[Congressional Record Volume 148, Number 34 (Thursday, March 21, 2002)]
[Senate]
[Pages S2194-S2219]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       NATIONAL LABORATORIES PARTNERSHIP IMPROVEMENT ACT OF 2001

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now resume consideration of S. 517, which the clerk will 
report.
  The bill clerk read as follows:

       A bill (S. 517) to authorize funding the Department of 
     Energy to enhance its mission areas through technology 
     transfer and partnerships for fiscal years 2002 through 2006, 
     and for other purposes.

  Pending:

       Daschle/Bingaman further modified amendment No. 2917, in 
     the nature of a substitute.
       Feinstein modified amendment No. 2989 (to amendment No. 
     2917), to provide regulatory oversight over energy trading 
     markets and metals trading markets.
       Kerry/McCain amendment No. 2999 (to amendment No. 2917), to 
     provide for increased average fuel economy standards for 
     passenger automobiles and light trucks.
       Dayton/Grassley amendment No. 3008 (to amendment No. 2917), 
     to require that Federal agencies use ethanol-blended gasoline 
     and biodiesel-blended diesel fuel in areas in which ethanol-
     blended gasoline and biodiesel-blended diesel fuel are 
     available.
       Bingaman amendment No. 3016 (to amendment No. 2917), to 
     clarify the provisions relating to the Renewable Portfolio 
     Standard.
       Lott amendment No. 3028 (to amendment No. 2917), to provide 
     for the fair treatment of Presidential judicial nominees.
       Lott amendment No. 3033 (to amendment No. 2989), to provide 
     for the fair treatment of Presidential judicial nominees.
       Lincoln modified amendment No. 3023 (to amendment No. 
     2917), to expand the eligibility to receive biodiesel credits 
     and to require the Secretary of Energy to conduct a study on 
     alternative fueled vehicles and alternative fuels.
       Kyl amendment No. 3038 (to amendment No. 3016), to provide 
     for appropriate State regulatory authority with respect to 
     renewable sources of electricity.


                           Amendment No. 3038

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will now be 4 minutes of debate to be equally divided in the usual form 
on the Kyl amendment No. 3038.
  The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I will go ahead and use the 2 minutes in 
opposition to the Kyl amendment, and then the sponsor, Senator Kyl, 
will use the final 2 minutes.
  The main reason to oppose this amendment is that it totally 
eliminates, if adopted, any kind of provision in this bill that would 
move us toward more use of renewable fuels in the future.
  We need to diversify our supply of energy in this country. We need to 
be less dependent on some certain specific sources and more dependent 
on new technology. That is possible. It is happening. It is not 
happening as quickly as it should.
  Ninety-five percent of today's new power generation that is under 
construction is gas fired. That is fine as long as the price of gas 
stays low. But if the price of gas goes back up to what it was 18 
months ago, then we are going to see a serious repercussion in the 
utility bills of all consumers.
  This underlying amendment, which the Kyl amendment would eliminate, 
tries to, in a very modest way, move us toward more use of renewables. 
It provides that we have 1 percent in the year 2005. Various utilities 
around this country would be required to produce 1 percent of the 
electricity they generate from renewable sources. That is not an 
excessive demand. It goes up in very small amounts each year 
thereafter.
  I believe strongly that the renewable portfolio standard we have in 
the bill is a good provision. The suggestions Senator Kyl and others 
have made that this is going to drastically increase everyone's 
electricity bills is not borne out by the analyses that have been made. 
The Energy Information Administration has analyzed this. At the request 
of Senator Murkowski, they have concluded that this does not raise 
energy prices.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona is 
recognized.
  Mr. KYL. Mr. President, let me give you the 10 reasons we should 
support the Kyl amendment.
  No. 1, the Bingaman amendment is the command-economy amendment, a 10-
percent mandate, and the Kyl amendment is for State choice.
  No. 2, the Bingaman amendment is very costly, at $88 billion over 15 
years and then $12 billion each year after that--paid for by the 
electricity consumers.
  If you would like to know how much your electricity consumers are 
going to be paying under the Bingaman amendment, I have all the 
information right here. You had better consult this before you vote 
against the Kyl amendment.
  No. 3, the Bingaman amendment is discriminatory. The Bingaman 
amendment provides that some areas subsidize people in other parts of 
country.
  No. 4, hydro is not included. Yet, of all the renewables, hydro is 
about 7 percent of the electricity production. The other renewables are 
only about 2 percent.
  No. 5, it will benefit just a few companies. According to the Energy 
Information Administration, wind is the only economical way to produce 
this power, and it is concentrated in just a few areas.
  Do you know who these few special interests are? You should find out 
before you vote against the Kyl amendment.
  No. 6, renewables are not reliable. If the Sun doesn't shine, if the 
wind does not blow, and if water doesn't flow, you don't get energy. 
But you do out of coal, gas, and nuclear.
  No. 7, we are already subsidizing the renewable fuels to the tune of 
$1 billion a year.
  There is a big difference between encouraging, which we are doing, 
and compelling.
  No. 8, the administration supports the Kyl amendment and opposes the 
Bingaman amendment.
  No. 9, biomass from Federal land does not count.
  No. 10, there is no principal reason to discriminate against public 
and private power; yet private power is included in the Bingaman 
amendment and public power is excluded.
  I will throw in a bonus reason.
  The No. 11 reason to vote for the Kyl amendment and against Bingaman 
is this is the opposite of deregulation, which was supposed to be the 
whole point of the electricity section of the pending legislation. The 
10-percent mandate is regulation and not deregulation.
  I urge you to support the Kyl amendment.


                RENEWABLE PORTFOLIO STANDARD APPLICATION

  Mr. LEVIN. Mr. President, I commend the Chairman for his fairness and 
diligence in setting a goal for energy suppliers to meet a renewable 
portfolio standard that ensures power supply from a diverse mix of 
fuels and technologies. I thank the Chairman and his staff for working 
with my staff to answer questions concerning how the renewable 
portfolio standard would work. We understand the definition for 
qualifying facilities covers existing hydro facilities including pumped 
storage. This is important to the State of Michigan and we appreciate 
the clarification.
  Ms. STABENOW. Mr. President, I echo the statements of the senior 
Senator from Michigan, and thank the Chairman for his work on 
developing a strong renewable portfolio standard. My question is 
whether renewable power could be measured by plant generating capacity 
or throughout to the customer.
  Mr. BINGAMAN. That is correct. Pumped hydro is included as an 
existing renewable. With regard to how renewable power is measured, we 
intend the Secretary of Energy or the Federal Energy Regulatory 
Commission would set a normalized level for all hydro facilities, 
taking into consideration capacity and generation at normal or 
historical average water flows. For other renewable technologies, the 
volume is calculated based on actual generation. There has been some 
misunderstanding about the Texas plan, on which my amendment if 
modeled. The Texas statute set an overall increase in capacity,

[[Page S2195]]

but in the implementation the requirement was converted to a generation 
measure. A generation metric is critical to ensure efficient operation 
of these facilities.
  Mr. LEVIN. I thank my friend from New Mexico, the Chairman of the 
Energy Committee.
  Ms. STABENOW. I thank my friend from New Mexico.
  The ACTING PRESIDENT pro tempore. All time has expired.
  Mr. KYL. Mr. President, I ask unanimous consent that two letters be 
printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                 Coalition for Affordable and Reliable Energy,

                                                   March 19, 2002.
     Senator Jon Kyl,
     Hart Senate Office Building,
     U.S. Senate, Washington, DC.
       Dear Senator Kyl: The Coalition for Affordable and Reliable 
     Energy (CARE) endorses your amendment to the Renewable 
     Portfolio Standard (RPS) provisions of the Energy Policy Act 
     (S. 517). While CARE strongly supports the increased use of 
     all domestic energy resources, including renewable forms of 
     energy, we are opposed to prescribed national mandates and 
     timetables for the use of specific energy resources.
       CARE is concerned that mandating the use of particular 
     sources of energy will substantially increase the cost of 
     electricity and may be difficult to achieve. Your RPS 
     amendment will, instead, permit states to appropriately 
     consider their individual electricity needs and their ability 
     to meet those needs in affordable and reliable ways. Under 
     your amendment, states will also be free to significantly 
     enhance the use of renewables to generate electricity without 
     the burden of Federal mandates and timetables.
       Senator Kyl, on behalf of CARE's broad and diverse 
     membership, I commend you for offering this amendment to the 
     Renewable Portfolio Standard provisions of S. 517 and urge 
     its adoption.
           Sincerely,
                                                      Paul Oakley,
     Executive Director.
                                  ____



                                 Electric Consumers' Alliance,

                                 Indianapolis, IN, March 14, 2002.
     Hon. Jon Kyl,
     U.S. Senate,
     Hart Bldg., Washington, DC.

       Dear Senator Kyl: As the Senate debates energy legislation, 
     Electric Consumers' Alliance commends your attention to these 
     critical policy issues.
       As your consideration moves to the finer points of 
     legislation, we strongly urge you to take a thoughtful 
     approach to the issue of Renewable Portfolio Standards--the 
     amount of electric power that must come from certain 
     renewable sources.
       While our group favors a progressive approach to setting 
     goals for the production of green power, we strongly oppose 
     provisions that would set a hard percentage goal that must be 
     attained in any given year. We commend the amendment proposed 
     by Sen. Kyl as a balanced approach to this issue.
       From our perspective as the spokesgroup for tens of 
     millions of residential small business ratepayers, artificial 
     targets are unwise for two reasons. First, they hardwire in 
     goals that may prove to be unreasonable (or too lenient) in 
     future years. This may have the effect of indirectly raising 
     consumer prices or sending distorted signals to the market. 
     In other words, good intentions could (and likely will at 
     some point) go astray.
       Second, a set percentage goal deprives states of the 
     ability to address these issues and craft a resolution on the 
     basis of local conditions. For instance, economically 
     efficient renewable energy may be much more achievable in 
     rural and sunbelt states that have the potential to develop 
     solar and wind energy.
       In conclusion, as you consider the issue of renewable 
     portfolio standards, we urge your support of the flexible 
     approach found in the Kyl amendment.
           Sincerely,
                                                Robert K. Johnson,
                                               Executive Director.

  Mr. KYL. Mr. President, have the yeas and nays been ordered on this 
amendment?
  The ACTING PRESIDENT pro tempore. The yeas and nays have not been 
ordered.
  Mr. KYL. Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the amendment, and the clerk will call 
the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Alabama (Mr. Shelby) is 
necessarily absent.
  I further announce that the Senator from Virginia (Mr. Warner) is 
absent on official business.
  I further announce that if present and voting the Senator from 
Virginia (Mr. Warner) would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 40, nays 58, as follows:

                      [Rollcall Vote No. 55 Leg.]

                                YEAS--40

     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burns
     Byrd
     Campbell
     Cleland
     Cochran
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Frist
     Gramm
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Smith (NH)
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich

                                NAYS--58

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Brownback
     Cantwell
     Carnahan
     Carper
     Chafee
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Ensign
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Grassley
     Gregg
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--2

     Shelby
     Warner
       
  The amendment (No. 3038) was rejected.
  Mr. REID. I move to reconsider the vote.
  Mr. BINGAMAN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, I ask unanimous consent that at 12 noon 
today, Senator Lott's amendment No. 3033 be considered a first-degree 
amendment, and that it be laid aside for the amendment which is at the 
desk.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I further ask unanimous consent that there be 3 hours for 
debate on both amendments, beginning at noon today, equally divided 
between the chairman and ranking member of the Judiciary Committee, or 
their designees; that at the conclusion of that time, the Senate vote 
on Senator Leahy's amendment, and following disposition of that 
amendment, the Senate vote on Senator Lott's amendment, with no 
intervening action or debate in order prior to the disposition of these 
two amendments.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, the time from now until noon will be used 
as follows: Senator Roberts has a statement that will take less than 10 
minutes; is that right?
  Mr. ROBERTS. I imagine, I tell my distinguished colleague, about 12 
or 15 minutes.
  Mr. REID. Senator Miller wishes to speak for 10 minutes. We also have 
a speech that Senator Byrd indicated several days ago he wanted to give 
which will take more time, approximately 22 minutes.
  I say to my friend, the distinguished President pro tempore, who is 
in the Chamber now, I know the Senator has been involved in other 
matters this morning. Is it possible for the Senator to speak at a 
subsequent time or does the Senator wish to speak now?
  Mr. BYRD. Madam President, my problem is as follows: The chairman of 
the Budget Committee, Mr. Conrad, has told the members of the Budget 
Committee that we have a long way to go, with many amendments to vote 
on and to discuss. He intends to finish work on the budget today. That 
means I have a very limited opportunity to speak. I have two speeches, 
as a matter of fact, one very short, quite short, and the other one 
perhaps 25 minutes.
  Mr. REID. I am wondering, if I can interrupt and I apologize, will 
the other Senators allow Senator Byrd to speak--there is no permission 
needed, I assume.
  Mr. ROBERTS. If the distinguished Senator will yield, I have spoken 
with Senator Byrd, and I will always yield to his request, but I 
thought we had an understanding that I could precede him for 10 
minutes. It will not take too long.

[[Page S2196]]

  I thought we had an understanding. I know with this new schedule 
perhaps that is not the case. I leave that up to his judgment.
  Mr. BYRD. The distinguished Senator did speak with me at the close of 
the vote, and I told the Senator I would be very happy and willing for 
him to precede me. I thought while I went down on the next floor to my 
office to get my speech that the distinguished Senator would be 
proceeding and hopefully finished by the time I got back to the 
Chamber.
  Mr. REID. I say to my friend from West Virginia, what the Senator 
said is valid. We closed the vote after 33 minutes which, of course, if 
we closed the vote earlier when we should have, this would have been 
completed.
  Mr. BYRD. I did tell the Senator he could speak, he could go ahead of 
me.
  Mr. REID. Can Senator Miller wait until Senator Byrd finishes his 
remarks?
  Mr. MILLER. Madam President, certainly I will wait.
  Mr. BYRD. Madam President, I thank the distinguished Senator.
  Mr. REID. Madam President, I ask unanimous consent that the Senator 
from Kansas be recognized for 12 minutes, Senator Byrd be recognized 
thereafter, and the Senator from Georgia be recognized after Senator 
Byrd.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Kansas.
  Mr. ROBERTS. Madam President, I thank Senator Byrd, the institutional 
protector and flame of the Senate, for allowing me to precede him.
  (The remarks of Mr. Roberts pertaining to the introduction of S. 2040 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, I begin my remarks today by quoting from 
George Bernard Shaw's ``Man and Superman,'' ``If history repeats 
itself, and the unexpected always happens, how incapable Man must be of 
learning from experience!''
  I have been concerned about the issue of energy security for many 
years now. It was in 1992 that the Congress last passed major energy 
legislation. Now, for the first time in a decade, events have converged 
to make possible substantive progress on a national energy policy. But 
the question remains as to whether or not real progress will be made.
  The energy crisis of the 1970s should have been a wake-up call. I 
argued then and throughout the 1980s and 1990s that it was time to get 
moving to address our long-term energy problems. Each episode of short 
supply and higher prices spurred renewed talk about our Nation's lack 
of an energy policy. But, each time, supplies stabilized, prices 
dropped, and nothing materialized from all that talk. Will we again let 
that opportunity slip away?
  We have heard much in the previous weeks about electricity, oil and 
gas supplies, energy efficiency, energy tax incentives, and fuel 
economy standards. This is typically how we talk about energy. Yet, 
energy is about much more than that. Energy is about how we live our 
lives--today and into the future. It is about how we travel to work, 
how we brew our morning coffee, how the lights come on in this Chamber 
and permit us to read. It is about the coal-fired electricity that 
lights this whole Capitol, but it is also about what we can accomplish 
on the Senate Floor because we have this gift of light. God, in 
creating the world, said: Let there be light. Too often, though, we 
take for granted the benefits these lights bring.
  Now when we consider energy security, we must think about fuel 
diversity. We need a diversity of energy resources to make our nation 
work. Actually, it is much like the Members of the Senate. It takes a 
variety of Senators, with all of their views and contributions coming 
from all the sections of the country, from the north, south, east, 
west, to make this body work. I, myself, am from coal country, C-O-A-L. 
One may laugh at that suggestion, but it is true. I am coal, C-O-A-L. I 
have been around the Congress for 50 years, which is a very long time 
when man's lifetime is considered. I was pulled from the hard scrabble 
mountains of West Virginia to serve this country. In the end, I hope 
that if I am pressed enough, testing my spirit and worth, the good Lord 
might realize that this ole piece of coal and carbon might actually be 
a diamond in the rough. Each Member of this body represents his or her 
own constituents' particular interests and energy needs. We come at 
this from different viewpoints, but, working together, we can mold a 
strong, comprehensive energy package that will provide long-term energy 
security.
  The events of the last year demonstrate that true national security, 
economic growth, job protection, and environmental improvements over 
the long term depend upon a balanced energy plan. The United States 
must have a comprehensive energy policy that promotes energy 
conservation and efficiency and the greater use of domestic energy 
resources, while it ensures the development and deployment of advanced 
energy technologies and also improves our energy infrastructure. That 
is a pretty tall order. But all of those components are necessary if we 
are to reduce our Nation's dependence on foreign energy resources.

  As energy debates have ebbed and flowed over the years, so have the 
public's and media's concerns. These cycles in energy markets--these 
momentary feasts and sporadic famines-- have occurred and will continue 
to occur in the future. Too often, though, these crises have provoked 
controversial, knee-jerk solutions that do little to solve what is 
fundamentally a long-term problem.
  For example, in response to the spike in gasoline prices not so many 
months ago, then-Energy Secretary Bill Richardson jetted off hat-in-
hand to the Middle East pleading with Arab nations to increase crude 
oil production, which would supposedly lower gas prices at home. I also 
recall several ``snake-oil, miracle cures'' being debated on the Senate 
Floor, such as a federal gas tax ``holiday'' intended to temporarily 
reduce prices at the pump--a measure that a sensible majority in the 
Senate voted against.
  Such short-term energy crises are brought on by many different 
catalysts, but they are all based on the same fundamental problem. What 
we see in the fluctuation of energy prices is a textbook study of how 
supply and demand can affect the energy markets. Unfortunately, our 
typical response to an energy crisis is to find a quick-fix solution--
one that is designed to cut off the immediate spike, but does nothing 
to affect the underlying problems.
  A number of challenges lie ahead. Our dependence on foreign oil 
increases every day. Because our domestic production peaked in the 
early 1970s and our consumption has not diminished since the early 
1980s, we grow ever more dependent. This gap is due, in large part, to 
our dependence on oil for our rapidly expanding transportation sector.
  On a positive note, the U.S. is less dependent on foreign oil than 
many other industrialized nations. However, it is also true that we are 
reliant on foreign producers for more than 50 percent of our oil supply 
today compared to less than 40 percent in the mid-1970s. Fortunately, 
we rely on a more diverse choice of foreign nations, and we are less 
dependent on Middle Eastern nations, for that growing share of our 
petroleum imports than twenty-five years ago.
  A central question that we have to ask is what primary goal we are 
striving to achieve through this legislation. How do we balance our 
growing demand for new energy resources while increasing our need to do 
so in cleaner, more efficient ways? Will increased domestic oil 
production reduce our dependence on foreign oil? And, if that is the 
case, when and how should that occur? Looking to the future, I hope 
that our mounting dependence on foreign oil would serve as a wake-up 
call for other energy resources. Unless we can find a way to increase 
our natural gas supplies over the long term, we will also be 
increasingly dependent on foreign producers for our growing natural gas 
demands.
  Further, we must understand that there are actually two major energy 
systems functioning in the U.S. with comparatively little influence on 
each other. Our transportation system is run almost entirely on oil-
based resources. The second system provides power to warm our homes, 
light our businesses, light our Senate Chamber, run our computers, and 
cook our

[[Page S2197]]

meals. It is supplied largely by domestic industries and resources that 
are in the midst of an historic and difficult transition. The limited 
overlap between these two energy systems can be simply illustrated. The 
electric power industry gets 2 percent of its energy from oil--the rest 
comes from coal, nuclear, natural gas, hydroelectric, as well as other 
renewable sources. Conversely, 97 percent of the energy use in our 
transportation sector comes from what? Oil. We must intelligently 
address the needs of these two energy systems simultaneously in order 
to provide a comprehensive solution to our energy needs.

