[Congressional Record Volume 149, Number 33 (Monday, March 3, 2003)]
[Senate]
[Pages S3015-S3020]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



          Fraud and Manipulation In the Western Energy Market

  Mr. President, I want to take a few minutes, if I may, to make some 
informal comments on something that has happened today. Today was the 
deadline for California to submit to the Federal Energy Regulatory 
Commission the evidence of fraud and manipulation in the western energy 
market after a 100-day discovery period.
  In fact, about 1,000 pages of evidence were submitted to the 
Commission. The problem is that evidence is not released to the public. 
This is a real problem.
  I serve on the Energy Committee, and have served there since the 
crisis in 2000 and 2001 in California. The Energy Committee provides 
oversight to the Federal Energy Regulatory Commission. The Federal 
Power Act mandates that the FERC must ensure that rates for power are 
just and reasonable throughout the United States.
  It is very difficult to know whether the Federal Energy Regulatory 
Commission is in fact ensuring that rates are just and reasonable if 
one can never view the evidence.
  I happen to believe that the FERC has greatly improved. Patrick Wood, 
Bill Massey, Nora Brownell have been very strong in making change. That 
change is welcomed. It was on May 6 of last year that the major change 
began. It was then that the FERC ran on its Web site internal memos 
detailing some of the schemes Enron used in defrauding the marketplace. 
Get Shorty, Ricochet, Death Star, all became known to the general 
public directly following the posting of these memos. Since that time, 
several people have been indicted and pled guilty to fraud.
  Additionally, more recently, one company, Reliant, was before the 
Commission. The Commission put on their Web site the transcript of tape 
recordings between Reliant managers. Those transcripts indicated 
instances where Reliant's plant manager and operations manager talked 
about holding power offline in California to drive prices up.
  The operations manager--and this is not a direct quote, it is a 
paraphrase--said, in so many words: We are going to be manipulating the 
market tomorrow. So we are going to close down one plant at least for a 
day and perhaps more.
  And the plant manager said: Oh, yes.
  Well, that was sort of a dead bang admission of market manipulation. 
FERC, much to their credit, at the very least, fined Reliant $13.8 
million. But they could have sent a much stronger message to the entire 
energy sector by withdrawing Reliant's ability to sell power at market-
based rates. That would have sent a clear and definitive message, yet 
instead FERC gave Reliant a slap on the wrist.
  In California, we have a real problem. One year, the entire cost of 
energy for the entire State was $7 billion. The next year, it was $28 
billion; in other words, a 400-percent increase in 1 year's time of the 
cost of energy. The following year, it was $27 billion.
  I remember when John Bryson, the CEO of Southern California Edison, 
told me that when they were forced to divest themselves of their 
plants, the energy generator that came in and bought one of their 
plants, to which they were one day selling energy at $30 a megawatt-
hour, once it went to the other generator, the other generator charged 
$300 a megawatt-hour. When I heard that, I knew it was a real danger 
signal that something had really gone wrong. Well, we are a long way 
down the pike since then.
  I ask unanimous consent to print in the Record a letter I wrote this 
morning to the chairman of FERC, Pat Wood, in which I followed up on an 
earlier letter of February 6, to which I have not had a response, 
asking the FERC to lift the protective order that currently prevents 
the public from learning about evidence of fraud and manipulation in 
the western energy marketplace. I point out that now that the 100-day 
discovery period has ended, ``I write to reiterate this request and ask 
the commission to make all evidence public.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, March 3, 2003.
     Hon. Pat Wood,
     Chairman, Federal Energy Regulatory Commission, Washington, 
         DC.
       Dear Mr. Chairman: I am writing to follow up on my letter 
     of February 6, 2003 to ask the Federal Energy Regulatory 
     Commission (FERC) to immediately lift the ``Protective 
     Order'' that currently prevents the public from learning 
     about evidence of fraud and manipulation in the Western 
     Energy Market. Now that this 100-day discovery period has 
     ended, I am writing to reiterate my request and to ask the 
     Commission to make all evidence public--even information FERC 
     has obtained itself.
       I would also appreciate the opportunity to review the 
     filing submitted today by California parties detailing new 
     evidence of fraud and manipulation in the Western Energy 
     Market. As a member of the Senate Energy Committee and the 
     senior Senator from California. I believe I have a duty and 
     responsibility to have a full working knowledge of the 
     evidence submitted to FERC.
       I also believe that the evidence collected by FERC should 
     not remain confidential. Since most of the information is 
     over two years old, it no longer has any proprietary value. 
     The widespread nature of abuse of the Western Energy Markets 
     and its resulting economic damage on families and businesses 
     require the Commission to allow the public to immediately 
     review all evidence obtained by FERC.
       As I stated in my letter last month, I also believe FERC 
     must carefully review all the evidence presented by the 
     California parties and hold hearings if necessary. How can 
     the Commission attempt to remedy the harm done to families 
     and businesses during the energy crisis if FERC cannot 
     determine the extent of abuse in the Western market and its 
     effect on energy prices and supplies?

