[Congressional Record Volume 149, Number 33 (Monday, March 3, 2003)]
[Senate]
[Pages S3021-S3024]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT--Continued
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I have heard some of the remarks made on
the floor today. I thought I would clarify them, clarify the reality of
what really happened. I have had a little bit of criticism by my
colleagues from the other side of the floor because we actually had the
committee vote last week when it should have voted. So I took the
liberty of writing a detailed letter to the distinguished Senator from
South Dakota, the distinguished minority leader, who is a dear friend.
I know he has been concerned that maybe there was some breach of the
rules. So I would like to read this letter into the Record so that
everybody will understand that there was no breach of the rules last
Thursday. Anybody who says there was really doesn't understand the
rules, does not understand the obligations of the chairman.
I am writing in response to your comments on the Senate
floor concerning the Judiciary Committee's executive business
meeting this past Thursday. I know you are a person of the
highest principles who would never intentionally misrepresent
the actions of a Committee Chairman, particularly when the
action involves an interpretation of that committee's
particular rules. I think you may have been provided with
some incorrect information, and I would like you to know the
truth.
As you know, the Judiciary Committee met at 9:30 a.m. last
Thursday to consider several nominations and some
legislation. Although the Democrats were cooperative about
voting out a few widely-supported District Court nominations
and some other nominations, they made it clear that they
would attempt to filibuster at least two of the three
nominees for the Circuit Courts of Appeal, Deborah Cook John
Roberts and Jay Bybee.
It is important to note that the nominations of Mr. Roberts
and Justice Cook had been filibustered in Committee during
our last meeting two weeks ago, and had been on the agenda
but held over the week before that. I could have forced a
vote two weeks ago, but I declined to do so out of deference
to my Democratic colleagues, who had assured me that we would
vote on the nominations at the next meeting, meaning last
Thursday.
From 9:30 a.m. to approximately 12:30 p.m. yesterday,
Committee Members engaged in a thorough debate on the three
Circuit Court nominations. I allowed every member to talk as
long as they wanted. Everyone was allowed to say his or her
piece [even though we could have limited debate].
When the speeches ran out at 12:30 or so, I announced it
was time for a vote. Senator Kennedy objected. I overruled
the objection, and then all of the Democratic Members walked
out of the hearing room in order to deny the Committee a
quorum. A few minutes later, Senator, Specter returned to the
Committee room, making a total of nine Republicans present,
and then a couple of the Democrats returned and demanded to
continue the filibuster even though every democrat who wanted
to speak had already done so. As support for their
filibuster, they relied upon Rule 4 of the Judiciary
Committee rules. That rule allows any Member to move to have
an item on the Agenda voted upon. In this case, the
nomination on the Agenda was brought to a vote.
As background, you know well that Senate Committee Chairmen
have a number of inherent powers that are not expressly
stated in Committee rules. For example, the Judiciary
Committee Chairman has the power to call and set the agendas
for hearings and mark-ups even though those powers are not
explicitly granted by Committee Rules. The Chairman also has
the inherent power to bring a matter to a vote. The Chairman
also has the power to interpret the rules of the Committee,
as Senator Leahy has done in the past. The Parliamentarians
assured me of this on Wednesday.
Rule 4 of the Judiciary Committee Rules is not the
authority by which the Chairman calls for a vote. On the
contrary, the clear text of Rule 4 gives a majority of the
Committee (which must include Members of both parties) a
mechanism to force a vote, presumably when the Chairman does
not want or call one. In other words, it ensures that the
majority will is not thwarted by an obstreperous Chairman who
refuses to allow a vote on an item on the Agenda.
Rule 4 works like this: When a Member wants to end debate
and bring a matter to a vote, he or she is entitle dot make a
motion to hold a vote and the Chairman must entertain it. If
anyone objects, then the Committee must vote on the motion
(the motion is not debatable). The motion carried only if a
majority of the Committee, including at least one Member of
the minority party, votes in favor. If the motion carries,
the Committee proceeds to a vote on the underlying matter.
The Democrats who raised Rule 4 at the mark-up [last
Thursday] turned Rule 4 on its head. They tried to use it to
deny a vote, not to force one. Their argument ignores the
purpose of Rule 4, the inherent power of the Chairman to call
for a vote, the fact that the debate had already ended, and
the common sense idea that legislative bodies must have the
power to make decisions--even difficult ones. I do not
believe that Committee filibusters should be allowed, and I
think it is a good and healthy thing for the Committee to
have a rule that forces a vote.
I understand your misperception given the fact that you may
not--and indeed have no
[[Page S3022]]
reason to--be fully familiar with the Judiciary Committee's
rules, as you do not serve on the Committee. But knowing you
as a fair man, I thought my explanation would help clear any
misconceptions.