  Furthermore, if we are to craft a workable energy policy, we must 
recognize the degree to which it will rely on state and local 
decisions. Many energy experts agree that the country will need more 
power plants, more refineries, new refineries, and additional 
pipelines, but local citizens' groups often do not want these 
potentially unsightly, but crucial, facilities in their communities. 
Therefore, a national energy policy must enable government at all 
levels to work with citizens' groups and private sector interests to 
better coordinate a cohesive roadmap for the production, 
transportation, and use of energy. By working to fill energy gaps and 
avoiding jurisdictional conflicts, while improving a diversity of 
energy resources, authorities at all levels can promote regulatory 
certainty, stabilize long-term investments, and promote environmental 
protection all at the same time.
  Over the years, our awareness has grown about the complexity of 
constructing a balanced energy policy that will not undermine other 
competing and equally legitimate policy goals. How do we reduce 
gasoline consumption, when raising its price to achieve a meaningful 
reduction in demand could be seen as economically disruptive and 
politically suicidal? How do we encourage the use of alternative fuels 
and technologies that heighten our energy efficiency, when OPEC nations 
can simply adjust oil prices to keep conventional sources cheaper than 
their alternative substitutes? How can we boost domestic energy 
supplies while protecting the environment?
  Furthermore, with the severe budget restrictions we now face, we must 
examine questions about how the government can afford to meet our 
nation's future energy commitments. The projected return to deficit 
budgeting, the recession, and the demands for increased homeland 
security and for supporting our military abroad, have placed enormous 
long-term pressures on the entire budget and appropriations process 
this year, and for as far as the eye can see. Will a long-term energy 
strategy also be a victim of budgetary constraints? That is a serious 
question.
  I hope not, because the Energy Information Administration estimates 
that, by 2020, the total U.S. energy consumption is forecast to 
increase by 32 percent--including petroleum by 33 percent, natural gas 
by 62 percent, electricity by 45 percent, renewable fuels by 26 
percent, and coal by 22 percent. Because our energy needs are expected 
to grow so quickly, we need to develop and use a diverse mix of energy 
resources, especially coal, in more economically and environmentally 
sound ways.
  There are those who would like to push coal aside like stove wood and 
horse power as novelties from a bygone era. But we cannot ignore coal 
as part of the solution. Over the past several years, I have been 
diligently assembling a comprehensive legislative package that will 
promote the near- and long-term viability of coal both at home and 
abroad. The Senate energy bill provides the opportunity to achieve that 
goal. Provisions contained in the Senate energy bill extend the 
authorization for the research and development program for fossil fuels 
from $485 million in Fiscal Year 2003 to $558 million in FY 2006. 
Additionally, the bill contains a $2 billion, 10-year clean coal 
technology demonstration program.

  It is undeniable that our quality of life and economic well-being are 
tied to energy, and, in particular, electricity. Coal is inextricably 
tied to our nation's electricity supply. Today, coal-fired power plants 
represent more than 50 percent of electric generation in the United 
States, and 90 percent of coal produced is used in electricity 
generation. Coal has become even more important in recent years as a 
basic necessity for high-technology industries that need this domestic 
resource for computers and cutting-edge equipment that require a 
reliable, cost-effective supply of electricity. Coal is America's most 
abundant, most accessible natural energy resource, but, again, we must 
find ways to use it in a cleaner, more efficient manner.
  The importance of clean coal technologies and the development of 
future advanced coal combustion and emission control technologies can 
assure the attainment of these goals. The overall emissions from U.S. 
coal-fired facilities have been reduced significantly since 1970, even 
while the quantity of electricity produced from coal has almost 
tripled. At the same time, the cost of electricity from coal is less 
than one half the cost of electricity generated from other fossil 
fuels.
  To ensure that coal-fired power plants will help us to meet our 
energy and environmental goals, the Clean Coal Technology Program and 
other Department of Energy--DOE--fossil energy research and development 
programs must develop most efficient, cleaner coal-use technologies. 
This, in turn, will contribute greatly to the U.S. economy and to 
reduction in pollution and greenhouse gas emissions.
  The DOE fossil energy research and development programs have created 
a cleaner environment, promoted the creation of new jobs, and improved 
the competitive position of U.S. companies. The DOE coal-based research 
program is estimated to provide over $100 billion--$100 billion--in 
benefits to the U.S. economy through 2020. In addition, the Clean Coal 
Technology Program has been one of the most successful government/
industry research and development partnerships ever implemented. By 
law, the Federal share of this very successful program cannot exceed 50 
percent. But, over the past 15 years, $1.9 billion in Federal spending 
has been matched by more than $3.7 billion from the private sector; a 
2:1 ratio that far exceeds the 1:1 ratio set by law.
  The successes of a range of U.S. clean energy technologies are 
valuable within our own borders. But, by opening new markets and 
exporting these technologies, we can reap their benefits many times 
over. This is a tremendous opportunity that cannot be ignored because 
the clean energy policies and technologies adopted today will have a 
profound influence on the global economic and energy system for decades 
to come. The United States should market our clean energy technologies, 
especially clean coal technologies, to developing nations, like China, 
India, South Africa, and Mexico, to help them meet their economic and 
energy needs. Just over a year ago, I initiated the Clean Energy 
Technology Exports Program, an effort to open and expand international 
energy markets and increase U.S. clean energy technology exports to 
countries around the world. This commonsense approach can 
simultaneously improve economic security and provide job opportunities 
at home, while assisting other countries with much-needed energy 
technologies and infrastructure. Furthermore, such technologies can 
enable these countries to build their economies in more environmentally 
friendly ways, thus helping to advance the global effort to address 
climate change.

  Climate change and energy policy are two sides of the same coin. 
Because the vast majority of manmade greenhouse gas emissions are 
associated with energy use, it is here, in an energy bill, that we need 
to deal with the long-term challenges associated with global climate 
change. We need a climate change strategy and we need a climate change 
strategy badly. We need a climate change strategy that will not just 
pick at this complex problem by putting in place strategies that will 
apply in the next 5 or 10 years. We need a comprehensive climate change 
strategy also that looks 20, 50, and 100 years into the future.
  Look at the kind of winter we have had. Look at the kind of winter we 
have had here in Washington: One snow, 3 inches. Look at the drought 
that has come upon this area of the country during the winter season. 
What can we expect for the spring and

[[Page S2198]]

summer season? What is going to happen to our crops, our livestock, our 
economy? This is serious.
  I have lived a long time--84 years. Something is going on out there. 
I don't need a scientist to tell me that. With the differences in the 
winters, the differences in the summers, in the temperatures, in the 
water level, there is something happening, and we had better be aware 
of it. We had better do something about it.
  I sincerely hope that we will be able to work together in a 
bipartisan way and not put off addressing these challenging questions 
on another generation, but we must begin that effort now.
  In June 2001, I introduced with Senator Stevens bipartisan climate 
change legislation. Our bill received unanimous support in the 
Government Affairs Committee last year. Our proposal is based on 
scientifically, technically, and economically sound principles and 
would put into place a comprehensive, national climate change strategy, 
including a renewed national commitment to develop the next generation 
of innovative energy technologies. Senator Stevens and I believe this 
is right policy framework, and I hope that my colleagues will not allow 
this commonsense approach to be undermined or stricken from this bill.
  Senator Stevens and I are aware that there may be an effort to strike 
this from the bill. But Senator Stevens and I will stand as one man, as 
one individual, against any such effort.
  I am glad to say that the Byrd/Stevens legislation is included in 
this energy package, as I have already indicated, for it will provide 
for the long-term viability of coal as an energy resource.
  We must seize this opportunity to learn from past experiences. 
President Carter spoke to the nation in 1977 about the energy crisis of 
that era. He said that:

       Our decisions about energy will test the character of the 
     American people and the ability of the President and the 
     Congress to govern this nation. This difficult effort will be 
     the `moral equivalent of war,' except that we will be uniting 
     our efforts to build and not to destroy.

  Those are the words of former President Carter. At that time, energy 
was a household concern. Lines, long lines at gas stations were a 
common scene. Everybody remembers that--anybody who was living at that 
time. We were building a national resolve to craft a comprehensive 
national energy policy. But the gas lines went away, and so did the 
sense of urgency about energy.
  During my tenure in the United States Senate, I have witnessed the 
ebb and flow in energy concerns as energy prices rise and fall. I fear 
that, as a nation, while our energy supplies are plentiful and prices 
are low, we may have sunk back into somnolence--somnolence--asleep at 
the wheel. If the United States is going to remain a global economic 
power, we have to tackle these energy issues. If there was ever a time 
to come together and craft an intelligent, responsible, bipartisan, 
long-term energy policy, it is now.
  Mr. President, I thank the distinguished Senator from Georgia for his 
courtesy and his kindness to me and for allowing me to precede him so I 
could make this speech and then go back to the Budget Committee where 
we are having votes and where I should be attending right away. I thank 
him, and I join with him. I know what he is going to say and what he is 
going to speak about. I shall have something to say about that matter 
later. I thank him.
  I yield the floor.
  Mr. WYDEN. Mr. President, I ask unanimous consent that upon the 
completion of the remarks of Senator Miller and Senator Collins I be 
allowed to speak. I will be offering a consensus amendment at that time 
which has been agreed to by both sides.
  The PRESIDING OFFICER (Mr. Nelson of Florida). Without objection, it 
is so ordered.
  Under the previous order, the Senator from Georgia is recognized.
  (The remarks of Mr. Miller are printed in today's Record under 
``Morning Business'')
  Mr. MILLER. Thank you, 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. WYDEN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 3041 To Amendment No. 2917

   (Purpose: To provide additional flexibility to covered fleets and 
        persons under title V of the Energy Policy Act of 1992)

  Mr. WYDEN. Mr. President, I send an amendment to the desk and ask 
unanimous consent for its immediate consideration.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report the amendment.
  The legislative clerk read as follows:

       The Senator from Oregon [Mr. Wyden], for himself, Mr. 
     Murkowski, Mr. Bennett, and Mr. Smith of Oregon, proposes an 
     amendment numbered 3041 to amendment No. 2917.

  Mr. WYDEN. Mr. President, I ask unanimous consent reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under ``Text 
of Amendments.'')
  Mr. WYDEN. Mr. President, the Energy Policy Act that the Senate has 
been debating contains a number of strategies to reduce America's 
dependence on foreign oil and to improve the environment, but it does 
omit a key technology that can help this country achieve these 
critically important goals.
  That technology is the hybrid electric vehicle. The Senate has heard 
a lot about hybrids over the last few weeks, and, last week saw a 
poster of a red SUV--a hybrid vehicle that Ford is developing. Hybrids 
are coming of age. Anyone who has questions about their benefits can 
ask our colleague, Senator Bennett from Utah, who does in fact, drive a 
hybrid vehicle.
  These vehicles can achieve fuel efficiencies that are more than twice 
the current CAFE standard. Their greenhouse gas emissions are only one-
third to one-half of those from conventional vehicles; and for other 
pollutants, such as nitrogen oxides, they can meet the country's 
highest emission standards, those set by the State of California.
  The overall energy efficiency of hybrid vehicles is more than double 
of any available alternative fuel vehicle. But the result of this 
country's current energy policy is that vehicles rated at even 70 miles 
per gallon are disqualified as counting toward energy efficiency fleet 
requirements just because they do not use alternative fuels. But, 
clearly, they more than fulfill the spirit of a modern energy policy 
that moves this country towards the critical goal of energy 
independence.
  When it comes to alternative fuel, the Energy Policy Act of 1992 is 
all windup and no pitch. It requires fleet administrators to buy 
alternative fuel vehicles, but it does not require them to use 
alternative fuels. In many States, even the best-intentioned fleet 
administrators have real trouble finding enough alternative fuel. That 
certainly has been true in my home State of Oregon.
  Out of 178,000 fuel stations across the country, only 200 now provide 
alternative fuel. That is less than one-tenth of 1 percent of our 
filling stations. The result is, many alternative fuel vehicles are 
being operated with gasoline, which completely undermines this 
country's goal of reducing the use of petroleum.
  The energy bill before us, wisely, will close that loophole by 
requiring alternative fuel vehicles to actually use alternative fuels. 
If passed, by September of next year, 2003, only 50 percent of the fuel 
that fleets use in their alternative fuel vehicles could be gasoline.
  Though the Nation's alternative fuel infrastructure is expanding, the 
question still remains: What about those States that still lack enough 
stations where fuel can be purchased? Are they supposed to just let 
those vehicles sit unused in their parking lots?
  The amendment I offer today, with Senator Murkowski, Senator Bennett, 
and my colleague from Oregon, Senator Smith, will provide fleet 
administrators with the flexibility to choose between alternative fuel 
vehicles and hybrid vehicles. Like the Energy Tax Incentives Act 
reported by the Finance Committee, it contains a sliding scale that 
allows partial credit for hybrid vehicles based on how good their fuel 
economy is and how much power they have.

[[Page S2199]]

  For instance, if a hybrid car or light truck averages 2\1/2\ times 
the fuel economy of a similar vehicle in its weight class, it could 
earn credit worth up to 50 percent of the purchase of an alternative 
fuel vehicle. Then, based on how much power it has available, it could 
earn additional credit. So significant credit would only be given to 
the best performers.
  To illustrate what this means, for a hybrid vehicle to get one-half 
the credit of a 3,500-pound alternative fuel vehicle that averages 21 
miles per gallon in the city, that hybrid would have to average over 53 
miles per gallon. It is clear what a huge reduction in petroleum use 
this proposal could mean.
  The amendment is supported by a broad range of interests, including 
the National Association of Fleet Administrators, the National 
Association of State Energy Officers, Toyota Motor of North America, 
and the National Rural Electric Cooperatives Association.
  I thank my colleagues, particularly Senator Murkowski, Senator 
Bennett, and Senator Smith of Oregon, for all of their efforts in 
working with me to fashion this bipartisan legislation.
  I also thank Chairman Bingaman, who has been very helpful with 
respect to this issue. He is a strong advocate of hybrids.
  Mr. President, I ask unanimous consent that the amendment be set 
aside and that the Senate return to it later in the day.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Who seeks time?
  The Senator from Oregon.
  Mr. WYDEN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MURKOWSKI. 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. MURKOWSKI. Mr. President, I ask unanimous consent that I be 
allowed to speak as in morning business for a few minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MURKOWSKI. Mr. President, I gather there is some concern 
expressed by the majority leader about the pace at which we are 
proceeding on the energy bill. This often happens in the process of a 
complex piece of legislation, particularly a piece of legislation that 
has not gone through the committee process as a consequence of the 
decision of the majority leader. This has taken a while. We are not 
through by any means. We still have some contentious issues to address, 
such as global warming, ANWR, the tax proposal, which is going to take 
some time.
  I want to see this bill passed. It is my intention to keep working 
with Senator Bingaman toward the passage of a comprehensive energy 
bill. It was with the intention that, by amendment, we would try to 
craft a bill that would be worthy of the Senate's deliberations. There 
is no question that, obviously, we were expected to deliver a bill. The 
reality that the House has done its job and passed H.R. 4 puts the 
responsibility on the Senate.
  The President has outlined energy as one of his priorities, 
encouraging that we pass comprehensive energy legislation. So the 
obligation clearly is ours. This afternoon, I gather we are going to go 
back on judges for an undetermined timeframe. At the conclusion of 
that, I hope we can again go back to some of the outstanding amendments 
we have before us on the energy bill.
  I also point out to those who suggest we are holding up this bill 
that we spent a good deal of time off the bill on campaign finance. I 
am not being critical of that. It is just a reality that the majority 
leader chose to take us off to complete that particular issue, which 
has been around for so long.
  I want to make the record clear. We have an ethanol amendment, the 
Feinstein amendment is resolved, and there may be some more amendments 
coming yet this afternoon. We are working with Senator Bingaman and the 
majority whip, Senator Reid, to try to conclude a list of amendments. 
Our list is about 2\1/2\ pages long, I would guess, with around 60 
amendments listed. Realistically, there are probably not more than 10 
that we are going to have to deal with on that list. I know Senator 
Bingaman and the Democrats are working toward an effort to identify 
their amendments as well.
  I hope that as soon as we get off the judges, we can go back and 
proceed to move amendments yet today and on into the evening. I have no 
idea what the schedule is tomorrow, but perhaps the majority whip can 
enlighten me. I wanted to make it clear from our point of view as to 
what to anticipate and what we have ahead of us.
  Mr. REID. If the Senator from Alaska will yield, I will respond.
  Mr. MURKOWSKI. I am happy to yield.
  Mr. REID. The matter with the judges will be resolved by 3 o'clock 
this afternoon. We will take that up in 10 minutes. After that, we will 
go into whatever amendments the distinguished Republican leader of this 
bill wants to move. We hope his number of about 10 serious amendments 
is more accurate than 60. We know that when there is a finite list, a 
lot of people file relevants and they are not really serious about 
offering them. Having spoken to the majority leader and Senator 
Bingaman today, we really want to get a finite list of amendments we 
can put our fingers on, in the hopes of completing this legislation.
  If there are 10 amendments dealing with serious subjects, that is 
doable. If we get 25, 30 amendments, there are some who would recommend 
to the leader to file cloture and maybe go to something else. I hope 
that is not necessary. We have spent a lot of time on this bill. It is 
worthy of time.
  There is nothing we can do that is more serious than working on the 
energy policy of this country. We know the Senator has the ANWR 
amendment, which has created so much interest, and we hope to get to 
that soon.
  In short, we want to finish this bill as badly as the Senator from 
Alaska. We hope by this afternoon we can have some light at the end of 
the tunnel to do that.
  Mr. MURKOWSKI. Will the majority whip yield? Is there any indication 
what we might anticipate tomorrow? Is it too early to make that 
decision?
  Mr. REID. If we have reason to be here, the leader has not said we 
will have no votes. There could be votes. It is the day before the 
recess. If we have things we can do and it will lead to our completing 
this bill when we get back, I am sure the leader will want to work 
tomorrow.
  Mr. MURKOWSKI. I do not want to misunderstand my good friend. Did he 
indicate there has been a decision there will be no votes tomorrow?
  Mr. REID. The leader has said just the opposite; there will be votes. 
We want to have votes on substantive matters. We do not want to, on the 
day before the recess, have make-do votes. We are going to have 
something that is meaningful. With the subject matter that was briefly 
outlined by the Senator from Alaska, those are very serious matters, 
and I hope we can be working on some of them tonight and tomorrow.
  Mr. MURKOWSKI. I thank the Senator. I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the previous 
order be delayed and that I be permitted to speak for up to 15 minutes 
as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Maine is recognized.
  Ms. COLLINS. I thank the Chair.
  (The remarks of Ms. Collins pertaining to the introduction of S. 2042 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')


                     Amendments Nos. 3033 and 3040

  The PRESIDING OFFICER (Mrs. Carnahan). The Senator from Vermont.
  Mr. LEAHY. Madam President, what is the parliamentary situation?
  The PRESIDING OFFICER. There are 3 hours of debate to be evenly 
divided on two amendments dealing with judicial nominations.

[[Page S2200]]

  Mr. LEAHY. Madam President, earlier this week when the Senate was 
considering confirming the 42nd judge since the shift in majority last 
summer, I came to tell the Senate of the progress we have made filling 
judicial vacancies in the past 9 months. The pace of consideration and 
confirmation of judicial nominees in the last 9 months exceeds what we 
used to see in the preceding 6\1/2\ years. During that 6\1/2\ years 
under Republican control, vacancies grew from 63 to 105 and were rising 
to 111. I lay this out so people understand what is happening.
  Since July, we have made bipartisan progress. This chart shows the 
trend lines. During the Republican majority, the vacancies were going 
up to 111; in the short time the Democrats have been in the majority, 
those vacancies have been cut down.
  The Democrats have controlled the majority in the Senate Judiciary 
Committee for 9 months. What did we do during that 9 months? We have 
confirmed more judges--42, all nominated by President Bush. In those 9 
months, we confirmed more judges than the Republicans did for President 
Clinton in the 12 months of the year 2000. We confirmed more judges in 
those 9 months than the Republicans did during the 12 months of 1999. 
In those 9 months, we confirmed more judges for President Bush than the 
Republicans did for President Clinton during the 12 months of 1997. 
During those 9 months, we confirmed more judges for President Bush than 
the Republicans did for the 12 months of 1996.
  We can compare our 9 months, and we have not finished a full year of 
being in the majority. In 9 months, we confirmed more judges for 
President Bush than the Republicans were willing to confirm for 
President Clinton in 12 months in the years 2000, 1999, 1997, and 1996.

  Under Democratic leadership, the Senate has filled longstanding 
vacancies on the courts of appeal. We exceeded the rate of attrition. 
In less than 9 months, the Senate has confirmed seven judges to the 
courts of appeals. We have held hearings on three others. We have 
drastically shortened the average time, by approximately a third, for 
confirmation of circuit court nominees compared to the Senate under 
Republican control between 1995 and 2001. And we are committed to 
holding more hearings on those where we received blue slips and have 
consensus nominees. Comparing what the Republicans did during 1999 and 
2000, they refused to even hold hearings or vote on more than half of 
President Clinton's court of appeals nominees.
  I mention this because I have always said let's get these people up, 
have a hearing, and let the committee vote. In the last 6 years, dozens 
upon dozens of President Clinton's nominees were never even given a 
vote in the committee. I have tried to reverse that.
  Between 1995 and when the Democrats took over the majority, vacancies 
on the courts of appeal rose to a total of almost 250 percent higher 
than before. When we finally took over, we were faced with 32 vacancies 
on the courts of appeal. In spite of this, the Democratic majority has 
kept up with the rate of attrition by confirming seven judges to the 
circuit courts in only 9 months and holding more hearings on three 
more. Particularly, we have been working to improve conditions in the 
Fifth, Tenth, and Eighth sitting.
  During the last 9 months, the Judiciary Committee has restored steady 
progress to the judicial confirmation process. The Senate Judiciary 
Committee is doing what it has not done for the 6 years before. We are 
holding regular hearings on judicial nominees. We are giving nominees a 
vote in committee, in contrast to the practice of anonymous holds and 
other tactics employed by some during the period of Republican control. 
In less than 9 months, the Senate Judiciary Committee has held 15 
hearings involving judicial nominations. That is more hearings on 
judges than the Republican majority held in any year of its control of 
the Senate. Already, 48 judicial nominees have participated in those 
hearings.