[[Page S3016]]

       Thank you for your consideration of this request and your 
     continued attention to energy problems on the West Coast.
           Sincerely yours,
                                                 Dianne Feinstein.

  Mrs. FEINSTEIN. I also indicate that as the senior Senator from 
California and as a member of the Energy Committee, I have a specific 
obligation to render oversight to see that FERC is doing its job. How 
can anyone possibly render due diligence and oversight if they don't 
know what is being presented nor have access to what is being presented 
to the Commission on which they make their judgments?
  I have spoken four times now about Miguel Estrada and the general 
state of the nominations process. I regret where these weeks have taken 
us, frankly. I hope we can come together to overcome what is 
increasingly separating the two sides of this great body, marring 
judgments and actions relating to the Judiciary Committee's hearing 
process and that process through which we advise and consent on 
nominees by the President to Federal judgeships.
  In order to understand this filibuster over Miguel Estrada, we also 
have to understand what has led us to this point.
  I would like to speak specifically to the nominations debate because 
this is a key area where the administration has, with few exceptions, 
acted in many ways as if the Senate simply doesn't matter. If this 
debate were only about whether or not we should vote on Miguel Estrada, 
that would be enough. Make no mistake about it.
  There are serious questions about this nominee that we can't answer 
without more information, information that this nominee and the 
administration have essentially refused to provide.
  My colleagues and I have outlined these concerns over and over again 
over the past few weeks. I have pointed out that the District of 
Columbia Circuit is a very critical circuit. Every Member of this body 
knows that and accepts it. It is a circuit that presides over many of 
the areas of appeal that are of extraordinary concern because they 
involve laws we have passed in areas such as worker rights, OSHA, 
Superfund, wetlands, all environmental concerns, and so on and so 
forth. It has assumed a particular role, if you will, because of the 
fact that two of President Clinton's nominees to this circuit never had 
a committee vote--one did not even have a hearing--this is a different 
kind of filibuster. So there are a number of vacancies on this circuit. 
And the circuit as it stands is equally divided, Republicans and 
Democrats equally divided. Therefore, who breaks this equal division is 
really important because it will swing the court one way or another.
  Into this mix comes a very young man, 41 years old. When his 
nomination came over, it came over with substantial concerns. The 
Hispanic delegation of the House had sat down and met with Mr. Estrada 
for an hour and a half. They sent out alerts that they did not believe 
this was a nominee who really represented the concerns of Hispanic 
citizens. That in itself is not dispositive. I am the first one to 
admit that.
  This is a young man. He spent a lot of time on his education. It is 
not necessarily a requirement that someone serve on a number of civic 
groups. But it was a point.
  Immediately, the Hispanic-American community indicated that there was 
a great and serious split over this nominee. That in itself is not, 
again, dispositive.
  Then we note that he had never been a professor. He had never been a 
judge. He has no writings and no speeches. So when one turned to look 
for the due diligence, there was very little to see. We have none of 
his work product or other memos that would give us an idea of what kind 
of thinker he is or what kind of judge he would be. And he refused to 
answer in the public hearing a number of simple, basic questions that 
go to the heart of whether he could be a truly impartial judge and set 
aside his advocacy. I mentioned on the floor of the Senate that my 
office had spoken with Professor Paul Bender, who had been his direct 
supervisor in the Solicitor General's Office. Mr. Bender told my staff, 
``Well, I could not give him certain assignments because I could not be 
assured that he was impartial.''

