[Congressional Record Volume 149, Number 52 (Tuesday, April 1, 2003)]
[Senate]
[Pages S4607-S4614]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF TIMOTHY M. TYMKOVICH, OF COLORADO, TO THE UNITED STATES 
             CIRCUIT JUDGE FOR THE TENTH CIRCUIT--Continued

  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, the order of business on the floor, if I 
am not mistaken, is the nomination of Mr. Timothy Tymkovich for 
lifetime appointment to the United States Court of Appeals for the 
Tenth Circuit. I rise in opposition to that nomination.
  Initially, it is worth noting that the Tenth Circuit is closely 
divided between Republican and Democratic appointees, and the seat for 
which Mr. Tymkovich was nominated is a seat that the Republican-
controlled Senate has denied on more than one occasion. In fact, they 
have denied it to a moderate Hispanic-American Clinton nominee in the 
year 2000, Colorado Attorney General Christine Arguello. She would have 
been the first and only Hispanic-American judge on the Tenth Circuit, 
but the Republicans, then in control of the Senate, refused to give Ms. 
Arguello a hearing or a vote.
  The Republican-controlled Senate also refused to give a hearing or 
vote to another Clinton nominee for the Tenth Circuit, James Lyons, 
thus ensuring that this vacancy which we debate today would be theirs 
to fill. That is what led us to this moment in time where this 
nomination is being considered on the floor of the Senate.

  I asked Mr. Tymkovich some questions when he appeared before the 
Judiciary Committee, and I would like to relate to you some of his 
answers. One of them relates to his membership in the Federalist 
Society.
  There is nothing illegal about the Federalist Society, nor any reason 
why someone would deny their membership, but it has become a strange 
coincidence how many Bush administration nominees are members of the 
Federalist Society. I have said that when you chart the DNA of Bush 
administration judicial nominees, you are likely to find, more often 
than not, the Federalist Society chromosome.
  So I started asking questions, and some of my colleagues are now 
joining me. Why? What is it about this organization that is becoming 
such an important element on a resume of someone seeking a judgeship in 
the Bush administration?
  I asked Mr. Tymkovich, who is not only a member of the Federalist 
Society, but who is on its Colorado board of advisers, the following 
question:

       One of the goals of the Federalist Society is ``reordering 
     priorities within the legal system to place a premium on 
     individual liberty, traditional values, and the rule of 
     law.''

  I went on to ask him:

       Which priorities do you believe need to be reordered? What 
     is the role of federal judges and the courts in reordering 
     such priorities? On which traditional values should there be 
     a premium, and why? The Federalist Society also states that 
     its objective ``requires restoring the recognition of the 
     importance of these norms among lawyers, judges, and law 
     professors.''

  I asked Mr. Tymkovich:

       If you are confirmed, how will you as a judge restore, 
     recognize, or advance these norms?

  I do not believe these were trick questions. I believe they were 
open-ended questions so Mr. Tymkovich could tell us what it is about 
the Federalist Society that he understands to be their mission, and 
whether he agrees or disagrees.
  Mr. Tymkovich's entire response is the following:

       I am not aware of the context of the quotations in the 
     question, but all seem to address the role of a policy 
     commentator as contrasted with the role of a federal judge. 
     If confirmed as a judge to the Tenth Circuit, I would set 
     aside any personal views and apply the precedent of the 
     Supreme Court and the Tenth Circuit.

  The quotations in my question are straight from the ``Our Purpose'' 
page of the Federalist Society Web site. They constitute the mission 
statement of the organization and are central to its identity.
  Mr. Tymkovich's assertion that he is not aware of them raises 
important questions. His responses to this committee during the hearing 
indicate that he was, at times, evasive in other answers as well.
  But there is one particular reason why I oppose Mr. Tymkovich, and it 
relates to the issue of discrimination.
  I have said on the floor of the Senate and in the Judiciary Committee 
that several weeks ago I had a unique opportunity to visit the State of 
Alabama for the first time, to go there with Democratic and Republican 
Members of Congress, on a delegation led by our Congressman from 
Atlanta, GA, John Lewis, to visit some of the most important spots in 
America in the civil rights movement.

[[Page S4608]]