It is unfortunate that I was forced to exercise the
Chairman's inherent power to force the Committee to act [last
Thursday]. I had given every fair consideration to my
Democratic colleagues for debating the nominations. The
nominees before the Committee were very well qualified, enjoy
home-state support (bipartisan, in the case of Bybee), and
were ultimately approved by substantial bipartisan majorities
of the Committee.
I know it makes for popular speechmaking to accuse
politicians of abusing process and procedure. And as a former
Majority Leader of the body, you appreciate the difficult
decisions one must make in order to do the business of the
people and exercise our constitutional obligations,
particularly in the face of obstruction by a few. But you and
I have worked well together over the years, and I know that
you would never make those accusations about me unless you
had somehow received inaccurate information.
Unfortunately, that is what seems to have occurred in this
case. I appreciate you and your consideration of this letter.
Sincerely,
Orrin G. Hatch,
Chairman.
Mr. HATCH. That letter makes it very clear that not only were the
rules not abused, there was an abuse by the other side in trying to not
live up to the rule we have in the committee that any item on the
agenda can be put over for a week, and that in the next week there is a
vote on that item, unless the chairman and the ranking member agree. In
this case, we not only put over Roberts and Cook for a week, we put
them over for 2 weeks, because my colleagues asked for it. I agreed to
do that in deference to them.
Then, when it came time to vote for them, I walked into the committee
room and I was told by the ranking member that they weren't going to
vote on Roberts and Cook that day. I said: Oh, no, we are going to vote
on them because that is what we agreed to. We are going to vote on them
because that is what the rules agree to. So I waited for all Senators
to make their comments.
We took 3 hours to hear rather long statements. I think we were very
patient with those statements because at least one of them hardly
talked about the nominees but talked about a whole raft of other issues
involving the committee, which is a right of a Senator. Other Senators
gave long statements on the nominees themselves, which was their right
to do. But when the statements wound down and there were no further
statements to be given, I said: We are going to vote. And that is when
people got mad and demanded that we not vote.
At that point, I had to make a decision as committee chairman--which
is a legitimate decision--that we are going to vote, that filibusters
are not proper in committee, and that we had people on both sides who
were willing to vote for these nominees. We had people from the
minority and from the majority. All three of them passed out with
substantial votes. So there is hardly room here to criticize what was
done. Any committee chairman worth his or her salt has to ultimately
bring the matters before the committee to a vote. That is what I did.
In the case of judicial nominations, I don't believe there should be
filibusters under any circumstances against Presidential judicial
nominees. I think they should be voted up or down--not only in
committee but on the floor of the Senate as well.
These are important positions. We should not treat them as though
they are just regular legislative items that can be kicked around at
will. These are important positions that literally must be given their
chance for a vote. Not only were the rules followed, but we were very
gracious and considerate in allowing my colleagues on the other side to
make whatever statements they wanted to. I cannot say we have to do
that every time. If people are going to come in and make hour-long
statements in the future, and do it solely for the purpose of
obstruction, then I think there comes a time when a chairman has to
exercise his or her prerogative and call for a vote.
If the Democrats don't like the nominees, they should vote them down.
I hope the only negative votes will be those that were well considered,
decent, honorable, by those who literally had good reason behind a
negative vote. But even if they didn't have these good reasons, then
they have a right to vote them down. Others have a right to vote them
up. If a nominee passes, then the nominee should pass out of committee
and come to the floor. Hopefully, we will have a debate for a
reasonable length of time and we will vote on nominees, as we should,
on the floor of the Senate.
Let no one be deceived; the rules were followed. I chatted with the
Parliamentarians beforehand to make sure I was on a good track here and
that I was following the best standards of the Senate, even though I
certainly had to put my foot down as the chairman. I acted in
accordance thereto.
With that, I understand the Senator from New York would like to make
a statement.
I yield the floor.
Unanimous Consent Request--S. 414
Mrs. CLINTON. Mr. President, I ask unanimous consent that the Senate
proceed to legislative session and begin the consideration of Calendar
No. 21, S. 414, a bill to provide an economic stimulus package.
The PRESIDING OFFICER. Is there objection?
Mr. HATCH. Reserving the right to object.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, it seems very interesting to me that this
request would be made when our friends on the other side, last year,
did not even pass a budget, for the first time since the Budget Act was
enacted, and did not pass the appropriations bills, by and large.
Mr. REID. Regular order, Mr. President.
Mr. HATCH. I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. CLINTON. Mr. President, I appreciate the remarks of my good
friend from Utah. I do not agree with them, but he is always someone
who is ready to express his heartfelt convictions about any matter. I
believe, having now traveled and talked with and heard from so many of
my constituents, that it is time for us to face the real issues that
are on the minds of the American people.
