[Congressional Record Volume 147, Number 93 (Friday, June 29, 2001)]
[Senate]
[Pages S7285-S7287]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       ORGANIZATION OF THE SENATE

  Mr. DASCHLE. Madam President, I now ask unanimous consent that the 
Senate proceed to S. Res. 120, the organizing resolution submitted 
earlier today by myself and Senator Lott.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The legislative clerk read as follows:

       A resolution (S. Res. 120) relative to the organization of 
     the Senate during the remainder of the 107th Congress.

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. DASCHLE. Madam President, I ask unanimous consent that three 
letters with reference to the resolution be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                    Washington, DC, June 29, 2001.
       Dear Colleague: We write as Chairman and Ranking Republican 
     Member of the Judiciary Committee to inform you of a change 
     in Committee practice with respect to nominations. The ``blue 
     slips'' that the Committee has traditionally sent to home 
     State Senators to ask their views on nominees to be U.S. 
     Attorneys, U.S. Marshals and federal judges, will be treated 
     as public information.
       We both believe that such openness in the confirmation 
     process will benefit the Judiciary Committee and the Senate 
     as a whole. Further, it is our intention that this policy of 
     openness with regard to ``blue slips'' and the blue slip 
     process continue in the future, regardless of who is Chairman 
     or which party is in the majority in the Senate.
       Therefore, we write to inform you that the Chairman of the 
     Judiciary Committee, with the full support of the former 
     Chairman and Ranking Republican Member, is exercising his 
     authority to declare that the blue slip process shall no 
     longer be designated or treated as Committee confidential.
           Sincerely,
     Patrick J. Leahy,
       Chairman.
     Orrin G. Hatch,
       Ranking Republican Member.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                    Washington, DC, June 29, 2001.
       Dear Colleague: We are cognizant of the important 
     constitutional role of the Senate in connection with Supreme 
     Court nominations. We write as Chairman and Ranking 
     Republican Member on the Judiciary Committee to inform you 
     that we are prepared to examine carefully and assess such 
     presidential nominations.
       The Judiciary Committee's traditional practice has been to 
     report Supreme Court nominees to the Senate once the 
     Committee has completed its considerations. This has been 
     true even in cases where Supreme Court nominees were opposed 
     by a majority of the Judiciary Committee.
       We both recognize and have every intention of following the 
     practices and precedents of the Committee and the Senate when 
     considering Supreme Court nominees.
           Sincerly,
     Patrick J. Leahy,
       Chairman.
     Orrin G. Hatch,
       Ranking Republican Member.
                                  ____

         U.S. Senate, Committee on Rules and Administration,
                                    Washington, DC, June 29, 2001.
       Dear Colleague: On June 29, 2001, the Senate passed the 
     organizing resolution which states, in part, that subject to 
     the authority of the Standing Rules of the Senate, any 
     agreements entered into regarding committee funding and space 
     prior to June 5, 2001, between the chairman and ranking 
     member of each committee shall remain in effect, unless 
     modified by subsequent agreement between the chairman and 
     ranking member.
       In the assignment of office space to Senate committees, 
     pursuant to Rule XXV of the Standing Rules of the Senate, it 
     is the practice of the Committee on Rules and Administration 
     to assign all such space to the chairman of each committee. 
     Further, the Rules Committee does not traditionally intervene 
     in the internal space allocation decisions of the committees 
     and therefore is not a party to any agreements between the 
     chairman and ranking member regarding space allocations. It 
     is the intent of the Committee on Rules and Administration to 
     continue such practice.
           Sincerely,
     Christopher J. Dodd,
       Chairman.
     Mitch McConnell,
       Ranking Member.

  Mr. DASCHLE. Madam President, I ask unanimous consent that the 
resolution be agreed to and the motion to reconsider be laid upon the 
table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. 120) was agreed to, as follows:

                              S. Res. 120

       Resolved, That the Majority Party of the Senate for the 
     107th Congress shall have a one seat majority on every 
     committee of the Senate, except that the Select Committee on 
     Ethics shall continue to be composed equally of members from 
     both parties. No Senator shall lose his or her current 
     committee assignments by virtue of this resolution.
       Sec. 2 Notwithstanding the provisions of Rule XXV the 
     Majority and Minority Leaders of the Senate are hereby 
     authorized to appoint their members of the committees 
     consistent with this resolution.
       Sec. 3 Subject to the authority of the Standing Rules of 
     the Senate, any agreements entered into regarding committee

[[Page S7286]]

     funding and space prior to June 5, 2001, between the Chairman 
     and Ranking member of each committee shall remain in effect, 
     unless modified by subsequent agreement between the Chairman 
     and Ranking member.
       Sec. 4 The provisions of this resolution shall cease to be 
     effective, except for Sec. 3, if the ratio in the full Senate 
     on the date of adoption of this resolution changes.