  This, again, in itself is not dispositive, but it is a danger signal.
  I talked to individuals who had been interviewed by him in a 
screening capacity when he was a clerk for Justice Kennedy, and each I 
talked to indicated that in fact there was a kind of litmus test and 
that they were told they were too liberal.
  Again, that is not dispositive. But what all this points out is that 
we needed--some of us--to find out whether this was a man who could put 
aside his advocacy, his strong feelings about certain issues, and 
follow the law with impartial and wise judgments.
  I came to the conclusion--and some have faulted me for it--after 
listening to Jeffrey Sutton, that here was a man who had strong views 
and beliefs, but who was willing to be very fulsome in his answers to 
the committee, very forthright in his views, and sent a very clear 
signal--at least to me--that he would, in fact, separate his personal 
views and the law that he would be charged and constitutionally pledged 
to uphold. So I voted for him.
  There has been substantial dismay expressed by many of my 
constituents in California, and I heard them loud and clear when they 
picketed virtually every one of my offices. Nonetheless, I made that 
judgment after listening in a public hearing to questions and answers 
and, at least for myself, came to a conclusion. Only history will tell 
whether I am right or wrong.
  Then, several weeks ago, in a markup in committee, I think another 
aspect of this situation that perhaps was caused by the strain and the 
raw nerve endings in the Senate came upon the scene.
  The Judiciary Committee rules contain a clause providing ``on the 
request of any member, a nomination or a bill on the agenda of a 
committee will be held over until the next meeting of the committee, or 
for one week, whichever occurs later.'' That appears in the rules of 
the committee.
  I ask unanimous consent that those rules be printed in the Record, 
and I particularly call attention to the rule I have just quoted.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                Rules of the Committee on the Judiciary


                      i. meetings of the committee

       1. Meetings may be called by the Chairman as he may deem 
     necessary on 3 days' notice or in the alternative with the 
     consent of the Ranking Minority Member or pursuant to the 
     provision of Sec. 133(a) of the Legislative Reorganization 
     Act of 1946, as amended.
       2. Each witness who is to appear before the Committee or 
     any Subcommittee shall file with the Committee, at least 48 
     hours in advance of the hearing, a written statement of his 
     testimony in as many copies as the Chairman of the Committee 
     or Subcommittee prescribes.
       3. On the request of any member, a nomination or bill on 
     the agenda of the Committee will be held over until the next 
     meeting of the Committee or for one week, whichever occurs 
     later.


                              ii. quorums

       1. Nine members shall constitute a quorum of the Committee 
     when reporting a bill or nomination; provided that proxies 
     shall not be counted in making a quorum.
       2. For the purpose of taking sworn testimony, a quorum of 
     the Committee and each Subcommittee thereof, now or hereafter 
     appointed, shall consist of one Senator.


                              iii. proxies

       When a record vote is taken in the Committee or any bill, 
     resolution, amendment, or any other question, a quorum being 
     present, a member who is unable to attend the meeting may 
     submit his vote by proxy, in writing or by telephone, or 
     through personal instructions. A proxy must be specific with 
     respect to the matters it addresses.


                    iv. bringing a matter to a vote

       The Chairman shall entertain a non-debatable motion to 
     bring a matter before the Committee to a vote. If there is 
     objection to bring the matter to a vote without further 
     debate, a rollcall vote of the Committee shall be taken, and 
     debate shall be terminated if the motion to bring the matter 
     to a vote without further debate passes with ten votes in the 
     affirmative, one of which must be cast by the Minority.


                            v. subcommittees

       1. Any member of the Committee may sit with any 
     Subcommittee during its hearings or any other meeting, but 
     shall not have the authority to vote on any matter before the 
     Subcommittee unless he is a member of such Subcommittee.
       2. Subcommittees shall be considered de novo whenever there 
     is a change in the Subcommittee chairmanship, and seniority 
     on the particular Subcommittee shall not necessarily apply.
       3. Except for matters retained at the full Committee, 
     matters shall be referred to the

[[Page S3017]]

     appropriate Subcommittee or Subcommittees by the Chairman, 
     except as agreed by a majority vote of the Committee or by 
     the agreement of the Chairman and the Ranking Minority 
     Member.

  Mrs. FEINSTEIN. Mr. President, this rule is designed to protect 
Members who need more time to examine an issue, to discuss it with 
their colleagues, or to prepare amendments. A very relevant factor.
  My own office was alerted to the presence of Mr. Roberts and of Mrs. 
Cook on their hearing agenda the day before the actual hearing. In 
other words, we learned at 4:46 p.m., Tuesday, January 28, that the 
next day they would be up for hearing along with Mr. Sutton. I ask 
unanimous consent that that e-mail be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Tentative Nominations Witness List


   tentative agenda--Senate Judiciary Committee Hearing on Judicial 
   Nominations, Wednesday, January 29, 2003 at 9:30 a.m., Dirksen 226

                                Panel I

       The Honorable Dianne Feinstein, United States Senator (D-
     CA).
       The Honorable Mike DeWine, United States Senator (R-OH).
       The Honorable John Cornyn, United States Senator (R-TX).
       The Honorable John Warner, United States Senator (R-VA).
       The Honorable Kay Bailey Hutchison, United States Senator 
     (R-TX).
       The Honorable George Voinovich, United States Senator (R-
     OH).

