Congressional Record, Volume 148 Issue 34 (Thursday, March 21, 2002)

[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.

____________________