[Congressional Record Volume 146, Number 12 (Thursday, February 10, 2000)]
[Senate]
[Pages S584-S587]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF THOMAS L. AMBRO, OF DELAWARE, TO BE UNITED STATES CIRCUIT 
                      JUDGE FOR THE THIRD CIRCUIT

  Mr. INHOFE. Mr. President, I yield to the Senator from Georgia for a 
couple of unanimous-consent requests.
  Mr. COVERDELL. I appreciate the courtesy of the Senator from 
Oklahoma.
  Mr. President, I ask consent at 2 p.m. today the Senate proceed to a 
vote on the confirmation of Executive Calendar No. 408. I further ask 
consent that following that vote the Senate proceed to a vote on the 
confirmation of Executive Calendar No. 410. I finally ask consent 
following those votes the President immediately be notified of the 
Senate's action and the Senate then resume legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INHOFE. Mr. President, I would like to make a couple of 
statements about the vote that just took place, the reason for it, the 
history behind it, where we are today, and where we are going from 
here.
  First of all, I suggest during the 5-day Memorial Day recess there 
was a pending nominee on whom there had been several holds. It is my 
understanding the appropriate committee had not received the financial 
information on that individual and there were

[[Page S585]]

other problems that had been voiced that precipitated the holds. 
Consequently, during that 5-day Memorial Day recess, President Clinton 
went ahead and granted him a recess appointment.
  I think the majority leader was correct when he said there have been 
Democrat Presidents as well as Republican Presidents who have made 
recess appointments. Frankly, I do not think the Republicans should 
have done it. I do not think the Democrats should have done it. If we 
go back and read the Constitution on what recess appointments are all 
about, we would see that back in the horse-and-buggy days when we would 
be in session for just a few weeks every other year, and if there were 
a death of a Secretary of State or something like that, it was 
necessary to put ourselves in a position where the President would be 
able to fill that vacancy. That was the whole intent of recess 
appointments.
  In 1985, President Reagan was making recess appointments because at 
that time we had a conservative Republican President and we had a 
liberal Democrat-controlled Senate. Consequently, he wanted to get his 
conservatives passed, so he went ahead and made recess appointments. I 
do not believe he should have made those appointments. I think that 
contradicted the provisions in the Constitution. However, he did it 
anyway.
  At that time, the minority leader, the distinguished senior Senator 
from West Virginia, Mr. Byrd, did what was perfectly appropriate, and 
that was to send a letter to the President to say: Before you violate 
the constitutional prerogative of the Senate in its advise and consent 
power on any future recess appointments, I request a letter from you at 
a time with sufficient notice before the recess goes into effect. I 
request that you notify the Senate of what recess appointments you are 
intending to make during that recess and why.
  Sufficient notice was interpreted and vocalized several times by 
Senator Byrd to be adequate notice so we would know they were coming 
up, so we could go to Members and see if there were anyone who would 
want to put a hold on a judicial or any kind of nominee during the 
recess and have adequate time to act on it before recess. In the 
extreme case, I suppose we could have just gone into a pro forma 
session and not gone into recess. Nevertheless, that is what he 
requested from President Reagan. I might add, President Reagan did 
agree to that request. He sent a letter that was satisfactory to 
Senator Byrd, so that set the precedent.
  Because of the recess appointments of this President, I merely did 
the same thing Senator Byrd did back in 1985. I sent a letter, a 
communication to the White House, and I said: Because of your 
appointments, I am going to make the same request Senator Byrd made of 
President Reagan, with which President Reagan complied, and that is 
that you notify us in advance of any appointments you plan to have. If 
not, we will put holds on all appointments at that time--all 
nonmilitary nominees.
  We did not get the letter for awhile. A few trial letters came over, 
but they were not consistent with what President Reagan had agreed to. 
Finally, on June 15, 1999, President Clinton sent a letter that said:

       I share your opinion that the understanding reached in 1985 
     between President Reagan and Senator Byrd cited in your 
     letter remains a fair and constructive framework, which my 
     administration will follow.

