[Congressional Record Volume 149, Number 112 (Friday, July 25, 2003)]
[Senate]
[Pages S9951-S9953]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FAIRNESS IN THE CONSIDERATION OF JUDICIAL NOMINATIONS
Mr. HATCH. Mr. President, on Wednesday the Judiciary Committee
favorably reported to the full Senate the nomination of Alabama
Attorney General William Pryor for the Eleventh Circuit Court of
Appeals. It has been more than 6 weeks since General Pryor's
confirmation hearing, and I am pleased that the full Senate will now
have the opportunity to consider his nomination.
Nevertheless, we will no doubt hear over the course of this debate
many allegations from some of our Democratic colleagues as to why they
believe that Bill Pryor's nomination does not deserve an up or down
vote by the full Senate. I want to make perfectly clear right now that
there is no valid reason to delay this body's consideration of the
Pryor nomination.
All we ask is that there be an up-or-down vote. Vote against him if
you don't like the man personally--although there is little room to
vote against him because of his record.
Despite these efforts by committee Democrats to erect a procedural
roadblock to voting on the Pryor nomination in spite of fact that I had
set five markups, I finally was able to have a markup on his
nomination. They wanted to revive a debate over the interpretation of
committee rule IV. This rule, entitled ``Bringing a Matter to a Vote'',
was clearly intended to serve as a tool by which a determined majority
of the committee could force a recalcitrant chairman to bring a matter
to vote. In fact, the rule provides, ``The Chairman shall entertain a
non-debatable motion to bring a matter before the Committee to a
vote.''
Clearly, it was a rule by which you could force a chairman to have a
vote. All you had to do was get a majority of the Senators on the
committee with one from the minority side and you could force a
chairman to call for a vote.
On Wednesday there was no motion to bring the matter before the
committee to a vote. In fact, there was an objection to voting, which I
overruled. Thus, on its face, rule IV was inapplicable to the Pryor
nomination.
Despite claims to the contrary, there has been no inconsistency in my
interpretation of this rule. First of all, I have checked with two
Parliamentarians, and both said I could interpret the rule. I believe I
have interpreted it correctly.
During the Clinton administration, in an effort to prevent the defeat
in committee of a controversial Justice Department nominee, I was
chairman and I wanted to bring the nomination to a vote. We had enough
votes to defeat the nominee in committee. It would have been a 9-9 tie,
and the nominee would have gone down to defeat. The Democrats then
started to filibuster their own nominee. In deference to them, I chose
not to exercise the inherent powers I and all committee chairmen have
to bring a matter to a vote.
I have been condemned for that ever since as though I acknowledged
that you should just have filibusters in the committee any time you
want to. President Clinton ultimately made a recess appointment of
their nominee. In retrospect, my reliance on rule IV to accomplish this
was admittedly not the best course of action. I was wrong to say they
could filibuster. But I was trying to be gracious to my colleagues on
the other side who clearly did not want to vote on the record defeating
their nominee. Since I respected and liked the nominee himself, but not
for the particular position he was nominated for, I would have
supported him for any other position. And I had good reason to be
against him for this position. I agreed to allow their filibuster to
cause me to pull down his nomination rather than to have a vote that
would have been embarrassing to him and to the Democrats. And that is
why they were filibustering their own nominee. Now they cite that as
the reason why I am wrong here. But there is no reason for that.
I nevertheless believed then, and I do now, that I had the power to
bring that matter to a vote, and that I used the discretion of the
chairman to decide not to do so. It was a matter of showing decency and
kindness to my colleagues on the other side and to the nominee so he
would not have a vote that defeated him in committee.
The fact of the matter is I don't believe there should be filibusters
in the Judiciary Committee. We have had at least two instances now
where my colleagues on the other side have tried to filibuster. In
addition, the Democrats now complain they weren't given enough time to
do an investigation. We have given them all kinds of time to do an
investigation. Since their investigation was proving to be fruitless
because they couldn't find one thing to criticize Attorney General
Pryor on, they wanted to have a fishing expedition to do further
investigation.