  In contrast, one-sixth of President Clinton's judicial nominees, more 
than 50, never got a committee hearing nor a committee vote from the 
Republican majority. This is one of the reasons why there were so many 
vacancies when President Bush took office.
  No hearings were held before June 29, 2001, by the Senate Judiciary 
Committee, even though they were in control. No judges were confirmed 
by the Senate from among the nominees received by the Senate on January 
3, 2001, or further nominees received from President Bush in May.
  This is the background for the sense-of-the-Senate amendment that 
will be offered by Majority Leader Daschle which would confirm that the 
committee should continue to hold confirmation hearings for judicial 
nominees as expeditiously as possible. That is true for all judicial 
nominees, including those first received on May 9 of 2001.
  The language offered by Senator Daschle also recognizes that with 
barely 4 weeks in session before May 9, 2002, calling for confirmation 
hearings on eight controversial courts of appeals nominees is a call 
that is unheard of. It was certainly never approached during the past 6 
years. I would suspect that my friends on the Republican side are most 
afraid of one thing: They hope the Democratic majority would never do 
to them and a Republican President what they did as a Republican 
majority to a Democratic President.
  I can assure them as long as I am chairman we will not do to them 
what they did to us. I am not going to do that. It hurts the 
independence of the judiciary, and I am not going to do that.
  I remember a whole session, in 1996, in which the Republican majority 
did not confirm a single judge to the courts of appeals; another in 
which the committee reported only three courts of appeals nominees all 
year. But we are not going to go back to those days. We are going to do 
a lot better. But you cannot call for hearings on eight courts of 
appeals nominees in 4 weeks. That would be asking the current committee 
to do in 1 month what the committee under Republican leadership did not 
do for months, in fact sometimes for years.
  It is disingenuous to compare the last 9 months with the Senate 
majority and President of different parties to years when the majority 
party and the President were the same. A fairer comparison might be 
with the first 9 months of the 104th Congress, where the parties of the 
President and the Senate majority were different. That comparison shows 
we made more progress, held more hearings, confirmed more judges, 
including courts of appeals judges, than when the party roles were 
reversed in 1995.
  In 1995, we had a Democratic President and a Republican majority. 
Take their 9 months. They had nine hearings in 9 months with a 
Democratic majority and Republican President. We actually had 15. I 
will correct this--15, because we had one Tuesday. In their 9 months, 
they had 36 confirmations; we have had 42. So we have made more 
progress, held more hearings, confirmed more judges than when the party 
roles were reversed in 1995. Actually, 1995 was when the Republicans 
had one of its most productive years on judges.
  In a comparison made between the beginning of the second session of 
the 104th Congress when the President was a Democrat and the Senate 
majority was Republican, with the beginning of this, when roles were 
reversed, that fair comparison shows that we have already confirmed 14 
judges this session, including 1 to the court of appeals, while the 
Republican Senate ended up confirming only 17 judges all year--none to 
the courts of appeals.
  When we finish this first year in the majority, I can assure the 
Senate our record will be better than the years we saw with the 
Republicans, by any kind of standard at all. Look at the first 3 months 
of the session. We have been confirming--we confirmed 14 judges.
  In March 1995, in their first 3 months, when they were in charge with 
a Democratic President and Republican majority, they confirmed 9; by 
March of 1996 when they were in charge, they confirmed zero; by March 
of 1997 when they were in charge they confirmed 2; by March of 1998 
they hit their zenith, they confirmed 12. They made up for it the next 
year, March of 1999, they confirmed zero. By March of 2000, they 
confirmed 7; by March of 2001 they confirmed zero. By March of this 
year, we confirmed 14.

[[Page S2201]]

  Madam President, I see the distinguished ranking member of the 
Judiciary Committee on the floor, so I will yield the floor and reserve 
the remainder of my time.
  The PRESIDING OFFICER. For the information of the Senate, the clerk 
will report by number the amendments currently under consideration.
  The assistant legislative clerk read as follows:

       The Senator from Mississippi [Mr. Lott] proposes an 
     amendment numbered 3033.
       The Senator from Nevada [Mr. REID], for Mr. Daschle, 
     proposes an amendment numbered 3040.

  The amendment is as follows:


                           amendment no. 3040

       At the appropriate place, add the following:

     SEC.   . FAIR TREATMENT OF PRESIDENTIAL JUDICIAL NOMINEES.

       That it is the sense of the Senate that, in the interests 
     of the administration of justice, the Senate Judiciary 
     Committee should along with its other legislative and 
     oversight responsibilities, continue to hold regular hearings 
     on judicial nominees and should, in accordance with the 
     precedents and practices of the Committee, schedule hearings 
     on the nominees submitted by the President on May 9, 2001, 
     and resubmitted on September 5, 2001, expeditiously.

  Mr. HATCH. Madam President, here we go again: statistics judo being 
used on the floor of the Senate courtesy of the Judiciary Committee.
  I am going to always address these statistics with the facts. The 
bottom line is the facts speak for themselves. We have an unprecedented 
and shocking 31 vacancies on the Federal circuit courts of appeals in 
this country. That is not progress.
  Last Thursday, Senator Lott introduced a resolution calling for the 
Judiciary Committee to hold hearings on each of the circuit court 
judges nominated by President Bush on May 9 of last year.
  We are coming up on the 1-year anniversary of those nominations, and 
yet only 3 of the 11 nominees have had hearings and confirmation votes. 
All of these nominees have received well-qualified or qualified ratings 
from the American Bar Association, which some of my Democratic 
colleagues have described as the gold standard in evaluating judicial 
nominees.
  Why is it so problematic that none of these 8 nominees have received 
a hearing or vote? It is no secret that there is a vacancy crisis in 
the Federal circuit courts, and that we are making no progress in 
addressing it.
  Let's take a look at some numbers. A total of 22 circuit nominations 
are pending in the Judiciary Committee. But we have confirmed only one 
circuit judge this year, and only seven since President Bush took 
office.
  When Senate Democrats took over the Judiciary Committee in June of 
last year, there were 31 circuit court vacancies, and there remain 31 
circuit court vacancies today. This does not represent progress--it 
represents stagnation.
  In contrast, at the end of 1995, which was Republicans' first year of 
control of the Judiciary Committee during the Clinton administration, 
there were only 13 circuit vacancies.
  In fact, during President Clinton's first term, circuit court 
vacancies never exceeded 20 at the end of any year--including 1996, a 
Presidential election year, when the pace of confirmations has 
traditionally slowed.
  Moreover, there were only two circuit nominees left pending in 
committee at the end of President Clinton's first year in office. In 
contrast, 23 of President Bush's circuit nominees were left hanging in 
committee at the end of last year.
  In light of the vacancy crisis, we cannot afford to let only 10 
Senators defeat a circuit nominee. This is a question of process, not 
of seeking favorable treatment.
  For all these reasons, it is imperative to support Senator Lott's 
resolution to get hearings and votes for our longest pending circuit 
nominees. Given the vacancy crisis in our circuit courts, I can't 
imagine anyone voting against it. I must respond to some of the 
comments that my colleagues across the aisle have made about the pace 
of judicial confirmations. These comments have included a gross 
distortion of my record as chairman of the Judiciary Committee during 
six years of the Clinton administration. Although we have all heard 
enough of the numbers, I will not hesitate to defend my record when it 
is unjustly attacked, as it has been over the past week and I think 
here today.

  I believe that the source of many, if not all, of these attacks stems 
from the defensive posture that many of Democratic colleagues have 
taken since 10 members of the Judiciary Committee refused to send the 
nomination of Judge Charles Pickering to the floor for a vote by the 
full Senate. Some of these colleagues have defended what they call the 
Senate's fair treatment of judicial nominees in general and Judge 
Pickering in specific. But the fact of the matter is that the Senate 
never got the opportunity to vote on Judge Pickering's nomination. The 
reality is that the 10 Democratic members of the Judiciary Committee 
determined for the rest of the Senate the fate of Judge Pickering's 
nomination.
  We all know that had it been brought to the Senate he would have gone 
through with flying colors.
  This is despite the fact--or perhaps because of the fact--that had 
Judge Pickering's nomination been considered by the full Senate, he 
very likely would have been confirmed, and I think with flying colors.
  The committee's treatment of Judge Pickering is problematic for 
several reasons.
  First, during the 6 years that Republicans controlled the Senate 
during the Clinton administration, not once was one of his judicial 
nominations killed by a committee vote. The sole Clinton nominee who 
was defeated nevertheless received a floor vote by the full Senate. 
Judge Pickering was denied that opportunity. Some of my Democratic 
colleagues have said that their treatment of Judge Pickering was not 
payback. In one sense, they are right. If they were interested in 
treating President Bush's nominees as well as the Republicans treated 
President Clinton's nominees, the they would have sent Judge 
Pickering's nomination to the floor for a vote by the full Senate.
  Second, the actions of the Democratic members of the committee were 
clearly orchestrated by liberal special interest groups that have been 
doing it for years whenever there is a Republican President. It is no 
coincidence that these groups asked the committee to demand Judge 
Pickering's unpublished opinions, then--surprise!--the committee 
announces that it will compel Judge Pickering to produce all of his 
unpublished opinions.
  For judges to go back and go through all their unpublished opinions, 
if they have been on the bench for very long, is extraordinary.
  I do not recall another nominee who has been subjected to a 
production demand of such scope--except, of course, for Judge D. Brooks 
Smith, another Bush nominee whom the groups have targeted.
  Let me read the text of the letter to Judge Smith. It simply say,

       Copies of your unpublished opinions, not previously 
     produced to the committee, have been requested by Members. 
     Please contact our nominations clerk . . . to arrange 
     transmission of the materials. Thank you for your assistance 
     in this matter.

  That is it. There is no explanation for why the committee is 
demanding these unpublished opinions, and there was no consultation 
with the Republicans about taking the drastic step of demanding these 
opinions. This letter, incidentally, was sent to Judge Smith after his 
confirmation hearing, just as with Judge Pickering. There is nothing 
fair about subjecting nominees to fishing expeditions simply because 
the liberal special interest groups do not like them. The committee's 
treatment of Judge Pickering's nomination was not an example of the 
committee doing its job, as one of my colleagues described it last 
week. Instead, it is an example of special interest groups pulling 
strings. I am deeply concerned about what this means for the fairness 
with which future judicial nominees will be treated--especially any 
Supreme Court justice that President Bush may have the opportunity to 
nominate.
  Some of my Democratic colleagues have tried to minimize the effect of 
their party-line committee vote to defeat Judge Pickering's nomination 
by declaring that, last year, they held the first confirmation hearing 
on a fifth circuit judge since 1994. While this is technically true, 
there is an important fact they leave out: From 1994 to 1997 during the 
Clinton administration--get this--no fifth circuit nominees were

[[Page S2202]]

pending for the committee to act on. President Clinton did not nominate 
another fifth circuit judge until 1997, and that nominee did not have 
home State support due to lack of consultation from the White House.
  And that was the problem. He was not renominated after the end of the 
105th Congress. The next fifth circuit judge was not nominated until 
1999.
  So to say from 1999 they haven't had any work on that fifth circuit 
just shows the type of sophistry that is used. This one fifth circuit 
judge who was nominated in 1999, too, lacked home State support due to 
lack of consultation from the White House.
  Finally a third Fifth Circuit nominee was nominated in 1999. So, in 
reality, only one of President Clinton's Fifth Circuit nominees after 
1999 could have possibly moved, and I should say that nominee was not 
nominated until the seventh year of the Clinton presidency.
  Now, let's compare this record to the present Bush administration. 
The Democrats have already killed one of President Bush's Fifth Circuit 
nominees, Judge Pickering, who enjoys the strong support of both of his 
home State senators. If they are being guided by precedent, then my 
Democratic colleagues have no excuses for refusing to move every other 
Fifth Circuit Bush nominee who has home State support. One such 
nominee, Justice Priscilla Owen of Texas, has been pending in committee 
for over 300 days now without so much as a hearing which brings me to 
another point.
  My Democratic colleagues have argued at length about how fairly they 
are treating President Bush's judicial nominees, especially his circuit 
nominees. In fact, last week one of my colleagues said on the floor, 
``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.'' This colleague must have forgotten about the eight circuit 
judges whom President Bush nominated on May 9 of last year and who have 
been languishing in committee without so much as a hearing for over 300 
days. With one exception, the paperwork on all of these nominees has 
been complete for months. Each of these nominees has received a rating 
of well-qualified--the highest rating the ABA can give--or qualified 
from the ABA, which my Democratic colleagues have referred to as the 
gold standard in evaluating judicial nominees.
  The rest of President Bush's circuit nominees have fared just as 
poorly.
  As this chart shows, only 9 percent of his circuit nominees awaiting 
a committee vote have had a hearing thus far. Nine percent are 
languishing in the committee--for over 300 days. This means that 91 
percent of his circuit nominees, including 8 of his first 11 circuit 
judges nominated on May 9, have been languishing in committee for no 
reason, but that the liberal interest groups don't want them to move. 
These are outside groups.
  The failure of the committee to act on these circuit nominees is 
particularly disturbing in light of the vacancy crisis in the circuit 
courts.
  As this chart illustrates, the number of vacancies in the circuit 
courts is dramatically higher than it has been during the first 2 years 
of the most recent Presidential administrations. At the end of the 
first 2 years of the Herbert Walker Bush administration, there were 
only 7 circuit court vacancies. At the end of the first 2 years of the 
first term of the Clinton administration, there were only 15 circuit 
vacancies. At the end of the first 2 years of the second term of the 
Clinton administration, there were only 14 vacancies.
  Incidentally, I chaired the Judiciary Committee during this time, and 
there were fewer vacancies than there were when Democrats controlled 
the Senate during the first 2 years of the first time of the Clinton 
administration when the Democrats controlled the committee.
  Now, let's look at the present administration. There are currently 31 
vacancies in the circuit court of appeals. Is is a disaster. This is 
the same exact number of vacancies in the circuit courts that existed 
when the Democrats took control of the Senate on June 5 of last year.
  This does not represent progress. This does not represent fairness. 
This does not show a good job being done by the Judiciary Committee. It 
represents stagnation. It is for this reason that I find it more than a 
little hard to swallow my colleagues' arguments that their pace of 
judicial confirmations is keeping up with the vacancy rate. The numbers 
simply tell another story.
  We are making absolutely no progress in addressing the vacancy crisis 
in the Federal judiciary. Even if you look beyond the circuit courts to 
the full judiciary--and we will just put these numbers up here as shown 
on the chart--these numbers are not much better.
  The end-of-session vacancies during the first 2 years of Republican 
control of the Senate during the Clinton administration never exceeded 
the vacancies we now face. At the end of 1995--my first year of 
chairing the committee--there were 50 vacancies in the Federal 
judiciary. Only 13 of these vacancies were in the circuit courts--only 
13.
  At the end of 1996--my second year of chairing the committee--there 
were 63 vacancies in the Federal judiciary.
  I might mention, when Senator Biden led the Democrats and chaired the 
committee--and I thought he did a great job--when he chaired the 
committee, in the same period, at the end of 1992, there were 97 
vacancies. But there were only 63 vacancies at the end of my second 
year. Only 18 of those were in the circuit courts. Now, that was too 
many, I admit, but it is certainly not 31 as we have today.
  But at the end of last session, there were 94 vacancies in the 
Federal judiciary. Now, admittedly, the Democrats did not have a full 
year to take care of it, but, still, 94 vacancies is a high vacancy 
total at the end of the session.
  Now we have 95 vacancies after almost a year, which is a dramatic 
increase from the 67 vacancies that existed at the end of the 106th 
Congress. As we have seen, 31 of these vacancies are in the circuit 
courts.
  What does this mean? It means the Senate's pace under Democratic 
control in confirming President Bush's judicial nominees is simply not 
keeping up with the increasing vacancy rate, not even in accordance 
with the precedence and practices of the committee.
  I have heard a lot of comments about how they are going to treat 
Republicans like we treated them, that they are going to treat 
Republicans just as fairly as we treated them. My gosh, the record 
shows we are not being treated fairly at all. You might be able to find 
some things to criticize in any Judiciary Committee chairman's tenure 
because of the difficulties in working with the other 99 people, but 
the fact is, this isn't fair.
  For anyone who doubts that the vacancy crisis represents a problem, 
let me point out that the Sixth Circuit Court is presently functioning 
at 50-percent capacity--50 percent. That is a disaster. Eight of that 
court's 16 seats are vacant. President Bush nominated seven well-
qualified individuals to fill the vacancies on that court.
  Two of these nominees, Deborah Cook--a wonderful woman lawyer--and 
Jeffrey Sutton--one of the finest appellate lawyers in the country--
have been pending since May 9 of last year. They were among the first 
11 judges that President Bush nominated. Yet they have languished in 
committee without so much as a hearing, while the Sixth Circuit 
functions at 50-percent capacity.
  Although the Michigan Senators have blocked hearings for the three 
Bush nominees from Michigan by refusing to return blue slips, the 
paperwork on the remaining four nominees is complete. Again, nothing 
stands between them and a confirmation hearing except my Democratic 
colleagues.

  Let me also say that I find it highly unusual that blue slips 
withheld in one State should be used to denigrate or to hold up judges 
from another State. I do not think Senators should be given that kind 
of authority, but that is what is being done here.
  Another appellate court that is in trouble is in the DC Circuit, the 
Circuit Court of Appeals for the District of Columbia, which is missing 
one-third of its judges. It has only 8 of its 12 seats filled. That is 
one of the most important courts in our country. It hears cases that 
other circuits do not hear. It hears an awful lot of administrative law 
cases. It is a busy court. Yet we only have 8 of the 12 seats filled.
  President Bush nominated two exceedingly well-qualified individuals 
to fill seats on the DC Circuit on May 9 of last year, better than 300 
days ago.

[[Page S2203]]

  Miguel Estrada, a Hispanic, who has a remarkable record, and has 
argued 15 cases in front of the Supreme Court of the United States, 
could not even speak English when he came to this country, and is one 
of the most articulate, impressive, intelligent advocates in our 
country today--not even given a hearing. Well-qualified by the American 
Bar Association.
  John Roberts: I talked to one of the Supreme Court Justices just a 
short while ago. He said he is one of the two top appellate lawyers in 
this country today. He is not particularly an ideologue. This man is a 
great lawyer. He has Democrat and Republican support. So does Miguel 
Estrada, by the way.
  They are among the most well-respected appellate lawyers in the 
country. And I should say that Miguel Estrada would be the first 
Hispanic to ever serve on the Circuit Court of Appeals for the District 
of Columbia, to sit on this important court.
  My friends on the other side talk a lot about diversity, but 
apparently it is diversity only if the candidates agree with the 
extreme liberal views of the special interest groups in this town. And 
they are in this town. They really do not represent the people at 
large--narrow interest groups. This troubles me. The Judiciary 
Committee has not granted them a hearing, much less a vote.
  If the DC Circuit and the Sixth Circuit are any indication, it 
appears the committee is doing what it can to avoid filling seats on 
the courts that need judges the most.
  Part of the problem is a reluctance by the committee to move more 
than one circuit judge per hearing. In fact, I do not believe the 
Democrats have moved more than one circuit judge per hearing during the 
entire time they have had control of the Senate.
  When I was chairman, I had 10 hearings with more than one circuit 
nominee on the agenda. In fact, I had hearings with more than one 
circuit nominee on the agenda in every session in which I was chairman 
except for the Presidential election years. That is the precedent and 
the practice of the committee.
  Let's stop making excuses. Let's confirm these judges. If we are 
going to get serious about filling circuit vacancies, then I encourage 
my Democratic colleagues to move more than one circuit judge per 
hearing.
  One of the more ludicrous charges I have heard is that 
the Republicans did not confirm any judges while they held the majority 
in the Senate last year. Let me set the record straight on this. 
President Bush announced his first 11 judicial nominations on May 9. I 
scheduled a confirmation hearing on 3 of those judicial nominees--all 
circuit court nominees--for May 23.

  However, some Democratic members of the committee claimed to need 
more time to assess the nominees. Out of an abundance of caution, a 
recognition of their feelings, and in the interest of fairness, I 
agreed to cancel the hearing despite widespread speculation that the 
Republicans' loss of the majority in the Senate was imminent. As we all 
know, control of the Senate shifted to the Democrats shortly thereafter 
on June 5.
  So while the Republicans were ready to hold a hearing on 3 circuit 
judges within 2 weeks of their nomination in May, it took the Democrats 
until the end of August to hold confirmation hearings on 3 circuit 
judges. By the way, 2 of them were Democrats, so it is not hard to 
understand why they would want to get them through. And I wanted to get 
them through, too. And I want to get them through before, at least one 
of them, now Judge Gregory.
  I have to admit, when these special interest groups on our side came 
to me, some of the far right groups, I told them: Get lost. And I made 
some real enemies in the process. But, by gosh, I wanted to do my job 
as Judiciary Committee chairman.
  I know it is a difficult job. And I know my colleague has a very 
difficult time with colleagues, with outside groups, with all kinds of 
problems. I had the same problems. But sooner or later, we have to do 
something about these problems. I have also heard my Democratic 
colleagues complain that I was unfair because almost 60 Clinton 
nominees never received a hearing or vote. I have two responses to this 
charge.
  Let me just go to this chart.
  First, as the following chart shows, the Democrat who controlled the 
Senate during the first Bush administration left 59 judicial nominees 
total, circuit and district nominees, without a hearing or vote at the 
end of 4 years--59. And they are complaining? In contrast, only 53 
Clinton nominees were not confirmed over my 6 years as chairman. But 
that was in 4 years that they left 59. Now, mine was 53. Yet my 
Democratic colleagues claim that I was unfair to the Clinton nominees 
despite the fact they left more Bush 1 nominees unconfirmed in an 
actual shorter period of time.
  Second, many of the Clinton nominees who were not confirmed had good 
reasons for not moving. As I have mentioned, not including withdrawn 
nominees, there were only 53 Article III judicial nominees who were 
nominated by President Clinton during my 6 years as chairman who did 
not get confirmed. Of those, nine were nominated too late in a Congress 
for the committee to feasibly act on them or were lacking paperwork. 
That leaves 44. Seventeen of those lacked home State support, which was 
often the result of a lack of consultation with home State senators. 
There was no way to confirm those, no matter how much I would have 
liked to, without completely ignoring the Senatorial courtesy that we 
afford to home State Senators in the nominations process, as has always 
been the case. That leaves 27. of the original 53. One nominee was 
defeated on the Senate floor, which leaves only 26 remaining nominees. 
Of those 26, some may have had other reasons for not moving that I 
simply cannot comment on. So in all 6 years that I chaired the 
committee while President Clinton was in office, we are really only 
talking about 26 nominees who were left.