  He agreed to follow the same mandates President Reagan did. At that 
time, I wrote a letter back praising the President for agreeing to 
abide by the same agreement as the Byrd-Reagan agreement. However, on 
November 10, as we approached our recess, I anticipated the President 
might be tempted to make recess appointments that were not consistent 
with that agreement. So I sent a letter to him that says:

       If you do make recess appointments during the upcoming 
     recess which violate the spirit of our agreement--

  Then I went into the details as to what the spirit was; there had to 
be adequate notice on a list we could consider and pass around to our 
colleagues--

     then we will respond by placing holds on all judicial 
     nominees. The result would be a complete breakdown in 
     cooperation between our two branches of government on this 
     issue which could prevent the confirmation of any such 
     nominees next year. We do not want this to happen. We urge 
     you to cooperate in good faith with the Majority Leader 
     concerning all contemplated recess appointments.

  That was signed by me and by 16 other Senators. Almost all, I 
believe--most of them, anyway--voted against the motion to proceed a 
few minutes ago.
  On November 17--I remember that well; it was my 65th birthday--I made 
a speech on the floor, and in that speech, anticipating there could be 
a misunderstanding of what our intent was, I said, on November 17, on 
this floor, at this podium:

       I want to make sure there is no misunderstanding and that 
     we don't go into a recess with the President not 
     understanding that we are very serious. . . . It is not just 
     me putting a hold on all judicial nominees for the remaining 
     year of his term, but 16 other Senators have agreed to do 
     that. . . . I want to make sure it is abundantly clear 
     without any doubt in anyone's mind in the White House--I will 
     refer back to this document I am talking about right now--
     that in the event the President makes recess appointments, we 
     will put holds on all judicial nominations for the remainder 
     of his term. It is very fair for me to stand here and 
     eliminate any doubts in the President's mind of what we will 
     do.

  That is exactly what we said on the floor, and I am going back now 
and reminding this body of that statement.
  On November 19--that was the day we were going out of session on 
recess, and it would be a lengthy recess going until January, the State 
of the Union time--the President notified the Senate of contemplated 
recess appointments. This was in compliance with the intent of the 
letter.
  I hasten to say here it is not quite in compliance because this is on 
the day we are going into recess. But nonetheless, in the spirit of 
cooperation and fairness, we agreed to take this list and to read the 
list and to go to our colleagues and see what names were on this list 
of 13 nominees whom he desired to appoint during the recess, and we 
found there were 5 on the list who were unacceptable to some Members of 
the Senate. So we sent back to him that communication, that there are 8 
of them, and if there were any appointments other than these 8, that 
would be in violation of the letter.
  To reaffirm that, the majority leader was good enough to let me be 
the last speaker on this floor, where I stood here 10 minutes before we 
went into recess and I made a rather lengthy talk, of which I will just 
repeat a little bit right now. I said:

       If anyone other than these eight individuals is recess 
     appointed, we will put a hold on every single judicial 
     nominee of this President for the remainder of his term in 
     office. . . . I reemphasize, if there is some other 
     interpretation as to the meaning of the (Nov. 10) letter, it 
     does not make any difference, we are still going to put holds 
     on them. I want to make sure that there is a very clear 
     understanding: If these nominees come in, if he does violate 
     the intent (of the agreement) as we interpret it [by 
     appointing anyone other than these eight], then we will 
     have holds on [all judicial] nominees.

  There was one individual about whom the majority leader came to me, 
right after that, after we went into recess. He said: You know, we made 
a mistake, there was one other individual. Let's increase that to nine 
people instead of eight.
  I said: That's fine.
  We sent a letter to the President dated November 23 that, in the 
spirit of cooperation, we are adding one name to the list:

       I hope this makes our position clear. Any recess 
     appointments other than the nine listed above would 
     constitute a violation of the spirit of our agreement and 
     trigger multiple holds on all judicial nominees.

  On December 7 we urged the White House not to violate the agreement. 
Yet, we found that by December 17 the White House did, and President 
Clinton did, in fact, violate the agreement directly and blatantly by 
appointing both Sarah Fox to the NLRB and Stuart Weisberg to the OSHA 
Review Commission.
  It happens that both of these recess appointments that violated our 
agreement would have been objected to by a number of Senators, two of 
whom are in this Chamber right now. However, that is not significant. 
There are reasons we would have found that objectionable. But even if 
they had been acceptable, it still violated the very specific agreement 
we had.