Obviously, we know Americans today are quite concerned and worried
about the continuing defiance of the United Nations by Saddam Hussein
and the amassing of 200,000 of our men and women in uniform in the gulf
in the event the President must order military action to fulfill the
requirements not only of Resolution 1441 but of all the resolutions
that Saddam Hussein has defied for over a decade.
I know many of the people I represent are deeply concerned that in
the last week we have not been able to get any information from the
administration about their projected costs of the military action
should it occur in Iraq, and the follow-on costs that would be required
for the pacification and rebuilding of Iraq, the efforts to try to
create a set of conditions that could provide a better opportunity for
a brighter future for the people of Iraq.
Many of my constituents have said: Senator, how much is it going to
cost? How long is it going to take? How many of our people will be put
at risk? We do not know the answers. I think that is something on which
we should be focused.
Certainly, I hear quite a bit of concern about how well prepared we
are to defend ourselves at home. Have we put the amount of resources
strategically deployed on defense that we have done on offense? As many
of my colleagues know, I have been coming to the Chamber now for, I
guess, 16 months expressing my deep concerns that the answer to those
questions is no; that we have not done for defense what we have done
for offense.
I am proud of the extraordinary capacity that our military has, by
far the most ready, the most powerful in the history of the world. That
is a great comfort and point of pride for every American.
I was up at one of those facilities just today, the Watervliet
Arsenal in Albany. It dates back to the War of 1812. It has been
producing guns and tubes, mortars and tank equipment for decades. I am
very proud it is in a State I represent that has such a tradition of
patriotism where the Revolutionary War was largely fought and won.
I am very grateful we have this level of commitment to our military,
but I
[[Page S3023]]
do not hear the same from our mayors, our police chiefs, and our fire
chiefs, and I do not think we can honestly say we have done everything
we need to do to provide for hometown security, to make sure we get the
people on the streets we require.
I met today with three mayors from cities I represent: Mayor Jerry
Jennings from Albany, Tony Masiello from Buffalo, and Matt Driscoll
from Syracuse. They came to talk about their unmet needs. When the
alert goes up and the phone calls start coming in and they are expected
to respond, they are not given the tools and resources that high level
of responsibility demands.
I know we are in difficult economic times, but I do not think that
can stand in the way of the Federal Government fulfilling its
responsibility to the mayors, police chiefs, fire chiefs, emergency
responders, hospital administrators, and others who make up our front
line defense at home. In fact, I think it is imperative that we give
the same attention to hometown security that we have been giving to
national security because the two are absolutely inextricably linked.
There is no front over there. We do not put people on boats, on troop
ships, and send them off somewhere far away. We do not wave goodbye to
them at airports as they travel halfway around the world to defend
freedom and America's vital interests. When we see a police officer
standing on the street, when we go by a firehouse, those are the
frontline soldiers. Those are the people who have to respond to
whatever happens.
It has been troubling to me that this administration repeatedly has
talked about the need for security but time and again has not been
willing to give support with the dollars that are desperately required.
I have spoken with people throughout my State. I want to take a
moment to share the comments and concerns of just one of the cities and
counties I represent. It happens to be the county in which I live, West
Chester County in another community, the city of New Rochelle, with a
very dedicated group of leaders, Mayor Idoni and others who are totally
committed to building New Rochelle and protecting New Rochelle. They
have gone to briefings and training sessions to find out what they need
to do.
Unfortunately, when I asked if their city had incurred any additional
costs due to the recent code orange, this was their response:
Unfortunately the city of New Rochelle is nowhere able to
prepare for or respond to homeland security alert level
orange than we are for alert green. Incurring personnel
expenses, i.e., overtime, is not fiscally possible.
Additionally, all that we would have accomplished would
have been to put more people on the street with limited training and
virtually no equipment.
These words come from our frontline defenders. These are our
generals, our colonels, and our captains. They are the people who are
going to direct whatever response we need in the event of some kind of
terrorist attack.
Seventeen months have passed since that horrible day in September,
and all the while the Federal Government has been asking our mayors to
do more with less. According to the U.S. Conference of Mayors, cities
have invested $2.6 billion of their own resources to protect our
Nation.
In November 2001, after visiting with the people in New York City,
who know more about what is needed than literally anybody in our
country, and going to Buffalo to meet with the mayor, police, fire
officials there, I immediately called for $3.5 billion of direct
funding for our first responders. I proposed the homeland security
block grant in 2000 and 2002, and it was the first piece of legislation
I filed again this year in 2003.
Last week, the administration finally conceded what many of us, along
with mayors, police commissioners, fire chiefs, emergency response
teams, and others have been saying for the last 2 years: We need more
resources at the local level to secure our homeland.
In January, I released a report that showed how 70 percent of our
local cities and counties had not received any Federal homeland
security funding. I can go through chapter and verse talking about what
each community has had to do.