  Now I heard one of my Democratic colleagues on the floor last week 
comparing their pace to mine in increments of months--9 months to 12 
months, 9 months to 9 months, 3 months to 3 months, and so on. I must 
admit that I had a tough time following his argument in light of the 
astronomical vacancy rate that we now face in the Federal judiciary. 
but in terms of fairness, let me set forth what I consider to be the 
bottom line. President Clinton enjoyed an 85 percent confirmation rate 
on the individuals he nominated. A total of 377 Clinton nominees sit on 
the Federal bench today. That was with my help in every case.
  This number is only 5 short of the all-time confirmation champion, 
President Reagan, who had 382 judges confirmed by the Senate. I believe 
President Clinton would actually have had more, had it not been for 
Democratic holds in the Senate that I knew about at the end of that 
last session. Keep in mind, President Clinton had 6 years of a 
Republican Senate, the opposition party, yet had virtually the same 
number of people confirmed as the all-time champion, President Reagan, 
who had 6 years of his own party in control of the Judiciary Committee 
in the Senate. It is astounding to hear some of these arguments against 
what we did.
  Go over it again. President Clinton, with a 6-year opposition party, 
and me as chairman, had 377 judges confirmed in his 8 years, during 6 
of which Republicans controlled the Senate. President Reagan, the all-
time champion, got 5 more, 382, and he had 6 years of a favorable party 
Senate.
  I don't think there is much room to be complaining about what 
happened during the Clinton years.
  When President Bush's judicial confirmations start approaching these 
numbers, then I may be ready to agree that the Democrats are treating 
President Bush's nominees fairly.
  Let me add something more. If you look at this chart, it is pretty 
important because it shows that the total vacancies at the end of the 
102nd Congress were 95. But if you go to the pending nominees not 
confirmed at the end of Bush 1, there were 11 circuit court nominees 
and 48 district court nominees, for a total of 59 circuit and district 
court nominees.
  If we go to the end of President Clinton, it really tells the story.
  In President Clinton's first 4 years, we had a total of 202 judges 
confirmed. When the Democrats controlled the committee in 1993, there 
were 112 vacancies at the end of the session. Mine was 54--53, 
actually. At the end of 1994, when they controlled the committee, there 
were 63 vacancies. I remember

[[Page S2204]]

President Clinton saying that was a full judiciary. Senator Biden was 
the chairman, and I agreed. Somewhere around 60 judges is basically a 
full judiciary. There may be problems in certain areas, but basically 
that is a full judiciary.
  In 1995, the first year after we took over, there were 50 total 
vacancies left and only 13 circuit court nominees left. Keep in mind, 
when the Democrats controlled, on circuit court nominees, there were 20 
at the end of 1993 and in 1994 there were 15. That is what you have to 
do at the end of session--not just choose any 3 months you want to in 
any year. Let's talk in terms of fairness here and statistics.
  Let's go down it again. President Clinton in 1993 nominated five to 
the circuit court. President Bush has nominated 31--actually more than 
that. He had 3 nominees confirmed, but there were 20 circuit court 
nominees at the end of that session. In 1994, he nominated 17, 
submitted 17; there were 16 who were confirmed. There were 15 left over 
at the end of 1994. The Democrats controlled the committee. In 1995, he 
nominated 16; there were 11 confirmed of the 16. That is a far better 
record than we are hearing about the complaints from the Democrats on 
what happened under my leadership. There were only 13 left, a 7.3-
percent vacancy rate.
  In 1996, I was chairman again. We only had four nominations. That is 
why none was confirmed. It was an election year. Eighteen were left 
over. If you stop and think about it, that is still 13 fewer than the 
vacancy rate right now, or the vacancy rate that existed last May 9, 31 
vacancies.
  In the district courts, if you want to go through it, in 1993 there 
were 42 nominations submitted; 24 were confirmed. That is when the 
Democrats controlled the committee. There were 92 vacancies at the end 
of the session.

  In 1994, there were 77 nominations in the district court; 84 were 
confirmed. And there were only 48 left at the end of that session. In 
1995, when I took over, there were 68 nominations; 45 were confirmed. 
And there were 37 vacancies. In 1996, there were 17 nominations 
submitted; 17 were confirmed. In that year, 45 at the end of that 
session.
  But if we go to circuit and district courts combined, in 1993, when 
the Democrats controlled the Senate, there were 47 total nominations 
submitted. There were 27 that were confirmed when the Democrats 
controlled the committee and their own President was there. And there 
were 112 vacancies at the end of that session. In 1994, there were 94 
total nominations submitted; there were 100 nominations confirmed. And 
there were only 63, which is still 10 higher than it was at the end of 
my tenure, at the end of the session when President Clinton left 
office.
  In 1995, there were 84 nominations submitted; 56 were confirmed. And 
there were 50 left over at that time. Then in 1996, there were 21 total 
nominations submitted; 17 confirmed. There were 63 left over.
  As you can see, if we compare the statistics, the Democrats were not 
mistreated. They were treated fairly. Admittedly, it is a tough job 
being chairman of the Judiciary Committee. These are hot issues. There 
are always some people in the Senate, whether liberals or 
conservatives, who don't like certain judges. Let's face it. It is not 
easy to handle some of those problems. But I have to admit, the 
Democrats have been treated very fairly. I would like to see us treated 
just as fairly as they were. With 95 vacancies existing today, it is 
apparent that the job is not getting done.
  I reserve the remainder of my time and suggest the absence of a 
quorum.
  The PRESIDING OFFICER (Mr. Edwards). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. 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 ask unanimous consent that the time 
during the quorum call be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. 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. SPECTER. 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. SPECTER. Mr. President, I have sought recognition to support the 
amendment offered by the Senator from Mississippi, Mr. Lott, our 
distinguished Republican leader, that the Senate Judiciary Committee 
shall hold hearings on the nominees submitted by the President on May 
9, 2001, by May 9, 2002.
  It is my view that this resolution is preeminently reasonable. 
Senator Daschle, the majority leader, has submitted a resolution in the 
nature of a first-degree amendment saying that the hearings should be 
conducted expeditiously.
  It is my hope there will be a truce on the confirmation battles that 
have been raging for a very long time--during most of the 22-year 
tenure I have had in the Senate, all of which has been on the Judiciary 
Committee. We have seen that when there is a Democrat in the White 
House--for example, President Clinton--and Republicans controlled the 
Senate in 1995 through the balance of President Clinton's term--that 
the same controversy arose. I have said publicly, and I repeat today, 
that I believe my party was wrong in delaying the nominations of Judge 
Paez for the Ninth Circuit and Judge Berzon for the Ninth Circuit and 
Judge Gregory for the Fourth Circuit and the battle along party lines 
that arose over the nomination of Bill Lann Lee to be Assistant 
Attorney General for the Civil Rights Division.
  Just as I thought Republicans were wrong in the confirmation process 
during much of President Clinton's tenure, I think the Democrats are 
wrong on what is happening now with the slowness of the confirmation 
process.
  It may be that, in the final year of a Presidential term, some 
motivation would exist to delay the process so that if a President of 
the other party is elected, there might be a different attitude on the 
nominations.
  Certainly those considerations do not apply in a first year or in a 
second year. The individuals who were nominated by the President on May 
9 were very well qualified, I think extraordinarily well qualified, 
being the first batch submitted by the President.
  It would be my hope that we could establish a protocol. I have 
prepared a resolution which would go beyond what Senator Lott has 
called for and would call for a timetable established by the chairman 
of the committee, in collaboration with the ranking member, to set a 
sequence for when a nominee for the district court, circuit court, or 
Supreme Court would have a hearing. Let that be established and let it 
be followed regardless of who controls the White House and regardless 
of who controls the Senate.
  Then a timetable ought to be established for a markup for action by 
the committee in executive session, and a timetable should be 
established for reporting the nomination out to the floor.
  There ought to be latitude and flexibility for that timetable to be 
changed for cause where there is a need for a second hearing or where 
an additional investigation has to be undertaken. But there ought to be 
a set schedule which would apply regardless of a Democrat making 
appointments to a Judiciary Committee controlled by Republicans or a 
President who is a Republican submitting nominations to the committee 
controlled by the Democrats. It seems to me that just makes fundamental 
good sense.
  If we established that protocol, it would stay in effect and we would 
end the political division which is not good for the reputation of the 
Senate, it is not good for the reputations of the Senators, and most 
importantly, it is not good for the country.
  The resolution I have prepared would further provide that where a 
vote occurs for a district court judge or court of appeals judge along 
party lines, that nomination be submitted for action by the full 
Senate. The rationale behind that, simply stated, is if it is partisan 
politics, then let the full Senate decide it.
  We just went through a bloody battle, and I think a very unfortunate 
battle, on Judge Pickering. I believe the

[[Page S2205]]

real issue of Judge Pickering was notice to President Bush about the 
judicial philosophy of a nominee for the Supreme Court of the United 
States, if and when a vacancy occurs.
  I do not intend to reargue the Pickering matter, and I know the 
distinguished Senator who is presiding, the Senator from North 
Carolina, has a different view of the matter, but Judge Pickering is a 
very different man in 2002 than he was in the early 1970s when he was a 
State senator from Mississippi, when segregation was the norm. Judge 
Pickering had a lot of support from people in his hometown of Laurel, 
MS, who are African Americans, who came in and urged his confirmation.
  Judge Pickering is behind us. We ought to learn a lesson from Judge 
Pickering.
  There are six precedents which Senator Hatch has put into the Record 
where nominees turned down for district court or circuit court were 
considered by the full Senate. That was the practice when Judge Bork 
was turned down by the Judiciary Committee on a 9-to-5 vote. He was 
then considered by the full Senate and ultimately defeated 58 to 42, 
but he was considered by the full Senate.
  Justice Thomas had a tie vote in the Senate. We have not had any 
nominee in my tenure--perhaps no nominee in the history of the Court--
more controversial than Justice Thomas. But when the motion was made to 
submit Justice Thomas for consideration by the full Senate, it was 
approved 13 to 1.

  My resolution further calls for Supreme Court nominees to be 
considered by the full Senate regardless of the committee vote, and I 
believe there has been an acknowledgment on all sides--more than a 
consensus, a unanimous view--perhaps just a consensus, but the general 
view that a Supreme Court nominee ought to be submitted to the full 
Senate.
  My resolution will also provide that the matter will be taken up by 
the full Senate on a schedule to be established by the majority leader, 
in consultation with the minority leader.
  We ought to get on with the business of confirmations. Senator Lott's 
proposal of a 1-year period I think is preeminently reasonable. One 
might call it a statute of limitations in reverse. We lawyers believe 
in statutes of limitations.
  Beyond Senator Lott's amendment, I believe there ought to be a 
protocol which would establish timetables and a procedure for ending 
this political gridlock, taking partisanship out of the judicial 
selection process so that the courts can take care of the business of 
the country. There are many courts in a state of emergency with too few 
judges to handle the important litigation of America. I know that is 
something in which the Presiding Officer has a deep and abiding 
interest, having spent so much of his life in the trial courts, and I 
spent a fair part of mine in the trial courts as well. In a sense, the 
Senate is something of a trial court as well. I hope we get the right 
verdict here.
  I thank the Chair and yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I say to my friend from New York, my 
remarks are very brief and if he would not mind my going ahead, this is 
the only opportunity I will have to make these remarks prior to the 
vote.
  Mr. SCHUMER. Mr. President, I never mind deferring to the Senator 
from Kentucky, especially when he is brief.
  Mr. McCONNELL. That is a very good habit, and I hope the Senator from 
New York will continue it.
  Mr. President, I commend the former chairman of our committee, 
Senator Hatch, and Senator Specter for their observations about the 
dilemma in which we find ourselves. Senator Specter and Senator Hatch 
both received a good deal of criticism from a number of Members on this 
side of the aisle for moving too many Democratic judges during the 
period when President Clinton was in the White House and the 
Republicans were in the majority in the Senate. We should listen to 
them when they engage in this debate.
  Senator Specter, in particular, was very sympathetic to moving 
Democratic nominees out of committee and has offered today to discuss a 
resolution he is going to submit that I think provides a solid 
bipartisan way to begin to resolve this dilemma in which we find 
ourselves.
  I say to Senator Leahy, the chairman of the committee, he has been 
totally fair with us in Kentucky in dealing with our district judges. 
We had three vacancies in the Eastern District, all of which have been 
filled. So we certainly have no complaint on that score.
  I do want to say something about the Sixth Circuit. The Sixth Circuit 
is made up of Michigan, Ohio, Kentucky, and Tennessee. It is currently 
50 percent vacant. It basically cannot function. It is not because 
President Bush has failed to act. He has nominated seven individuals 
for those eight positions, and they have been nominated for quite some 
time: John Rogers from my State was nominated 93 days ago; Henry Saad, 
Susan Neilsen, and David McKeague were nominated 134 days ago; Julia 
Gibbons was nominated 164 days ago; and Jeffrey Sutton and Deborah Cook 
were nominated an incredible 317 days ago with no hearings on any of 
these nominees.
  Finally, in terms of the Senate as an institution, we cannot function 
this way. This is simply not acceptable. I think the voters have a 
right to expect us to do our work. If we are going to come anywhere 
close to treating President Bush as President Clinton and President 
Reagan were treated, we are going to have to start having hearings and 
votes on nominees for these circuit court vacancies.
  I know this is a difficult matter. I know it has become increasingly 
politically charged in the years I have been in the Senate and that 
both sides have contributed to it. If we are not going to stop that 
now, then when? This is a good time to sit down in a bipartisan fashion 
and figure out how we can do what is in the best interest of the 
country because whether people on the other side like it or not, 
President Bush is there. He is going to be there for another 3 years 
for sure. We need to deal with these vacancies at the circuit court 
level.
  I am in strong support of the Lott resolution to ensure the fair 
treatment of President Bush's judicial nominees.
  As the resolution lays out, the situation with judicial vacancies has 
gotten remarkably worse since President Clinton left office. There were 
67 vacancies when President Clinton left office. This vacancy situation 
has now jumped to 95 vacancies. Thus the percentage of vacancies has 
climbed from 7.9 percent to 11 percent.
  It is a sorry state indeed, when Federal judges are retiring at a 
faster rate than we can replace them. This vacancy situation is 
particularly acute on the circuit courts, where, as the resolution 
notes, 31 of the 96 vacancies exist. This is an astounding 17.3 percent 
vacancy rates for the courts of appeals--almost one seat out of every 
five being empty.
  As the ranking member of the Judiciary Committee said, my own 
circuit--the sixth--covering Michigan, Ohio, Kentucky, and Tennessee, 
is the worse off of all the circuits. Fully one-half of the appellate 
judgeships on the sixth circuit are vacant. Think of that. Every other 
seat on the Federal circuit that hears appeals from my constituents is 
empty. That is alarming.
  Now, my friend the chairman--and he is my friend--knows how warmly I 
feel about him for his handling of the district court vacancies in my 
home State.
  But I must confess, I am at a loss, and am becoming increasingly 
exasperated, at the inability or outright refusal--at this point, I 
don't know which--to confirm some judges to my home circuit.
  Let me be clear. This is not the President's fault. He has nominated 
individuals to fill seven of the eight seats on the sixth circuit. Yet 
none--I repeat none--has even gotten so much as a hearing, even though 
all of the paperwork of these nominees is complete.
  As I said, these individuals have been before the Senate for quite 
some time:
  John Rogers was nominated 93 days ago;
  Henry Saad, Susan Neilson, and David McKeague were nominated 134 days 
ago;
  Julia Gibbons was nominated 164 days ago; and
  Jeffrey Sutton and Deborah Cook were nominated an incredible 317 days 
ago.

[[Page S2206]]

  Back home in Kentucky, if you don't do your job for 10 months, you 
are probably out looking for work. I think the American people ought to 
remember that come election time, when they are thinking about who 
should run the Senate.
  On behalf of my constituents, I urge the chairman to take at least 
some action--some action--and try to get at least a few of these judges 
confirmed before the end of the year.
  To do that, we are going to have to pick up the pace considerably. We 
hear about how poorly President Clinton was treated--even though he got 
close to 400 judges and finished in second place all time, only 5 
behind President Reagan.
  But to equal the number of judges President Clinton got confirmed in 
his first term, we're going to have to confirm 87 or so judges before 
the end of the 107th Congress. And to reach that parity, we're going to 
have to have hearings, markups, and votes on over four judges per week.
  We can't just have a nomination hearing for a single circuit court 
nominee every other week. We can't have a confirmation hearing one 
week--with maybe one circuit court nominee at best--and a markup the 
next week. We need to get on a regular pace of having hearings, 
markups, and floor votes every week for a reasonable number of judges, 
including circuit judges.
  In sum, because the vacancy situation is deteriorating by the day, I 
am compelled to urge the adoption of the Lott resolution.
  I thank the Senator from New York for his indulgence in allowing me 
to go ahead of him.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I wish to say a few words about judicial 
nominations and the pending amendment. Our friends on the other side of 
the aisle made a lot of hay about our record of judicial nominations, 
but the facts do not support the allegations.
  First, under Chairman Leahy's leadership in the 9 months since the 
Senate's reorganization, and despite the disruptions caused by the 
attacks of September 11 and the anthrax in our offices, we have sent 42 
nominees to be voted on. Yet our friends continue to argue we are not 
holding enough hearings. Forty-two nominees is a huge number.
  I remember the hearing we had the day we were evacuated from the Hart 
Building and all of the office buildings. We had a hearing--that 
happened to be the first one with Judge Pickering --in a cramped, 
little room in the Capitol. Senator Leahy came back once during recess 
to hold a hearing, I am told. This is clearly not the action of a group 
trying to hold up judges.
  In 1999 and 2000, by contrast, the Republican-controlled committee 
held only seven hearings all year, and those were entire years, not the 
few months we have had.
  Second, our friends claim we are confirming too few judges. We have 
put 42 on the bench. That is more than were confirmed in the entire 
first year of the Clinton administration when the Democrats controlled 
the Judiciary Committee.
  They argue we are stalling. But when one looks at comparable years, 
Chairman Leahy's Judiciary Committee is well ahead of pace. So the 
claims of stalling ring hollow when one looks at the facts.
  Third, when we point to raw numbers, our colleagues change the 
argument and point to the percentage of seats that remain vacant. Well, 
a problem cannot be created and then the complaint made that someone 
else is not solving it fast enough. That is the height of unfairness. 
That is the height of sophistry.
  Our Republican friends controlled the Judiciary Committee during the 
last 6 years of the Clinton administration, and during that time 
vacancies on the bench increased some 60 percent. All of a sudden we 
are concerned about vacancies. What happened in 1998 and 1999 and 2000? 
We were not concerned with vacancies then--only now.
  We are not going to play games and say what is good for the goose is 
good for the gander. We are not suggesting two wrongs make a right by 
holding up judges the way it was done previously. Instead, we are going 
to decrease that, and we have gotten off to a good start.
  Addressing the point my good friend from Kentucky made about the 
Sixth Circuit, yes, there are many vacancies there, and that is because 
nominees who were put in by President Clinton, Helene White in 
particular, were held up for very long periods of time.
  Now, what is fair if you want to fill the vacancies? What is fair is 
not for the President to just pick names and say, endorse these, but 
what is fair is for the President to sit down with all the Senators 
from the Sixth Circuit, not only the Senators from one party, and come 
to an agreement about who should be nominated. Maybe Helene White 
should be nominated now, and then one of the President's selections. 
Maybe it should be people on whom both sides can agree.
  So if there is real concern about filling the Sixth Circuit, I say to 
my colleague from Kentucky--I wish he were still present--then consult 
all the Senators of that circuit and we can get judges done like that.