                                Panel II

       Deborah Cook to be U.S. Court of Appeals Judge for the 
     Sixth Circuit.
       John Roberts to be U.S. Court of Appeals Judge for the D.C. 
     Circuit.
       Jeffrey Sutton to be U.S. Court of Appeals Judge for the 
     Sixth Circuit.

                               Panel III

       John Adams to be U.S. District Court Judge for the Northern 
     District of Ohio.
       Robert Junell to be U.S. District Court Judge for the 
     Western District of Texas.
       S. James Otero to be U.S. District Court Judge for the 
     Central District of California.

  Mrs. FEINSTEIN. Now, for those of us on this side, that notice--or 
lack of it--presents a very real problem. Now we knew that Mr. Sutton, 
Mrs. Cook, and Mr. Roberts had been pending for some time. But the way 
things actually work is that the real due diligence is done in 
preparation for the hearing--it is done when the notice comes out. So 
we truly need time. And I believe the time to study and do our 
individual due diligence on each nominee would ease a lot of the raw 
nerve endings and scar tissue, which is now very evident on this 
committee.
  Because it is the chairman who schedules matters for a vote, it is 
inevitably members of the minority party who most often need this extra 
time. As a result, this holdover rule is a rule that is viewed as a 
protection of minority rights in the Judiciary Committee.
  After all, a chairman does not need to hold over a bill. If he 
doesn't want the committee to consider an issue, he can simply refuse 
to add the issue to the agenda, or he can pull it off the agenda, if 
necessary. Many Clinton nominees suffered this fate, and Members have 
made that clear, I think, time after time in the past couple of weeks.
  In any event, this rule has always been interpreted to mean that if a 
Senator asked for a matter to be held over, the earliest it would come 
up again was in 1 week. That week comprises 7 days from the meeting at 
which the rule is invoked.
  Now, we have an exchange from 24 years ago between Senators Thurmond 
and Kennedy about this rule. I want to read from the transcript of that 
Judiciary Committee meeting that occurred on January 24, 1979. Let me 
quote from Senator Thurmond:

       There is one other matter. We have a custom, I guess since 
     the committee was founded, that any Senator can carry over 
     any matter for 1 week, any nomination for 1 week. I assume 
     there is no objection to continuing that.

       Chairman Kennedy: I think that is a reasonable request. I 
     think that if it is on a Tuesday to a Tuesday--why don't we 
     just have it on a Tuesday to a Tuesday, so it is 7 days?

  Seven days, Mr. President. Now, in my 10 years on the Judiciary 
Committee, this rule has always been interpreted to mean 7 days. Any 
matter held over must be held over for 7 days, or until the next 
markup, whichever occurs later. Obviously, there have been many 
occasions where a chairman of a committee would have preferred to 
schedule another markup immediately to move a nominee or a bill 
forward. After all, a chairman does not schedule a matter for 
consideration unless he or she is ready to move forward. But regardless 
of the will of the chairman to move more quickly, there has always been 
a recognition that rules are rules, and this one has always been 
followed--until this year.
  At the Judiciary Committee markup on Miguel Estrada several weeks 
ago, the chairman of the committee attempted to interpret the 1-week 
rule as allowing an issue to be held over for just 6 days rather than 
7. Essentially, he decided to interpret 1 week as being 6 days.
  Now, before I go into this further, let me say that Senator Hatch is 
one of my dearest friends in the Senate. He is a fair chairman. I have 
watched him for a long time. We have worked together on many important 
issues for the past 10 years. I hold him in the very highest regard. 
Even on the issue of judicial nominations, I know he did his very best 
in a very difficult position over the years, when President Clinton was 
President, to balance the strong will of many of his own caucus against 
his desire to be fair to President Clinton's judicial nominees, and I 
believe that very strongly.
  If anything, this is an indication of how raw nerve endings really 
are. That is all at this point in time.
  I certainly understand how any chairman might be frustrated by some 
of us and by perhaps all of us who might attempt to thwart his 
timetable. But this frustration, again, should not be allowed to 
manifest itself in circumvention of a clear, defined, and decades-old 
committee rule. If we allow 1 week to become 6 days, it becomes an hour 
tomorrow, maybe cloture only requires 20 rather than 60 votes or 40 
percent constitute a majority. This is a bit of an exaggeration.
  As a matter of fact, it is a major exaggeration, but the Senate and 
its committees have rules for a reason, and we really cannot function 
if we do not follow them.
  When this 6-day week concept was verbalized, our ranking member, 
Senator Leahy, made it clear that 6 days is not a week. The minority 
would allow the rule to be waived and a markup to occur in 6 days as a 
matter of cooperation. And so we waived the rule, partially to avoid a 
confrontation over this interpretation of the longstanding 7-day rule. 
But although we avoided a crisis that week, the 6-day concept was sort 
of a foreshadowing of what now seems to be increasingly a plan to 
ignore committee rules and move forward over the objections of the 
minority, and people feel very strongly about that.
  Last week, we saw this plan come to fruition as two nominees were 
moved out of the Judiciary Committee over the strong objections of 
members who wished to continue debate, and despite the clear invocation 
of a decades-old rule, protecting the right of the minority to continue 
to debate until at least one of their own agrees it is time to vote.
  Senator Daschle spoke on this issue last week, and I want to expand 
briefly on his comments. The judiciary rule in question contains the 
following language:

