[Congressional Record Volume 147, Number 141 (Thursday, October 18, 2001)]
[Senate]
[Pages S10832-S10834]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. REID. Mr. President, I want to go over a few facts regarding 
judicial nominations because that has been the subject of some 
discussion in this Chamber.
  I, first, say that today there was a hearing held down in S-128, the 
appropriations room. It was held in spite of all that is going on 
around here. I want to tell Senator Leahy how much I appreciate that, 
and also Senator Schumer, who chaired the subcommittee.
  I say that because Senator Ensign nominated Larry Hicks. He did it. 
And I appreciate very much John Ensign allowing me to approve of his 
nomination.
  John has been very good about that. Every fourth nomination I get. He 
told me if there is somebody I really don't like, he said, yes, he 
wouldn't put them forward. But the first person he put forward is a man 
by the name of Larry Hicks, eminently qualified, a good lawyer and a 
good person. It would have been a terrible shame for him and his family 
to have traveled back here yesterday to be told the hearing has been 
canceled, the Senate is not in session. So they were able to go into 
that crowded room and proudly be there when their husband, their 
father, their brother was given this most important hearing that will 
make him a Federal judge. He is extremely well qualified.
  I wish to tell the Senator from Vermont how much I personally 
appreciate that. He is chairman of the committee. He is the one who 
arranged that. He is a member of the Appropriations Committee, one of 
the senior members. That is why we were able to use S-128.
  Not only did he hold the hearing in S-128, but there was an emergency 
meeting held today to mark up people who had had hearings previously. 
Thirteen U.S. attorneys were reported out of the Judiciary Committee 
today, including a person who is going to be an assistant Attorney 
General, Jay Bybee from Nevada, a person also very well qualified, a 
professor at the University of Nevada Law School.
  In addition to the U.S. attorneys and the Assistant Attorney General, 
we have four district court judges who were reported out of committee. 
Right back here it was done. It was difficult to get a quorum. People 
were pulled off the floor to do that. The Senator from Vermont, 
chairman of the committee, did that. There was a judge from Oklahoma, a 
judge from Kentucky, a judge from Nebraska, and a judge from Oklahoma--
four district court judges.
  In S-128 today, there was not a single member of the minority at that 
committee hearing--not a single one. The makeup of the committee was 
Senator Schumer, Senator Leahy, and Senator Kennedy. I may be missing 
someone but they were all Democrats. So I say to my friends, if these 
judicial nominations are that important, couldn't they attend a 
hearing? Remember, these were all Republican nominations--not a single 
Democratic nomination, all Republicans.
  Let me also say this to boast--it is a pure, unadulterated boast; I 
am bragging about Chairman Pat Leahy--confirmations under Chairman 
Leahy have been faster than in the other first years. Fair comparisons 
show that by October 15 of the first year of President Clinton's 
administration, the Senate had only confirmed four judges, four fewer 
than by the same time this year. By October 15 of the first year of the 
first Bush administration, the number was the same; only four judges 
had been confirmed. This year, 2001, in the fewer than 4 months since 
the reorganization of the Senate, when we had Chairman Leahy of the 
Judiciary Committee, and we had to spend some time organizing, too--you 
don't just hit the ground running--twice as many judges

[[Page S10833]]

have been confirmed as during the first 9 months of the first Bush 
administration and the Clinton administration. Remember, 4 months.
  Chairman Leahy and the Senate are ahead of the confirmation pace for 
judicial nominations for the first year of the Bush administration and 
the first year of the Clinton administration.
  Since July of this year, the Senate has already confirmed four court 
of appeals judges and a fifth has already had a hearing and is being 
scheduled for committee consideration as soon as the followup questions 
are answered. That judge would have been reported out today had the 
questions been answered of one of the Senators, I believe from 
Wisconsin. Senator Feingold had some questions that had not been 
answered. Because of that and Senate tradition, you can't report out 
nominations if questions of members of the committee have not been 
answered.