  To say, after the other side held up judges whom President Clinton 
nominated, now we should just, without even aforethought, approve all 
the judges President Bush nominates, when he does not consult with 
anyone from this party--and I say that as somebody who greatly respects 
the President and gets along with him--does not make any sense at all. 
Do not make the argument about vacancies that you have created unless 
you are prepared to make this a partnership to fill those vacancies.
  That leads to my fourth point. Because so many Clinton nominees never 
got hearings and never got voted on by the Republican-controlled 
Senate, the courts now more than ever hang in the balance. Some of the 
nominees have records that suggest extreme viewpoints. It is our 
obligation to examine the records closely before we act. The Senate is 
the last stop before a lifetime appointment on the Federal bench, and 
so we cannot blindly confirm judges who are a threat of rolling back 
rights and protections through the courts not over the last 25 years 
but over the last 70. Some of these judges want to go back to pre-New 
Deal: Reproductive freedoms, civil rights, the right to privacy, the 
right to organize, environmental protection, worker and consumer 
safety.
  In my State of New York, the administration has so far worked with us 
in good faith to select nominees who meet three requirements for 
judges, at least the three I have told them I care about: Excellence, 
moderation, and diversity. Nominees who meet these criteria will win my 
swift support. For those nominees who raise a red flag, whose record 
suggests a commitment to an extreme ideological agenda, we have to look 
at them closely.
  These days, the Supreme Court is taking fewer than 100 cases a year. 
That means these appellate court nominees particularly will have, for 
most Americans, the last word on cases that are the most important 
matters in their lives. We need to be sure the people to whom we give 
this power for life are fair minded, moderate--I never like judges too 
far left or too far right; they both become activists and try to change 
the law way beyond what the legislature wants--and they have to be 
worthy of the privilege.
  We have worked together with our Republican colleagues on several 
matters since September 11, and by and large we have done well to keep 
things bipartisan. Campaign finance reform yesterday was a huge hurdle 
for us to clear. On election reform, I am optimistic we are very close 
to a bipartisan solution. The energy bill has a lot of amendments to 
work through.
  Again, in this body, whether you have 51 or 49, much cannot be 
accomplished unless we work in a bipartisan manner. On judicial 
nominees, why can we not do the same thing? Both sides ought to be 
working together to correct imbalances in the court and keep the 
judiciary within the mainstream. We need nominees who are fair and open 
minded, not candidates who stick to an ideological agenda. The 
Constitution mandates this. It is not just the Senate consent; it is 
the Senate gives advice and consent. As far as the advice part of that 
phrase goes, there has been very little advice sought of this 
body. That is the reason we have such a deadlock.

  I prefer judges who do not stick to an ideological agenda. I prefer 
our judges share views with mainstream America.

[[Page S2207]]

 However, I have no problem in voting in favor of some very 
conservative nominees when there is some balance on the court; there is 
Scalia on one side, maybe, and a Black or a Douglas on the other side. 
That would make a great Supreme Court. The issues would be debated.
  That is what President Clinton did, by and large. He nominated 
moderates. We forget that. If you look at an unobjective scale and look 
at middle America, the nominees of President Bush are much further to 
the right than President Clinton nominees to the left. Most of the 
people he nominated were prosecutors, law firm members. It was not a 
phalanx of legal aide lawyers and people who would tend to be more 
liberal. Even the moderates toward the end of Clinton's terms did not 
get a hearing on the Fifth Circuit.
  Mr. KENNEDY. Will the Senator yield?
  Mr. SCHUMER. I am happy to yield.
  Mr. KENNEDY. I thank the good Senator for his presentation today, 
reviewing the historical background of the record of the committee, as 
the Senator from Vermont, our chairman, Mr. Leahy has done--and he has 
been assaulted and attacked. Senator Schumer has also reviewed the 
unfairness of the treatment of individuals as a result of the 
Republican activities.
  I agree with the Senator from New York. We ought to understand what 
the Constitution asks of us; that is, have shared power with the 
Executive. We know this President has the primary responsibility, but 
it is a shared power. We ought to exercise it in a responsible way. I 
hope that will be the way in the future.
  If there is any benefit that will come from this debate and 
discussion, perhaps it is that we will have a better understanding, as 
will the American people, and we will move ahead in trying to get well-
qualified people who deserve to be there.
  I have a number of echoes that still ring in my mind about how people 
were treated. Numbers do not always define how people were treated. I 
was in the Senate when Ronnie White, who had been reported out of our 
committee, and on a Tuesday afternoon was going to be voted on at 2:15, 
the Republican caucused on Ronnie White, and without any information to 
any of the members of the Judiciary Committee, came here, after 
distorting and misrepresenting his position, and voted unanimously--
every single Republican--against him, without any notification, serious 
distorting, and misrepresentation of his outstanding record as a judge.
  Talk about fairness. This was after Senator Bond from Missouri had 
introduced him to the Judiciary Committee recommending the Judiciary 
Committee support him, and the Judiciary Committee did support him. But 
not behind closed doors, with distortion and misrepresentation, in an 
attempt to humiliate him. Fairness goes there, too, does it not?

  Also, I remember the case of Bill Lann Lee very clearly. There are 
many Horatio Alger stories about the struggle of parents who have 
sacrificed in order to give the opportunity for education to their 
children. But they have a hard time mentioning the extraordinary 
sacrifice of the parents of Bill Lann Lee.
  I remember the hearings on Bill Lann Lee. He had been an outstanding 
civil rights leader. Individuals on the opposite side of his cases came 
in and testified about his fairness and how he committed to the 
Judiciary Committee that he was prepared to uphold the law. But not 
according to the Judiciary Committee and to the majority of the 
Judiciary Committee. They refused to let him go ahead and get confirmed 
and let the President of the United States have his own person, his own 
man in this case, to be the head of the Civil Rights Division.
  It is not just numbers; it is how people are treated. I would hope we 
could get about the business in trying to find a way to work together. 
I was surprised--I don't know whether the Senator was surprised--to 
read in the newspaper, and I don't know if it is accurate, about how a 
principal Presidential adviser indicated they were prepared to take up 
what they consider a challenge by the Judiciary Committee and continue 
to nominate individuals who were going to be representative of a 
particular philosophy.
  If we are trying to talk about fairness, trying to talk about 
balance, trying to talk about quality in the Federal judiciary, I don't 
know if the Senator finds it perplexing we have representatives of the 
party talking about fairness, and at the same time principal advisers 
of the President of the United States are evidently giving reassurances 
to, in this case the Washington Post, saying to individuals: Not to 
worry; the administration will continue to support very conservative 
nominees.
  I ask unanimous consent to have this article from the Washington Post 
printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Mar. 20, 2002]

        Rove to Group: Bush to Press for Conservative Judiciary

                 (By Alan Cooperman and Amy Goldstein)

       As the Senate Judiciary Committee was voting Thursday 
     evening to reject U.S. District Judge Charles W. Pickering 
     for an appellate court position, presidential adviser Karl 
     Rove was telling an influential Christian political action 
     group that President Bush would continue to nominate 
     conservatives as federal judges.
       ``We're not going to have a pleasant day today [in the 
     Senate],'' Rove told the Family Research Council at the 
     Willard Hotel, according to a tape recording given to The 
     Washington Post by an attendee. ``. . . This is not about a 
     good man, Charles Pickering. This is about the future. This 
     is about the U.S. Supreme Court. And this is about sending 
     George W. Bush a message that `You send us somebody that is a 
     strong conservative, you're not going to get him.'
       ``Guess what?'' Rove added. ``They sent the wrong message 
     to the wrong guy.''
       In addition to sounding a defiant note on judicial 
     nominations, Rove's speech set out a broad agenda for 
     cooperation between the administration and the Christian 
     right.
       ``There'll be some times you in this room and we over at 
     the White House will find ourselves in agreement, and 
     there'll be the occasion when we don't. But we will share a 
     heck of a lot more in common than we don't. And we'll win if 
     we work together far more often than the other side wants us 
     to,'' Rove told the group of about 250 Christian political 
     activists from around the country.
       During the speech and subsequent question-and-answer 
     session, Rove promised that the white House would push 
     welfare reforms that encourage families and marriage.
       He also said the administration would try to find ways to 
     support crisis pregnancy centers that counsel women against 
     abortion. And he predicted a battle in the Senate over 
     administration-backed proposals to ban human cloning. ``The 
     other side is winning the P.R. war'' to permit laboratory 
     cloning for medical research, he said.
       Rove referred to the Senate's action on Pickering's 
     nomination as a ``judicial lynching'' and said the blocking 
     of such nominees ``needs to be the issue in every race around 
     the country for the United States Senate.''
       Senator Patrick J. Leahy (D-Vt.), chairman of the Judiciary 
     Committee, has denied that the panel is out to block Bush's 
     judicial selections, noting that it approved 42 nominees to 
     federal courts before it rejected Pickering.
       Leahy also said the panel had conducted more hearings and 
     votes on federal judgeships since Democrats assumed a 
     majority in the Senate last year than the GOP-led Senate did 
     during the entire Clinton administration.

  Mr. KENNEDY. I am interested in any reaction of the Senator.
  Mr. SCHUMER. I thank the Senator from Massachusetts for, as always, 
being right on target. The Senator makes two very good points that I 
share.
  No. 1, it seems we are supposed to remember history. The other side 
would like us to forget about everything that happened in 1998, 1999, 
and 2000 and say: Forget all that; just go forward.
  Unfortunately, we are left with the burden of going forward based on 
what happened in the past, based on the fact the bench was empty 
because there were certain people who did not meet certain criteria; 
based on the fact, as the Senator from Massachusetts mentions, there 
was not a process in certain instances--no fault of our good friend 
from Utah.
  The case of Ronnie White was one of the more appalling cases I have 
witnessed in my 22 years in the Congress, in the House and the Senate. 
It seems there is a whole new standard. What is so ironic, the second 
point the Senator from Massachusetts made, we could easily come to 
agreement if we work in a bipartisan way. Let's not fool anybody. We 
have not been consulted. We have not been asked for advice. We have not 
been talked to about where judges should be. It is, instead: Here is 
the group and you must rubberstamp them. That is not what the Founding 
Fathers intended.

[[Page S2208]]

  Most Americans would agree the President and our colleagues from the 
other side would nominate judges to the right of the mainstream, and we 
might like judges somewhat to the left of the mainstream. Doesn't it 
make sense if we consulted we would come together in the middle? It 
seems to be the view of the other side, all of a sudden--not a 
consistent view, not a view held for the last decade or two, but all of 
a sudden--unless you find a judge who has engaged in some kind of 
egregious conduct, you must approve them. I object to that and I thank 
the Senator from Massachusetts for bringing this up.
  It is perfectly fair to ask people about their judicial philosophy. 
This is the third position of our government. It is as important as any 
of the others. We do not just rubberstamp people. The only time in our 
history when there has not been this kind of debate is when both sides 
were intent on nominating moderate judges, such as in the Eisenhower 
administration. But otherwise, in the late 1960s, early 1970s, there 
were judges way to the left and people on the other side said bring it 
to the middle. That was fair. We are saying the same thing now.

  I just ask my good friend from Massachusetts who has so much 
experience, doesn't it seem logical that if we were consulted, we would 
not get everything we wanted; if there was advice as well as consent, 
that we would come up with moderate, mainstream judges--to the middle, 
that we would move them quickly, that the process would be truly 
bipartisan, instead of the hard right talking to the far hard right and 
deciding that is a compromise?
  Mr. KENNEDY. The Senator is absolutely correct. We have seen examples 
where we have worked together. I can think of the area in which I have 
been most involved, working with the administration on education 
reform. We have seen other actions out here--the bioterrorism effort, 
and just recently working together in our committee--the Senator is a 
Member--on the whole reform of the immigration system. We have a strong 
bipartisan effort. We have lines of communication. We do not get 
everything we need, but that is the way it works.
  I daresay our judiciary ought to be the No. 1 area where we are 
working together because of the key aspect, the protection of the basic 
and fundamental liberties that are enshrined in the Constitution, 
ultimately rests with the judiciary. That ought to be the prime example 
of working together. History has given us those examples.
  What we find distressing is, now, the report of Mr. Rove to a group:

       Bush to press for conservative judiciary.

  It isn't we are going to be pressing for the best qualified members 
of the judiciary. It isn't going to be the ones who can serve the 
public best. This is the kind of view that is evident within the 
administration.
  I regret that. I think the Senator has outlined, really, the way we 
should proceed. I want to give him the assurance--I know the Senator 
from New York feels this way, and we see the Presiding Officer, the 
Senator from North Carolina, a member of the Judiciary Committee--we 
all want to try to get in the courts well-qualified individuals who 
have a fundamental and core commitment to constitutional rights and 
liberties.
  I thank the Senator and appreciate his comments.
  Mr. SCHUMER. I thank the Senator from Massachusetts.
  We really hope, on our side, we can work together. We do want to be 
bipartisan. I think every time the President has reached out his hand, 
we have tried to move in the direction that brings us to the middle.
  Somehow on judicial nominations it is different. I don't know why it 
is different. Maybe my good friend from Utah would recognize why it is 
different. I don't know. But he must know that on the Judiciary it is.
  I, for one, have no litmus test at all. As I mentioned, I am willing 
to see balance on the Court. That means some judges to the right and 
some judges to the left and many in the middle; it is not all over to 
one side.
  President Bush told us he picked judges in the mold of Scalia and 
Thomas. If you look at the nine members of the Supreme Court, those are 
the two furthest to the right. One or two Scalias or Thomases, that is 
one thing. A bench of nine of them, that is not what Americans wanted 
in the election of 2000. The electorate was moderate and voted towards 
the middle. A bench filled with conservative judges is not what is in 
the mainstream of this country. It is unacceptable.
  I worry that the administration is willing to take casualties in this 
fight. They will send up waves of Scalias and Thomases. If one of them 
gets shot down, there will be another one. It is a small price to pay. 
They still win and stack the courts. I, for one, don't believe that is 
the way we should proceed.
  Our country is divided ideologically. The mainstream is right in the 
middle, as it almost always is. There are periods when it is further to 
the right or left--it is not right now. The Presidential election 
showed that.
  We had two presidential nominees, neither of whom was at the far end 
of their party--both probably in the middle of their parties--and the 
election was as close as could be. The American people were not saying 
give us people on the bench way over to the right--in the 10 percent 
most conservative; they were saying move to the middle.

  Again, there has been no consultation with us, no desire to meet us 
part of the way--as there is on education, and has to be on budget. 
Rather, the Administration sends us wave after wave of people way over 
to the right.
  It is not going to create harmony. It is not going to create comity. 
It is not going to create a full bench. And it is not going to create a 
fair bench. It is going to give many of us no choice than to vote 
``no'' more often than we would like.
  I was at the Supreme Court last week addressing the Judicial 
Conference of the United States. I spoke to Justice Rehnquist. He was 
sitting next to me and to other Judges there. I stated my message, and 
I think it must be repeated.
  Our courts are in danger of slipping out of balance. We are seeing 
conservative judicial activism erode Congress' power to enact laws that 
protect the environment and women's rights and workers' rights, just to 
name a few. Like at almost no other time in our past, we are seeing a 
finger on the scale that is subtly but surely altering this balance of 
power between Congress and the courts. It is not good for our 
Government, it is not good for the country, and it should stop.
  Moderate nominees, who are among the best lawyers to the bar--the 
best nominees the bar has to offer--are being confirmed rapidly. The 
committee has voted in favor of 42 of them in just 8 months. I can tell 
you for me, as chairman of the Subcommittee on Courts, it is a heck of 
a lot easier to rapidly confirm nominees when almost everyone agrees 
that a nominee is legally excellent and ideologically moderate. When 
issues of diversity are properly accounted for, we move forward hand in 
hand together.
  The debate in the Chamber doesn't do anything to solve the problem we 
all agree is facing our courts. I agree we have to do better. But doing 
better doesn't mean an administration that nominates without 
consultation and thinks that our job should be just to rubberstamp 
them, pass them through, or give them some kind of ethical check and 
nothing else. That is not how it is. That is not how it was. That is 
not how it is going to be.
  That leads to my final and fifth point. I think the rhetoric here 
sometimes gets out of hand. Each side has views that are firmly held. 
That is why compromise in coming to the middle is important. But 
anytime that we on this side vote against a nominee the President has 
put forward, we are accused of playing politics, or even that we are 
not voting for what we believe is right, but because some evil, 
malicious groups out there are exerting too much pressure. Groups that 
support the nominees, the Christian Coalition, for instance, they are 
great. They are exercising their constitutional right. But a group like 
the NAACP, that is against a nominee, is exerting too much pressure.
  Come on, that is not where this debate ought to be.
  How about this idea that we are holding up nominees because we have 
asked for unpublished opinions? For Judge Pickering, the vast majority 
of his

[[Page S2209]]

opinions, huge numbers, were unpublished.
  Let's take it the other way. Let's say we would not have asked for 
his opinions. Let's say we had not spent weeks reviewing them, as we 
should do with a lifetime appointment to the court of appeals. Everyone 
in this Chamber knows what would have happened. We would have been 
accused of voting against the nominee without even reviewing his 
record.

  To suggest there is something wrong with doing a thorough review of a 
nominee's record is to suggest that either we just rubberstamp 
confirmations or simply make up our minds on the basis of politics and 
party and not the record.
  The irony is, of course, that some of my friends who are leveling 
these complaints are the same folks who requested that Clinton nominees 
not just go over their records, their judicial and legal records, but 
how they voted as private citizens in statewide referenda. These are my 
same colleagues who criticize us for saying ideology is relevant. I do 
not get that.
  They want us not to review all the opinions of a nominee, but when 
the nominees were nominated before, they wanted even to know their 
private voting records.
  Last summer, getting to my conclusion here, I called for us to be 
more open and honest about how we handle judges. I said we should take 
judicial philosophy and ideology out from under the rug. I said we 
should stop playing ``gotcha'' politics and start saying what we are 
really thinking, so if one side is opposed to a judge but they don't 
want to say they are opposed to his record, they don't go look and see 
what he did 30 years ago and look for some minor, certainly forgivable 
transgression.
  If ideology didn't matter, how come most of the votes on most of the 
controversial judges, where supposedly it was something somebody did 30 
years ago--sometimes it is all the Republicans who think that 
transgression was terrible and that judge should be voted down, and the 
Democrats think, oh, no, it is fine. Then the opposite occurs, and then 
the Democrats say: Oh, that transgression is horrible.
  If the votes were evenly scattered throughout our philosophical views 
and in our party, then fine. But they aren't. We know what is going on 
here. We ought to do it out in the open.
  I am proud to say that judicial philosophy and ideology will 
influence my vote. It is not a litmus test, but it certainly is part of 
nominating and considering a judge.
  To do that, we have to investigate records and hold hearings where 
tough questions but fair questions are asked and where nominees have 
the chance to tell their side of the story.
  I chaired the first hearing on Judge Pickering. I was there for the 
second hearing. Every Senator had a chance to ask every question he or 
she wanted. Judge Pickering was given every opportunity to answer those 
questions. The process was fair, and the process worked.
  I understand there is a lot of tension around here about that vote. I 
understand that some feelings were hurt. That doesn't make me happy. I 
would like to be able to vote for every single judicial nominee who 
comes before us. But we have an awesome responsibility here. We do the 
Nation's work.
  I couldn't be more proud to be a Member of this august body. I look 
at my friends, such as the senior Senator from West Virginia, Mr. Byrd, 
and the senior Senator from Utah, Mr. Hatch, and the majority leader 
and minority leader. And I see the best the Nation has to offer--fine 
Senators, all of them. I see Senators who want to bring honor to this 
institution. As we go forward with these confirmation hearings, we need 
to do better ourselves to respect the traditions of this body.
  It is my profound hope that we will continue to hold hearings, that 
we will continue to be careful, that we will continue to fully review 
nominees' records, that we will continue being honest about why we are 
voting the way we are voting, and also that we can dampen the rhetoric 
and respect the way each of us approaches these votes.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I have been listening to my colleague. It 
has been very interesting to me. Of course, they brought up Ronnie 
White. Ronnie White was voted out of the committee. His nomination was 
at least brought to the floor where he had a vote. Both of his home-
State Senators voted against him. Under those circumstances, it is 
pretty hard to say that other Senators were acting improperly in 
supporting the home-State Senators. I can tell you right now that when 
two Senators from any State fail to return a blue slip for a district 
court nominee, that is basically the end of that district court 
nominee. If they were split, that nominee might come to the floor. I do 
not know if that is the position the current Judiciary Committee is 
taking. But at least White had a vote.
  Judge Pickering didn't even get that. I think the reason was that 
Judge Pickering would have been confirmed on the floor because he is a 
fine man. Everybody knows it.
  To bring up Bill Lann Lee, who was not a lifetime appointment, seems 
to me goes a little bit far here. I like him. He is a good man. I would 
have supported him for any other position. But he was a recess 
appointment. I predicted that one reason we couldn't support him was 
that he said he was against race-based quotas. Yet his whole experience 
in California had been built upon bringing actions against 
municipalities and other bodies on behalf of the organization he 
represented. The municipality either had to spend millions of dollars 
in defending itself, even though they probably would have won in the 
end, or they would have to settle the case. And guess what? Race-based 
quotas would be imposed upon them.
  So some of the defendants just settled the case to get rid of the 
extra expenses they did not want to go through. That is the way it is 
done.
  I predicted he would use the Civil Rights Division to do exactly 
that. I think, of course, there was more than a better case that he 
would do exactly what he did. That doesn't negate the fact that he is a 
terrific human being and somebody for whom I personally care. But we 
are talking about a volume of law.
  Again, I come back to all the screaming and shouting about how badly 
Clinton judges were treated. Reagan, the all-time champion with 382 
confirmed judges, had 6 years of a Republican Senate. Clinton had 5 
fewer, 377 judges, and with 6 years of a Republican Senate, the 
opposition party.
  Where is the argument? I have to say this: We never had 112 vacancies 
at the end of a session. We never had 95 vacancies at the end of the 
session, which is where we are today--95 vacancies.
  Let me go a little bit further. I truly do love the Senator from New 
York. We all laughed in committee because he said he loved me and I 
said I loved him. He is a fine man, and he is a very good advocate. I 
respect him. His argument is that we should go right to the middle and 
we should just appoint moderates.
  I have to tell you that if that had been the rule when President 
Clinton was President, we wouldn't have many Clinton judges on the 
bench today. They weren't exactly moderates. Some were. Some in the 
Bush administration--in fact, probably a majority will be moderate 
nominees.
  To say that you can't have a liberal on the bench, or you can't have 
a conservative on the bench, or someone in the mainstream just because 
one side or the other doesn't want him or her, I think is wrong. 
Admittedly, we have right-wing groups come in here and start demanding 
that I stop all these judges. I told them to get lost. I would like to 
see the Democrat side tell those liberal, left-wing groups to get 
lost--not that they cannot speak out in this country; of course, they 
can. But when they start character assassinations as they did with 
Judge Pickering, I think they ought to be told to get lost. Whenever 
conservative groups did it, I told them to get lost.