[[Page S9952]]
I want to make clear that at no time did I agree to modify my
interpretation of rule IV in connection with the Cook, Roberts, or
Sutton nominations, which is the last context in which this debate
arose. I did agree to bring Roberts back in to the committee and have
one more day of hearing. I did not agree to bring Cook back or Sutton
back. But at no time did I agree my interpretation of rule IV which I
made at that time was in error. It certainly was not.
I can't imagine any committee chairman agreeing to give up his or her
right to call for a vote in committee after there has been a sufficient
debate. No chairman is going to give up that right because that means
the minority could control the committee any time they wanted to. The
argument which they make on this is ridiculous.
But, be that as may, at no time did I agree to modify my
interpretation of rule IV in connection with the Cook, Roberts, or
Sutton nominations, which is the last context in which this debate
arose. To have adopted the interpretation my Democratic colleagues
advanced both then and now would have constituted an unprecedented
curtailment of the chairman's inherent authority to bring a matter to
vote, and would have given the authority to control the committee to
the minority. I don't think they would want that when they are in the
majority, and I certainly don't want it now that we are in the
majority. No other chairman I know of who has any brains at all would
have allowed that type of interpretation. Yet you hear all of the
screaming and shouting that they were mistreated.
In short, there was no violation of committee rules or process in
bringing the Pryor nomination to a vote on Wednesday, and any argument
to the contrary is merely a last-ditch effort to prevent the full
Senate from considering that nomination.
Another complaint we will hear is there was an open investigation
into General Pryor's activities on behalf of the Republican Attorneys
General Association at the time of the vote. Here are the facts:
When our Democratic colleagues brought to our attention documents
they obtained pertaining to RAGA, we joined with them to conduct a
bipartisan investigation to determine the authenticity of the
documents, whether they reflected any wrongdoing on the part of General
Pryor. Committee staff interviewed several witnesses in connection with
this investigation, with two notable exceptions. First, the Democrats'
source of these documents has not answered key questions about when the
documents were drafted, who drafted them, and who has had access to
them. Second, Democratic staff asked General Pryor no questions about
the documents, despite his willingness to answer whatever questions
they may have had.
Nevertheless, our Democratic colleagues have insisted on pressing
forward with an investigation, over Republican objection, based on
unauthenticated and unreliable documents provided to them by a source
who refuses to talk to Republican staff, whose former employer stated
under oath that she stole the documents, and who has yet to disclose
the details of when and how she first provided the documents to
Democratic staff.
Some on our side wanted the committee to conduct an investigation of
Democratic staff. I am certainly not going to do that. Frankly,
Democratic staff, I think, have an obligation if they get documents to
look at them and to present them to us. However, these documents
weren't presented to us until the last minute.
Frankly, it is just another pattern of practice of delaying as long
as they can and making it miserable for people like Bill Pryor to get a
vote up or down. All we want is a vote up and down.
Democratic staffers have interviewed 20 persons but have found
nothing inconsistent with General Pryor's testimony. There is simply
nothing to indicate General Pryor was anything less than truthful about
the material facts of his participation in the Republican Attorneys
General Association. What is going on here is a classic game of
``beltway gotcha.'' That is no reason to delay consideration of General
Pryor's nomination.
We even had members say we want to have another hearing for General
Pryor after all that we have had. His was one of the longest hearings I
can recall having in my 27 years on the Judiciary Committee. It was a
very difficult hearing with a lot of moaning and groaning and screaming
and shouting. Frankly, it was one in which I don't think he was treated
as fairly as he should have been treated, nor do I think he has been
treated fairly since. I think there are reasons for that. One of them
is he is so forthright about his testimony and that he has conservative
beliefs that I think some on the other side are afraid that even though
his whole record is one of following the law, he might not follow the
law if he gets on the Eleventh Circuit Court of Appeals--even though he
is an honest man and said he will follow the law regardless of his
personal viewpoint.
That is all you can ask of these people. When you have a person of
the integrity and the ability and the capacity of William Pryor who
says he will follow the law, you had better believe it, in my opinion.
