 
limit their use of these recess appointments through these negotiations 
both now and in the past. I am quick to say, on more than one occasion 
I thought they made a mistake and I told them so. I remember one 
ambassadorial appointment in particular.
  On many occasions, we have been able to resolve differences. With 
regard to the appointment of a person during the recess, sometimes 
there were problems, but concerns were worked out after further 
consideration. I do acknowledge that they have worked on a regular 
basis with me as majority leader and with my staff when I have been 
absent and in my own State or in other States.
  I have great sympathy for the Senator's plan to object to these 
judicial nominations. I have said before, I am not one who gets all 
weepy-eyed about having more Federal judges of any kind anywhere. 
However, as majority leader, I must take some other factors into 
account.
  Using the Sarah Fox example, she had previously been confirmed to a 
position on the NLRB by a vote of the full Senate. I believe she would 
have been confirmed to a full term if her nomination were brought to 
the floor of the Senate again. It probably would have eventually 
because, in this case, it is not a judicial nomination.
  If the Chair will excuse me and my colleagues a moment of 
partisanship, I hope to have a Republican in the White House next year 
to succeed President Clinton. So, therefore, I hope this Republican 
will be able to name a majority of the members of boards and 
commissions as soon as possible. I did not want Sarah Fox serving a 
full NLRB term, which would have extended until 2004. I thought a 1-
year appointment allowing, then, for her to be replaced by the next 
President--whichever party that President may be from--made some sense.

  Maybe that contributed to a violation of the letter or the spirit of 
the agreement, but it was after a lot of discussion with colleagues on 
our side of the aisle. I thought it made sense to go ahead and do that.
  I am also concerned very much about the Senate getting into the 
possibility of filibustering judicial nominations. It is a bad 
precedent. The Senate has generally not done that. Once again, I hope 
we will be having nominations suggested by the Senator from Kansas next 
year. I would be greatly concerned about the idea that a nomination 
would be filibustered.
  As a matter of fact, you may recall last year when the Democrats did 
filibuster a nominee from Utah, I complained loudly that it was a 
mistake, should not be done. As you recall, the better part of judgment 
prevailed, and we backed away from that. We, in fact, confirmed that 
nominee. So that is another factor I have to inject.
  I do not think we should or would be able to go all year without 
confirming any nominees. Some of these nominees are good men and women. 
Some of them have already waited a long time. Some of them are 
supported by Governors and Democrats and Republicans in the Senate and 
should not be held.
  In some of these States there truly is a need for more judges, as bad 
as that may sound to some of us. Florida is a State with a growing 
docket of cases. Even hard-working Federal judges cannot cope with it.
  So all of these are matters I have to consider as majority leader. It 
is one of those burdensome, delicate balances for which the majority 
leader has to assume the responsibility.
  So based on that--my concern about how long these appointments would 
be for; my feeling that, in fact, the White House did try to work with 
us; my feeling that we should not start filibustering these 
nominations--these and other concerns lead me to the conclusion that I 
will honor a Senator's hold for a reasonable period of time and will 
certainly honor a hold by the Senator from Oklahoma and will inform him 
when nominations will be brought to the floor so that he can take 
whatever action he is compelled to take--and I will honor that also--
but, nevertheless, I think we should move forward and bring these 
nominees to a vote on the floor.
  I thank the Senator from Oklahoma for yielding.
  Mr. REID. Will the leader yield?
  Mr. LOTT. I do not believe I have the floor.
  The PRESIDING OFFICER. The majority leader does have the floor.
  Mr. LOTT. I thank the Chair.
  I would be glad to yield. And then I will yield back to the Senator 
from Oklahoma for his remarks.
  Mr. REID. In addition to what has been said, I also think it is 
important to say that we have started this session off on a good note.
  Mr. LOTT. Thanks to the efforts of the whip, we have made good 
progress.
  Mr. REID. We have gone through two very big, complicated pieces of 
legislation: The bankruptcy bill, with over 300 amendments, and the 
nuclear waste bill, with the potential of well over 100 amendments. 
Those have gone through now.
  I appreciate, commend, and applaud the leader for being a man of his 
word, as we knew he would be. I hope the Senator from Oklahoma, 
recognizing how strongly he feels about the issue, would understand it 
is not only the State of Florida. In Nevada, we are four judges short. 
We do not want the bandits to take over the town.