  We went to Birmingham, AL, and visited the Baptist church where four 
little girls were killed with a firebomb on a Sunday morning.
  I went to Selma, AL, with Congressman John Lewis, and stood at the 
spot where he was beaten by the Alabama State troopers and the militia, 
suffering a concussion, at the time the march to Montgomery was turned 
back.
  We went to Montgomery, AL, and stood on the street corner where Rosa 
Parks boarded the bus and refused to give up her seat.
  The importance of this cannot be overstated for a person in my 
generation because the civil rights movement was part of my formation 
as a young person. The civil rights movement was something I valued for 
what it brought to America. It was a struggle I witnessed as a young 
student and appreciated as I grew older.
  Congressman John Lewis said to us, as we were visiting these 
important historic sites, something that was not part of the formal 
program. He said: There never would have been a civil rights movement 
in Alabama, there would not have been a march from Selma to Montgomery, 
were it not for one Federal judge, Frank Johnson.
  Frank Johnson, a Federal district court judge--Republican, appointed 
by President Eisenhower--had the courage to stand up to the 
establishment in Alabama and other Federal courts and to fight against 
discrimination. He made important rulings, striking the Montgomery 
County ordinance which allowed for segregation on buses, striking laws 
which did not allow fair representation in the legislature of Alabama, 
and, of course, signing the order which allowed the march from Selma to 
Montgomery.
  Because of his courage, he was shunned by leaders in society. He 
could not go back to his old country club. He had to start using the 
public golf courses. But there was worse. His mother's life was 
threatened. Bombs were going to be detonated at his home and her home. 
Security was necessary around the clock. But he persevered. And because 
of his courage and his determination, the civil rights movement was a 
reality.
  America is a better place because of one Federal district court judge 
who, given a chance to stand up against prejudice and bigotry, did the 
right thing for America.
  I thought to myself, as all of these judicial nominees come to the 
Senate, through the Judiciary Committee, where is the next Frank 
Johnson? Where is the next person who will stand up and fight for civil 
rights, the challenge of our generation?
  I thought over that particularly when I considered the candidacy and 
the nomination of Mr. Tymkovich for this circuit court judgeship. Mr. 
Tymkovich already has had his chance to speak out on the issue of 
discrimination. Sadly--sadly--he came out on the wrong side. Mr. 
Tymkovich appears to be hostile to laws prohibiting discrimination 
based on sexual orientation. This isn't an easy issue for a lot of 
Members of Congress. There are people who feel very strongly against 
those with a different sexual orientation, gays and lesbians in 
American society. I, for one, was raised in a conservative small town, 
East Saint Louis, IL. I raised my family in another small town, 
Springfield, IL. It was not until I got involved in congressional 
politics that I stepped back and said: I have to take a look at this 
issue. I have to decide whether this is a civil rights issue and, if it 
is, which side of history I will be on.
  I have tried, though my record is not perfect, to stand for the 
proposition that discrimination against any American based on race, 
religion, national origin, gender, disability, age, or sexual 
orientation is wrong. I think that is a standard that America--all of 
America--should hold high. But, unfortunately, when it came to Mr. 
Tymkovich, and discrimination against people because of sexual 
orientation, he took an opposite course. He zealously supported 
Colorado's amendment 2, which eliminated the legal rights for gays, 
lesbians, and bisexuals by banning all legislative, executive, or 
judicial action at any level of State or local government designed to 
protect them. In other words, amendment 2 commanded that there be no 
recourse for any gay person in Colorado who was fired or not hired, 
denied housing, harassed in school, or subject to similar acts of 
discrimination.
  When I took a look at the Supreme Court case where this amendment was 
challenged, they listed some of the local ordinances that were at 
issue. They listed Colorado municipalities and what they were 
attempting to protect: Aspen, CO, had a local ordinance prohibiting 
discrimination in employment, housing, and public accommodation based 
on sexual orientation; Boulder, CO, and Denver, CO the same thing; an 
executive order prohibiting employment discrimination for all State 
employees classified and exempt on the basis of sexual orientation; the 
Colorado insurance code, forbidding health insurance providers from 
determining insurability and premiums based on an applicant's or a 
beneficiary's or an insured's sexual orientation; and other provisions 
prohibiting discrimination based on sexual orientation at State 
colleges.
  These were the laws which amendment 2 in Colorado would have wiped 
off the books. Mr. Tymkovich came to the U.S. Supreme Court and argued 
that these local ordinances should be wiped off the books, or at least 
that amendment 2 should be allowed to stand.
  The amendment was approved by a majority of Colorado voters, so the 
Supreme Court had to really face the basic issue as to whether 
amendment 2 was an equal justice issue, and whether, in fact, the 
Colorado voters could vote to take away the rights of individuals 
because of sexual orientation.
  The Supreme Court decided by a vote of 6 to 3 that the position 
argued by Mr. Tymkovich was wrong. Only three of the most conservative 
Justices on the Supreme Court felt otherwise: Justices Scalia and 
Thomas, and Chief Justice Rehnquist. They dissented, but six other 
Supreme Court Justices said the Colorado decision to pass amendment 2 
violated the equal protection of the laws in the United States and that 
Mr. Tymkovich's position arguing in favor of it was wrong by a vote of 
6 to 3. The man before us today asking for a lifetime appointment to 
the Tenth Circuit was found by the U.S. Supreme Court to be mistaken in 
his position.
  That is not the first time that has ever occurred. Lawyers argue 
cases, and sometimes they have no choice. They need to come before the 
court representing their clients. Whether it is a State, locality, 
business or an individual, they come before the court and make the best 
case, and the court rules. Sometimes they are on their side and 
sometimes they are opposed. In this case the Supreme Court ruled 
against Mr. Tymkovich.
  What troubles me is what happened after that. After the Supreme Court 
issued its decision, Mr. Tymkovich decided to author a Law Review 
article. It is a lengthy article in the 1997 University of Colorado Law 
Review. It is entitled ``A Tale of Three Theories: Reason and Prejudice 
in the Battle Over Amendment 2.''
  Mr. Tymkovich and a couple other writers went on to explain why the 
Supreme Court was just plain wrong. Mr. Tymkovich wrote that the 
Supreme Court decision in Romer v. Evans is ``merely another example of 
ad hoc activist jurisprudence without constitutional mooring. If the 
test of an independent judiciary lies in its response to difficult 
political decisions, Romer is cause for great uneasiness about the 
health of self-government.''
  There is a paragraph in this article which I find particularly 
offensive. Mr. Tymkovich, in describing the lifestyle of those with 
different sexual orientations, likens them to people who practice 
bestiality. Those are not my words. They are the words written by 
Timothy M. Tymkovich who now seeks a lifetime appointment to the second 
highest court in the nation.
  Mr. Tymkovich decided in this article to establish what he considers 
to be a moral rationale for discrimination. It is not the first time 
that has happened. If you will look back in our history, there has 
scarcely been a time when discrimination was practiced in America that 
someone didn't rationalize it or moralize it. Whether the objects of 
that discrimination were Native Americans, African Americans, Asians, 
Catholics, the Irish, they have used some sort of moral rationale to 
say that a position of discrimination is actually the moral thing to 
do.

