[Congressional Record Volume 148, Number 30 (Friday, March 15, 2002)]
[Senate]
[Pages S1967-S1969]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          COMMENDING SENATOR LEAHY AND THE JUDICIARY COMMITTEE

  Mr. REID. Mr. President, I have sat in the Chamber for several hours, 
all last night and this morning, and when I have not been right here 
physically in the Chamber, I have listened to some of the statements 
that have been made regarding what the Judiciary Committee did 
yesterday; that is, do their job.
  The main reason I am here--and it is coincidental my friend is in the 
building someplace; I saw him just a few minutes ago, Senator Leahy, 
the chairman of the Judiciary Committee--during all this process, when 
the minority has been criticizing the committee, there has not been a 
word said about Senator Leahy positive in nature.
  I personally believe, speaking on behalf of 50 other Democrats--and 
if the truth were known, many of the Republicans--that there is not a 
Senator in this body who is held in higher regard than Senator Leahy. 
But even if every Senator in the Senate had no regard for Senator 
Leahy, the people of Vermont and the people of America hold him in high 
regard.
  Here is a man who started talking about landmines and how bad they 
were before it became popular to do so. He was the first to speak out 
against landmines.
  It is hard for me to get out of my mind a trip I took to Africa, 
Angola. Every place you go there, people are missing arms and legs. The 
No. 1 business is fixing people with prostheses, mainly women and 
children, because they are the ones who go out in the fields.
  Senator Leahy has spoken about landmines and our need to do something 
about them. And we have done things about them.
  As to nutrition programs for children--principally children but also 
people less fortunate than everyone in this Chamber today--Senator 
Leahy led the charge with Senators Dole and Lugar to do something about 
nutrition programs so that this land of plenty should not have hungry 
children and people.
  In talking about constitutional rights, there is no one--no one--who 
has been more protective of our Constitution than Senator Leahy. The 
first amendment is something he is known for protecting.
  Who was the one who slowed down the antiterrorism bill? It was done 
by Senator Leahy. And after the bill was written, people gave him 
accolades for doing that. It was a good bill, and it was as good a bill 
as it was because Senator Leahy had the guts--for lack of a better 
word--after September 11, to say: Whoa. This is the United States. We 
have a Constitution.
  Probably the leading exponent of the Internet, other than Senator 
Leahy, is the Presiding Officer, but Senator Leahy was using his 
computer before I even knew what one was. He really was one of the 
first to use, in a modern way, the computer.
  Now, the two of you--I am referring to Senator Leahy and the 
Presiding Officer, Senator Wyden--have done wonderful things as the co-
leaders of a task force, assigned by Senator Daschle, to bring the 
Senate Democrats up to snuff on the new technology around the country. 
And a good job has been done there.
  One of the really thankless jobs in the Senate is to be a chairman of 
the Foreign Operations Subcommittee of Appropriations. Senator Leahy is 
a person who has a lot of seniority and would have his pick of many 
different subcommittees. There are 13 of them on Appropriations in the 
Senate. But he has taken the Foreign Operations Subcommittee because he 
believes it renders a service to this body, to the country, and the 
world. It is difficult, but he has been judicious in his leadership of 
that subcommittee.

[[Page S1968]]

  I could go on and describe what Senator Leahy has done that has made 
a difference in this country. But for people to criticize his 
chairmanship of the Judiciary Committee is something I will not allow 
to happen without speaking out.
  I am not only proud of Senator Leahy, but I am proud of the Judiciary 
Committee--not for what they did yesterday or did not do yesterday--
because I am proud of the fact that they have tremendous 
responsibility.
  When I served in the State legislature, I served on the Judiciary 
Committee. It seemed then, and it seems now in this body, that every 
difficult issue comes to the Judiciary Committee. Whether it is 
antiterrorism legislation, abortion matters, or judicial nominations, 
all the tough stuff comes to the Judiciary Committee. Those 19 people 
who serve on the Judiciary Committee have a very tough task, led by the 
senior Senator from Vermont.