I recall a comment by the Director of the Office of Management and
Budget who said in response to my criticism and others: There is not
enough money in the galaxy to protect everyone and everybody.
That may be objectively true, but I think we have to do more to try,
and I sure think we have to recognize places of increased
vulnerability, targets of opportunity.
As we take great comfort in the capture of Khalid Sheik Mohammed in
Pakistan, we cannot help but notice amongst the documents apparently
recovered and the information that was used as a basis for this
apprehension were concerns about additional attacks, I must say once
again, focused primarily on New York City and Washington.
I do not think for a minute these are the only targets in the United
States. I do believe they are still the two most prominent areas of
concern for us and, therefore, need more attention than most places do.
Who would have guessed we would have found a terrorist cell in
Lackawanna, NY, a few miles outside of downtown Buffalo? Who would have
guessed that people accused of helping to finance terrorism would be
arrested in Syracuse, NY? So we need a national plan for local
response, and that is why on Friday I called for the establishment of a
domestic defense fund within the Office of Domestic Preparedness in the
Department of Homeland Security.
Whether it is in New York City, where between February 7 through the
20 the NYPD estimates it spent $1.1 million for personnel costs, or in
Los Angeles where an additional $650,000 had to be used to put on
personnel to search cars at the airport, or Wilmington, DE, which spent
$25,000 a day for police overtime, we know these costs are building up.
In this time of an ocean of red ink for our State and local budgets,
there are no resources that can be dipped into to make up for these
losses our cities and counties are experiencing.
This domestic defense fund would provide direct funding for our local
communities, for personnel costs, equipment, and other first responder
needs. It would also include the covering of other emergency
preparedness costs, whether it is high overtime costs as a result of
code orange or extra security if there is a high profile trial like
Zacarias Moussaoui, or to help local law enforcement cover the costs
they incur if they arrest a sleeper cell such as they did in
Lackawanna. We need to be ready to provide these additional funds.
When the Presidents Day blizzard occurred up and down the east coast,
cities and States knew that FEMA's disaster recovery fund was in place
to help defray these costs. LIHEAP, the Low Income Heating Energy
Assistance Program, is set up in the same spirit. When it gets colder
and our citizens are at risk of exposure to dangerous temperatures, the
Federal Government provides for home heating costs. Right now we have a
national alert system and a local response system, but as the threat
level approaches orange, our local governments have to dig deep to find
the funds to respond. Therefore, we need to do better.
Just as we have done for our men and women in uniform, we have to be
willing to provide the funds our men and women on the front lines at
home need and deserve.
I understand the administration plans to come forward with a wartime
supplemental appropriations bill. In the Senate, my colleagues and I
will be pushing also for an emergency supplemental to address our unmet
domestic security needs. That should include direct funding for local
communities, and it should include the domestic defense fund.
I do not see any way to avoid the necessity of providing the funds
that are needed for our homeland-hometown security, and I hope this
body, and our colleagues across the Capitol, as well as the
administration, will cross party lines and in a bipartisan manner make
sure we do everything possible to prepare. We can always hope for the
best, but we have to prepare for the worst, and that means we have to
pay attention to what we are being told by local first responders. They
are the experts. They know what they need. We have to stand ready to
assist them, and I hope as we move forward over the next month we will
do that.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
[[Page S3024]]
Mr. HATCH. Mr. President, I have enjoyed my colleague's remarks, and
although we have our differences on some of them, I appreciate her
diligence and effort. I have a lot of respect for her.
I will say that continually asking to go off the Estrada matter for
other matters really concerns me, because I think it is a failure to
recognize that this is one of the most important nominees and one of
the most important positions in the country. There is one way to get
off of this nomination, and that is to vote up or down, instead of
filibustering. Do what has always been done in the past in these
matters and bring this issue to a vote. Then we can go to these
important economic matters and other matters as well.
I have been concerned, because I remember when the minority leader
and the minority whip came on the floor last week and basically said:
Why are we not on economic issues?
I did get very upset because I thought that is nice for them to say
that, but they were not even willing to do a budget last year because
it takes a lot of guts to do a budget. We always did. Last year was the
first time in the history of the Budget Act that the majority party
refused to do a budget. We know why. Because they made a lot of cheap
shots against us when we had to make those tough decisions on the
budget. Then all of a sudden they found they were in a position where
shots could be taken against them, cheap or otherwise, and they were
not able to get together on their side because they had so many
factions on their side that did not agree.
So it is easy to criticize, but you better have a better standing to
criticize than what I think they have.
Also, the reason we had to have this omnibus appropriations bill
after the first of the year is because our colleagues on the other side
could not pass the appropriations bills. We did it in a matter of weeks
after we came into power this year. I think that is something the
Republicans deserve a great deal of credit for. Our colleagues on the
other side deserve some criticism for it.
____________________