  In 1989, five court of appeals judges were confirmed for the entire 
year. We are on a pace to confirm between six and eight this year.
  Chairman Leahy has already held six hearings involving judicial 
nominees since July 10, including two in July and two unprecedented 
hearings during the August recess. Most of us were out doing other 
things. I am not afraid to acknowledge, I took a vacation for several 
weeks in August. When Pat Leahy was here holding hearings, I was 
vacationing. Unprecedented hearings, two hearings during August, a 
hearing in September in the aftermath of the September 11 terrorist 
attack, a hearing on October 4, and, of course, the hearing today about 
which I have talked.
  By contrast, in the 6\1/2\ years the Republicans chaired the 
Judiciary Committee from 1995 to 2001, in 34 months, they held no 
confirmation hearings for judicial nominations, 34 months. In 30 
months, they held a single confirmation hearing. And in only 12 months 
did they hold at least two hearings involving judicial nominees.
  You can bring charts on the floor, as was done earlier saying, 
Senator Leahy, when he holds a hearing, doesn't do as many as we did. 
As I have said, I am happy to play this statistics game. I am happy to 
do that. Anyone who wants to do that, I can do it. As everyone knows, 
you can do whatever you want with statistics. But I am giving the 
Senate the statistics. Let someone come and disagree if they want. I am 
telling you this will be on the record of the Senate forever.
  If the Senate adjourns, let's say, by the Thanksgiving recess, which 
probably will be the case, as it did in 1989 and 1993, Chairman Leahy 
intends to hold additional hearings for judicial nominees. That would 
bring the total of the year to maybe as many as 10 hearings. The Senate 
could be in a position to confirm between 25 and 30 judges in this very 
short session during which the chairman of the Judiciary Committee took 
over this summer.
  During the entire first year of the Clinton administration, the 
Judiciary Committee held only six hearings. During the entire first 
year of the first Bush administration, the committee held seven 
hearings.
  Chairman Leahy will hold as many as 10, even though he has not had 
the whole year. I remind everybody, during the first 6 months of this 
year, not a single confirmation hearing was held and not a single 
confirmation took place. Those are the facts.
  The comparisons of the minority are simply unfair. Chairman Leahy and 
the Democratic Senate have been criticized for only having confirmed 
eight judicial nominations so far this year. That number has been 
compared to totals from the end of previous years: In 1989, 15 judges 
were confirmed; in 1993, 27. This year's number was achieved between 
July 10 and October 15, and it is still growing. The totals against 
which it is being compared counts confirmations through late November 
in both years.
  Now, as a result of the ``unprecedented''--I use the word again--
hearing in the President's room, we are going to, on Tuesday or 
Wednesday, vote out four more judges or several more judges. I think it 
is four. We are going to do these U.S. attorneys. We are going to do 
Mr. Bybee.

  Mr. LEAHY. Mr. President, if the Senator will yield.
  Mr. REID. Mr. President, I didn't know Senator Leahy was here. I am 
glad to see the chairman.
  Mr. LEAHY. I don't always enjoy the statements I hear on the floor, 
but I must admit, I was relishing this one.
  Mr. REID. If I had known you were here, I would have been more 
effusive.
  Mr. LEAHY. I think it was bad enough. But if my wife is watching 
this, she is going to wonder who this person is and who is coming home 
tonight with all these nice things you have said about me. I thank the 
Senator from Nevada who has helped make it possible.
  He and Senator Daschle helped us get the rooms under difficult 
circumstances so we could have this hearing. I had the markup this 
morning, where we sent out, between judges and U.S. attorneys, about 18 
people, virtually all of whom were there on the recommendation of 
Republican Senators. Because of his help, we were able to get a hearing 
room for this afternoon.
  The point the Senator made was a good point. He mentioned the 
judicial nominee for Nevada. He traveled 3,000 miles to be here for a 
hearing, assuming, of course, we were going to have the hearing today. 
Those plans came before the anthrax scare and, all of a sudden, 
everything shut down. The Senator from Nevada, in his usual way, where 
he worries about everybody, it seems, came to me and said: People came 
this distance; can we do something to help them out? Of course, we can. 
We have been trying to do that to accommodate everybody.
  There is one thing I find with great amusement, and that is when 
people say ``look at the vacancies.'' Well, that is right, Mr. 
President, there are vacancies. President Clinton nominated people for 
virtually all of those vacancies, and they were not even allowed to 
have a hearing, to say nothing about a vote.
  It reminds me of when the same people blocked President Clinton's 
nominees from having a hearing or a vote, and now they say we have all 
these vacancies. That is like the kid who killed his parents. When he 
was brought into court, he said, ``Your Honor, have mercy on me, I am 
an orphan.''
  What can we say about these vacancies? Lordy, lordy, I wish they said 
that last year when we had the nominees ready to go.
  Having said that, I don't intend to play that kind of game. We are 
moving as fast as we can. I point out to Senators that we have had a 
few problems. The Senator from Nevada pointed out that when the 
Republicans controlled the Senate, they didn't hold a single hearing or 
confirm a single judge. They have all been done since we took over, and 
they are all President Bush's nominees. We have had a few things going. 
I wasn't given a committee until July, about 2 or 3 weeks before the 
August recess. That is why I had staff stay here--to hold hearings 
during August. We have had a couple of things going on before that 
committee.
  I am sure nobody has forgotten what happened 5 weeks ago in this 
country, on September 11, with the Pentagon and the World Trade Towers. 
We have been drafting a massive antiterrorism bill. We were given a 
deeply flawed piece of legislation by the Attorney General and the 
White House. I have worked with them and have tried to improve it, and 
we have done that. So now we have something both Republicans and 
Democrats can support, and we are going to pass it next week. That has 
taken a great deal of time.
  As the Senator from Nevada has pointed out several times on the 
floor, speaking of the various Members and staff who have worked on it, 
I can go home at night, but most of them stay and spend the rest of the 
night working on it. So a lot has been done.
  My earlier reason for coming to the Chamber was to thank the Senator 
from Nevada, and the Senator from South Dakota, Mr. Daschle, for 
keeping us in today. We accomplished an enormous amount. We 
accomplished more than any piece of legislation written today, more 
than any nominee, more than anything we voted on: we demonstrated to 
the United States of America that the Senate is open for business. 
Senators are here doing their duty.
  Again, I thank the Senator from Nevada for his long-term friendship 
and for his kind words.
  I yield the floor.
  Mr. REID. Mr. President, this says it all: The average time between 
nomination and confirmation for court of appeals judges this year has 
been approximately 100 days, which includes the

