[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

[[Page S6794]]

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

[[Page S6795]]

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

[[Page S6796]]

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.

                          ____________________