[[Page S4609]]

  Mr. Tymkovich took exactly that position when it came to 
discrimination against people based on sexual orientation.
  That position goes way beyond the norm in America. Mr. Tymkovich 
tries to argue in his article that this is all about States' rights. I 
understand there is an important balance between Federal power and 
State power. The Constitution acknowledges that. But, historically, 
those who want to support discrimination have usually found their 
refuge in the dark shadows of States' rights. The Federal Government 
should not step in, they argue, to establish constitutional principles 
of equal justice under the law. They argue: let the States establish 
those standards, knowing full well that you won't have a uniform 
standard across the country. You will not have uniform protection under 
the law.
  The Supreme Court, in the case of Romer v. Evans, saw it differently. 
Thank goodness they did. ``One century ago,'' Justice Kennedy wrote, 
``the first Justice Harlan admonished this Court that the Constitution 
neither knows nor tolerates classes among citizens.''
  They went on to say, during the course of this opinion:

       ``If a law neither burdens a fundamental right nor targets 
     a suspect class, we will uphold the legislative 
     classification so long as it bears a rational relation to 
     some legitimate end.''

  They said Mr. Tymkovich's logic and argument in Romer v. Evans were a 
basic denial of equal protection under the law. Now Mr. Tymkovich wants 
an opportunity to go to the second highest court in the land and argue 
his point of view for a lifetime. I am sorry. That is a bad choice. It 
is a bad choice for the Tenth Circuit and a bad choice for America.
  Throughout my service in Congress, I have tried to support every 
effort to end discrimination based on race, gender, ethnic origin, 
religious belief, age, disability, or sexual orientation. Fair and 
equal treatment of all Americans is a cornerstone of our society and 
our political system. Unfortunately, despite the great progress we have 
made, the struggle for civil rights and equal treatment under the law 
continues today.
  Federal judges, such as Frank Johnson, stood up 40 years ago under 
risk of personal harm and risk to their families and said: I will stand 
up for equal protection under the law--when it came to African 
Americans. I am sorry to say that based on his arguments and his own 
words, I cannot believe that Mr. Tymkovich could ever rise to that 
challenge.
  If we want to turn our backs and ignore the reality of people who 
have polished their prejudices to a high sheen with legal niceties, we 
are ignoring a basic responsibility of the Senate of the United States. 
If we tolerate intolerance, that is a form of intolerance. The 
intolerance of Mr. Tymkovich, as evidenced in this Law Review article, 
from which he has not backed away, is something we should not sustain, 
should not encourage, and should not approve with our vote. If Mr. 
Tymkovich has his way, the struggle for civil rights and equal 
treatment under the law will be even greater and more difficult for 
future generations. That is why I will vote to oppose his nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I would have to say that Tim Tymkovich's 
nomination is far from a partisan process. In fact, he has been 
supported in a bipartisan way. I have a list of people who have 
supported him. I would like to share some of the comments, letters, and 
statements made in support of Mr. Tymkovich's nomination.
  He is widely respected in Colorado as a fair attorney who works well 
with others regardless of political philosophy. Just listen to the 
names of these supporters and you will quickly recognize that there is 
tremendous and broad support for his nomination from people who have 
worked with him on a daily basis, his peers; for example, Roy Romer, 
former Democratic Governor of Colorado, with whom Mr. Tymkovich had to 
work on a fairly regular basis since he was Solicitor General.
  Let's look at what the Governor of the State of Colorado said about 
Tim Tymkovich:

       Mr. Tymkovich served the State of Colorado from 1991 
     through 1996 during the latter part of my tenure as governor 
     of the State of Colorado. He served with distinction and was 
     a strong advocate in legal matters for Colorado. He also 
     demonstrated a capacity to work closely with Colorado 
     Democrats as well as Republicans as Solicitor General . . . 
     He was always a straight shooter in giving legal advice to me 
     and my top staff.

  We are all involved in politics. Sometimes in the political process 
there is a disconnect from what politicians may say and what they may 
do. Timothy Tymkovich is not a politician. He a dedicated public 
servant. People like the former Governor of Colorado, the former head 
of the National Democratic Party, recognize his commitment to doing the 
right thing.
  I cannot believe, if he carried on with some of the arguments that 
have been made by the opposition, that we would have support from 
individuals such as the former head of the national Democrat party.
  The following are supporters of Tim Tymkovich:
  Michael Huttner, partner in Foster, Graham, and Huttner, a law firm 
in Denver; William H. Erickson, former Chief Justice on the Colorado 
Supreme Court; John M. Hereford, executive director of Great Outdoors; 
William H. Hanson, a Colorado attorney; Robert F. Nagel, a resident of 
Boulder, Colorado, a professor of law at the University of Colorado 
School of Law; the Rocky Mountain News; the Denver Post; Jean Dubofsky, 
Colorado Supreme Court Justice. On amendment 2, she took the opposite 
point of view in arguing the case between the Supreme Court. Mr. 
Tymkovich, as solicitor general for the State of Colorado, had an 
obligation, regardless of his personal feelings, to argue on behalf of 
the people of Colorado. Jean Dubofsky, arguing on the opposite side 
before the Supreme Court, argued against the amendment. She has written 
a letter in support of his confirmation. She was his opposition on 
arguing on amendment 2, which my colleague from Illinois just mentioned 
in his remarks; she argued against Mr. Tymkovich in the position of the 
people of Colorado, as far as amendment 2. She said she had to respect 
him because he was such an eloquent advocate for the people of 
Colorado, he was intellectual, he made great intellectual arguments, 
and he is recognized throughout the legal profession in Colorado as 
somebody who is objective, straightforward and, above all, respects the 
law, respects the rule of law.
  I want to just note that, again, Jean Dubofsky, an ``unabashed 
liberal,'' according to the Denver Post, supports Tim Tymkovich in the 
strongest terms. Not only was Dubofsky a justice on the Colorado 
Supreme Court, but she argued against Tim Tymkovich on amendment No. 2; 
she was opposing counsel. Tim Tymkovich now has the endorsement of not 
only her but five other former supreme court justices for Colorado. He 
is well recognized for his legal efforts in trying to enforce the law.
  I think in the committee hearing Tim Tymkovich answered the questions 
that were put forth, and he answered them in a straightforward manner. 
Here are a couple of key statements he made in committee I think we 
need to keep in mind on the floor of the Senate. I quote what he said 
in committee:

       I believe an appellate judge has to set aside his or her 
     personal views and faithfully apply applicable Supreme Court 
     precedent.

