[Congressional Record Volume 146, Number 62 (Thursday, May 18, 2000)]
[Senate]
[Page S4210]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       THE CONFIRMATION OF JUDGES

  Mr. LEAHY. Mr. President, I know the distinguished leader has been 
working on trying to find a way to confirm some more judges. I hope we 
do.
  I remind the Senate, and the American public, that there is a 
mistaken belief that in a Presidential election year we stop confirming 
judges. That is not so.
  As one who has been here for 25 years, I note that there is an 
informal procedure called the Thurmond rule, named after our beloved 
President pro tempore, the Senator from South Carolina, Strom Thurmond. 
This rule basically says that as we get close to the Presidential 
election time--July, August, and into the fall--we slow down and nearly 
stop the confirmation of judges to lifetime appointments to see how the 
Presidential election comes out, because the next President will be 
able to nominate judges.
  But having said that, I point out what happened in the last year of 
President Bush's term. Democrats controlled the Senate, and we 
confirmed 66 judges--66 judges nominated by President Bush--more than 
have been confirmed in any year of President Clinton's term in which 
there has been a Republican majority, even when he was not facing 
reelection. In 1996 they confirmed only 17 judges all year.
  With a Democratic Senate in the last year of President Reagan's term, 
we did not have this kind of a slowdown and stoppage. Democrats 
confirmed more than 40 judges.
  I hope we will look, first and foremost, not at some kind of partisan 
game but at what is best for the judiciary.
  We are seen throughout the world as having the most independent 
federal judiciary anywhere. Look at what happens in other parts of the 
world where the President or Prime Minister or leader of a country can 
tell the judiciary exactly what to do, and they do it. Look at what 
happened in Peru. President Fujimori got the Supreme Court to allow him 
to run unconstitutionally for a third term.
  Look at a number of other countries around the world where dictators, 
and those who seize power, get the courts to bend to their will. That 
is not done here in the United States. Our Federal judiciary truly is 
independent. We should protect their independence by not making judges 
a partisan pawn in a political program. We should make sure they remain 
independent.
  Democrats have given an enormous amount of flexibility to Republican 
Presidents. I hope--it may be a vain hope--that a Democratic President 
would get at least a goodly percentage of that same kind of flexibility 
from a Republican-controlled Senate. If we were to confirm all 16 of 
the judges on the Senate Executive Calendar today, we still would only 
have confirmed 23 judges so far this year. That is about half the total 
from 1988 and only one-third of the 66 judges confirmed in 1992.
  We will not accomplish anything tonight on this. But I urge--as I did 
last night when I was speaking to the Capitol Historical Society, 
speaking of the history of the Judiciary Committee, when I praised a 
number of Republican chairmen of that committee, from the past and 
present, and Democratic chairmen--and if I might, just for a moment, 
reflect on my 25 years here--we  should lower our decibel level, 
especially in this area. I urge that the distinguished Republican 
leader and the distinguished Democratic leader, both of whom are dear 
friends of mine--and I have enjoyed the friendship and serving with 
them--might try once again. And the distinguished chairman of the 
committee, the senior Senator from Utah, Mr. Hatch, and I will do that, 
too, because whatever momentary political advantage either party might 
have, it does not begin to equate with our responsibility to the 
independence of the finest judiciary in the world. We should make that 
try.

  It will not happen tonight, but over the weekend maybe calmer heads 
will prevail. I see my good friend from Kansas on the floor. He and I 
have joined on legislation. We are certainly not seen as political and 
philosophical allies, but we have reached across the aisle on 
significant legislation; one of the most significant is the collegiate 
gambling legislation. The distinguished Presiding Officer, the Senator 
from Alabama, and I have also joined together and voted together 
oftentimes in the Judiciary Committee. We know that, eventually, if 
something is going to work it has to have the support of Democrats and 
Republicans. I mention this because I hope that maybe the temperatures 
will lower. Let us realize that we have more things to unite us than to 
divide us and we can work together. I thank my two colleagues for their 
forbearance and letting me take these few minutes.
  I yield the floor.
  Mr. BROWNBACK. Mr. President, I thank the Senator from Vermont for 
his thoughtful comments on the need to work together, which I think is 
critically important. As I understood it, the distinguished Democratic 
leader and the majority leader were getting pretty close to getting 
something done and then it fell apart at the end. So I am hopeful that 
maybe come tomorrow, or the first of next week, those can move forward. 
I agree that we ought to work together in a calmness for the betterment 
of the country. I think we can get that done. This has been a tough 
week, and I have enjoyed working with my colleague.

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