[Congressional Record Volume 148, Number 95 (Monday, July 15, 2002)]
[Senate]
[Pages S6793-S6796]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Cloture Motion
We, the undersigned Senators, in accordance with the provisions of
rule XXII of the Standing Rules of the Senate, hereby move to bring to
a close the debate on Executive Calendar No. 903, the nomination of
Lavenski R. Smith, of Arkansas, to be United States Circuit Judge for
the Eighth Circuit:
Zell Miller, Fritz Hollings, Kent Conrad, Byron L. Dorgan, Harry
Reid, Jeff Bingaman, Debbie Stabenow, Jack Reed, Barbara Boxer, Patrick
Leahy, Barbara Mikulski, Blanche R. Lincoln, Bob
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Graham, Jean Carnahan, Jay Rockefeller, Charles Schumer.
The PRESIDING OFFICER. The majority leader.
Mr. DASCHLE. Madam President, I understand that no one is asking for
a rollcall vote on confirmation if we can reach the cloture vote. So if
we reach cloture, this will be the last vote of the evening.
The PRESIDING OFFICER. Under the unanimous consent, the mandatory
quorum call under the rule is waived. The question is, Is it the sense
of the Senate that debate on Executive Calendar No. 903, the nomination
of Lavenski R. Smith of Arkansas to be United States Circuit Judge for
the Eighth Circuit, shall be brought to a close?
The yeas and nays are required under the rule.
The clerk will call the roll.
Mr. NICKLES. I announce that the Senator from Idaho (Mr. Craig), the
Senator from Idaho (Mr. Crapo), and the Senator from North Carolina
(Mr. Helms) are necessarily absent.
The PRESIDING OFFICER (Mr. Dayton). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 94, nays 3, as follows:
[Rollcall Vote No. 177]
YEAS--94
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
Daschle
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Harkin
Hatch
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)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wyden
NAYS--3
Dayton
Feingold
Wellstone
NOT VOTING--3
Craig
Crapo
Helms
The PRESIDING OFFICER (Mr. Dayton). On this vote, the yeas are 94,
the nays are 3. Three-fifths of the Senators duly chosen and affirmed
having voted in the affirmative, the motion is agreed to.
Mr. FEINGOLD. Mr. President, I will support the nomination of
Lavenski R. Smith, of Arkansas, to be a U.S. Circuit Judge. I did so as
a member of the Judiciary Committee, and I will do so again on the
floor. But I will also support the effort made by the Senator from
Arizona, Mr. McCain, to advance the long overdue appointment of a
commissioner to the expired position on the Federal Elections
Commission, and in doing so I opposed the cloture motion to bring
debate on the Smith nomination to a close. As we have seen, the FEC
commissioners have a direct impact on Federal election laws, even to
the extent of obstructing the will of Congress. Given the recent
behavior of the FEC, it is reasonable for us to take every appropriate
step to facilitate the filing of the expired position.
Mr. HATCH. Mr. President, I rise today in support of Justice Lavenski
Smith to the Eighth Circuit Court of Appeals. Before I speak directly
about him and his nomination, however, I would like to take just a
moment to explain where the Senate stands on its job of considering and
confirming President Bush's judicial nominees during this Congress.
The Senate has not confirmed a single judge since May 13, exactly 9
weeks ago today. This is nothing short of irresponsible considering the
vacancy rates and backlogs around the country.
There were 31 vacancies in the Federal courts of appeals when
President Bush sent us his first 11 circuit nominees on May 9, 2001,
and there are 31 today. We are barely keeping pace with the rate of
attrition.
The Sixth Circuit is half-staffed with 8 of its 16 seats vacant. The
DC. Circuit is two-thirds staffed, with 4 of its 12 seats sitting
vacant. Meanwhile, seven of President Bush's first 11 nominees have not
even been scheduled for hearings--despite having been pending for 432
days as of today. A total of 23 circuit court nominations now sit
pending for those 31 vacancies. But we have confirmed only 3 circuit
judges this year, and only 9 since President Bush took office.
It is bad enough that the Judiciary Committee has been slow to even
begin the process of consideration by scheduling hearings. It is even
worse that the Democrat leadership can't do what is necessary to move
the 17 judges that are still pending for a floor vote. Of course, I
applaud the leadership for bringing Lavenski Smith to a vote, but I
think everyone has to admit that 1 out of 17 is, at most, a low start.
Many of my colleagues have noted with displeasure the Judiciary
Committee's wholesale slow-walking of President Bush's nominees, but
now I must bring some attention to the Senate leadership's role as
well. It is high time for them to demonstrate their leadership, and
their control of the floor, by setting votes on the rest of the 16
judicial nominees who are awaiting a final vote.