  In other words, he sets aside his own personal views to enforce and 
to properly interpret the law. What more can you ask? We have three 
branches of Government: executive, legislative, and judicial. Our 
forefathers had in mind the legislative branch where we make the laws. 
We have the executive branch, which administers the laws passed by the 
Congress, and we have the judicial branch, which is set up to interpret 
the law and to apply the law.
  In response to other questions before the committee, this is what he 
said about amendment No. 2, and what he said about the article referred 
to in my colleague's comments earlier in the debate, where Mr. 
Tymkovich referred to the article written on amendment No. 2:

       The article itself describes the public policy arguments 
     that were presented to the voters during the initiative's 
     political campaign, not my own.


[[Page S4610]]


  As solicitor general of the State of Colorado, he was invited by the 
Journal to write the article, and he complied to write that article, 
stating in a factual way the arguments both pro and con for amendment 
No. 2 in the State of Colorado.

  My colleague from Illinois also talked about the previous nomination, 
and he implied that somehow or other, with the Christine Arguello 
nomination by President Clinton, there was a political process. Again, 
I state in the strongest terms that that simply is not true. Carlos 
Lucero, a Hispanic from Colorado, is the first to serve as a Hispanic 
on the Tenth Circuit Court of Appeals. I supported him at the time. 
Christine Arguello's name came up for district court. I am the one who 
nominated her to be on the District Court of Colorado. It wasn't a 
nomination, but I sent a recommendation to the President of the United 
States. She was never nominated by the President. Then at the last 
minute, her name was put forward--right at about the time we were ready 
to adjourn the Senate--for a position on the Tenth Circuit Court of 
Appeals. Frankly, the Senate didn't have time to act on a last-minute 
nomination put forward by the President.
  Many of us have worked hard to make sure that Hispanics have an 
opportunity to serve on our courts. I think it is important that we 
continue to push for that. So let me make it clear. I am the Senator 
who nominated Christine Arguello. I was working with the White House 
and the Clinton administration to get Mrs. Arguello nominated in the 
first place. As we have witnessed many times, the politics of August 
nominations are often nothing more than political gestures aimed at 
grabbing headlines but have no chance of completing the confirmation 
process simply because the nomination came too late in the process.
  Again, I emphasize, I nominated Christine Arguello. This is the plain 
and simple truth and we need to recognize that.
  Mr. Tymkovich is further recognized for his work by Joseph Quinn, 
Colorado Supreme Court Justice; Gregory Scott, Colorado Supreme Court 
Justice; Luis Rovira, Colorado Supreme Court Justice; the Colorado 
Department of Public Safety, Suzanne Mencer, and Nancy Lewis of the 
Colorado Organization of Victims' Assistance; Barbara O'Brien, 
President of the Colorado Children's Campaign; Rebecca Coppes Conway, a 
Colorado attorney. They have all listed their names as supporters.
  You have already heard statements and letters from Governor Romer, 
the justices, and the newspapers. Here is what the rest of them had to 
say about Mr. Tymkovich. Suzanne Mencer and Nancy Lewis of the Colorado 
Department of Public Safety and the Colorado Organization for Victim's 
Assistance wrote a letter to Chairman Hatch, and I quote:

       We have each known Mr. Tymkovich for a considerable period 
     of time and believe that his sensitivity to the rights of 
     crime victims, as well as his great legal skills, will serve 
     our citizenry well. As Solicitor General, Mr. Tymkovich was 
     instrumental in the creation of the first appellate victim 
     services unit within the office of the Attorney General. Mr. 
     Tymkovich's legal expertise was also significant in the 
     determination of the proper course of action for passage of 
     the Colorado Constitutional Victim Rights Amendment.
  The letter went on to describe his superb legal skills and well-
recognized victims expertise, and concluded:

       His performance has shown not only an understanding of 
     legal issues surrounding crime victimization but also a very 
     great sensitivity to the attendant human cost.

  I can go on and talk about the number of people who respect the 
expertise and the capabilities of Mr. Tymkovich, but the fact is that 
he has bipartisan support and the Senate should go ahead and confirm 
him without any further delay.
  I ask unanimous consent that the time until 3:45 be equally divided 
in the usual form for the consideration of the pending nomination, and 
that at 3:45 today the Senate proceed to a vote on the confirmation of 
the nomination with no further intervening action or debate. I 
understand both leaders have agreed to this request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. I ask unanimous consent that the time be equally divided 
during the quorum call between advocates and opponents of the 
nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. I 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. DAYTON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Crapo). Without objection, it is so 
ordered.
  The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I rise today to oppose the confirmation of 
this nominee. I do so because his stated views on important judicial 
matters are not only wrong but also wrong minded, wrong about the 
particulars of the decisions which he opposes, wrong minded about the 
proper role and responsibilities of the judiciary under our 
Constitution.
  The nominee has stated: Our society prohibits, and all human 
societies have prohibited, certain activities not because they harm 
others but because they are considered immoral.
  In this category, the nominee includes sadomasochism, cock fighting, 
bestiality, sodomy, and homosexuality. The nominee made those comments 
in an article he wrote for the University of Colorado Law Review. He 
was expressing his pique at a decision by the U.S. Supreme Court, with 
six Judges in the majority, which overturned a Colorado ballot 
initiative prohibiting any legal protections based upon sexual 
orientation. As Colorado Solicitor General, he had unsuccessfully 
defended that initiative before the U.S. Supreme Court. By his own 
words, in that law review article, the nominee demonstrated why the 
majority of the U.S. Supreme Court was right in its understanding and 
application of the U.S. Constitution and the role of the judiciary in 
our society and the nominee is wrong.
  The nominee's personal opinion presumably is that homosexuality is 
immoral. He is entitled to his own opinions. He is not entitled, 
however, to make his personal opinions the moral code of American 
society and then to make judicial decisions based upon them. Our 
country is based upon a foundation of laws which are, in turn, based 
upon the U.S. Constitution. It is not a society run on the personal 
prejudices imposed by those who are in power upon the rest of the 
citizenry.