       The chairman shall entertain a nondebatable motion to bring 
     a matter before the committee to a vote. If there is 
     objection to bringing the matter to a vote without further 
     debate, a rollcall vote of the committee shall be taken and 
     debate shall be terminated if the motion to bring the matter 
     to a vote without further debate passes, with 10 votes in the 
     affirmative, one of which must be cast by the minority.

  What does this rule mean? Over the last few decades, it has clearly 
meant that unless at least one member of the minority agrees to cut off 
debate and move straight to a vote, no vote can occur. This is what 
happened and what came up last Thursday.
  This is one of the only protections the minority has in our 
committee. Without it, there could conceivably never be a debate at 
all. A chairman could convene a markup, demand a vote, and the entire 
process would take 2 minutes. That is one of the reasons we feel so 
strongly about this particular rule. We believe this is not how the 
Judiciary Committee should function, and it is contrary to the rules of 
the committee.

[[Page S3018]]

  As I understand it, this rule was first instituted in 1979, again, 
and it has been followed ever since by all of our chairmen.
  I believe only two committees have something like it--Finance and 
Judiciary. The reason for it, as I understand it, goes back to Senator 
Kennedy's days as chair, when it was determined they didn't want to be 
like other committees, where with Appropriations you will often have a 
committee in the majority just go off on its own, mark up something, 
and everybody is forced to accept it.
  Let me give you an instance.
  During the markup of Bill Lann Lee to be Assistant Attorney General 
for the Civil Rights Division, there was some fear on our side that 
Republicans who had the votes to defeat the nomination would move 
directly to a vote and prevent any debate on the issue at the markup. 
Democrats, on the other hand, wanted the chance to explain their 
position and maybe even change some minds on the other side.
  During that markup, there was significant discussion about what rule 
IV, the rule about cutting off debate, really means. At one point, it 
is interesting to note, Chairman Hatch himself commented that:

       At the appropriate time, I will move to proceed to a vote 
     on the Lee nomination. I assume there will be no objection. 
     It seems to me that he deserves a vote. People deserve to 
     know where we stand on this issue. Then we will, pursuant to 
     rule IV, vote on whether to bring the Lee nomination to a 
     vote. In order to vote on the nomination, we need at least 
     one Democrat to vote to do so.