  We appreciate very much the majority leader's efforts to move these 
four. We hope the Senator from Oklahoma will understand the personal 
situations in States such as Nevada, where we are desperate for new 
judges.
  Mr. LOTT. Mr. President, if I could comment briefly on that, I meant 
it sincerely when I said there has been good, hard work done on both 
sides of the aisle: Senator Grassley and Senator Hatch on the 
bankruptcy bill; Senator Murkowski, obviously, and others on the 
nuclear waste bill. But Senator Reid has done excellent work on his 
side of the aisle in helping us move this legislation through in a 
positive way.
  The fact is, already this year we have passed bankruptcy reform; we 
have passed a bill that would provide for a minimum wage increase and 
tax relief for small business men and women, and for a nuclear waste 
repository. These

[[Page S584]]

are important issues. They are complicated and difficult to deal with 
substantively and politically. I think the Senate can feel good. I hope 
we can continue to work our way through important issues and that we 
will be able to do it as much as possible in a bipartisan way.
  I yield further to the Senator from Oklahoma.
  Mr. INHOFE. I thank the majority leader.
  I hate to interrupt this love-in, but I want an opportunity to 
explain my actions. First of all, I want to say to the majority leader 
that I appreciate his acknowledgement of the accuracy of what happened 
on November 19. That is important to me. There have been some erroneous 
statements made in various newspapers reflecting the existence of other 
lists, and all that.
  The bottom line is this: We made a request, the list came forward, 
and 10 minutes before we adjourned on November 19 we read from the 
list.
  I believe there were strong reasons why the two particular nominees, 
Weisberg and Fox, would have been unacceptable. There are several 
Senators I have spoken with who would have found them unacceptable--
frankly, I am one of them--and who would have been placed holds on 
those two individuals had they known that recess appointments were 
imminent. Some would have placed holds or at the very least insisted 
that hearings be held to explore the important policy matters 
surrounding these two appointments.
  I think that is irrelevant. The fact is, the names were not on the 
Nov. 19 list. If the names had been on that list, that would have been 
totally different. Maybe some would have objected to them so they would 
not have been brought forward. The point is, appointments were made, 
and they violated the statements and the intent of the letter that we 
received from the White House vowing to honor their commitment.
  I say to the majority leader, it is my intention, if we go forward at 
some point to vote on the two particular nominations to which you 
referred, that I will want to be heard and go back and maybe talk a 
little bit about what happened to bring us to the point where we are 
today.
  I add that the President is not keeping his commitments. I think when 
I read his letter there is no question in my mind. I made it abundantly 
clear on the floor what the consequences would be.
  I say, also, that I am in a position, I say to the majority leader, 
that while the President does not keep his commitments, I do keep my 
commitments. My commitments are to do what I can to try to block 
judicial nominations.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. INHOFE. No, not now.
  I just say this. In following through with my commitment to try to 
block the confirmations, while it is not my intention--if the 
handwriting is on the wall--to just arbitrarily lay down blanket 
filibusters, I do intend to consult with my colleagues and reserve my 
rights under the rules to assess what actions, if any, can succeed in 
this effort.
  I want to make one other comment about this, too; that is, you hear a 
lot of yelling and screaming about: Oh, what are we going to do without 
these appointments that we have to have? I remind you, back in 1993, at 
the end of the Bush administration--he was ready to go out of office--
there were 109 vacancies in the Federal judiciary. In other words, the 
Democratic controlled Congress failed to fill these vacancies.
  Right now, there are 74 vacancies in the Federal judiciary. If you 
determine where we would be if normal history takes its course through 
deaths or resignations, at the most there would be another 25 
vacancies. That means, at the most, we would have about 100 vacancies 
at the end of President Clinton's term. Compare that to the 109 
vacancies left after the Bush administration. I make that comment to 
offset the argument before it is made as to what type of judicial 
crisis will come about if we ended up without judicial nominees being 
confirmed.
  Mr. LOTT. I thank the Senator for his comments.
  We have Senators who I believe are about to leave the Chamber. Are we 
ready to put the question? And then we would go ahead with the debate 
on the judges.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
proceed to executive session to consider Executive Calendar No. 408, 
the nomination of Thomas L. Ambro, of Delaware, to be United States 
Circuit Judge for the Third Circuit. The yeas and nays have been 
ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) is 
necessarily absent.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kennedy) would vote ``aye.''
  The result was announced--yeas 79, nays 19, as follows:

                       [Rollcall Vote No. 9 Leg.]

                                YEAS--79

     Abraham
     Akaka
     Ashcroft
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Byrd
     Campbell
     Chafee, Lincoln
     Cleland
     Cochran
     Collins
     Conrad
     Coverdell
     Daschle
     DeWine
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Gorton
     Graham
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchinson
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Mack
     Mikulski
     Moynihan
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Schumer
     Sessions
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thompson
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                                NAYS--19

     Allard
     Bunning
     Burns
     Craig
     Crapo
     Domenici
     Enzi
     Gramm
     Grams
     Grassley
     Gregg
     Helms
     Inhofe
     McConnell
     Murkowski
     Shelby
     Smith (NH)
     Thomas
     Thurmond

                             NOT VOTING--2

     Kennedy
     McCain
       
  The motion was agreed to.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, the Senator from Florida has asked that he 
be recognized to make a unanimous consent request, and I yield to him 
for that purpose.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that upon the 
completion of the two votes which are currently scheduled to commence 
at 2 p.m. I be granted 20 minutes as in morning business for the 
purpose of a bill introduction.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Oklahoma.

                          ____________________