  The judiciary is the ultimate protector of individuals whom some 
cultural gestapos would otherwise ostracize, demonize, and criminalize. 
In the extreme, where countries have their laws made that are enforced 
by the self-proclaimed guardians of the public more or less, which 
always quite conveniently match entirely with their own personal 
beliefs, democracy is always and inevitably sacrificed on the altar of 
prejudice and intolerance, masquerading as higher ideals. A democracy 
must be able to permit people's differences, especially in their 
personal lives. We are not required to like someone else's actions. We 
are not required to agree with their particular views. But we do have 
to understand and accept their rights to their personal differences 
from us and our society's tolerances of those differences as being the 
essence and the test of a democracy.
  Any totalitarian government--communist, fascist, Saddam Husseinist--
tolerates the behavior and beliefs which conform to their own personal 
views, but those whose words, beliefs, or actions are different from 
theirs are not tolerated and not permitted. They are dehumanized, 
incarcerated, and even executed because they or their views or their 
actions are different from those who hold the power.
  For those of us in a democracy, this is one of the most difficult 
principles to really understand, and even more difficult for us to put 
into practice, but that is why we have the judiciary. That is why these 
are lifetime appointments to the U.S. Federal courts: so that the men 
and women the President nominates and we confirm can make unpopular 
decisions, take positions that would get elected officials probably 
unelected because they do not follow the laws that are derived from the 
U.S. Constitution. The more unpopular those rights are, the more 
crucial it is for the judiciary to uphold them.
  Unfortunately, this nominee would rather pander to his ideological 
pals

[[Page S4611]]

and perhaps to popular opinion than respect the greater wisdom of the 
judiciary and the U.S. Supreme Court which he now wishes to join at a 
lower level. If he does not respect their wisdom and their courage now, 
it is extremely unlikely that he will acquire either of those qualities 
when he dons judicial robes. It is a reason again why the penchant of 
this administration to nominate to high judgeships people who have 
never before been a judge, as this nominee has not, assures a lack of 
understanding of the responsibilities and the role, a shallowness, an 
ignorance and, if they are confirmed, the likely regular abuses based 
on those misunderstandings and those biases.
  I also disagree with the nominee and his characterization that gay 
men and lesbian women are seeking special rights when, in fact, anyone 
who views these matters with any understanding of reality, whether he 
or she disagrees or agrees with those practices, cannot possibly 
believe they are not subject to regular and sometimes brutal violations 
of legal rights, civil rights, and human rights. To twist and distort 
that need for the protections which the United States court system has, 
to afford to those who are oppressed and discriminated against and who 
are the victims of prejudices of those who are not willing to relent, 
by either greater wisdom in the spirit of our democracy or often the 
biblical junctions which they purport to represent, if the courts will 
not stand with those individuals to protect them, then there is no 
recourse and there is no protection.

  With this nominee, sadly, there is an unwillingness to even admit the 
reality of circumstances, much less to evidence any understanding of 
his responsibilities as a judge to uphold this Constitution and what it 
means for all citizens: The right of life, liberty, and the pursuit of 
happiness.
  Remember the admonition: Inasmuch as you have done so to these the 
least of my brothers, you have done so unto me.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. How much time remains on both sides?
  The PRESIDING OFFICER. The Senator from Colorado has 24 minutes, and 
the minority has 14 minutes 14 seconds.
  Mr. ALLARD. Mr. President, I reiterate what five former Colorado 
Supreme Court justices say about Mr. Tymkovich in their letter of 
recommendation to Chairman Orrin Hatch on the Judiciary Committee in 
the Senate. These are individuals who know Mr. Tymkovich. He practiced 
before them. He worked with them because he was solicitor general for 
the State of Colorado.
  Based on our professional experiences, we are of the unanimous 
judgment that he is well qualified and most able to serve as an 
appellate judge of the United States court of appeals.
  Mr. President, we need to recognize that this letter comes from 
former Colorado Supreme Court justices with varied political 
backgrounds. They all differ on professional experiences. They all had 
diverse legal careers. They had different racial, gender and ethnic 
backgrounds. But they came up with a unanimous opinion that Mr. 
Tymkovich should be confirmed by the entire Senate. That speaks loads. 
His peers, working with him on a daily basis, understand his 
capabilities.
  Mr. President, we have heard both sides present arguments, discuss 
the nominee, as well as the mechanics of our constitutional judicial 
nomination process. Now it is time to finish the job and to move to an 
up or down vote on his nomination. I believe Mr. Tymkovich to be a very 
well-qualified attorney, an attorney who will maintain high principles 
and a strong dedication to the law. He has the overwhelming support of 
the Colorado legal community. His support comes from professionals and 
clients with varied political backgrounds and differing professional 
and real-life experiences. His support comes from people with diverse 
legal careers and job history, and different race, gender and ethnic 
backgrounds. He is unanimously supported by five former justices of the 
Colorado Supreme Court, including Jean Dubojsky, an attorney who served 
as opposing counsel to one of our Nation's most high profile 
constitutional cases.
  Dubofsky and fellow justices consider Tymkovich to possess the 
necessary attributes of a Federal judge, and that Colorado and the 
Nation should no longer be subjected to undue delay on his nomination. 
I strongly urge my colleagues to support the nomination of Mr. Tim 
Tymkovich. His confirmation would fill a vacancy on the Tenth Circuit 
Court of Appeals that has sat vacant for 4 years.
  In my opening statement, I concluded by stating that a necessary 
component of providing justice and protecting liberty and freedom is an 
efficient and properly equipped court. A court that has the personal 
and judicial resources that enable it to fulfill its constitutional 
obligations. Tim Tymkovich is highly qualified, and will serve the 
judiciary in the best tradition of our Nation's most respected courts.
  Before I conclude, before we move to a final vote, I would like to 
leave you with a final thought, an important statement made by five 
justices of the Colorado Supreme Court.