Mr. President, let me put the current situation into context.
Historically, a President can count on seeing all of his first 11
circuit court nominees confirmed. Presidents Reagan, Bush, and Clinton
all enjoyed a 100 percent confirmation rate on their first 11 circuit
court nominees. In stark contrast, 7 of President Bush's first 11
nominations are still pending without a hearing for over 1 whole year.
History also shows that Presidents can expect almost all of their
first 100 nominees to be confirmed swiftly. Presidents Reagan, Bush and
Clinton got 97, 95 and 97, respectively, of their first 100 judicial
nominations confirmed. But the Senate has confirmed only 57 of
President Bush's first 100 nominees.
Some try to blame Republicans for the current vacancy crisis. That is
bunk. In fact, the number of judicial vacancies decreased by 3 during
the 6 years of Republican leadership. There were 70 vacancies when I
became chairman of the Judiciary Committee in January 1995, and there
were 67 at the close of the 106th Congress in December 2000.
Now I know that some try to justify the current wholesale delay as
payback for the past. That is just a sleight of hand. Look at the
facts: During President Clinton's 8 years in office, the Senate
confirmed 377 judges--essentially the same, 5 fewer as for Reagan, 382.
This is an unassailable record of non-partisan fairness, especially
when you consider that President Reagan had 6 years of a Senate
controlled by his own party, while President Clinton had only 2.
Furthermore, almost 50 percent of all Federal judges currently serving
are Clinton judges.
Finally, some suggest that the Republicans left an undue number of
nominees pending in committee without hearings at the end of the
Clinton administration. Well, we left 41, which is 13 less that the
Democrats left without hearings in 1992 at the end of the Bush
administration.
Mr. President, the President's nominees deserve better; President
Bush deserves better; and most importantly, the American people--the
people who own this Government and who rely on the judicial branch for
their rights and freedoms--deserve much better.
Now, Mr. President, I would like to turn to the matter directly at
hand, the confirmation of Lavenski Smith to the Eighth Circuit Court of
Appeals. Justice Smith is a highly qualified jurist who has
distinguished himself through his service to the poor, his service in
the public sector, and his service on the State bench. His
experience includes working for legal services, running his own law
firm, serving with distinction on the Arkansas Supreme Court, and
holding his current position on the Arkansas Public Service Commission.
Justice Smith began his legal career at Ozark Legal Services in
Fayetteville, AR, specializing in consumer defense and the
representation of juveniles as a guardian ad litem. He worked with
those who are traditionally underrepresented: low-income individuals,
families, and children. After 4 years, he
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opened his own law firm in the Arkansas town of Springdale, where he
handled all sorts of cases, including business law, real estate,
domestic relations, worker's compensation, public benefits, and
estates. Notably, his firm was the first minority-owned firm in the
history of the town.
Justice Smith's excellence as a lawyer and his commitment to public
service did not go unnoticed: in 1999 Governor Huckabee appointed
Justice Smith to the Arkansas Supreme Court. During his tenure on the
bench, Justice Smith wrote opinions on a range of legal issues,
including criminal, tort, worker's compensation, insurance, contract,
civil procedure, oil and gas, tax, probate and attorney discipline
matters.
Currently, Justice Smith serves on the Arkansas Public Service
Commission, which is responsible for regulating the State's electric,
gas, and telecommunications industries. In this position, Justice Smith
has become an expert in understanding and interpreting a wide variety
of complex Federal regulations, including the Federal Power Act and the
Federal Telecommunications Act of 1996.
Chief Justice Arnold of the Arkansas Supreme Court, Justice Smith's
former colleague, praises his intelligence and the quality of his
service on the court, saying, ``I think he'll make a great Federal
judge.'' Justice Smith has wide, bipartisan support in his home State,
but I think the Arkansas Democrat-Gazette summed it up well: It said
that Justice Smith possesses ``integrity, intelligence, and
compassion.'' I agree, and I urge my colleagues to join me in
supporting this qualified candidate for the Eighth Circuit. I think
that each of us can be proud about voting for the first African-
American Arkansan to serve on a circuit court of appeals.
Thank you, Mr. President. I yield the floor.
Mr. LEAHY. Mr. President, ``Lavenski Smith is a young Arkansas
political appointee, who has had a total of 7 years experience
practicing law, has had minimal Federal experience, minimal appellate
experience, and no experience at all arguing in front of the Federal
Court of Appeals for the Eighth Circuit to which he has been nominated.
He is nominated to the judgeship held by Judge Richard Arnold, one of
the most distinguished judges ever to serve on the 8th Circuit.