  (Mr. LEAHY assumed the chair.)
  Mr. REID. I rise to defend the Senate Judiciary Committee, not for 
what they did or didn't do yesterday but because I believe they have a 
tremendously difficult job. I also wish to defend individually the 
members of the Judiciary Committee--the Democratic members 
specifically--on unfounded attacks against these men and women who 
voted their conscience on the nomination of a judge. This judge was 
being asked to be elevated to the second highest court we have. The 
only one above it is the Supreme Court. Reasonable people can disagree 
about whether this man deserved a promotion, given his record as a 
judge. I am terribly concerned, however, that some people, even some 
colleagues, are making this committee vote over one person into an 
unfortunately acrimonious fight.
  It is not the vote of people of goodwill on the confirmation of a 
judge but the voices of anger and disappointment that will hurt our 
institution.
  I hope we are not entering the era in which any disagreement is 
vilified and harsh, inappropriate rhetoric is employed to make points 
with the fringes. We have to have disagreements here. That is what this 
institution is all about. We have an aisle here that separates 
Democrats from Republicans. We have different philosophies about a lot 
of issues. The fact that there was a person who was not approved by a 
committee doesn't mean the institution is falling apart. It shows the 
strength of the institution. The American people should be glad we 
don't agree on everything.
  I have heard a lot of talk, as I have listened since yesterday 
evening, about religion. I have had three Democratic Senators come to 
me and say they had no idea what Judge Pickering's religion was. I 
have since learned he is a Baptist. I don't think it had anything to do 
with what happened. I know it had nothing to do with what his religion 
is. I never heard it mentioned in the hearings I watched. It was not 
anything I read about in the newspaper. This is just a red herring 
people have thrown out to try to make this into a much more difficult 
situation than it should be.

  Whether a nominee goes to a church, a temple, a mosque, or not, has 
not been used by Congress in the consideration of any judicial 
nomination, and it should not be. Article VI of the Constitution 
requires that no religious test shall ever be required as a 
qualification for any office or public trust under the United States. 
But the responsibility to advise and consent on the President's 
nominees is one that the Senators take very seriously.
  I have attended meetings where individual Senators have been very 
concerned about what they do on any particular issue, whether it deals 
with antiterrorism, a specific part of that legislation, whether it 
deals with a specific matter dealing with abortion, or a judicial 
nomination. Some of our Democratic Senators have been receiving calls 
and criticism based on their religious affiliations.
  The Judiciary Committee is made up of Catholics, Jews, Protestants. 
People who are Democratic members of that committee have been receiving 
phone calls since last night saying: You did this because you are a 
Jew; you don't like Baptists; you are Catholic; you don't like 
Baptists. This is really a big stretch.
  There are strong views on both sides regarding this matter of 
yesterday. But so what? There is nothing wrong with that.
  One of the subjects I want to touch on briefly today is to express 
some concern about statements from the administration, including from 
the President, that the Senate's treatment of judicial nominees ``hurts 
our democracy.'' His statement is unsettling, unfounded, and it is a 
misunderstanding of the fundamental separation of powers in the 
Constitution, the checks and balances in the Founders' design.
  In our democracy, the President is not given unchecked powers to pack 
the courts and give lifetime appointments to anyone who shares his 
view. Instead, the Constitution provides a democratic check on the 
power of appointment by requiring the advice and consent of the Senate.
  This little document was given to me by Senator Robert Byrd. He 
signed this little worn document. It means a lot to me personally. I 
carry it with me almost every day. Sometimes I forget it, but not 
often. It gets in the way of a lot of things we try to do around here. 
The Constitution gets in our way because the Constitution prevents us 
from doing certain things.
  We have three separate but equal branches of government. That is the 
way it is. This little document established three separate but equal 
branches of government. The legislative branch of government has all 
the power that the executive branch of government has and all the power 
the judicial branch of government has. We have responsibilities also 
given to us by the Constitution. For someone to say that the Senate's 
treatment of judicial nominees hurts our democracy is a terrible 
disappointment.
  George W. Bush is President of the United States, not King of the 
United States. He is President Bush. He is President George, not King 
George.
  I also want to take a minute and respond to the criticism that 
circuit court nominees are being treated unfairly. I believe nothing 
could be further from the truth. By having fair hearings and voting on 
nominees, up or down, the Judiciary Committee is proceeding as it 
should. Unlike the many judicial nominees who did not get hearings or 
were accorded a hearing but were never allowed to be considered for a 
vote by the committee, we are trying to accord nominees whose paperwork 
is complete and whose blue slips are returned both a hearing and a fair 
up-or-down vote.