     ``. . . [W]e speak as one voice, resolute in our belief that 
     the people are entitled to and that Mr. Tymkovich is most 
     deserving of consideration . . . Mr. Tymkovich's experience, 
     practice, public service, temperament and skills will serve 
     the people of the United States well.

  Their unqualified support tells us a great deal about Tymkovich's 
credentials and his suitability to the Federal bench. This statement 
deserves our attention and our respect.
  I urge my colleagues to support the nominee, and to vote for the 
confirmation of Tim Tymkovich to the Tenth Circuit of the United States 
Court of Appeals.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALLARD. 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. ALLARD. Mr. President, I ask unanimous consent that the time 
during the quorum call be divided equally between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SUNUNU. 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. SUNUNU. Mr. President, I ask unanimous consent I be allowed to 
speak as in morning business, with the time allotted against the time 
for the nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Sununu pertaining to the submission of the 
resolution are printed in today's Record under ``Submitted 
Resolutions.'')
  Mr. SUNUNU. Mr. President, I yield the floor and suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALLARD. 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. ALLARD. Mr. President, I ask unanimous consent that the time 
during the quorum call be divided equally between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KENNEDY. 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. KENNEDY. How much time remains on Senator Leahy's time?
  The PRESIDING OFFICER. The Senator has 2\1/2\ minutes.
  Mr. KENNEDY. Mr. President, I yield myself the 2\1/2\ minutes.
  I urge my colleagues to vote against the nomination of Timothy 
Tymkovich

[[Page S4612]]

to the Tenth Circuit because I do not believe he has met his burden of 
showing that he has the qualifications, fairness, and commitment to 
core constitutional values required of an appellate court judge. The 
positions that Mr. Tymkovich has taken raise serious questions about 
his ability to be open-minded in cases involving gay rights and 
privacy, reproductive choice, and the power of the Federal Government 
with regard to the States.
  As State Solicitor General, Mr. Tymkovich defended Colorado's antigay 
ballot initiative, Amendment 2, which was struck down by the Supreme 
Court in Romer v. Evans for violating the equal protection clause. The 
Romer decision vindicated the ability of gays and lesbians to employ 
the political process to secure antidiscrimination protections, in the 
same manner as other American citizens. Justice Kennedy, the author of 
the Romer decision, perhaps put it best when he said ``it is not within 
our constitutional tradition to enact laws like Amendment 2. . . . 
Central to both the idea of the rule of law and to our own 
Constitution's guarantee of equal protection is the principle that 
government and each of its parts remain open on impartial terms to all 
who seek its assistance.''
  As State solicitor, Mr. Tymkovich had a duty to defend Amendment 2, 
but I am concerned about the content and the tenor of the comments made 
by Mr. Tymkovich in a law review article he wrote after the Court 
decided Romer in which he harshly criticized the Court's reasoning and 
its decision. Not simply content to disagree with the Romer decision, 
Mr. Tymkovich berates the Romer Court for its ``ad hoc, activist 
jurisprudence'' and its ``willingness to block a disfavored political 
result.'' Mr. Tymkovich defends the antigay ordinance as the exercise 
of freedom against immoral behavior. Employing language that is a 
frightening parallel to that used by advocates against Federal laws 
prohibiting racial discrimination in the 1960s, Mr. Tymkovich suggests 
that prohibiting discrimination on the basis of sexual orientation is 
an improper infringement on an individual's liberty interest.

  Mr. Tymkovich's statements lead one to question whether he will 
understand the vital role that the equal protection clause and 
antidiscrimination legislation plays in protecting minorities against 
popularly-enacted laws. According to Mr. Tymkovich, ``it is always 
legitimate public policy for voters or legislatures to repeal 
disfavored laws. No law, including civil rights legislation can be seen 
as a one-way street. In the end, this important point was lost on the 
U.S. Supreme Court.'' The harsh tone of the criticism raises concerns 
about how Tymkovich will approach the civil rights cases that come 
before him, and raises questions about his judgment and temperament.
  At his hearing and in answers to written questions, Mr. Tymkovich did 
state that he would follow Romer, and that he would be fair in 
antidiscrimination cases involving sexual orientation and other 
matters. But it is difficult to reconcile the assertion she made at his 
hearing with the strong statements in his article.
  As solicitor general, Mr. Tymkovich unsuccessfully defended 
Colorado's decision to cut off, in violation of Federal law, State 
Medicaid funding for abortions for poor women who had become pregnant 
due to rape or incest. Again here, Mr. Tymkovich can argue that he was 
simply doing his job. However, in testimony before Congress in 1996, 
Mr. Tymkovich criticized the Medicaid requirements as an unwarranted 
intrusion into a matter of state concern. In that same testimony, Mr. 
Tymkovich also criticized the Federal ``Motor Voter'' law as intrusive 
because it poses ``special burdens'' on States; criticized the EPA's 
decision to prosecute polluters who violated Federal environmental law 
standards as infringing on state prerogatives, and argued against the 
doctrine of implied preemption. This testimony, in his capacity as one 
of the top legal advisors to the State Attorney General, leads me to 
question whether Tymkovich would have the proper respect for 
congressional authority to pass laws that impact States.