  This is precisely what we are discussing, Mr. President. In order to 
vote on the nomination, we need at least one Democrat to do so.
  Last week, we did not have such a vote. No Democrat was prepared to 
cut off debate. I know this because it was discussed ahead of time. 
Even though Senator Kennedy, who has substantial seniority and was 
chairman at the time the rule was put forward in 1979, objected and 
informed the chairman that no Democrat was ready to stop debating, the 
chairman moved ahead anyway.
  I had an opportunity to speak to the chairman after this hearing, as 
a matter of fact, in the garage of the Hart Office Building. I think he 
has a very good understanding of the sensitivities and the nerve 
endings that are scratched raw right at this present time. It is my 
hope the chairman will take steps so we can restore to the committee 
the consideration that has always been extended.
  Let me say something about Chairman Hatch. I understand how things 
can get to one in this committee, and I understand on both sides how--
and the Chair is smiling--how we can be extraordinarily difficult to 
preside over. I would never make an adverse personal comment about this 
chairman because I respect him, I like him, he is a friend, we work 
together. I just want to see the two sides come together, and I want to 
see this stop. I want to give the assurance, at least from this 
Senator, that what I want is ample time to do my due diligence on a 
given nominee.
  Very often letters do not come in until almost the date of hearing. 
As the hearing date grows close, it seems people begin to know that 
something is happening. But if you get the official notice for a 
hearing the day before--and in this case at 4:46 p.m. the day before--
for three appellate court nominees, it is extraordinarily difficult.
  Mr. LEAHY. Mr. President, will the Senator yield for a question?
  Mrs. FEINSTEIN. Yes, I will.
  (Mr. SMITH assumed the chair.)
  Mr. LEAHY. Mr. President, I have listened to the comments of the 
distinguished Senator from California. I strongly compliment her for 
what she has been saying. Is it not a fact, Mr. President, I ask my 
friend from California, that simply because a Senator wishes more time 
to debate a particular nominee that does not mean that Senator is going 
to vote against the nominee; is that not correct?
  Mrs. FEINSTEIN. Well, the Senator is correct.
  Mr. LEAHY. I mean, that might be.
  Mrs. FEINSTEIN. That is correct.
  Mr. LEAHY. If the Senator would yield further for another question, 
was it not made clear during the markup that she was speaking about, 
the executive meeting she was speaking about, that it was stated at 
that meeting there was very clearly an objection to going forward by at 
least a couple of Senators, and because of that objection rule IV would 
fall into place, which says debate shall be terminated if the motion to 
bring the matter to a vote without further debate passes with 10 votes 
in the affirmative, one of which must be cast by the minority? So rule 
IV would apply such an objection being made, unless there were 10 votes 
to cut off the debate, with one of those votes coming from the 
minority; is that not correct?
  Mrs. FEINSTEIN. I say through the Chair to the distinguished ranking 
member, yes, that is correct. I have the rule before me, and that is 
what it says. The Senator is correct that someone objected, yes.
  Mr. LEAHY. I ask my friend from California, and I say this because 
she has laid out this debate so well and the history of it so well, in 
this case was it not a fact there were not 10 votes, with one of those 
10 votes being the minority, to cut off debate?
  Mrs. FEINSTEIN. Through the Chair to the ranking member, yes, that is 
correct.
  Mr. LEAHY. Mr. President, I ask again, through the Chair, to my 
friend from California, is it not a fact that the chairman then, 
notwithstanding the fact that there has not been a proper vote to cut 
off debate, went ahead and held the vote just the same?
  Mrs. FEINSTEIN. Through the Chair to the ranking member, that is 
correct.
  Mr. LEAHY. I thank the Chair.
  Mrs. FEINSTEIN. I do not take any pleasure in this. When I became a 
Member of this body, I ran as an independent voice, and I want to be 
that way. I want to work with both sides, and I have tried to do that. 
I think we are at a point, though, where some action has to be taken to 
restore the consideration that has usually been offered to members of 
this committee, that when they have a problem, a little more time is 
provided.
  I believe very strongly--I have never used my blue slip. I have said 
I would never use my blue slip prior to a hearing; that I believe 
everybody is entitled to a hearing, and then we should vote the 
individual up or down, and that is my view. I do not push my view on 
anybody else, but that is how I decided I was going to handle my spot 
on this committee. But if the minority gets rolled, we go into a 
defensive posture and everybody is compelled then to unify and hold 
together. I think my colleagues see a lot of this in this filibuster.
  I am hopeful in the future there can be a precise time when an 
official notice is sent out prior to the hearing being scheduled, so 
that every member of this committee has an opportunity to do their due 
diligence.
  It is interesting to note that the votes in the committee--and I have 
them. On Mrs. Cook, there were 12 yeas, two nays and five present. The 
present, or pass, votes submitted by the ranking member, myself, 
Senators Feingold, Durbin and Schumer, were really, I think, on this 
point, that we did not have an ample opportunity to do our due 
diligence and to ask the questions we needed to ask.
  On Mr. Roberts, there were 13 yeas, two nays and two present, Senator 
Leahy and Senator Feingold, which probably came from the same venue. In 
other words, they did not feel they had sufficient information to vote.
  So I am hopeful that in the future we would be able to settle some of 
these issues in the committee and just bend over backwards. I remember 
the day when if a Member had a problem with a judge who had been 
recommended to the President by a specific Senator, that Member picked 
up the phone and called that Senator and said: I just want you to know, 
I have these concerns, and there was this kind of convivial 
relationship. That is all but gone now.
  So the process is extraordinarily formal now, and the formality is 
carried out, for the most part, in the public hearing. So having notice 
to that public hearing becomes really all important.
  I have pretty much summed up my position and my hope on this. I see 
the distinguished Senator from Alabama on his feet so I yield the 
floor.
  Mr. SESSIONS. Mr. President, I wanted the Senator to finish, so I 
thank the Chair. Graceful in her remarks, I think nerves are frayed, 
and