  The Senator from New York said the White House has not consulted with 
Democrats about judicial nominees. But I can count on the fingers of 
one hand the number of circuit court nominees of President Bush who do 
not have blue slips supporting their nominee. This goes for numerous 
States with Democrat and Republican Senators alike. Of course, Judge 
Pickering had

[[Page S2210]]

the support of his home-State Senators. There were no blue slips 
withheld in that case. Both Senators wanted Judge Pickering. I think a 
majority of the Senate wanted Judge Pickering.
  I am not sure what kind of White House consultation my colleagues 
have in mind. Surely they are not talking about veto power over all of 
President Bush's nominees regardless of whether they are from their own 
State. This would fly in the face of the committee blue slip process 
and precedents we have always had. But that seems to be what they are 
asking for.
  If the White House doesn't come up and consult with Senators who are 
not from the State that the nominees are coming from--are they are 
using that as an excuse? The White House does have an obligation to 
consult. I have told them they have to consult, and I expect them to. I 
know Judge Gonzales and his team consult with Senators who have people 
from their States.
  Are we going to go as far as Abner Mikva went? The former 
distinguished judge on the Circuit Court of Appeals for the District of 
Columbia recently wrote an article stating that he thought President 
Bush should not nominate anyone to the Supreme Court because he really 
doesn't have a mandate; he is not really the President of the United 
States. That is like saying the Defense Department shouldn't really 
operate; that we should leave it to up to the Senate Committee on Armed 
Services to solve these problems. That is how ridiculous these 
arguments get.
  The fact of the matter is that liberal Presidents generally appoint 
more liberal judges; conservative Presidents generally appoint more 
conservative judges.
  I don't think you can categorize George Bush's judicial nominees as 
purely conservative. They have been in the middle of the mainstream. 
That doesn't mean because some are conservative that they are outside 
of the mainstream. The mainstream includes from the left to the right--
reasonable people who want to do what is right, who literally are 
willing to abide by the law, and who deserve these positions.
  The Republicans didn't take the position that we just have moderates 
in the Federal judiciary when President Clinton was President. Frankly, 
if we had taken that position, we would have been excoriated like you 
couldn't believe here in the Chamber, or, in fact, anywhere.
  The fact of the matter is that all we are asking is fairness. We have 
95 vacancies. Last May 9, we had 31 Federal Circuit Court of Appeals 
vacancies.
  Today, we have 31 Federal circuit courts of appeals vacancies--a year 
later. And we have 8 of the original 11 nominees still sitting in 
committee without a hearing, some of the finest nominees I have ever 
seen, none of whom would be categorized as far right, in my opinion, 
all of whom are in the mainstream, and all of whom have been approved 
by the ABA either with a ``qualified'' or a ``well qualified'' rating, 
and some of the most important nominees in history.
  I am also compelled to respond to a severe mischaracterization that 
some of my Democratic colleagues have perpetrated about judges. They 
have repeated that they noticed their first confirmation hearing within 
minutes of reaching a reorganization resolution in July. While 
technically true, this declaration leaves out an important fact:
  The Democrats took charge of the Senate on June 5 of last year, but 
failed to hold any confirmation hearings during the entire month of 
June.
  There is simply no basis for asserting that the lack of an 
organizational resolution prevented the Judiciary Committee from 
holding confirmation hearings in June, which is precisely what my 
colleagues have implied.
  The lack of an organizational resolution did not stop other Senate 
committees from holding confirmation hearings in June. In fact, by my 
count, 9 different Senate committees under Democratic control held 16 
confirmation hearings for 44 nominees during the month of June. One of 
these committees--Veterans' Affairs--even held a markup on a pending 
nomination.
  But in the same period of time, the Judiciary Committee did not hold 
a single confirmation hearing for any judicial and executive branch 
nominees pending before us--despite the fact that some of those 
nominees had been waiting nearly 2 months.
  What's more, the lack of an organizational resolution did not prevent 
the Judiciary Committee from holding five hearings in 3 weeks on a 
variety of other issues besides pending nominations. Between June 6 and 
June 27, the committee held hearings on the Federal Bureau of 
Investigation, charitable choice, and death penalty cases. There were 
also subcommittee hearings on capital punishment and on injecting 
political ideology into the committee's process of reviewing judicial 
nominations.
  Although several members were not technically on the committee until 
the Senate reorganization was completed, there was no reason why 
Senators who were slated to become official members of the committee 
upon reorganization could not have been permitted to participate in any 
nomination hearings. This was successfully accomplished in the case of 
the confirmation hearing of Attorney General Ashcroft, which was held 
when the Senate was similarly situated in January.
  Instead, we lost the chance to move nominees in June, not because of 
nominations over reorganization, but because of the failure of the 
Democratic leadership to schedule hearings.
  So, I would hope we can get to confirming judges, rather than 
offering excuses for why they are not--and having 31 vacancies on the 
circuits.
  Mr. President, I would like to take just a few minutes to address 
some of the comments that my democratic colleagues have made about 
Judge Pickering's nomination.
  It is no secret that two very different pictures of Judge Pickering 
emerged from his confirmation battle. One picture was that of a man who 
took courageous stands against racism at times when doing so was not 
merely unpopular, but also when it put him and his family at great 
personal risk. This man endured political and professional sacrifice to 
stand up for what he believed was right. And, in his more than a decade 
on the federal bench, this man demonstrated an ability and willingness 
to follow the law even when he personally disagrees with it. This is 
the picture of Charles Pickering that I know and the picture I am 
convinced is accurate.
  The other picture of Charles Pickering that emerged was far less 
flattering. But I am just as convinced that this picture was 
groundless. It was the product of engineering by extreme left 
Washington special interest groups who are out of touch with the main 
stream and have a political axe to grind. Make no mistake about it--
these groups have their own political agenda, which is to paint 
President Bush's nominees as extremists and block them from the federal 
bench. These are the same groups who came out against General Ashcroft, 
Justice Rehnquist and even Justice David Souter, when he was nominated 
to the Supreme Court. They were all then, as they are now singing the 
parade of horribles.
  The groups are committed to changing the ground rules for the 
confirmation process. There is a new war over circuit nominees, and 
they demand that the Democrats do whatever possible to stop or slow the 
confirmation of these fine nominees. For them, the means justify the 
ends at whatever the cost--including the gross distortion of a man's 
record and character.
  The overwhelming bipartisan support we received for Judge Pickering's 
nomination from his home state of Mississippi speaks volumes about him. 
It is very telling that those who know Judge Pickering best, including 
prominent members of the African-American community in Mississippi, 
came out in droves to urge his confirmation. In contrast, those who 
most vociferously opposed his confirmation do not know him, but rather 
spent the past 7 months combing through his record for reasons to 
oppose him. They developed chain letters, mass faxes, and Washington 
position papers. Why? In the words of the leader of one liberal 
interest group, ``We think he (Judge Pickering) is an ideologue.''
  It doesn't matter to these groups that Judge Pickering had the 
qualifications, the capacity, the integrity, and the temperament to 
serve on the federal circuit court bench. He is a judge that would have 
followed the law and left the politics to the people on the circuit 
court, just as he has on the district court. But I know that is not

[[Page S2211]]

what the groups want. They want activists on the bench that support 
their political views regardless of the law. That is wrong. What 
matters to them is that Judge Pickering did not meet their litmus test 
of supporting the right causes, regardless of his demonstrated 
commitment to following the law.
  Although I am deeply troubled by the smear campaign that was waged 
against Judge Pickering, I am convinced that the accurate picture of 
Judge Pickering was the one of a man who was committed to upholding the 
law and who would have been a sterling addition to the Fifth Circuit. I 
regret that the inaccurate and unfair portrait painted by people whose 
purpose is to obscure the truth rather than to reveal it persuaded my 
Democratic colleagues to oppose his nomination.
  Of course, the defeat of Judge Pickering's nomination is significant 
for other reasons as well. He represents the first judicial nominee 
defeated in committee in over a decade--in fact, since the Democrats 
last controlled the committee.
  When the Republicans were in charge of the Judiciary Committee during 
6 years of the Clinton administration, we did not defeat a single 
nominee in committee. In fact, the only Clinton nominee who was 
defeated--and who, incidentally, lacked the support of his home state 
senators--was nevertheless granted a floor vote.
  I find it ironic that a number of my Democratic colleagues actively 
lobbied to get floor votes for Clinton nominees, yet they now have 
denied a floor vote for Judge Pickering, who has the support of both of 
his home state Senators and who would very likely be confirmed if his 
nomination received a floor vote.
  And let me talk about Judge Pickering's record. We have talked about 
ideology. The key here is that a nominee's personal or political 
opinion on social issues is irrelevant when it comes to the 
confirmation process. The real question is whether the nominee can 
follow the law.
  Last Thursday, we demonstrated that Judge Pickering has shown in his 
nearly 12 years on the federal district court bench his ability and 
willingness to follow the law.
  He has handled an estimated 4,000 to 4,500 cases, but he has been 
reversed only 26 times. This is a reversal rate of less than 1 percent. 
His reversal rate is better than the average for district court judges 
both nationwide and in the Fifth Circuit. This is a record to be proud 
of--not a reason to vote against him.
  Some of my Democratic colleagues have complained that Judge Pickering 
was reversed on well-settled principles of law in 15 cases where he was 
reversed by the Fifth Circuit in unpublished opinions. This argument is 
nonsense. Circuit courts reserve publication for the most significant 
opinions. Reversal by unpublished opinion means that the district judge 
made a run-of-the-mill mistake. In other words, nobody's perfect--not 
even federal judges. They do get reversed on occasion. The bottom line 
is that there is simply nothing remarkable about Judge Pickering's 26 
reversals.
  I suspect that many of my colleagues' misperceptions about Judge 
Pickering's record as a district judge stem from the gross distortion 
of that record by the liberal special interest groups. For example, one 
often-cited area of concern is Judge Pickering's record on Voting 
Rights Act cases. But the bottom line here is that Judge Pickering has 
decided a total of four such cases. The only one that was appealed 
involved issues pertaining solely to attorney's fees. None of the other 
three cases--Fairley, Bryant, and Morgan--was appealed, a step that one 
can reasonably expect a party to take if it is dissatisfied with the 
court's ruling. Moreover, the plaintiffs in the Fairley case--including 
Ken Fairley, former head of the Forrest County NAACP--have written a 
letter to the committee in support of Judge Pickering's nomination.

  Another case my colleagues have complained about is the Swan case. 
But there, Judge Pickering was rightly concerned that Swan's co-
defendants--one of whom had a history of racial animus and had fired a 
gun into the victims' home--got off with a relative slap on the wrist 
while Swan faced seven years' incarceration. As one legal ethics expert 
noted, ``Judge Pickering was clearly concerned that no rational basis 
had been demonstrated for the widely disparate sentencing 
recommendations in Swan. Without such a basis, justice does not appear 
to be unbiased and non-prejudiced.''
  Judge Pickering's qualifications are also reflected in his ABA 
rating, which some Members of the Committee have referred to as the 
gold standard in evaluating judicial nominees. The ABA, of course, 
rated Judge Pickering well qualified for the Fifth Circuit.
  I also find it ironic that many of the complaints that Judge 
Pickering's opponents have lodged against him pertain to events that 
occurred before he became a federal district court judge--a position 
for which he was unanimously confirmed by both this committee and the 
full Senate.
  In any event, I fear that the smear campaign we saw waged against 
Judge Pickering was only a warm-up battle for the ideological war the 
liberal interest groups are prepared to wage against any Supreme Court 
nominee that President Bush has the opportunity to appoint.
  I stood up to conservative special interest groups who tried to 
influence the committee while I was chairman, and I will continue to 
stand up to liberal special interest groups who seek to defeat 
President Bush's judicial nominees now. I urge my Democratic colleagues 
to join me in this effort.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER (Mr. Carper). The Senator from Arizona.
  Mr. KYL. Mr. President, I thank the distinguished ranking member of 
the Judiciary Committee for yielding some time to me. I think the 
points he makes are well taken.
  I would like to get back to the basic resolution that is before us. 
It is a very simple resolution that says that we should at least have 
hearings in the Judiciary Committee on the nominees for the circuit 
courts that have been pending the longest, since May 9 of last year, 
that we should at least have a hearing on those nominees before the 1-
year anniversary of their nomination.
  That is eminently reasonable. I suspect that all 100 of us will vote 
for that sense-of-the-Senate resolution.
  That is going to, then, require us to do some things to ensure that 
those hearings, in fact, can be held. I can think of no reason why 
anyone would oppose the scheduling of hearings on these eight 
distinguished nominees a year after their nomination.
  But I think the comments, primarily of the Senator from New York, 
have really put into perspective what this debate is all about. He has 
made three basic points, all of which are departures from past 
precedent. The reason this is important is because it provides the 
reasons why many Members on the other side of the aisle have supported 
the chairman of the Judiciary Committee in not holding hearings, in not 
voting on nominees, and in not allowing the full Senate, as a result, 
to vote on nominees to the circuit courts of appeals.
  One cannot argue about the qualifications of these nominees.
  So there have been three reasons posited by the Senator from New York 
as to why it is fair not to hold hearings and not to have votes on 
these nominees of the President for the circuit courts.
  The first reason is, as Senator Hatch pointed out, totally 
unprecedented. It is the notion that somehow or other the President has 
to consult with all of the Senators from the circuit before nominating 
someone to that circuit court of appeals.
  It has been traditional for the President to consult with the 
Senators from the State from which the nominee comes but not all of the 
other States. There are 13 States in the Ninth Circuit Court of Appeals 
where Arizona is. I was never consulted by President Clinton on any of 
the nominees from California or Oregon or Washington or Nevada. And I 
would not have felt the right to be consulted.
  The only one I asked to be consulted on was the nominee from Arizona. 
President Clinton did consult with me on that individual, and we 
reached an agreement on a nominee he nominated. I supported that 
person, a Democrat, appointed by President Clinton, whom I think is one 
of the finest members of the Ninth Circuit Court of Appeals. But I 
would have been shocked if he called

[[Page S2212]]

me and said: Jon, what do you think about this candidate from 
Washington State? That has never been the case.
  So for one of the Senators from New York to stand here and say that 
we are not going to move forward on these nominees until the President 
begins consulting with all of the Senators from the circuit is wrong. 
It is an abuse of power. It is not the way it has been done in the 
past, and it should not provide an excuse for us to withhold action on 
these nominees.
  Second, the Senator from New York has suggested that this is really 
about politics, that the President's nominees are too ideologically 
conservative. The Senator from New York said President Clinton 
nominated all moderates. Well, that will be news to some of my 
conservative friends who did not view all of President Clinton's 
nominees as all that moderate. Some were; some were not. I supported 
some; I did not support others.

  I guess I will not read the names here, but I look at the Ninth 
Circuit nominees and all of the ones who were confirmed since I have 
been in the Senate--1, 2, 3, 4, 5, 6, 7,8, 9, 10, 11, 12, 13--13 
circuit court judges confirmed. Some of those were liberals. And I 
supported some of those liberals, others I did not. That is all right. 
President Clinton got elected President; I did not.
  Well, President Bush got elected President. And I don't think the 
definition of ``mainstream'' by the Senator from New York is a better 
definition than the definition of the President of the United States, 
George Bush, in terms of the qualifications of judges to represent this 
country.
  I know my view of the political spectrum and that of the Senator from 
New York are very different. What he would call moderate I would 
probably call something else, and vice versa. So we are on a slippery 
slope if Senators begin to define the terms of a President's nominees 
with respect to their politics on an ideological spectrum and maintain 
that they have the right to withhold action on those nominees if they 
do not fall within what a particular Senator characterizes as 
``mainstream.''
  The Senator from New York said many of President Bush's nominees 
``suggest extreme ideological agendas.'' All right, here is my 
challenge to that Senator or any other Senator:
  What is it about John G. Roberts of Maryland, who was nominated on 
May 9, 2001, by President Bush, to the DC Circuit Court of Appeals, 
that suggests an extreme ideological agenda?
  What is it about Miguel A. Estrada of Virginia, who was nominated on 
May 9, 2001, by President Bush, to serve on the DC Circuit Court of 
Appeals, that suggests an extreme ideological agenda?
  What is it about Michael W. McConnell of Utah, who was nominated to 
the Tenth Circuit on May 9, 2001, by President Bush that suggests an 
extreme ideological agenda?
  What is it about Jeffrey S. Sutton of Ohio, who was nominated to the 
Sixth Circuit on May 9, 2001, by President Bush that suggests an 
extreme ideological agenda?
  What is it about Deborah Cook of Ohio, nominated to the Sixth Circuit 
on May 9, 2001, by President Bush that suggests an extreme ideological 
agenda?
  Or what is it about Priscilla Richman Owen of Texas, nominated to the 
Fifth Circuit on May 9, 2001, or Dennis Shedd of South Carolina or 
Terrence Boyle of North Carolina--both nominated to the Fourth Circuit 
Court of Appeals on May 9, 2001--that suggests an extreme ideological 
agenda such that they are so disqualified that we should not even hold 
a hearing on their nominations?
  There is an element of comity that this body owes to the President of 
the United States when he nominates people to the circuit courts of 
appeals to represent the people of this country. Comity at least 
requires that we have a hearing on these nominees within a decent 
period of time. Certainly, no one can argue that letting them sit for 
over a year is not plenty long enough to analyze everything there is to 
analyze about them, and then to begin the process for their 
confirmation.
  So I suggest that when the Senator from New York or my other 
colleagues on the other side say that a nominee has to pass an 
ideological test in their eyes or they are not even going to give them 
a hearing, it is time for the people of this country, and it is time 
for the news media of this country to rise up and say: That is wrong, 
and you cannot fulfill your responsibilities of providing advice and 
consent under the Constitution to the President if you are not willing 
to even consider the nominees of the President by holding a hearing a 
year after they have been nominated.
  I think when those on the other side say this isn't about 
retribution, and then immediately begin citing all of the statistics 
about how they believe some of President Clinton's nominees were 
treated unfairly, it is about retribution. In effect, they have made it 
about retribution and politics. You have to either be a moderate in 
their eyes or they have to finally feel good about getting even to such 
an extent that somehow or other the scales are balanced now, they have 
gotten their pound of flesh, they have withheld action on a sufficient 
number of nominees that now they are willing to move forward.
  I can't ascribe that motive to any of my colleagues on the other side 
of the aisle. It would be so outrageous to contemplate. But that 
appears to at least have crept into the rhetoric of some when their 
primary point about not holding hearings on President Bush's nominees 
is that they think some of Clinton's nominees were treated unfairly.
  Just how many circuit court nominees of President Clinton were 
treated unfairly in this manner? How many do we have to withhold from 
President Bush before the scales are balanced? And in any event, are 
any of them willing to stand up and say that is a justification for not 
even holding a hearing on President Bush's nominees? If so, I would 
like for them to come forward and do that.
  Let me conclude by making this point as clearly as I can: We will 
have before us this afternoon a resolution that simply says we should 
hold a hearing in the Judiciary Committee on the eight circuit court 
nominees of President Bush by May 9, 2002, before the 1-year 
anniversary of their nomination. In other words, wait a year and then 
at least have a hearing on these eight nominees. Is that too much to 
ask? I hope my colleagues will recognize that some of them have gone 
too far in attacking the President's nominees on ideological grounds 
and attacking his nominees on the basis that President Clinton was 
treated unfairly and, as a result, there is a justification for 
treating President Bush's nominees unfairly as well.
  I hope that is not the basis for inaction, and I hope the circuit 
court nominees will be treated just as fairly as the district court 
nominees have been treated and that we can get a hearing on them and 
then eventually bring them to the floor for a vote.
  The American people deserve no less. President Bush deserves no less. 
And frankly, justice in the United States requires that much.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I thank my colleague from Arizona for his 
comments. I echo those remarks, particularly in regard to the litmus 
test our colleague from New York was talking about. That is not the way 
we have confirmed judges in the last 20 years I have been here. I hope 
we are not going to come up with ideological litmus tests. If that is 
the case, we are changing the entire confirmation process.
  I hope my colleagues will step back and think: We may have a change 
in leadership in the Senate. Are we going to change the policies of 
confirmation of judges as dramatically as proposed by the Senator from 
New York? I hope not. It would be a serious mistake.
  We need to change and improve the way we handle judicial nominations, 
particularly circuit court nominations. I compliment Senator Leahy, who 
has moved through several district court nominations. President Bush 
has nominated 62 for the district court. We have confirmed 35. That is 
56 percent of President Bush's district court nominations. We have been 
moving through on those fairly quickly. I extend my compliments. We 
have made good progress.
  The real problem has been on circuit court nominations. For whatever 
reason, the Senate has not worked there. The Judiciary Committee has 
not worked. We have confirmed 7 out of 29.