  Mr. DASCHLE. Madam President, the resolution we have just adopted is 
one that provides for the reorganization of the U.S. Senate.
  This is a unique time of transition for the Senate, and I understand 
that it is a difficult time for many of my Republican colleagues.
  If there is one thing that supercedes the status of any Senator or 
any party, it is our desire to do the work we were sent here to do. 
That, of course, requires getting the Senate organized to do it.
  By passing this resolution, our colleagues can retake their rightful 
places on committees, committees can take action on legislation, and 
importantly, we can move forward with Presidential nominations.
  This organizing resolution is the result of thorough bipartisan 
negotiations over the last several weeks.
  Many people deserve credit. First and foremost, I thank Senator Lott. 
Senator Lott and I have been through many challenges together. Each of 
those challenges has strengthened our friendship, and our working 
relationship, and this is no exception.
  I also thank Senators McConnell, Domenici, Gramm, Hatch, and Specter. 
Their good faith in the negotiating process, and their patience as the 
process played out, were instrumental in helping us reach this point.
  This resolution provides for a one-seat margin on Senate committees, 
which is consistent with Senate precedent.
  It clarifies that--subject to the standing rules of the Senate--the 
agreements on funding and space that were made between chairmen and 
ranking members early in this Congress will remain in effect for the 
duration of this Congress.
  This resolution also makes it clear that all of these provisions will 
sunset if the ratio in the Senate changes during this Congress.
  I especially commend Senator Leahy. Senator Leahy, in his typically 
fair and wise way, played a critical role in solving the most difficult 
questions we faced in these negotiations: those involving Supreme Court 
and other Presidential nominees.
  Together, he and Senator Hatch were able to find a truly constructive 
solution to the way in which we handle ``blue slips,'' and the way in 
which we consider nominees to the Supreme Court.
  On the subject of blue slips, Senators Leahy and Hatch have agreed 
that these forms--traditionally sent to home-state Senators to ask 
their views on nominees to be U.S. Attorneys, U.S. Marshals, and 
federal judges--will now be treated as public information.
  I share their belief that this new policy of openness will benefit 
not only the Judiciary Committee, but the Senate as a whole. I also 
share their hope that this policy will continue in the future, 
regardless of which party is in the majority.
  In the course of our negotiations, a number of our Republican 
colleagues also raised concerns about how Democrats would deal with 
potential Supreme Court nominations, should that need arise.
  A second letter to which Senators Leahy and Hatch agreed says clearly 
that all nominees to the Supreme Court will receive full and fair 
consideration.
  This is the same position I stated publicly many times during our 
negotiations, and I intend to see that the Senate lives up to this 
commitment.
  It has been the traditional practice of the Judiciary Committee to 
report Supreme Court nominees to the Senate floor once the committee 
has completed its consideration. This has been true even for a number 
of nominees that were defeated in the Judiciary Committee.
  Now, Senators Leahy and Hatch have put in writing their intention 
that consideration of Supreme Court nominees will follow the practices 
and precedents of the Judiciary Committee and the Senate.
  In reaching this agreement, we have avoided an unwise and unwarranted 
change to the Standing Rules of the Senate and a sweeping revision to 
the Senate's constitutional responsibility to review Supreme Court 
nominees.
  In sum, this is a good, balanced, resolution--one that will enable us 
to run this Senate in a spirit of fairness.
  In a letter to Thomas Jefferson, James Madison explained that the 
Constitution's Framers considered the Senate to be the great ``anchor'' 
of the Government.
  For 212 years, that anchor has held steady. The Senate has withstood 
Civil War and constitutional crises. In each generation, it has been 
buffeted by the winds and tides of political and social change.
  Today I believe we are proving that this great anchor of democracy 
can withstand the forces of unprecedented internal changes as well.
  I am confident that this resolution is the right way to keep the 
Senate working. I am appreciative of the support given by all our 
colleagues today as we now adopt it.
  If I may, I will say one other thing about this particular 
resolution. There is a member of my staff whose name is Mark Childress; 
our colleagues know him. I am indebted to him for many reasons, as I am 
to all of my staff. But no one deserves more credit and more praise for 
the job done in reaching this successful conclusion than Mark 
Childress. Publicly, I acknowledge his contribution, his incredible 
work and effort. I thank him from the bottom of my heart for what he 
has done to make this possible.
  Mr. LOTT. Madam President, I ask unanimous consent to insert in the 
Record a memo from the Congressional Reference Service. As this memo 
makes clear, the Senate has a long record of allowing the Supreme Court 
nominees of the President to be given a vote on the floor of the 
Senate. No matter what the vote in committee on a Supreme Court 
nominee, it is the precedent of the Senate that the individual 
nominated is given a vote by the whole Senate.
  The letter inserted in the Record as a part of the agreement 
accompanying the organization resolution refers to the ``traditional'' 
practice of reporting Supreme Court nominees for a vote on the floor. 
This memo from CRS shows that since 1881, there is only one case where 
the nominee was not given a floor vote. In that case, there was no 
opening on the Court for the nominee to fill and thus the nominee was 
withdrawn. So this precedent is even purer than the ``99 and 44/
100ths'' soap test.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:


                                Congressional Research Service

                                     Washington DC, June 28, 2001.
     Senate Consideration of Supreme Court Nominations since 1880
     Hon. Trent Lott,
     Senate Republican Leader,
       This memorandum is in response to your request, made during 
     our telephone conversation earlier today, for a short written 
     answer to the specific question, ``Is it the case that since 
     1880 all Supreme Court nominations, irrespective of Judiciary 
     Committee recommendation, have received consideration by, and 
     a vote of, the full Senate?''
       Research by CRS has found that from President James A. 
     Garfield's nomination of Stanley Matthews on March 14, 1881 
     to the present, every person nominated to the Supreme Court 
     except one has received Senate consideration and a vote on 
     his or her nomination. Nonetheless, it should be noted, 
     during the time frame of 1880 to the present, there also have 
     been two other instances, besides the already mentioned 
     exception, in which Supreme Court nominations failed to 
     receive consideration; in both cases, however, the 
     individuals in question were re-nominated shortly thereafter, 
     with one receiving Senate confirmation and the other Senate 
     rejection.
       The one instance when the Senate did not consider and vote 
     on an individual nominated to be a Supreme Court Justice 
     involved President Lyndon B. Johnson's nomination of federal 
     appellate judge Homer Thornberry in 1968. Judge Thornberry 
     was nominated to be an Associate Justice on June 26, 1968, 
     the same day on which President Johnson nominated then-
     Associate Justice Abe Fortas to be Chief Justice. Judge 
     Thornberry was nominated to fill the Associate Justice 
     vacancy that was to be created upon Justice Fortas's 
     confirmation as Chief Justice. However, after being favorably 
     reported by the Judiciary Committee, the Fortas nomination 
     failed to gain Senate confirmation. On October 1, 1968, the 
     fourth day of Senate consideration of the Fortas nomination, 
     a motion to close debate on the nomination failed by a 45-43 
     vote. Three days later, on October 4, 1968, President Johnson 
     withdrew both the Fortas and Thornberry nominations.
       Prior to Senate action on the Fortas nomination, the 
     Judiciary Committee held hearings simultaneously on Fortas 
     and Thornberry, but upon conclusion of the hearings

[[Page S7287]]

     reported out only the Fortas nomination. One detailed history 
     of the Fortas nomination reported that it was apparent ``that 
     the committee would take no action on Thornberry until the 
     Fortas nomination was settled.''
       As noted in the second paragraph of this memorandum, there 
     also have been two instances in which Supreme Court 
     nominations failed to receive Senate consideration, only to 
     be followed by the individuals in question being re-nominated 
     shortly thereafter and then receiving Senate consideration. 
     The earlier of these instances involved President Rutherford 
     B. Haye's nomination of Stanley Matthews on January 26, 1881 
     in the final days of the 46th Congress. According to one 
     historical account, the nomination did not enjoy majority 
     support in the Senate Judiciary Committee and was not 
     reported out by the Committee or considered by the full 
     Senate before the end of the Congress. However, Matthews was 
     renominated by Hayes's successor, President Garfield, on 
     March 14, 1881. Although the second nomination was reported 
     with an adverse recommendation by the Judiciary Committee, it 
     was considered by the full Senate and confirmed on May 12, 
     1881 by a vote of 24-23.
       A second instance in which a Supreme Court nomination 
     failed to receive Senate consideration, only to have the 
     individual in question be re-nominated, involved Grover 
     Cleveland's nomination of William B. Hornblower in 1893. 
     Hornblower was first nominated on September 19, 1893, with no 
     record of any Judiciary Committee action or Senate 
     consideration of the nomination indicated in Journal of the 
     Executive Proceedings of the Senate volume for that (the 
     53rd) Congress. Hornblower was re-nominated by President 
     Cleveland on December 6, 1893. After his second nomination 
     was reported adversely by the Judiciary Committee on January 
     8, 1894, Hornblower was rejected by the Senate on January 15, 
     1894 by a 24-30 vote.
       I trust the above information is responsive to your 
     request. If I may be of further assistance please contact me 
     at 7-7162.

                                           Denis Steven Rutkus

                                            Specialist in American
     National Government

                          ____________________