Mr. Smith served a brief term on the Arkansas Supreme Court, after
being appointed by the Governor and before running for election to a
lower State court judicial vacancy and losing. He also spent several
years as the volunteer executive director of the Arkansas chapter of
the Rutherford Institute, an organization devoted to, among other
things, doing away with a woman's constitutional right to choose, and
supporting efforts against Governor, and then President, Bill
Clinton.''
The following is what the Arkansas Times had to say about Mr. Smith's
qualifications:
Lavenski Smith of Little Rock is not the best-qualified
Arkansan President Bush could have chosen for the U.S. 8th
Circuit Court of Appeals, nor even close. Marginally
acceptable, if that, Smith was nominated by Bush, on the
recommendation of Senator Tim Hutchinson, because Smith is
racially, ideologically and politically correct--a black
conservative Republican, avidly anti-abortion and anti-
Clinton, whose nomination will, it is hoped, aid Hutchinson's
re-election effort. Not much there to suggest a distinguished
judicial career. Still, there are worse things than
mediocrity, and Bush has nominated them, too.
It is difficult to vote in favor of a nominee to a lifetime
appointment on a Federal appellate court with this kind of record, but
he is supported by both of his home-State Senators. Senator Blanche
Lincoln worked hard to be sure that Mr. Smith was included in a hearing
earlier this year and she supports his nomination. Based on Senator
Lincoln's confidence in this nominee's ability to do the job and based
on the nominee's assurances that he will not seek to impose his
personal views in his legal decisions, I have reluctantly decided to
vote in favor of this nomination.
Smith seems like an honorable person, and despite his political views
and political activism, I am hopeful that he will be a person of his
word: that he will follow the law and not seek out opportunities to
overturn precedent or decide cases in accord with his private beliefs
rather than his obligations as a judge.
This is one of 17 nominations that have been reported by the
Judiciary Committee to the Senate but were stalled for the last 2
months. In addition, nearly two dozen Executive Branch nominees
reported by the Judiciary Committee are also awaiting action.
The delay in final Senate action on these nominees has been due to
the failure of the administration to fulfill its responsibility to work
with the Senate in the naming of members of bipartisan boards and
commissions. Last week I congratulated the majority leader for
overcoming this impediment and for his patience and determination in
achieving some movement on these matters.
I understand that he hopes to be able to resume voting on judicial
nominations once cloture is achieved on the Smith nomination today.
Democrats are taking extraordinary efforts to overcome impediments to
action on nominations. Had the administration not caused this delay,
and had Republican Senators not placed ``holds'' over the last several
months, I am confident that the Senate would have confirmed more than
70 judicial nominees by now.
We were able to overcome the other obstacles created by the
administration and proceed to confirm 57 judicial nominees in our first
10 months in the majority, a record outpacing any Republican total in
any 10-month period in which they held the majority.
We have also addressed long-standing vacancies on circuit courts
caused by Republican obstruction of President Clinton's judicial
nominees. We held the first hearing for a Fifth Circuit nominee in 7
years, the first hearings for Sixth Circuit nominees in almost 5 years,
the first hearing for a Tenth Circuit nominee in 6 years, and the first
hearings for Fourth Circuit nominees in 3 years.
We have reformed the process for considering judicial nominees.
For example, we have ended the practice of anonymous holds that
plagued the period of Republican control, when any Republican Senator
could hold any nominee from his home State, his own circuit or any part
of the country for any reason, or no reason, without any
accountability. We have returned to the Democratic tradition of holding
regular hearings, every few weeks, rather than going for months without
a single hearing.
With a positive vote on the nomination of Lavenski Smith, the Senate
will have confirmed its 10th Court of Appeals nominee of President Bush
since the reorganization of the Senate Judiciary Committee a year ago,
on July 10, 2001. During their recent 6\1/2\ years of majority control,
Republicans averaged seven Court of Appeals confirmations a year.
The Democratic-led Judiciary Committee has had a record-breaking
first year fairly and promptly considering President Bush's nominees,
which I detailed last Friday. For example, in 1 year, we have held
hearings for 78 of the President's nominees.
That is more hearings for this President's district and circuit court
nominees than in 20 of the past 22 years.
Under Democratic leadership, the Senate confirmed more circuit and
district court judges, 57, than were confirmed during all 12 months in
each of 2000, 1999, 1997, 1996, and 1995, 5 of the prior 6 years of
Republican control of the Senate. The Judiciary Committee has since
last July voted on 15 circuit court nominees. In our first year, we
held more hearings for more of President Bush's circuit court nominees
than in the first year of any of the past three Presidents.
More of President Bush's nominees have also been given committee
votes than in the first year of any of the past three Presidents.