If we get to the point where we have to second-guess people who have an
impeccably honest reputation around here, it is going to get to where
nobody who has any views is going to be able to serve on the Federal
courts of this land. That is wrong.
I felt like I needed to come here today and say some of these things,
because in all honesty I think we have had too many of these type of
ridiculous battles in the Senate Judiciary Committee.
I am trying to bring some decency to the committee. I have tried to
work as closely with my colleagues who differ with us on our side as I
possibly can, and I am going to continue to do that, and try to work in
a decent, honorable, good way with my colleagues. But I do personally
resent some of the accusations that have been made, some of the
mischaracterizations that have been made, some of the things that have
been done to besmirch some of these excellent people whom the President
of the United States has nominated, and a continuation of filibustering
on the floor of the Senate.
Having said that, I am going to conclude with these remarks: Never in
the history of the Senate--before Miguel Estrada, Priscilla Owen; and
now there is some indication there is going to be a filibuster of
William Pryor, the attorney general of the State of Alabama--never has
there been a filibuster, a true filibuster against anyone.
Now, I thought--and I have said it on the floor--I thought there was
a filibuster of the Fortas nomination, but I was corrected by none
other than the Senator who led the fight against Fortas--and that was
Robert Griffin of Michigan--in a Republican policy meeting, where he
said: I only need to correct Senator Hatch on one statement that he
made; and that is, that having led the fight against Fortas--for a
variety of what he believed were appropriate reasons; and apparently a
majority of the Senate did--he said: We were never filibustering Abe
Fortas. And the reason we were not is because we had the votes to
defeat him up and down.
But the Democrats called for a cloture vote, which was narrowly won
by Fortas, with 12 Members absent at the time, many of whom would have
voted against Abe Fortas.
So never in the history of this body has there been a filibuster
against any Federal judicial nominees until this year. And now we have
two--and a potential of three. And I hope they are not going to
filibuster Kuhl. And I hope they are not going to filibuster Holmes.
And I hope they are not going to filibuster Judge Pickering when he
comes out of the committee, and others.
It is a dangerous thing to do. It is a wrong thing to do. It flies in
the face of senatorial history. In the end, this body is going to be
very saddened if that is the way all of these nominations wind up,
without an up-and-down vote on the floor of the Senate.
What is wrong with having up-and-down votes on the floor of the
Senate for these nominees? Whether it is a Democrat President or a
Republican President, once they are brought to the Senate floor, they
deserve an up-and-down vote. That is all we are asking for.
I yield the floor.
The PRESIDING OFFICER (Ms. Murkowski). The Senator from Nevada.
Mr. REID. Madam President, I am not going to speak at any great
length regarding the statement made by my
[[Page S9953]]
friend, the distinguished senior Senator from Utah, regarding this
particular judge, Judge Pryor. I don't know much about him, but I am
sure in the near future we will learn more about him because, as
indicated by my distinguished friend from Utah, the chairman of the
Judiciary Committee, the nomination, at the time of the hearing, was
very disputed and it took a long time. So I am sure I will learn more
about this man.
But the one statement I want to comment on, made by my friend from
Utah, is that the Democrats are looking for ways to oppose President
Bush's judicial appointments.
Madam President, there is an order in effect that on Monday night we
will vote on two judges, a man by the name of Earl Leroy Yeakel of
Texas and a woman by the name of Kathleen Cardone of Texas, both to be
Federal District Judges for the United States. Both of those judges
will be approved by large margins.
These 2 judges will bring the total to 140 judges who will have been
approved by this Senate during the administration of this President--
140. How many have we turned down? How many have the Democrats--who, as
my friend indicated, are looking for ways to oppose President Bush's
judicial nominees--turned down? We have turned down two. The count on
Monday night will be 140 to 2.
Does it mean that it has to be every judge he gives us? I think not.
Any reasonable person, looking at these numbers, would acknowledge
there has been no witch hunt by the Democrats. Madam President, 140 to
2 is a pretty good average.
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