[[Page S2213]]

 Unfortunately, Judge Pickering was defeated last week. So we have now 
dealt with 8 out of 29. Twenty-four percent of President Bush's circuit 
court nominees have been confirmed. That means three-fourths have not 
been confirmed. In fact, most of those individuals have not even had a 
hearing.
  Eight individuals who were nominated in May of last year have not 
even had a hearing. They are outstanding individuals, as you may see 
while I talk about some of their qualifications. My point is, we should 
treat judges fairly, whether Democrats are in control of the Senate or 
Republicans are in control and whether a Democrat or Republican is in 
the White House.

  I looked back at the last three Presidents. On circuit court 
nominees, Ronald Reagan had 95 percent of his circuit court nominees 
confirmed in his first 2 years, 19 out of 20. President Bush had 22 out 
of 23 confirmed; again, 95 percent. President Clinton, 19 out of 22 
circuit court nominees were confirmed in his first 2 years. But yet 
President Bush to date only has 7 out of 29. A majority of the 
remaining, 20 in fact, have not even had a hearing. That is not right. 
Many of those individuals were nominated almost a year ago. There is no 
good reason they have not had a hearing.
  We need to move forward. Some of these individuals are as well-
qualified as anybody you will find anywhere in the country. To think 
they were nominated in May of last year and haven't even scheduled a 
hearing makes you wonder what is going on. It is not like we haven't 
tried. I know every Republican Senator has written a letter to Senator 
Daschle and Senator Leahy saying: We want hearings on some of these 
individuals. But we haven't been successful. I think we need to treat 
these nominees fairly, regardless of who is in power, Democrats or 
Republicans, regardless of who is in the White House. I am embarrassed 
for the Senate when we have something such as this, only 7 out of 29, 
and 20 of 29 haven't even had a hearing. That is not right.
  You have individuals such as John Roberts who is nominated for the 
circuit court of appeals for the District of Columbia. He graduated 
from Harvard College, summa cum laude, in 1976; received his law degree 
magna cum laude in 1979 from Harvard Law School. He is managing editor 
of the Harvard Law Review. He has presented arguments before the U.S. 
Supreme Court 35 times. An individual in the private sector has argued 
before the Supreme Court 35 times. He is nominated to be on the 
district court for the DC Circuit Court of Appeals. I think he is 
entitled to a hearing. He is a well-qualified attorney. We have 
Democrats and Republicans alike testifying he would be an outstanding 
circuit court judge.
  Miguel Estrada, also nominated to be on the DC Circuit Court of 
Appeals. He is a partner in the DC law office of Gibson, Dunn. He has 
argued 15 cases before the U.S. Supreme Court. It just so happens he 
has a very interesting personal history. He emigrated from Honduras. He 
got his JD degree magna cum laude from Harvard Law School, and he is 
also editor of the Harvard Law Review. He has a bachelor's degree magna 
cum laude, Phi Beta Kappa from Columbia College in New York.
  These two individuals, two of the most accomplished nominees anywhere 
in the country, have yet to have a hearing. Yet they were nominated in 
May.
  The chairman of the Judiciary Committee has told me on a couple of 
occasions we will have a hearing for Miguel Estrada. We are still 
waiting. I think we have waited long enough.
  I could go through each of these individuals. Terrence Boyle, I 
remember him when he worked in the Senate. He presently is chief judge 
of the U.S. District Court for the Eastern District of North Carolina. 
He has achieved an outstanding record in that. I had hoped we would 
have a hearing for Judge Boyle.
  Michael McConnell, nominated for the U.S. District Court of Appeals 
for the Tenth Circuit, he happens to be a presidential professor at the 
University of Utah College of Law and is supported by my friend and 
colleague, former chairman of the Judiciary Committee. This fact alone 
says he ought to have a hearing.

  What happened to the tradition in the Senate where we respect 
individual Senators, members of the committee and members of 
leadership? I am still aghast at what happened last week. I cannot 
imagine what we did last week. Never before in my tenure in the Senate 
would we defeat a Republican leader's nominee. We wouldn't defeat a 
Democratic leader's nominee. It is just not done. We wouldn't defeat 
the nominee of the ranking member of the Judiciary Committee or even 
hold them up because of tradition, the fact that we want to work 
together.
  I haven't seen the respect in this institution, and that disappoints 
me. We have to have respect for individual Members. We haven't shown 
that respect, certainly when it comes to circuit court nominees.
  I could go on. There are eight outstanding individuals. President 
Bush is to be complimented on nominating several superb individuals. 
These people are well accomplished leaders in the legal profession. 
They deserve a hearing.
  One is Priscilla Owen, nominated for the Fifth Circuit. She has 
worked in Texas. She got her B.A. cum laude from Baylor University and 
graduated cum laude from Baylor Law School in 1977. I could go on and 
on.
  Mr. President, these individuals, men and women, minorities, are 
entitled to have a hearing. There are two resolutions that we have--The 
Republican resolution says they shall have a hearing by May--in other 
words, within a year of being nominated. The Democrat resolution says 
they will be handled expeditiously. I urge my colleagues to support 
both of them, and I hope they will be handled expeditiously and I hope 
all will have hearings by May.
  Let's treat these outstanding individuals like the Presidential 
nominees they are, with the respect of the office of the President in 
making these nominations. These individuals I have alluded to are to 
the circuit court. Some people have acted like this is district court 
in my State and the tradition of the Senate is I have a veto over 
anybody in the circuit court. That is not the tradition of the Senate. 
It is that individual Senators have a great deal of influence and 
advice and consent for nominations in their own State for district 
court, but not circuit court. Circuit court applies to many States.
  I am embarrassed for the Senate for the fact that we have 8 vacancies 
on the Sixth Circuit Court of Appeals--8 out of 16. Half of the court 
is vacant because 1 or 2 Senators are not happy about something that 
happened maybe years ago, so we are going to penalize all the States 
that are involved in the Sixth Circuit. That is wrong. We are holding 
up 7 nominees right now, who have yet to have a hearing, who have been 
nominated by President Bush to fill vacancies in the Sixth Circuit 
Court of Appeals.

  That is wrong. It is wrong for the President and wrong for the system 
of justice. So it needs to be remedied. I urge my colleagues, before 
people start--the press has been asking me what kind of retribution 
there is going to be. I don't want that ``that is the way you treated 
our judge, so we are going to treat your judge that way.'' I don't want 
to play that game. I want to treat nominees with respect and do it 
whether we are in the majority in the Senate or in the minority, or 
whether the President is in my party or not. I want to treat these 
nominees with respect and give them the courtesy of a hearing, without 
undue delay, and maintain the tradition of the Senate, where each 
President has been getting 90-some percent of their nominees.
  Granted, I understand the statistics game. Well, in President 
Clinton's last year, he didn't get very many. The tradition of the 
Senate is that nominees are not usually considered in great numbers in 
the last year of their term. Then if they are reelected, they get more. 
But for President Clinton, we confirmed 377 of his judges, second only 
to Ronald Reagan, for whom we confirmed 382 judges. So both of them got 
a lot of judges confirmed. Those are lifetime appointments. That is 
pretty good. President Clinton got 129 in his first 2 years and almost 
250 in his last several years.
  Now, both had a lot of judges confirmed. If you look at Bill Clinton, 
he got 90 percent of his judges in the first 2 years, including 2 
Supreme Court nominees. President Bush 1 got 93 percent of his 
confirmed in his first 2

[[Page S2214]]

years, and Ronald Reagan got 98 percent of his judges confirmed in the 
first 2 years.
  The tradition of the Senate is that we do confirm circuit and 
district judges pretty rapidly in a President's first 2 or 3 years--
maybe not quite so fast in the fourth year. Fair enough. This President 
hasn't been treated fairly, in my opinion, when it comes to circuit 
court nominees. I urge colleagues, instead of playing retribution and 
looking back at President Clinton's last year, let's do this right and 
treat everybody with respect--individual Senators as well as the 
nominees. I think if we do so, the Senate will be elevated. I think the 
treatment of some of these judges, including Judge Pickering, the 
Senate was not elevated; I think it was demeaning to the Senate. And 
the way we have treated these 20 circuit court nominees has been 
demeaning to the Senate. I hate to see that happen to a person who 
served in this institution and loves it.
  One of the most important things we can do in the Senate is the 
confirmation of lifetime appointments to the Federal bench. We need to 
do it right and this year, at least on the circuit court nominees, we 
have not been doing it right.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. How much time does the Senator need?
  Mr. SESSIONS. About 2 minutes.
  Mr. HATCH. How much time remains?
  The PRESIDING OFFICER. There are 5\1/2\ minutes remaining.
  Mr. HATCH. I have two others who need to speak also. Can the Senator 
do with 3 minutes?
  Mr. SESSIONS. I certainly can.
  Mr. HATCH. I yield 3 minutes to the Senator from Alabama.
  Mr. SESSIONS. Mr. President, it is not as if I would not have a lot 
to say about this subject, having observed it closely for a number of 
years. Let me say one thing about the complaint --and this is very 
important--that President Clinton's nominees were not fairly treated: 
President Clinton had 377 judges confirmed. He had one judge voted down 
by the Senate--only one judge voted down. When he left office, there 
were 41 judges not yet confirmed who had been nominated. There were 41 
left pending.
  When former President Bush left office in 1991, he had 54 judges 
pending and not confirmed. There were 54 when he left office. When 
President Clinton left office, he had only 41, and only one of his 
nominees had been voted down by this Senate. The reason he was treated 
fairly is because the chairman of the Judiciary Committee at that time, 
Orrin Hatch, treated his nominees fairly. He moved those nominees 
forward. I voted for 95-plus percent of them. There were many liberals 
in that group. Very few of the nominees were held up.
  There is a tradition here--the blue slip policy--that if a home State 
Senator objects to a nominee, they can hold him up. That is respected. 
The Democrats now come in and say this is a bad policy and they want to 
fix it. No, they want to give even more power. They are proposing 
regulations that would give a historic increase in the power of one 
Senator to block nominees.
  We have a situation in which we are now in a crisis. There are 100 
vacancies in the Federal court. Seventeen of the Federal circuit court 
vacancies have been declared judicial emergencies by the Administrative 
Office of the Courts. Fifty percent of the seats on the Sixth Circuit, 
8 out of 16, are vacant. Of the seven nominees, none have had a 
hearing.
  In January of 1998, when there were 82 Federal vacancies, the now 
chairman of the committee, Senator Leahy, stated:
  Any week in which the Senate does not confirm three judges, the 
Senate is failing to address the vacancy crisis. There were 82; there 
are 100 now. Since January of 2000, President Bush has only had 7 of 29 
circuit court nominations he submitted confirmed. One of those 
confirmed was in the first batch he sent up, and an excellent group 
they were. There was a nomination of President Clinton that had not 
been confirmed, an African American.
  President Bush resubmitted his name in a historic effort to reach 
bipartisanship here in the Senate. He has been a fair President. He 
submitted judges of utmost quality. If we need to improve the process, 
we need to look no further than asking how Senator Hatch conducted the 
committee when he was chairman.
  The PRESIDING OFFICER. The Senator's time is up.
  Who yields time?
  Mr. HATCH. Mr. President, I 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.
  Mr. REID. Mr. President, how much time remains with the majority on 
this amendment?
  The PRESIDING OFFICER. Approximately 30 minutes.
  Mr. REID. And how much time remains for the minority?
  The PRESIDING OFFICER. Time has expired.
  Mr. REID. Mr. President, I ask my friend from Utah, are there 
speakers on his side who wish to be heard?
  Mr. HATCH. I know Senator Hutchison wishes to speak, and I also 
believe Senator Brownback.
  Mr. REID. Does the Senator know how much time they wish?
  Mrs. HUTCHISON. Mr. President, if I may have up to 5 minutes or 3 
minutes, if that is more helpful.
  Mr. REID. On behalf of Senator Leahy, I will be happy to extend the 
Senator from Texas 6 minutes.
  Mr. HATCH. I am very grateful for the graciousness of the assistant 
majority leader. If we can have 5 minutes for the distinguished Senator 
from Kansas, I think those are the last two. I presume the leader may 
want to say a word or two.
  Mr. REID. Mr. President, on behalf of Senator Leahy, I extend 5 
minutes to the Senator from Kansas, Mr. Brownback.
  Mr. HATCH. I thank my colleague.
  The PRESIDING OFFICER. The Senator from Texas is recognized for 6 
minutes.
  Mrs. HUTCHISON. I thank the Chair. Mr. President, I thank Senator 
Leahy and Senator Reid for allowing me to speak. I did not know the 
time had expired. I very much want to make a statement on behalf of 
Priscilla Owen, the supreme court justice from Texas.
  I rise in support of Senator Lott's amendment calling on the 
Judiciary Committee to hold hearings on the U.S. circuit courts of 
appeals nominees who have been in the committee since May 9 of last 
year.
  In fact, 7 of the President's 30 circuit court judges have been 
confirmed. We will have a judicial emergency across our Nation if the 
Senate continues to delay the confirmation of these fine men and women.
  I was concerned when I saw the Wall Street Journal report last Friday 
that some Members of the Senate may target the nomination of Justice 
Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit. In 
fact, the Committee on the Judiciary in the Senate should take swift 
action on her nomination, particularly in light of the fact that Judge 
Owen was among the group of original 11 judicial nominees announced by 
President Bush on May 9 of last year.
  Justice Owen's stellar academic achievements and professional 
experience are remarkable. She earned a cum laude bachelor of arts 
degree from Baylor University. She graduated cum laude from Baylor Law 
School in 1977. When she took the Texas bar exam, which is one of the 
hardest bar exams in the Nation, she came in first. She earned the very 
highest score on the Texas bar exam that year.
  Prior to her election to the Texas Supreme Court in 1994, she was a 
partner in the Texas law firm of Andrews & Kurth, where she practiced 
commercial litigation for 17 years.

  Justice Owen has delivered exemplary service on the Texas Supreme 
Court, as affirmed by receiving positive endorsements from every major 
newspaper in Texas during her successful reelection bid in 2000.
  Justice Owen enjoys bipartisan support, and the American Bar 
Association's Standing Committee on the Federal Judiciary has 
unanimously voted Justice Owen well qualified.
  Filling judicial vacancies is a critical duty of the Senate. I hope 
we will be

[[Page S2215]]

able to move forward. I have asked the Judiciary Committee to let us 
confirm three of the four U.S. attorneys for the State of Texas. The 
State of Texas has four judicial districts. One of our U.S. attorneys 
has been confirmed, but three U.S. attorneys remain unconfirmed. So we 
have appointed leaders in those offices where we really need to have 
permanent leaders, at least a permanent leader during this term, who 
will be able to lead the office and organize it and make sure we are 
hiring and staffing the offices in these important districts.
  One of those has the largest caseload in the United States, the 
Southern District of Texas. We need to have the prosecutors on board. 
We need to make sure the U.S. attorney who is going to run the office 
is setting the priorities for those offices. We know that our border 
districts, both the Western and Southern Districts, are the busiest 
districts in America.
  I ask that our U.S. attorneys in three of the four Texas districts be 
confirmed immediately. I had hoped we would do it before the recess 
because these three people are waiting and ready to go. All three of 
them are in Government now. They are not in private practice that has 
to be tied up. They are assistant U.S. attorneys and one is a 
magistrate. They could make the moves swiftly and begin to lead these 
offices.
  I ask the Judiciary Committee, with all due respect, to please 
expedite these nominees for U.S. attorney, particularly with Justice 
Priscilla Owen, who is a personal friend of mine, who I know to be of 
the very highest caliber. Having been appointed May 9, 2001, and not 
yet having a hearing I think is a pretty difficult situation. She is so 
well regarded by everyone who has appeared before her in court or has 
practiced law with her.
  I ask that we have a fair hearing on Justice Owen and that we be able 
to go forward with our three U.S. attorneys and Justice Priscilla Owen 
on an expedited basis.
  I thank the Chair, and I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill 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.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I love reading Lewis Carroll. I remember 
Lewis Carroll and ``Alice in Wonderland.'' When I hear the descriptions 
of history today and listen to some of the discussion in the Senate, it 
brings me back to when I was a child. I extend my appreciation to my 
colleagues on the other side for livening our more serious times with a 
little bit of fiction.
  They talk about how terrible it is we have some people--actually 
several of whom do not have blue slips--who have been here for several 
months and we have not had a hearing even though they know some of the 
blue slips are not in. We will be, as we go along, scheduling hearings, 
as compared to people who did have blue slips in when the Republicans 
were in charge. I think of Helene White. She waited 1,454 days. I do 
not recall a single Member of the Republican Party saying should she 
not at least have a hearing; even if we vote her down, should she not 
at least have a hearing. She did not even have a hearing or a vote in 
the committee; 1,454 days, not a word.
  We have seen the crocodile tears today. Even though we are moving 
much faster than the Republicans ever did when there was a Democratic 
President, we see these crocodile tears for people who have been 
waiting a month or 2 months or even 3 months. No recognition of course 
that for some of that time the Republicans held the Senate majority and 
for some of that time they delayed the reorganization of the Senate and 
no recognition of the numbers of vacancies and problems they left for 
us to try to remedy. But 1,454 days?
  I look at the other qualified nominees we had to wait for. There was 
another one, Fifth Circuit. H. Alston Johnson waited 602 days, no 
hearing. There was James Duffy, Ninth Circuit, 546 days, no hearing. 
And Kathleen McCree Lewis, extraordinarily competent attorney, daughter 
of one of the most respected solicitors general ever in this country, 
she waited 455 days and never received a hearing. There was Kent Markus 
of the Sixth Circuit who waited 309 days under the Republicans and 
never got a hearing. And Robert Cindrich of the Third Circuit who never 
received a hearing in over 300 days.
  Then there were the nominations that were held up without a hearing 
such as Judge James Beaty who waited 1,033 days, no hearing. James 
Wynn, Fourth Circuit, 497 days, no hearing. Enrique Moreno, Fifth 
Circuit, waited 455 days, never got a hearing. Jorge Rangel, the Fifth 
Circuit, 454 days, never received a hearing.
  Allen Snyder, the D.C. Circuit; now I will give them credit, he 
waited 449 days and finally did get a hearing. Of course, they never 
brought it to a vote in the committee, but he did receive a hearing. He 
and Bonnie Campbell, the former Iowa Attorney General had hearings but 
never were on the Committee agenda for a vote.
  So as I say, I enjoy fiction as much as the next person. I heard a 
great deal of it, along with the crocodile tears. It did enliven an 
otherwise slow-moving day.
  On the one hand I know there are a number of Republicans who do want 
judicial nominees to go forward. I have had a dozen or more Republican 
Senators come to me and explain the situation they had in their State 
or their circuit with a judge they needed at home. I think in virtually 
every one of those cases, certainly in most of them, within a very few 
weeks, we had the hearings on those judges. They are all Republicans. 
We held hearings on them. They cooperated in bringing them forward. We 
put them on the Committee agenda and we voted them out, put them on the 
Executive Calendar and the Senate confirmed them and every single 
Democrat voted for them--over 40 judges. They voted for them, and they 
got through.
  I remember shortly after the shift in majority last summer when we 
had nominations pending. We came to the August recess. Normally what we 
do by unanimous consent is keep the nominations here. The Republican 
leader said and objected and by Senate rule then all had to go back to 
the White House. Although we tried to keep them here, he objected. I 
was put in a bind and had no nominees whatever pending, even though I 
still held 2 days of hearings in the August recess in anticipation of 
the names coming back.
  I got criticized by the Republicans for holding hearings during the 
August recess. Members get criticized for not holding hearings 
immediately; Members get criticized for holding hearings. One 
Republican--one Republican--showed up for 1 day of the 2-day hearings 
on President Bush's nominees and we got the nominees through.
  I am looking forward to see where we are by July 10 of this year. 
That will be 1 year to the day from the time I had a fully organized 
committee and could start hearings. We held a hearing on judicial 
nominees, including a court of appeals nominee the very next day on 
July 11.
  Incidentally, instead of going--as my friends on the Republican 
side--month after month after month after month after month after month 
without even holding a hearing on President Clinton's nominees, within 
10 minutes of the time the Senate adopted a resolution reorganizing, I 
noticed the first set of hearings. They were on the calendar within a 
few weeks thereafter, notwithstanding the fact that up until July there 
was not a single hearing on any judge.
  Democrats were not in charge from the end of January until June and 
into July. It was July when we took over a committees and had assigned 
members. The Republicans while in charge did not hold a single hearing. 
Ten minutes after the Senate reorganized, we started the process to 
hold hearings.
  I mentioned what happened in the past not to say this should be tit 
for tat, by any means. I don't believe in that. The Republicans for 6 
years under President Clinton were delaying, stopping hearings and not 
even allowing nominees to have hearings and not allowing them to have 
votes in the committee. And I knew if they had a vote in Committee they 
could be voted down and that would have been the end of it. If they 
vote them up, they come to the floor. That has been the precedent and 
practice of the Committee. My concern

[[Page S2216]]

was that they would not even give the nominees hearings, scores of 
nominees.
  Sadly, we did have one judge who they voted through the committee 
twice, and then on a party-line vote voted him down on the floor, 
including Senators who voted for him in the committee who then voted 
him down on the floor. That was done without warning, without notice 
and on the first party-line vote on the Senate floor to defeat a 
judicial nominee I can remember. Even with the other controversial 
nominations of the last several years, such as the nomination of Judge 
Bork to the Supreme Court, some Democrats voted for him and some 
Republicans against.
  I do not believe in tit for tat and have not engaged in pay back. I 
have been here 27 years, several times in the majority and several 
times in the minority. I believe we should go forward. That is why I 
have been moving much faster on judges than the Republicans ever did 
for President Clinton.
  I intend to continue to move faster. We set up a process. When we 
have a hearing, we have at least one court of appeals judge, something 
not consistently done during the time the Republicans were in charge. I 
intend to do that.