[[Page S586]]

  On December 20, I stated:

       I am announcing today that I will do exactly what I said I 
     would do if the President deliberately violated our 
     agreement.

  And on January 25, 2000, I did just that. I placed a hold on all 
judicial nominees. On this Senate floor I said:

       It was in anticipation of just such defiance--

  I am talking about the President's defiance of the Senate's 
prerogative to advise and consent to nominees--

       It was in anticipation of just such defiance that I and my 
     colleagues warned the President on at least five separate 
     occasions exactly what our response would be if he violated 
     this agreement. We would put a hold on all judicial nominees. 
     So today it will come as no surprise to the President that we 
     are putting a hold on all judicial nominees. We are simply 
     doing what we said we would do to uphold constitutional 
     respect for the Senate's proper role in the confirmation 
     process.

  Today we have agreed--I did not agree, but we went ahead and agreed 
to bring up two nominees on which I did assert my prerogative and say 
we are going to have rollcall votes on every nominee that does come up, 
and those rollcall votes are going to be taking place in about 15 
minutes.
  I say for those individuals who hysterically talked about the chaos 
that would be created in the event we put holds on all nominees, and no 
nominees were, in fact, appointed by this President for the last year 
of his administration and confirmed by the Senate, if you go back and 
look at what happened in January of 1993--that was the last month 
President Bush was in office--there were 109 vacancies in the 
judiciary. In other words, 109 vacancies that the then-Democrat-
controlled Senate failed to act upon.
  Today, there are 74 vacancies in the judiciary. In the event normal 
history takes its course and the normal number of either deaths or 
resignations take place, it will be not more than 25 more. In other 
words, there will be approximately 100 vacancies at the end of 
President Clinton's term of office. That is still nine fewer than there 
were at the end of President Bush's administration.
  This is sad. We are in the process of giving up an opportunity, by 
voting on some of these, for the first time in 7 years of this 
President's administration of holding him to his word. He has broken 
his word over and over. He has told lies to the American people over 
and over, and to this body he has broken his commitment. What we are 
giving up is our last and maybe only opportunity in 8 years to hold 
this President to his commitment. What is going on today is very sad. I 
deeply regret it.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I rise to commend the majority leader, 
Senator Lott, for proceeding today with votes for these two judicial 
nominees. We will continue to process the confirmations of nominees who 
are qualified to be Federal judges. In that respect, the Senate 
Judiciary Committee will hold its first nominations hearing of this 
session on Tuesday, February 22, and I expect to see more judicial 
nominees moving through the process in the coming months. There is a 
perception held by some that the confirmation of judges stops in 
election years. That perception is inaccurate, and I intend to move 
qualified nominees through the process during this session of Congress.
  That said, in moving forward with the confirmations of judicial 
nominees, we must be mindful of problems we have with certain courts, 
particularly the ninth circuit. In addition, the President must be 
mindful of the problems he creates when he nominates individuals who do 
not have the support of their home-State Senators. In this regard, I 
must say that it appears at times as if the President is seeking a 
confrontation with the Senate on this issue, instead of working with 
the Senate to see that his nominees are confirmed.
  Last session, despite partisan rhetoric, the Judiciary Committee 
reported 42 judicial nominees, and the full Senate confirmed 34 of 
these--a number comparable to the average of 39 confirmations for the 
first sessions of the past five Congresses, when vacancy rates were 
generally much higher. In total, the Senate has confirmed 338 of 
President Clinton's judicial nominees since he took office in 1993.
  I am disturbed by some of the allegations that have been made that 
the Senate's treatment of certain nominees differed based on their race 
or gender. Such allegations are entirely without merit. For 
noncontroversial nominees who were confirmed in 1997 and 1998, there 
was little, if any, difference between the timing of confirmation for 
minority nominees and non-minority nominees. Only when the President 
appoints a controversial female or minority nominee does a disparity 
arise. Moreover, last session, over 50 percent of the nominees that the 
Judiciary Committee reported to the full Senate were women and 
minorities. Even the Democratic former chairman of the Judiciary 
Committee, Senator Joe Biden, stated publicly that the process by which 
the Committee, under my chairmanship, examines and approves judicial 
nominees ``has not a single thing to do with gender or race.''
  The Senate has conducted the confirmations process in a fair and 
principled manner, and the process has worked well and, in my opinion, 
will continue to work well. The Federal Judiciary is sufficiently 
staffed to perform its function under article 3 of the Constitution. 
Senator Lott, and the Senate as a whole, are to be commended.
  I want to make sure we make those points in the Record before we 
start voting on these judicial nominees. When the Judiciary Committee 
reports a nominee to the floor, it does not even consider telling 
Senators what the nominee's race or ethnicity or anything else is. The 
nominee's race or ethnicity or gender is irrelevant as far as we are 
concerned. We report judicial nominees because we believe them to be 
qualified. We report them because the President of the United States 
has the constitutional right to nominate judges. The Senate has right 
to confirm or not confirm them.
  I have to say, the big battles are behind the scenes where we 
determine, in consultation with the White House, whether or not people 
should be nominated at all. That process is participated in by 
virtually every Senator in this body, and certainly by the leaders of 
the Judiciary Committee.
  I wish to set the record straight because I see continual 
politicization of the judiciary by this administration whereby this 
administration tries to make appointments that literally do not deserve 
to be made.
  Naturally, having said all this, during a Presidential election year 
the nomination process does slow down. It ultimately ends during that 
year, and historically has done so whether there has been Republican or 
Democrat control of the Senate, and whether there has been a Republican 
or Democrat in the White House.
  Another point I believe must be emphasized: We in the Senate cannot 
take action on nominees we do not have.
  Yesterday, at a Democratic National Committee event in Texas, 
President Clinton took the Senate to task for not acting swiftly enough 
on his judicial nominees. Given the fact that this is his last year in 
office, and that he was speaking at a DNC event, President Clinton is 
bound to say anything.
  The nominees we will confirm today will bring the total number of 
Clinton judges confirmed by the Senate Republicans to 340. 
Approximately 40 percent of the total federal judiciary now are Clinton 
judges--judges confirmed by Republicans.
  I note this: The President has made nominations for less then half of 
the vacancies that currently exist. For all the bad-mouthing this 
administration does from time to time regarding the confirmation of 
judges, it is important to note there are presently 79 vacancies, and 
to date we have received only 38 nominees--4 of which we received just 
today, so, in essence, just 34 nominees until today. There are 41 
vacancies for which the President has not even made a nomination. That 
needs to be said.
  I want to work with the President. I want to treat him fairly. I 
think we have been more than fair with him. I intend to be fair in the 
future as well,