[[Page S3019]]

perhaps the senior Senator from California can play a role in bringing 
some things back.
  The Senator talked about collegiality, and some of us were very 
disappointed that Strom Thurmond's chief judiciary counsel was 
virtually blocked last year. We finally got it through at the very last 
minute. So a lot of things have happened. There clearly was a change in 
the ground rules after Members on the other side asserted that Senator 
Hatch did not move nominees fast enough for President Clinton and that, 
of course, we should not filibuster and those sort of things. Then 
after the election, the ground rules changed and the obstruction of 
nominees President Bush has sent forward has reached a much higher 
level. I think no one can doubt that.
  So we are frustrated also. I do believe we should have more 
collegiality in the committee, and I believe we can do better.
  One thing I would ask the Senator, without yielding the floor, I 
would suggest that on the Cook and Roberts matters, the Senator did 
indicate they had been pending virtually 2 years, well over a year and 
a half. No hearings had been held on them, but there had been 2 weeks 
before this markup, or the hearing--2 weeks before they had been 
noticed, so we put it off another 2 weeks. Perhaps the exact time of 
the hearing or the exact nature of what the hearing was going to be may 
not have been given to the Senator, but I believe after the first 
request the Senator made for a delay, 2 weeks did transpire. I think 
that would have given people time to be prepared.
  Mrs. FEINSTEIN. May I respond to that?
  Mr. SESSIONS. I yield for a question or a comment.
  Mrs. FEINSTEIN. Through the Chair, to answer the distinguished 
Senator from Alabama, I asked my counsels when did they first know, and 
they said, well, informally there was discussion, but the notice--and I 
said, well, get me a copy of the notice then. I want to see the notice. 
And it was 4:58 the day before.
  That is the problem. I do not know exactly how all the counsels work, 
but I can tell the Senator that on our side time is important. Giving a 
little bit of time, I think, could go a very long way to solving the 
problem we are in, officially. so there are no excuses then. The 
official notice goes out. Who is on the calendar occurs a substantial 
period before the hearing so we have time to do what we need to do, 
particularly when I think there were seven judges on this particular 
calendar, three of them appellate judges, meaning it is a very big and 
heavy calendar on which to do your work.

  Mr. SESSIONS. I appreciate the comments of the Senator from 
California. Hopefully, we can do something better.
  This side does not intend to be victimized by a racheting up, 
substantially, of the process of confirmation that did not occur when 
President Clinton was President. This is what has caused the problem.
  I note these nominees. An absolutely superb nominee, Justice Cook, 
served on the Supreme Court of Ohio. As Senator Hatch has noted so 
often, Roberts is considered one of the top two appellate lawyers in 
America, an absolute superb candidate, with 39 arguments before the 
Supreme Court.
  They were denied for over a year, almost 2 years, even a hearing when 
the Democrats controlled the committee. That is galling. Miguel Estrada 
was given a hearing a year and a half afterwards, the only one actually 
given a hearing. But he was not moved forward out of committee.
  This is an odd thing to have a concern about frayed nerves when the 
ground rules were changed. After President Bush was elected, three 
professors went to the Democratic senatorial conference: Lawrence 
Tribe, Cas Sunstein, and Marsha Greenburger. They were quoted in the 
New York Times as saying: We want to change the ground rules. 
Obviously, one of them is that they did not conduct hearings. Some 
superb nominees never even had hearings.
  Also not mentioned at the time because the Democrats had the 
majority, was the filibuster. This is the first time, insofar as I 
know, in the history of this country we have had a filibuster for a 
district judge or circuit judge. It is not as if Mr. Estrada had any 
serious problems. There is no ethical problem with this wonderful 
nominee. He was rated unanimously well qualified by the American Bar 
Association. He was at the top of his class.
  Regarding his experience, he clerked for a Second Circuit judge. The 
position he would hold, if confirmed, is a sister circuit, the DC 
Circuit Court of Appeals. DC does handle some national issues and 
issues with which the Justice Department deals. He served in the 
Justice Department's Solicitor General's Office. In that position he 
prepared briefs and made arguments before the courts--often, I am sure, 
before the DC Circuit Court of Appeals. So he has an intimate 
connection with that.
  Under Rudy Guiliani, he worked in the U.S. Attorney's Office of New 
York, considered one of the most prestigious offices--at least those in 
the Southern District of New York think it is the finest. It is 
competitive. He handled appellate work for them. To the extent to which 
this nominee has experience with appellate work, it is extraordinary.
  I believe there is no justifiable basis for blocking his nomination. 
I know a Senator earlier expressed concern that we were somehow 
blocking an ability to take up other matters before the Senate. I would 
love to move forward. The way we move forward is to give Estrada a 
vote. We are not asking that people vote for him. We are just asking he 
be given a vote.
  We have an unprecedented filibuster. Senator Hatch concluded that we 
were facing a filibuster in committee. Now we have a filibuster of 
Estrada on the floor. The ground rules have changed. We are going to 
put the burden of proof on the nominee. It was one of the views that 
Senator Schumer has put forward. We consider whatever the politics are, 
which was never done before, racheting up the pressure on the nominee 
and then we cannot get a vote in committee. Then we cannot get the vote 
because every Democrat has to sign off.