  They can try to change what the record is. They can try to change the 
history.
  I am stating what I intend to do. We are moving to hold more hearings 
than they did. We are moving faster on confirmations than the 
Republicans ever did for President Clinton. I am not going to put us 
back to the kind of thing they did to President Clinton. Ultimately, it 
damages the independence of the Judiciary.
  However, I would like to see at least a modicum of cooperation from 
the White House. If they send up judges from a circuit or State where 
they have not sought any consensus from the Senators from that State, 
of course they will have difficulty. I have been here with six 
Presidents from both parties. Every one of those Presidents consulted 
with Senators from the State where the judges came from. That does not 
mean Senators can nominate the judges; the President nominates judges. 
But they sought consensus first. When they did this, they always went 
through.
  I have already voted for some 40 conservative Republican nominees as 
judges from President Bush. I have voted for more than 120 of the 
President's executive branch nominees in the Judiciary Committee, 
ranging from U.S. attorneys to senior Justice Department officials. I 
assume the judicial nominations that we have considered were 
Republicans, and I assume conservative Republicans; I voted for all but 
one of them so far.
  However, there has to be consensus. And people that are not 
ideologues; people who will enforce and apply the laws and not try to 
remake them, and people who will instill fairness in their courtrooms 
and those nominees I have always supported, not people who will 
legislate and make laws--that is our job. We may do it poorly, but that 
is our job.
  This year we were talking about cooperation. Senator Grassley is one 
of the most respected members of the Senate Judiciary Committee, former 
chairman of the Finance Committee. I served with him both on the 
Judiciary Committee and the Agriculture Committee for a quarter of a 
century. He asked if we could proceed with Judge Melloy of Iowa to the 
Eighth Circuit. In the past, Republicans had held up judges from Iowa. 
I thought Senator Grassley made a good case. I told him I would 
proceed, as soon as we came back in session this year. And I did.
  We have also held hearings this year on Judge Pickering and Judge 
Smith at the request of Senators Lott and Specter. Senator Enzi asked 
for a hearing on Terrence O'Brien of Wyoming to the Tenth Circuit. We 
moved as quickly as we could and held his hearing this week. So the 
four Court of Appeals nominees on whom we have had hearings this year 
were each at the request of a Republican Senator.
  Of the 48 judicial nominations on which we have had hearings --for 
those who think this is partisan--25 came from States with no Democrats 
in the Senate and 12 came from States with one Republican Senator. So 
37 of the 48 nominees were basically from Republican States. We moved 
forward. That is the bipartisanship I want. By the way, the other 11 
are not all from States with two Democratic Senators. Far from it. The 
remaining 11 include four nominees to federal courts in the District of 
Columbia and among them was the former Republican Chief Counsel of the 
Senate Judiciary Committee for Senator Hatch.
  It is difficult and takes a certain amount of time to do this, but 
Senators often ask to move right away on a nomination, and I try to be 
accommodating. But when Senators then come on the floor and say we are 
not moving fast enough on somebody else well, we can only do so many.

  Only 1 of over 160 nominees before the Judiciary Committee over the 
last nine months has been voted down. When people ask: Why aren't we 
moving faster and doing more? Part of the answer is that it took 4 days 
over several weeks to have hearings and a vote on that one 
controversial nominee. In those 4 days, let alone the hours and hours 
and days of preparation, we could have gotten a dozen judges through. I 
dare say that we will spend more time in the debate this afternoon than 
we have debating the 14 judges confirmed so far this year.
  I inherited a vast number of judicial vacancies, including 
longstanding problems, especially political problems. I am doing my 
best to change that. I am doing my best to move forward.
  I urged that we get rid of the secret holds and make blue slips 
public. And now we finally have. Republicans did not do that when they 
were in the majority. I have urged the Rules Committee to take the 
position, if the Democrats are in majority next year, to divide the 
budget 50/50. I have had Republicans chair portions of hearings this 
year and have reported bills introduced by Republican Senators. These 
things did not occur in the recent past.
  If we stop the partisanship and the confrontational tactics of last 
year and this last week and if we show cooperation, if the White House 
got involved and did those things, we could speed this up. Consult and 
work with Senators--we will go forward faster.
  The President, for whom I have great respect, has had an enormous 
amount on his plate since September 11. I understand. However, there 
are some, unfortunately, who advise him who come with the idea they can 
only have judges they have signed off on by particular special interest 
groups. Then there will be a confrontational battle. It should not be 
that way.
  Check how it was done under the last six Presidents with whom I have 
served. Find out how it was done. It was done by trying to work 
together. If we do that, maybe things were work more smoothly. Instead, 
the President's key political adviser in the White House appeared 
before an ideological advocacy group last week and committed--actually, 
recommitted--the administration to selecting judicial nominees to 
reflect a hard right ideology, an ends-oriented judicial 
philosophy. That is unfortunate. Can you imagine if Bill Clinton had 
gone before a group and said: I am only going to select judicial 
nominees to reflect a hard left ideology, and an ends-oriented judicial 
philosophy? You thought some had to wait 1,000 days to even have a 
hearing or were denied a hearing--can you imagine what would have 
happened if the Clinton administration had done that? It is wrong when 
the Bush administration does that.

  All that says is, if that person is confirmed and if you are a 
litigant before that judge, basically what the President's political 
adviser was saying is, unless you reflect a hard right ideology and an 
ends-oriented judicial philosophy, forget about coming before this 
judge because you are not going to have fair treatment.
  People ask me if I have a litmus test. I sure do. My litmus test has 
been the same with the six Presidents with whom I served, and I voted 
against Democratic nominees when I believed they didn't follow this 
litmus test. That is, if somebody comes before that judge, whether they 
are conservative, liberal, rich, poor, white, black, Republican, 
Democrat, north, south, wherever they are from, plaintiff or 
defendant--they can look at that judge and say: Whatever happens in 
this case, I know I have had a fair judge. That is my one litmus test.
  When the Presidential adviser actually goes before a political 
advocacy

[[Page S2217]]

group and says we are not going to do that, we have to have nominees 
who reflect a hard right ideology and an ends-oriented judicial 
philosophy, that is wrong. That is wrong.
  Actually, what that tells me is that rather than succumb to a notion 
of advice and rubberstamp, we had better do what the Constitution says, 
advice and consent, and go through the process carefully.
  I say, again, we are scheduling hearings on judicial nominations and 
have continued to schedule hearings in spite of the unfair criticism 
because I do want to get through as many good judges as possible and 
fill as many of the vacancies I inherited as fast as possible. I will 
consider a number of factors: Consensus of support for the nominee, the 
needs of the court for which he was nominated, and the interests of the 
home State Senators.
  I have served with 270 Senators, I believe, since I have been here. I 
have found more and more how important it is to rely on the views of 
home State Senators, Republican and Democratic alike.
  Mr. President, how much time remains to the Senator from Vermont?
  The PRESIDING OFFICER (Mr. Reed). The Senator from Vermont has 
approximately 8 minutes remaining.
  Mr. LEAHY. I have tried, again, to include at hearings judges 
Senators have asked for in both parties, including the court of appeals 
nominees, including hearings this year. I attempted to comply with the 
requests of Senators Grassley, Lott, Specter, and Enzi. We did that.
  One was voted down. I know the Republican leader, who has been my 
friend for years, was disappointed at the committee vote on the 
nomination of Judge Charles Pickering. He argued strongly for the 
judge, as he should. The Senator from Kentucky, Mr. McConnell, argued 
strongly for him and gave an excellent argument for him before the 
committee, as did the Senator from Ohio, Mr. DeWine.
  I tried to afford Judge Pickering--who, incidentally, still has a 
lifetime tenure as a Federal judge--every courtesy. I extended the 
time. I had a second hearing. I extended the time for the vote. I was 
willing to do all that.
  But I still have to decide how I vote. I remember for a Democratic 
President and a nominee he very much wanted, I voted against him for 
some of the same reasons, the exact same reasons, in fact, that I voted 
against Judge Pickering. He was voted down in the committee--just as 
Judge Pickering was, and that was the end of it.
  I do not want to go back to the situation where almost a third of 
President Clinton's court of appeals nominees waited more than 300 days 
from nomination to confirmation, an average of 441 days for these 
individuals; nearly a quarter waited more than a year, 20 percent 
waited more than 500 days, 6 waited more than 700 days, 2 waited more 
than 1,000 days, and one waited more than 4 years--if they got hearings 
at all.
  Judge Helene White of Michigan waited more than 4 years. She never 
got a hearing. In fact, 56 percent of President Clinton's circuit court 
nominees in the last Congress, nominated or renominated in 1999-2000, 
were not acted upon by the Judiciary Committee. I am trying to repair 
that damage.
  That is why we are moving forward--we are moving forward as quickly 
as we can, and I will continue to do that.
  No matter what is said on the other side, no matter how much things 
are taken out of context, no matter how much fiction we hear on the 
floor from that side, I will move them forward.
  Mr. President, how much time is remaining?
  The PRESIDING OFFICER. The Senator from Vermont controls 
approximately 4 minutes 50 seconds. The time of the Senator from Utah 
has expired.
  Mr. LEAHY. I understand some of my time has already been given to the 
Republican side previously; is that correct?
  The PRESIDING OFFICER. Five minutes has been offered to the Senator 
from Kansas, Mr. Brownback.
  Mr. LEAHY. I believe we also gave time to the Senator from Texas, did 
we not?
  The PRESIDING OFFICER. She has already consumed that time.
  Mr. LEAHY. I tried to help, just to be fair. Let me say this, in the 
remaining 3 minutes.
  It doesn't have to be this way. We are moving far more rapidly than 
the Republicans did when they were in charge and President Clinton was 
President.
  We have had a lot that has gone on in the past few months. I have not 
used the events and aftermath of September 11 as an excuse but have 
instead continued to hold hearings and votes on judicial nominees. Some 
of the Republican special interest groups pooh-pooh the fact that we 
even would refer to the events of September 11. They allow it as a 
justification for many things and an excuse for everybody else but not 
for the Judiciary Committee. Well, we have not made excuses. Instead, 
we build a good record.

  We actually had to put together an antiterrorism bill during that 
time, which we did, one which the President certainly felt good about. 
He praised me and Senator Hatch for our work on that.
  We had to do that. We had this building that we are in right now 
emptied because of an anthrax scare. Most of our staffs, Republican and 
Democratic, are in the Dirksen and Hart Buildings. That was vacated for 
a period of time because of anthrax. The Hart Building was vacated for 
a very considerable period of time.
  I was one of those who received an anthrax letter designed to kill 
me, as was Senator Daschle. Me and my staff--it turns out there was 
enough anthrax to kill an awful lot more people than that. So this has 
not been a usual year.
  But as I pointed out in the charts earlier, in the 9 months the 
Democrats have controlled this committee, we have done more than during 
any comparable period during the time when the Republicans controlled 
the committee.
  I am assuming--and I pray--this country will not face something 
similar to September 11 again. I assume and I pray that our Capitol 
will not face something like that again.
  I take a moment to applaud the brave men and women of our Capitol 
Police and the work of our Secretary of the Senate and Sergeant at Arms 
in protecting us up here.
  I have talked with the White House about one simple procedure they 
could do without giving up any of their rights or any of their 
privileges. One simple procedure they could do, which would take 4 or 5 
weeks off many judicial nominations. They could potentially be able to 
go to hearing 4, 5, or 6 weeks faster if the White House would simply 
speeding up the process of getting all the paperwork and the reviews 
done and getting them up here.
  Those are things that can be done.
  Mr. President, how much time remains?
  The PRESIDING OFFICER. Forty seconds.
  Mr. LEAHY. Mr. President, this has been a good debate. I might ask 
the Senate to pass a resolution that just said very simply the 
Democratic majority will be required to go at the same pace that the 
Republican majority did under President Clinton. But I have a feeling, 
if we did that, President Bush would be very upset because I have a 
feeling he does not want us to go back to the procedures used when his 
party controlled the Senate. We will not.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. HATCH. Mr. President, I ask unanimous consent to take 4 minutes 
of the leader's time.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEAHY. Mr. President, I am going to object. I will tell you why. 
We have given more than that amount of time. If somebody had told me 
they wanted to, I would have given time from my own time. We have 
already given the time.
  Mr. HATCH. How about 2 minutes of leader's time? Would you be 
gracious enough for that?
  Mr. LEAHY. If the leader wants to, of course, I will yield to him.
  The PRESIDING OFFICER. Does the Senator from Vermont object?
  Mr. LEAHY. Yes.
  The PRESIDING OFFICER. Objection is heard.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, let me rephrase my question. As ranking 
member of the Judiciary Committee, I am

[[Page S2218]]

asking my colleague to consent to 2 minutes of the leader's time to be 
used by me. I don't think he would be totally displeased with what I 
have to say.
  Mr. LEAHY. Would I then have 2 minutes available to me if I wish to 
use it?
  Mr. HATCH. I agree to that.
  Mr. LEAHY. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I personally thank the distinguished 
chairman the Judiciary Committee for doing the job he is doing on 
district court nominees. The problem here is not just reporting 
nominees--although we think more should be approved--it is 31 circuit 
court vacancies. A number of them are judicial emergencies, as defined 
by the Administrative Office of the Courts.
  But I have listened to my colleague's comments about holding hearings 
when Senators have asked him to do so. I have been patient for many 
months, but I do believe I have to say this today. I am Ranking Member 
of the Judiciary Committee. It was just there 2 days ago when one of my 
judges was given a hearing, Professor Paul Cassell. His nomination had 
been pending since June of last year. I don't understand waiting this 
long. And the second judge nominated for a spot in my home state of 
Utah, Michael McConnell, has not had a hearing even though I have been 
promised one. I have requested at least 15 times for these two to get 
hearings, to be marked up in committee, and to be brought to the floor. 
Michael McConnell's nomination probably enjoys the widest and most 
vociferous support of legal scholars from all across the political 
spectrum--Democrats and Republicans of any currently pending nominee.
  I would like to have the courtesy extended to me that I extended to 
the distinguished Chairman when he was the Ranking Member. I believe it 
is time for me to raise this issue because I have been very upset that 
this hasn't happened.
  Last, but not least, keep in mind--everybody listening to this 
debate--that the Senate confirmed 377 Clinton judges, which is only 5 
fewer than the all-time champion, Ronald Reagan, who got 382 judges 
confirmed. And both had 6 years of a Republican Senate--which was the 
opposite party for President Clinton and the allied party for President 
Reagan. Both got essentially the same number of judges. In fact, 
Clinton would have had more had it not been for Democratic holds and 
objections.

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, as I said earlier, we will continue to move 
at a faster pace on the nominees for President Bush than the 
Republicans ever did with nominees of President Clinton. I will 
continue to move at a faster pace for them. I will continue to try to 
overcome the objections to hearings on Senator Hatch's nominees, and we 
will have a hearing.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
3040 offered by Senator Reid of Nevada.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The Senator from Vermont asked for the yeas 
and nays.
  Mr. HATCH. I suggest the absence of a quorum, Mr. President, until 
the minority leader arrives.
  The PRESIDING OFFICER. The Chair has to determine if there is a 
sufficient second for the yeas and nays.
  Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. HATCH. 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. LOTT. 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. LOTT. Mr. President, I thank Senator Hatch for trying to put in 
the quorum so I would have an opportunity to make some very brief 
remarks. I hope everybody understands that was what was going on--to 
give me a chance to be here and just wrap up some of what needs to be 
pointed out again before we get to a vote.
  We have a real problem in the Senate. I think it could be a growing 
problem. We are very concerned about the nominees who are being moved 
and those who are not being moved; and, more specifically, the fact 
that the first eight circuit court judges have not been moved, have not 
been voted on, and, in fact, have not even had a hearing. I believe 
that is accurate. The first eight, to go back to May 9, 2001, an 
outstanding group of nominees, men and women and minorities, have not 
had any opportunity to make their case, to be voted on in the Senate 
Judiciary Committee, and be voted on in this Chamber.
  That is what our resolution says. That is all it says. This is not a 
quantum leap, saying you have to have a hearing, you have to vote, you 
have to bring it to the floor, and you have to get it done. But it does 
say that in the interest of administration of justice, the Judiciary 
Committee shall hold hearings at least on the nominees submitted by the 
President on May 9, 2001, by May 9, 2002.
  That seems like a very small step, to move toward some progress being 
made and helping to begin to cure some very frayed feelings about the 
way the Judiciary Committee acted with regard to Judge Pickering. But 
moving beyond that and moving into the broader sense, one judge will 
not this session make. But this pattern is a major problem.
  Conversely, the other resolution just says that the Judiciary 
Committee should move forward expeditiously on these nominees. Goodness 
gracious, that is not saying very much, it doesn't appear to me. I hope 
they will be moving forward expeditiously.
  But what does it mean? Does it mean they are going to get a hearing? 
Does it mean it is going to get some actual result? No.
  That is basically the difference. One resolution says that these 
outstanding nominees--I will not list their names because I am sure 
they have been talked about individually and collectively--should at 
least have a hearing by May 9. The other resolution says it should be 
considered expeditiously.
  The point is, though, to highlight this issue, this will not be the 
last resolution in this area, unless we begin to see some fair 
progress. There will be others. And they perhaps will be more pointed.
  But it goes to the much bigger question of how we are going to go 
through the rest of this session, how these nominees are going to be 
treated, and, as a matter of fact, how we are going to act on 
legislation.
  I urge my colleagues to vote on both sides of the aisle for the 
resolution that would lead to results and that is the one that calls 
for hearings by the specified date of May 9, 2002.

  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. Mr. President, I can certainly appreciate the 
frustration expressed by some of our colleagues. We have been there. We 
know how frustrating it is to have judges who are not given the time 
and attention, and the fair consideration they deserve. Because we have 
experienced that all too often while we were in the minority.
  What we have attempted to do is respond to that frustration by doing 
what we have said we were going to do from the very beginning, that we 
were going to treat judges fairly, we were going to try to do as much 
as we could to move them quickly. And we believe we have done that.
  I do not recall a time when our Republican colleagues ever agreed to 
hold at least one hearing on a circuit court judge with every group of 
district court judges receiving hearings. But that is exactly what our 
chairman of the Judiciary Committee has committed to do.
  I will look at the numbers, and we can compare statistics all day 
long, but all one has to do is look at the bottom line. We have 
exceeded their record in many ways. In 9 months, we have confirmed more 
judges than the Republicans confirmed in President Reagan's first 
year--12 months. We have confirmed more circuit court judges already 
this year than Republicans did in

[[Page S2219]]

1996 when they confirmed zero circuit court judges. But we can compare 
these back and forth. What I am simply prepared to do today--as you 
have heard Senator Leahy and members of our committee say on so many 
occasions--is to say, we are going to deal with these judges fairly and 
expeditiously. I think our record shows that.
  I thank Senator Leahy for his leadership, for the commitment he has 
made, and for the diligence he has shown in getting us to this point.
  Forty-two judges have been confirmed; 7 circuit court judges have 
already been confirmed. What Senator Leahy and the Judiciary Committee 
are now saying is, we will improve upon that in the coming weeks and 
months. When you look at what we will have been able to do by the end 
of this session, I think everyone will be able to say, without 
equivocation: You have done a good job.
  That is what we are committing to do. That is what our resolution 
says. That is why I believe, very strongly, that supporting the 
Democratic resolution is, again, supporting the clear intent of our 
caucus and of this Senate that these nominees are going to get fair 
treatment. We are determined to do that. And we will demonstrate that 
with each passing week.
  I yield the floor.


                       Vote On Amendment No. 3040

  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
3040. The yeas and nays have been ordered. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Wyoming (Mr. Enzi) and 
the Senator from Alaska (Mr. Stevens) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 97, nays 1, as follows:

                      [Rollcall Vote No. 56 Leg.]

                                YEAS--97

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                                NAYS--1

       
     Nelson (NE)
       

                             NOT VOTING--2

     Enzi
     Stevens
       
  The amendment (No. 3040) was agreed to.


                       Vote On Amendment No. 3033

  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
3033 offered by the Republican leader.
  Mr. HATCH. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Wyoming (Mr. Enzi) and 
the Senator from Alaska (Mr. Stevens) are necessarily absent.
  The PRESIDING OFFICER (Mr. Johnson). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 47, nays 51, as follows:

                      [Rollcall Vote No. 57 Leg.]

                                YEAS--47

     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Cochran
     Collins
     Craig
     Crapo
     DeWine
     Domenici
     Ensign
     Fitzgerald
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--51

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     Cleland
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--2

     Enzi
     Stevens
       
  The amendment (No. 3033) was rejected.
  Mr. DASCHLE. I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. DASCHLE. Mr. President, we are currently consulting about the 
remainder of the day. It is fair to say Senators should expect 
additional rollcall votes. We are hoping we might reach an agreement 
procedurally on how to make additional progress on the bill during the 
remaining hours of today. At this point we cannot say with any 
confidence what tomorrow holds. It depends, in part, on what the 
schedule will be for the remainder of the day. We are working to 
arrange for additional votes and consideration of additional 
amendments. We will propound that request as soon as it becomes 
available.

                          ____________________