[[Page S587]]

but I would appreciate it if he would speak a little more fairly 
himself.
  Mr. ROTH. Mr. President, it is the Senate's responsibility to assure 
that only our Nation's most exceptional legal minds dispense justice 
during lifetime appointments to the Federal bench. This definition 
precisely describes Delaware's Thomas Ambro, whom we have just 
confirmed to serve as a Federal judge on the Third Circuit Court of 
Appeals.
  I have followed Tom's legal career from the time he served on my 
Washington staff while attending Georgetown University Law School. 
Following a clerkship with Delaware Supreme Court Justice Daniel 
Herrmann, Tom distinguished himself as a corporate law attorney with 
the law firm of Richards, Layton and Finger in Wilmington, Delaware.
  I have no doubt that Thomas Ambro's national reputation as a 
corporate bankruptcy attorney will soon be supplanted by a reputation 
as one of our wisest Federal judges. Congratulations to Tom on this 
significant day.
  The PRESIDING OFFICER (Mr. Voinovich). The question is, Will the 
Senate advise and consent to the nomination of Thomas L. Ambro, of 
Delaware, to be United States Circuit Judge for the Third Circuit?
  Mr. HATCH. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second. The clerk will call the roll.
  The senior assistant bill 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 96, nays 2, as follows:

                       [Rollcall Vote No. 10 Ex.]

                                YEAS--96

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

                                NAYS--2

     Inhofe
     Smith (NH)
       

                             NOT VOTING--2

     Kennedy
     McCain
       
  The nomination was confirmed.

                          ____________________