[[Page S10834]]

delay and reorganization of the Senate and the wait for the ABA peer 
reviews, which cannot begin now until after the nomination. The average 
length of time between nomination and confirmation of those circuit 
court nominees approved during President Clinton's most recent term was 
343 days. That is a year--average.

  Accordingly, even with all the delays caused by Republicans, this 
Senate is acting on court of appeals nominees, on average, 8 months 
faster than the Republican Senate acted on Clinton nominations during 
the last 4 years--when they acted at all.
  More than half--56 percent--of President Clinton's court of appeals 
nominations in 1999-2000 were not confirmed. More than one-fifth of 
President Clinton's judicial nominees--68--never got a committee 
hearing, and certainly not a committee vote from the Republican 
majority. No one on the Republican side has conceded that the 
Republican Senate did anything wrong over the last 6 years in its 
handling of the judicial nominations. I guess they accept 343 days as 
being fairly good.
  Chairman Leahy and the majority now are ahead of the pace of the 
Republican Senate--it is not even a close race--and we should not be 
criticized for doing far better than our predecessors. Of the 31 
district court nominees pending, 14 do not have completed paperwork 
with ABA ratings, 5 had hearings, 4 are scheduled for hearings this 
week--and I talked about those --and 10 or more will be included the 
rest of this month and next month.
  Mr. President, having made this case, hopefully showing that the 
effort to have Senator Daschle change what we are doing on the floor as 
a result of Chairman Leahy not doing what he is supposed to do is not 
going to work. Having laid this out, this is not payback time. We are 
not going to use their model. They should use it when they are trying 
to make apples out of oranges, but we are not going to go for that. We 
are going to treat the Republicans like they did not treat us. We are 
going to do everything we can to get every judicial nomination 
completed as quickly as we can. That is our responsibility, and we are 
going to live up to it. It would be easy to do what was done to us--
that is, hold them, hold them, until the very last, and then let some 
go--not very many but a few. We have not done that.
  We have approved scores of ambassadors. Chairman Biden has been 
exemplary. All the other committees have voted out people as quickly as 
they could. I had a hold on someone in the Environmental Protection 
Agency. I got a call from Governor Whitman. I had questions. She 
answered them on the phone and we did it within a day or two. It would 
have been easy to say, well, that is what they did to us. But we are 
not doing that, Mr. President. We are getting these judges out as 
quickly as we can.
  All the screaming and yelling and saying we are not going to let the 
appropriations bills move--they can do that. We are doing the best we 
can.
  Someone on the other side said we are going to have some meetings. We 
are going to have meetings, but not on that, Mr. President. I have 
spoken to the majority leader, and he recognizes these appropriations 
bills are very important. But they are the President's bills, not our 
bills. If he wants these lumped into some big thing--and he is over in 
China now. We have the foreign operations bill being held up, and he is 
meeting with 21 other world leaders there, many of whom get benefits 
from the bill we are trying to pass. But we can't because there is a 
filibuster.
  I practiced law. I argued cases in the Ninth Circuit. I tried lots 
and lots of cases. I know how important it is to have judges--good 
judges--as many as you can get. Justice delayed is justice denied, and 
we know that. We are going to do the best we can to make sure there is 
no justice delayed. But let's use common sense.
  Why hold up these appropriations bills? It is not going to speed 
things up. Now we are going into the third week with a filibuster. It 
is wrong, and I am very sorry it is happening. But no one is going to 
denigrate Pat Leahy while I still have an ounce of breath left in my 
body.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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