  Senator Hatch examined the rules, met with the Parliamentarian. I 
have not studied the rules. He met with the Parliamentarian and he 
concluded he had the authority to make the ruling that he made. I don't 
think he wanted to do that. I think he would like to have proceeded as 
he had before with collegiality and allowing everyone to have their say 
as long as they wanted. But when you are faced with a systematic 
alteration of the ground rules, a systematic plan to obstruct a 
movement of nominees of extraordinary ability for years, who ought to 
be confirmed, and the courts need them, we are at a point where nerves 
are frayed.
  If the rules are going to be used on one side, rules are going to be 
used on the other side. The President of the United States is not going 
to believe he can give up his right to nominate judges and expect them 
to have a confirmation. It was indicated President Bush maybe was not 
solicitous enough. But in California I have heard complaints because he 
has agreed to go along with a commission in California of some sort 
that gives unprecedented input from Senators from California and others 
on the nominees. I don't know how that works, but it is pretty unusual. 
He also reappointed two Democratic nominees, Barrington Parker and 
Gregory, who had been pending and were not confirmed.
  I am not sure President Clinton ever nominated any Republican judges 
when he took over.
  I believe we are in an unfortunate period, that there is a lot of 
frustration. It is pretty deep on our side. I don't think the Senator 
would doubt one moment that the tactics utilized by the Democratic 
minority are different than the tactics utilized when the Republicans 
were in that position.
  Where do we go from here? I don't know. But it is a big deal.
  The PRESIDING OFFICER. The Senator from California.
  Mr. SESSIONS. I yield for a question.
  Mrs. FEINSTEIN. I wanted to make one point, so I will defer.
  Mr. SESSIONS. Let me mention a couple of items.
  It was suggested one of the Department of Justice members, Paul 
Bender, raised some question about Miguel Estrada's nomination, but 
Bender and the other supervisors in the Clinton Department of Justice--
remember, he went into the Solicitor General's Office in 1992; surely 
within a year or so he

[[Page S3020]]

should have been under the supervision of the Democrats at that time. 
It probably takes some time to make the change over. Almost his entire 
career in the Justice Department was under the leadership of Janet Reno 
and a Democratic Solicitor General. The Democrats gave him the highest 
possible performance rating.
  Mr. Bender, when he was evaluating him, gave him the highest 
evaluations. I think it odd now that he would come forward and suggest 
there was a problem. In fact, one of the evaluations given to him 
specifically noted his loyalty to the policies of the Department of 
Justice.
  It was also said there was some deal about law clerks and screening 
law clerks for Supreme Court Justice Kennedy. Let me point out I think 
it is a great honor that Justice Kennedy was so impressed with Miguel 
Estrada that he asked him to do screening of possible law clerks for 
him. Justice Kennedy is considered a middle of the road swing Justice 
who votes with various sides, on various sides, and is not perceived as 
any kind of right-wing ideologue. He liked Estrada so much that he 
asked him to help him screen his law clerks. I think that is a matter 
that is a positive thing.
  The PRESIDING OFFICER. There is a standing order for a vote on 
another nominee at 5:30.

                          ____________________