Unfortunately, one-sixth of President Clinton's judicial nominees--
more than 50--never got a committee hearing and committee vote from the
Republican majority, which perpetuated longstanding vacancies into this
year. If the Republicans had not left more than 50 of President
Clinton's nominees without a hearing or a vote, the current number of
vacancies might be closer to 40 than 90.
In addition, large numbers of vacancies continue to exist on many
Courts
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of Appeals, in large measure because the recent Republican majority was
not willing to hold hearings or vote on more than half--56 percent--of
President Clinton's Courts of Appeals nominees in 1999 and 2000 and was
not willing to confirm a single judge to the Courts of Appeals during
the entire 1996 session.
From the time the Republicans took over majority control of the
Senate in 1995 until the reorganization of the Committee last July,
circuit vacancies increased from 16 to 33, more than doubling.
Democrats have broken with that recent history of inaction. During
our first year in control of the Judiciary Committee, we held 16
hearings for circuit court nominees. That is almost the same number of
circuit court nominees, 17, who were never given a Committee vote by
Republicans in 2000.
Democrats are working hard to reduce judicial vacancies and we have
moved quickly on these nominees, as well as many, many others. I have
noted that we could have been even more productive with a little
cooperation from the White House, but that has not been forthcoming.
Moreover, of the current vacancies, more than half do not have a
nominee. We are almost out of district court nominees ready to be
included at hearings, because the President has been so slow to
nominate district court nominees and insists on delaying the ABA peer
review process until after the nominations are made.
Today's vote on the nomination of Lavenski Smith to the United States
Court of Appeals for the Eighth Circuit is the third Eighth Circuit
nominee the committee has considered in the past year. This is in sharp
contrast to the treatment of Eighth Circuit nominee Bonnie Campbell by
Republicans.
Ms. Campbell is now a partner at the distinguished Washington law
firm of Arent Fox Kintner Plotkin & Kahn, where she acts as an adviser,
negotiator, advocate, and litigator, representing employers in
personnel, labor relations, employment discrimination, benefits, and
other employment-related matters. A graduate of Drake University and
Drake's law school, Ms. Campbell has an outstanding record of public
service.
She was nominated by President Clinton early in 2000 to serve on the
U.S. Court of Appeals for the Eighth Circuit.
She was supported by both of her Senators, Democrat Tom Harkin and
Republican Chuck Grassley, given a ``Qualified'' rating by the ABA, and
afforded a hearing before the Judiciary Committee a few months later,
in May of 2000. However, despite a noncontroversial hearing, Ms.
Campbell was never scheduled for a committee vote. No explanation for
this failure to give her a vote was ever given, and her nomination was
eventually returned at the end of the 106th Congress. Other individuals
nominated after Ms. Campbell were given committee hearings and votes
and were confirmed later that year, while Ms. Campbell's nomination
languished.
She seems to have been the victim of the Republican practice of
anonymous, indefinite holds. In January of 2001, President Clinton re-
nominated Ms. Campbell, but President Bush failed to seize the
opportunity for bipartisanship, and withdrew her nomination shortly
thereafter.
At the time of her nomination Ms. Campbell was nearing the end of a
distinguished term at the U.S. Department of Justice, where she served
as Director of the Violence Against Women Office, a position to which
she was appointed by President Clinton in 1995.
In that capacity, she oversaw a $1.6 billion program to provide
funding to States to strengthen their efforts in the areas of domestic
violence and sexual abuse. She also directed the Federal Government's
efforts to implement the new criminal statutes created by the 1994
Violence Against Women Act. Ms. Campbell oversaw the Justice
Department's efforts to combine tough new Federal criminal laws with
assistance to states and localities to fight against violence against
women.
Bonnie Campbell had, before coming to Washington, served as the
Attorney General of Iowa, the first woman ever elected to that
position. During her tenure in office, she was instrumental in pushing
the State legislature to strengthen Iowa's domestic abuse statute, and
in 1992 she authored one of the Nation's first anti-stalking laws. In
1997 Bonnie Campbell was named by Time magazine as one of the 25 most
influential people in America.
Ms. Campbell's record of distinguished public service and her
experience in private practice combined to make an excellent nominee to
the Court of Appeals for the Eighth Circuit, a fact with which both of
her Senators obviously agreed. Yet once afforded a hearing, Bonnie
Campbell was left to linger in an indefensible limbo. She was not
granted a committee vote, but neither was she confronted with any
objections to her nomination to the Eighth Circuit proceeding.
Contrasting the treatment of the nominations of Bonnie Campbell and
Lavenski Smith to the Eighth Circuit evidences the difference in how
the Republican majority and the current Democratic majority have
handled judicial nominations and highlights the fairness that has been
restored to the confirmation process.
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