  Senator Daschle on this floor and in press conferences has said that 
we are not going to be in a payback mode. We are not going to treat 
them like they treated us. If we did, Judge Pickering would not have 
had two hearings. I said last night in closing, after I listened to all 
the speeches, as we were going out: Isn't it interesting the item of 
business today, Friday, that what we are going to do is a judicial 
approval. We voted on a judge. We approved an Arizona judge. Arizona 
has two Republican Senators. This is not payback time.
  Until Judge Edith Clement received a hearing on her nomination to the 
Fifth Circuit court last year, there had been no hearings on Fifth 
Circuit nominees since 1994 and no confirmations since 1995. If Senator 
Leahy wanted to get even, he had a lot of even to get because he was 
not very well treated as a ranking member of that committee. In 1999 
the Fifth Circuit declared an emergency because it had three vacancies 
that had not been filled. Last year, in 2001, we were able to confirm 
the first new judge in the Fifth Circuit in 6 years.
  Jorge Rangel was nominated to the Fifth Circuit in 1997 by Bill 
Clinton and never received a hearing on his nomination or a vote by the 
committee--never. His nomination to a Texas seat on the Fifth Circuit 
languished without action for 15 months.
  Enrique Moreno was first nominated to the Fifth Circuit in 1999 and 
never received a hearing on his nomination or a vote by the committee. 
His nomination to a Texas seat on the Fifth Circuit languished without 
action for 17 months.
  H. Alston Johnson was first nominated to the Fifth Circuit in 1999 
and never received a hearing on his nomination or a vote by the 
committee in 1999, 2000, or the beginning of 2001. His nomination to a 
Louisiana seat on the Fifth Circuit languished without action for about 
2 years.

[[Page S1969]]