  Finally, Mr. Tymkovich received a partial rating of ``not-qualified'' 
from the American Bar Association. While such a rating is not 
automatically disqualifying, when combined with my other questions 
about Mr. Tymkovich, it leads me to conclude that I cannot support his 
nomination.
  Our Federal courts and the American people deserve judges of the 
highest caliber: judges who are fair, open, and impartial, who are 
highly qualified, who possess unimpeachable integrity, and who are 
committed to core constitutional values. The nominee has the burden to 
show the Senate that he or she meets that standard and is worthy of 
confirmation. Unfortunately, Mr. Tymkovich has failed to do so.
  I am concerned about what seems like the right-wing ideological bent 
of the nominees that the administration continues to send forward. I 
urge this administration to work with the Senate, both Democrats and 
Republicans, to nominate moderate judges who are qualified, fair, and 
have bipartisan support. This can be easily done. But the 
administration continues to insist on its unilateral right to pack the 
courts with judges hostile to civil rights and to the enforcement of 
important Federal laws with profound impacts on the lives of Americans.
  The central values of our society--whether our society will continue 
to be committed to equally, freedom of expression, and the right to 
privacy--are at issue with each of these nominations. The Constitution 
does not contemplate a Senate that acts as a rubber stamp. A genuine 
advice and consent role is essential. If the administration continues 
to nominate judges who would weaken the core values of our country and 
roll back the civil rights laws that have made our country a more 
inclusive democracy, the Senate should reject them. I urge the Senate 
to reject his nomination.
  Mr. KOHL. Mr. President, I rise today in opposition to the nomination 
of Timothy Tymkovich to the U.S. Court of Appeals for the Tenth 
Circuit. Having reviewed his record and his testimony at his 
confirmation hearing, I am left with only one conclusion--he does not 
warrant confirmation to an appellate judgeship.
  It is not merely the extreme, highly ideological positions he has 
taken on a variety of important legal questions that compels me to 
oppose his confirmation. But his record is replete with these positions 
on issues from environmental protection to a woman's right to choose. 
He has consistently advocated an extreme reading of ``States rights'' 
that would eviscerate the ability of the Federal Government to protect 
Americans from a variety of dangers. He believes that Federal clean air 
and water regulations, Federal funding for abortions for victims of 
rape and incest, and even ``motor voter'' provisions designed to make 
it easier for citizens to exercise their fundamental right to vote all 
unconstitutionally interfere with State sovereignty and autonomy.
  But what most disturbs me concerning Mr. Tymkovich--and, in my view, 
plainly disqualifies him for a Federal appellate judgeship--is the 
animus he has shown towards one group of Americans. He has argued that 
it is appropriate for the State to forbid localities from passing laws 
forbidding discrimination on the basis of sexual orientation. And his 
advocacy of this position was not limited to representing his client, 
the State of Colorado, in the courts. After the Supreme Court rejected 
these arguments, and held such laws were contrary to basic principles 
of equal protection, he published a law review article defending his 
position. In this article, he stated that it was permissible for the 
State to deny protection from discrimination to gays just as it would 
be permissible for the State to forbid certain immoral activity such as 
``sadomasochism, cockfighting, bestiality, suicide, drug use, 
prostitution and sodomy.'' Such ugly arguments reflect an intolerance 
and hostility to equal rights that have no place in our Federal courts.
  Anyone who reviews my record on judicial nominations knows that I do 
not lightly oppose Federal judicial nominees. But this nominee's 
extreme positions and opposition to equal rights for all Americans--
regardless of their sexual orientation--leave me no choice.
  Mr. HATCH. Mr. President, I am pleased that the full Senate is 
considering the nomination of Timothy Tymkovich to the U.S. Court of 
Appeals for the Tenth Circuit.
  Timothy Tymkovich, a graduate of Colorado College and the University 
of

[[Page S4613]]

Colorado School of Law, has worked as a partner in private practice 
since 1996 with the firm of Hale Hackstaff Tymkovich, representing 
clients in matters involving State licensing and regulatory issues. He 
has also acquired some expertise in State and Federal election issues, 
and he has represented a variety of political parties and candidates. 
Since 1997 he has represented Great Outdoors Colorado, a highly 
successful State program which devotes lottery monies to fund wildlife 
and land conservation efforts and State recreation programs.
  Mr. Tymkovich has been a great public servant for the State of 
Colorado, serving from 1991 to 1996 as the State Solicitor General, 
where he acted as the chief appellate lawyer for the citizens of 
Colorado. In that capacity he ably represented the State in State and 
Federal courts, including the Colorado Supreme Court, the Tenth Circuit 
Court of Appeals, and the U.S. Supreme Court. He provided legal 
assistance to the Colorado General Assembly and acted as a liaison to 
Colorado's congressional delegation. He acted as the Attorney General's 
delegate to Colorado's judicial selection process. He also worked to 
reform State criminal, consumer protection and antitrust laws.
  When he left the office of Solicitor General, the Denver 
Post editorialized, ``In an age in which lawyers and government workers 
are often held in low esteem, Tymkovich, a member of both groups, has 
stood in stark contrast to both stereotypes.'' The Post added, 
``Tymkovich has set a high standard of service.''

