[Congressional Record Volume 149, Number 41 (Thursday, March 13, 2003)]
[Senate]
[Pages S3694-S3695]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  JAY S. BYBEE, OF NEVADA, TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                        NINTH CIRCUIT--Continued

  The PRESIDING OFFICER. The Senate will resume consideration of the 
Bybee nomination.
  Who yields time?
  Mr. GREGG. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, I ask unanimous consent that I be 
recognized as in morning business for up to 10 minutes for the purpose 
of introducing a bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Maine is recognized.
  (The remarks of Ms. Collins pertaining to the introduction of S. 616 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Ms. COLLINS. I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, the two leaders have agreed that the vote on 
the circuit judge would occur at 3:45. I am sure there will be a 
unanimous consent brought here soon.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that at 3:45 all 
time be yielded and the Senate proceed to the first vote, which is on 
the confirmation of Mr. Bybee.
  The PRESIDING OFFICER (Mr. Smith). Without objection, it is so 
ordered.
  The Senator from Connecticut.
  Mr. DODD. Mr. President, might I inquire, what is the pending 
business before the Senate?
  The PRESIDING OFFICER. The pending business is the nomination of Jay 
S. Bybee.
  Mr. DODD. Mr. President, I ask unanimous consent to proceed as in 
morning business so as not to interrupt the debate on the nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Dodd are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I want to speak for 3 minutes on the 
nominee. I can do it before or after my leader on the Judiciary 
Committee.
  Mr. LEAHY. I tell my friend from New York, I have allowed others to 
go, but one more doesn't bother me, especially someone as good as the 
Senator from New York. I certainly have no objection.
  Mr. SCHUMER. I thank my colleague. I will try to be brief and leave 
the majority of the remaining time for him.
  I rise in support of the nomination of Jay Bybee for the Ninth 
Circuit Court of Appeals. I realize that my support--I was one of two 
Democrats on the Judiciary Committee to be for Mr. Bybee--may surprise 
some people, so I wanted to explain for a few moments why I will be 
voting to confirm him.
  As most of my colleagues know, I use three criteria to evaluate 
judicial nominees: Excellence, moderation, diversity.
  Excellence, legal excellence, Mr. Bybee meets that criteria. 
Diversity, you can't judge that by one individual, but the Bush 
administration has been pretty good, certainly not terrible, in terms 
of diversity.
  It is moderation where I have had the greatest problem with some of 
the President's nominees. I don't believe in judicial nominees too far 
left or too far right because in each case, they tend to make law, not 
interpret law, as the Founding Fathers said they should. I believe 
there has to be balance, balance on the courts. And I have said this 
many times, but there is nothing wrong with a Justice Scalia on the 
court if he is balanced by a Justice Marshall. I wouldn't want five 
Scalias, but one might make a good and interesting and thoughtful court 
with one Brennan. A Rehnquist should be balanced by a Marshall.
  Jay Bybee, make no mistake about it, is a very conservative nominee. 
It is fair to put him in a similar category with many of the more 
conservative nominees we have had. If Mr. Bybee were nominated to 
another court that is hanging in the balance or where most of the 
nominees were conservative, I probably wouldn't vote for him. If he 
were nominated for the Supreme Court, for example, there would be a 
different calculus. But Mr. Bybee is nominated to the Ninth Circuit. 
The Ninth Circuit is by far the most liberal court in the country. Most 
of the nominees are Democratic from Democratic Presidents. It is the 
court that gave us the Pledge of Allegiance case which is way out of 
the mainstream on the left side. Therefore, I think Jay Bybee will 
provide some balance.
  Let me repeat, if he were nominated to another court, I might have 
evaluated this differently. But when it comes to nominations, I mean 
what I say and I say what I mean. There has to be balance. Standards 
cannot only apply when they help achieve the desired outcome.
  I want to be as fair and honest as I can be in this process. I have 
developed a set of criteria for evaluating nominees. I don't pretend to 
change them when after applying those criteria the scales tip in favor 
of supporting a nominee many of my friends oppose.
  I respect those who arrive at a different conclusion. I understand 
their reasoning. I intend to vote yes on Mr. Bybee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, we have moved the time up, I realize, in 
the next 6 minutes for the first vote. That is something I have agreed 
to accommodate a number of Senators on both sides of the aisle who have 
commitments. As a result, also as a result of yielding time to the 
distinguished Senator from Alabama, who had one of the nominees and, of 
course, appropriately should be speaking, and others, I will not be 
able to say all the things I wanted to.
  I ask unanimous consent that I be recognized for 20 minutes after the 
conclusion of the final rollcall vote today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Obviously, as usual, should the leaders have other plans 
for that, I will do my usual courtesy of yielding to them.
  (The remarks of Mr. Leahy are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent on the nomination of Jay S. Bybee, of Nevada, to be United 
States Circuit Judge for the Ninth Circuit? On this question, the yeas 
and nays are required.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. LEAHY. Mr. President, parliamentary inquiry: Who is the next 
judge after this?
  The PRESIDING OFFICER. That would be Judge Steele from the State of 
Alabama.
  Mr. LEAHY. Mr. President, I understand we also have J. Daniel Breen, 
of Tennessee, on the list. I ask unanimous consent that it be in order 
to ask for the yeas and nays on his nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I ask for the yeas and nays.

[[Page S3695]]

  The PRESIDING OFFICER. Is there sufficient second.
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. LEAHY. I thank the Chair.
  The PRESIDING OFFICER. The clerk will call the roll with respect to 
the Bybee nomination.
  The bill clerk called the roll.
  Mr. FRIST. I announce that the Senator from Colorado (Mr. Campbell), 
the Senator from Texas (Ms. Hutchison), the Senator from Arizona (Mr. 
Kyl), and the Senator from Kentucky (Mr. McConnell) are necessarily 
absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from North Carolina (Mr. Edwards), and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
North Carolina (Mr. Edwards) would vote ``no.''
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``aye.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 74, nays 19, as follows:

                       [Rollcall Vote No. 54 Ex.]

                                YEAS--74

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Cantwell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Daschle
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Inhofe
     Jeffords
     Johnson
     Kohl
     Landrieu
     Leahy
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     Miller
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reid
     Roberts
     Rockefeller
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--19

     Boxer
     Byrd
     Clinton
     Corzine
     Dayton
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Kennedy
     Lautenberg
     Levin
     Mikulski
     Murray
     Reed
     Sarbanes
     Stabenow
     Wyden

                             NOT VOTING--7

     Biden
     Campbell
     Edwards
     Hutchison
     Kerry
     Kyl
     McConnell
  The nomination was confirmed.


                             Change Of Vote

  Mr. DAYTON. Mr. President, on rollcall vote No. 54, I voted aye. It 
was my intention to vote no. Therefore, I ask unanimous consent that I 
be permitted to change my vote since it will not affect the outcome of 
the vote.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  (The foregoing tally has been changed to reflect the above order.)
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. REID. Mr. President, following this vote, I ask that the majority 
leader be recognized; following that, that Senator Leahy be recognized; 
following that, Senator Kennedy.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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