  In contrast, under the Leahy-led Judiciary Committee, President 
Bush's nominees to the Fifth Circuit: Edith Brown Clement and Judge 
Pickering, were treated fairly. Both received hearings less than 6 
months after their nominations. In fact, Judge Clement was the first 
Fifth Circuit nominee to receive a hearing since Judge James Dennis had 
a hearing when Senator Biden chaired the Judiciary Committee in 1994. 
She is the first person confirmed to that circuit since Judge Dennis's 
confirmation almost 7 years ago.
  Those who assert that the Democrats have caused a vacancy crisis in 
the Federal courts are, regrettably, ignoring recent history. At the 
end of the 106th Congress, December 15, 2000, there were 76 vacancies 
on the Federal courts. There were 80 when President Bush took office. 
There were an unusual number of retirements taken by Federal judges 
during the first 6 months of this Republican President. By the time the 
Senate was permitted to reorganize after change in minority, the number 
reached 111. Since then, 41 judicial nominees have been confirmed, and 
another one was confirmed this morning. there will be another one on 
Monday. There are currently nine vacancies due to retirements and 
deaths, but our rate of confirmation is greater than the rate of 
attrition. We have made more progress than was made in 4 of 6 years of 
Republican leadership.
  On January 3 of last year, there were 26 vacancies on the Federal 
appellate courts, some of these seats had been vacant for years, since 
1994, 1995, 1996, 1997, 1998, 1999, and 2000. Because of these long 
standing vacancies, President Clinton renominated nine court of appeals 
nominees who had either not been given a hearing or a vote by the 
Senate Judiciary Committee under Republican leadership. None of those 
nominees received hearings or votes last spring before the change in 
majority, and in fact no nominees were confirmed by the time the 
Democrats became the majority.
  By the time the Senate was permitted to reorganize last summer there 
were 32 vacancies on the circuit courts. Since that time, an additional 
six vacancies have arisen on the circuit courts. In spite of the 
extraordinary rate of attrition since the presidential election, 
combined with the number of long-standing vacancies that were not acted 
upon during years of Republican control, we have kept up with the rate 
of attrition and exceeded it. We are doing what the Republican majority 
did not do: keep up with the rate of attrition and move in the right 
direction. While there are now 31 seats open on the appellate courts--
most of which were left vacant by Republican tactics in the previous 
six years--seven nominees to the court of appeals have already been 
confirmed, and next week we will have a hearing on another circuit 
nominee who I hope will turn out to be uncontroversial and well 
regarded by people from both sides of the aisle. Our task is made 
easier when the President works with members of both parties to 
nominate consensus nominees who are not outside of the mainstream and 
whose record demonstrates that they will follow precedent--not try to 
find a way around it.
  The one thing I have not mentioned, Mr. President, is not only have 
we had a change in leadership, but keep in mind what happened since the 
change in leadership: September 11. We didn't have places to hold 
hearings. I attended a hearing down here in the Capitol. People were 
jammed into this room. I don't think most people would have had the 
hearing. Senator Leahy decided to have the hearing. If that wasn't 
enough, we had an anthrax scare that closed down our building, and 50 
Senators in the Hart Building were told they couldn't come in and their 
staffs couldn't come in. That anthrax threat was directed toward 
Senator Daschle. Then we had one directed toward Senator Leahy.
  As I said as I began my remarks today, there should be accolades 
given to the chairman of the Judiciary Committee for what he has done 
to allow the process to proceed as fast as it has. Our friends on the 
other side of the aisle didn't even have excuses for holding up action. 
This Judiciary Committee has had lots of reasons for holding it up, but 
they pushed it ahead anyway. September 11, anthrax--they go ahead 
anyway.
  Through the efforts of the Democratic Senators on the Senate 
Judiciary Committee 14 hearings have been held on judicial nominees. In 
only nine months of Democratic leadership, seven circuit court nominees 
have been confirmed. Only seven circuit court nominees were confirmed 
on average in each year of Republican leadership. During the Republican 
majority in the past six years, there was even one year in which no, 
zero, court of appeals nominees were voted out of Committee.
  At the beginning of the year, Senate Judiciary Committee Chairman 
Leahy outlined his plan to reform the process and practices used in the 
past, under Republican leadership, to deny Committee consideration of 
judicial nominees. Almost 60 judicial nominees never received a hearing 
by the Senate Judiciary Committee or received a hearing but were never 
voted on by the Committee. We are holding more hearings for more 
nominees than in the recent past. We have moved away from the anonymous 
holds that so dominated the process from 1996 through 2000. We have 
made home State Senators' blue slips public for the first time.
  Mr. President, I repeat, as a Senator, there is no more difficult 
committee on which to serve than the Judiciary Committee. The issues 
are complex, difficult, hard. But this Judiciary Committee is one that 
has done extremely well. And if there were a Super Bowl, this committee 
would be placed in it. If there were a coach of the year, it would be 
the chairman of the Committee, Senator Pat Leahy.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. SMITH of Oregon. I thank the Chair.
  (The remarks of Mr. Smith are printed in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  Mr. SMITH of Oregon. I thank the Chair, and I yield the floor. 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. 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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