  Mr. Tymkovich is well respected by his peers for his professionalism 
and commitment to the field of law. He is a member of the prestigious 
American Law Institute, which selects members on the basis of 
professional achievement and demonstrated interest in the improvement 
of the law; the International Society of Barristers, an honor society 
made up of 650 trial attorneys in the United States and elsewhere; the 
American Bar Foundation, which is the research arm of the American Bar 
Association; and the Colorado Bar Foundation. He currently serves as 
Chair of the Colorado State Board of Ethics, which acts to advise the 
Colorado governor and executive branch on ethics issues.
  From 1999 to 2001 he served as counsel to the Columbine Review 
Commission, which was responsible for reviewing all aspects of the 1999 
shootings at Columbine High and making recommendations to the Governor 
regrading ways to respond to, and even prevent, future assaults of the 
same type. From 1998 to 2000 he served as Chair to the Colorado 
Governor's Task Force on Civil Justice Reform, which issued findings on 
the status of civil justice in Colorado and offered recommendations for 
improvements.
  Mr. Tymkovich's nomination has drawn powerful support from all 
corners. He enjoys the unqualified endorsements of Colorado Senators 
Campbell and Allard; a number of former Colorado Supreme Court 
justices, including Justices Erickson, Dubofsky, Neighbors, Rovira, 
Quinn, and Scott; Colorado Governor Bill Owens; the Colorado Attorney 
General, Ken Salazar; and Colorado's major newspapers, the Denver Post 
and the Rocky Mountain News. Significantly Mr. Tymkovich is also 
supported by former three-term Colorado Governor Roy Romer, who has 
served as the national vice chair of the Democratic Leadership Council, 
national co-chairman of the Clinton-Gore `96 campaign, co-chairman of 
the Democratic National Platform Committee in 1992, and chair of the 
Democratic Governors' Association in 1991.

  I firmly believe Mr. Tymkovich will make a great member of the Tenth 
Circuit. I urge all of my colleagues to vote to confirm this highly 
qualified nominee.
  Unfortunately there seems to be confusion about Mr. Tymkovich's 
record on several fronts.
  First, some have confused Mr. Tymkovich's advocacy with his personal 
views. As an advocate for Colorado, Mr. Tymkovich had a duty to defend 
the laws of Colorado, including Amendment 2. It is entirely unfair and 
erroneous to state that Mr. Tymkovich has provided his personal views 
or opinions on these issues. He has not.
  Second, it has been said that Mr. Tymkovich compared Amendment 2 to 
prohibitions on cockfighting and other activities. He has not. As he 
pointed out to Senator Leahy on February 26, he was quoting a Supreme 
Court opinion for the simple proposition that there is Supreme Court 
precedent for a moral component as a rational motivation for an 
electorate. This wasn't Mr. Tymkovich's personal opinion, it was what 
the Supreme Court has said on this issue. Mr. Tymkovich made this point 
clear a month ago.
  I raise these points because some seem to be attempting to reshape 
Mr. Tymkovich's record on the floor into a form I do not recognize. 
This man has a distinguished legal career. He is supported by Democrats 
and Republicans alike. He has served as a successful litigator and he 
was an excellent Solicitor General for Colorado. Those who know him 
support him and know he will be a terrific judge.


                           ``special'' rights

  I would like to respond to the allegation that Mr. Tymkovich views 
protection for gays and lesbians as providing ``special treatment'' for 
them.
  First of all, Mr. Tymkovich's use of the term `'special treatment'' 
mirrored the terminology used by participants in the political debate 
over Amendment 2's passage.
  Second, as part of his job as Solicitor General, Mr. Tymkovich had to 
defend the provisions of Amendment 2, which was intended to disallow 
laws recognizing ``minority states,'' ``quota preference,'' ``protected 
status,'' or ``claim of discrimination'' on the basis of sexual 
orientation.
  Never did Mr. Tymkovich in his brief or his law review article argue 
that homosexuals should not enjoy the Fourteenth Amendment protections 
available to all.
  In the Colorado brief before the U.S. Supreme Court, Mr. Tymkovich 
specifically pointed out, sponsors of the Amendment intended to prevent 
a new preferred status designation. To quote the brief: ``Individuals 
would retain precisely the same rights under State and Federal law that 
they had prior to the enactment of the special protections'' disallowed 
by Amendment 2, and Through Amendment 2, Colorado has simply defined 
the package of civil rights available to homosexuals and bisexuals 
under the Colorado Constitution as no larger than that provided by the 
Constitution and laws of the United States.''
  It is important to note that Mr. Tymkovich's testimony before 
Congress in 1996 represented the views of the Colorado Attorney 
General. He was not there to provide his own views; he was there as an 
official representative of the State. In fact, Mr. Tymkovich noted 
during his February 12 hearing that he agreed with some of the 
testimony, while he disagreed with other parts.
  Thank you, Mr. President. I yield the floor.
  Mr. President, 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.
  Mr. ALLARD. 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. ALLARD. Mr. President, it is my understanding that we have less 
than a minute remaining.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. ALLARD. Mr. President, I want to make a brief comment before we 
vote to remind the Members of the Senate that they have heard evidence 
today that indicates Tim Tymkovich is fairminded, he respects the rule 
of law, and he has exhibited intelligence and the proper temperament to 
serve on the Tenth Circuit Court of Appeals.
  I ask that my colleagues join me in voting to confirm Tim Tymkovich 
as a Federal judge on the Tenth Circuit Court of Appeals. In my view, 
when confirmed, he will be not just a good judge, he will be a great 
judge.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. All time having expired, the question is, Will 
the Senate advise and consent to the nomination of Timothy M. 
Tymkovich, of Colorado, to be United States Circuit Judge for the Tenth 
District?
  Mr. ALLARD. Mr. President, I ask for the yeas and nays.

[[Page S4614]]

  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  Mr. REID. I announce that the Senator from Connecticut (Mr. 
Lieberman) is necessarily absent.
  The PRESIDING OFFICER (Mrs. Dole). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 58, nays 41, as follows:

                      [Rollcall Vote No. 113 Ex.]

                                YEAS--58

     Alexander
     Allard
     Allen
     Bayh
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Pryor
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--41

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--1

       
     Lieberman
       
  The nomination was confirmed.
  The PRESIDING OFFICER. The President will be immediately notified of 
this action.
  Mr. ALLARD. Mr. President, I move to reconsider the vote.
  Mr. SANTORUM. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________