[Congressional Record Volume 149, Number 158 (Tuesday, November 4, 2003)]
[Senate]
[Pages S13842-S13843]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. CHAMBLISS. Madam President, I rise this morning to speak about a 
grave injustice that has befallen this Chamber, and that is the denial 
by a minority of Senators of the right to an up-or-down vote on four of 
the President's judicial nominees.
  Last week, the Senate voted 54 to 43 to move forward with a vote on 
Judge Charles Pickering who now serves on the District Court for the 
Southern District of Mississippi and who was selected by the President 
as one of his nominees for the Fifth Circuit Court of Appeals. Fifty-
four Senators--a majority, in other words--voted to allow Judge 
Pickering's nomination to proceed to a vote, and yet because of the way 
the Senate rules are presently being misapplied, a majority of Senators 
cannot even bring about a vote on the merits of a judge. That is wrong, 
and it is unconstitutional.
  There is nothing in the Constitution that requires a supermajority--
that is, three-fifths, two-thirds, or anything more than a simple 
majority of Senators--to give advice and consent. The Constitution 
spells out only five instances where a supermajority is required. Those 
five instances are: the ratification of a treaty, impeachment, 
expulsion of a Senator, the override of a Presidential veto, and 
adoption of a constitutional amendment. These five situations should 
occur infrequently, which is why the Framers of the Constitution made 
them difficult to achieve.
  In contrast, the approval of Federal judges should occur frequently; 
I daresay 100 percent of the time, when you have qualified nominees. 
That is why there is no requirement in the Constitution for more than a 
simple majority to confirm these nominees. Advice and consent often 
requires debate, always requires deliberation, and always requires a 
decision. Each Senator should decide how to vote on a given nominee. 
Vote yes, vote no, but vote.
  For the first time in our country's history, the filibuster is now 
being used by a minority of Senators to block the President's nominees 
to the Federal bench. By shirking their duty to make a decision on the 
merits of the President's nominees--Priscilla Owen, Bill Pryor, 
Caroline Kuhl, and now Charles Pickering--a minority of this Chamber 
keeps the Senate as a whole from performing its duties under the 
Constitution.
  It is not as though the Senators who are blocking an up-or-down vote 
can object to the qualifications of these nominees. Let's go down the 
list. Let's start with Priscilla Owen who, like Judge Pickering, is 
nominated to the Fifth Circuit Court of Appeals, which hears appeals on 
Federal cases in Texas, Louisiana, and Mississippi.
  Justice Owen graduated cum laude from Baylor Law School and then 
proceeded to earn the highest score on the Texas bar exam that year. 
She practiced law for 17 years before being elected to the Supreme 
Court of Texas in 1994. Justice Priscilla Owen was elected by the 
people of Texas, the second most populous State in this country, to its 
highest court. In her last reelection in the year 2000, she was 
reelected with 84 percent of the vote, along with the endorsement of 
every major newspaper in the State of Texas.
  When the opponents of a fair vote on the merits cannot attack a 
nominee's qualifications, they come up with excuses: She is not in the 
``mainstream of legal reasoning.'' Out of the mainstream? The people of 
Texas obviously don't think she is out of the mainstream. She received 
84 percent of the vote in her reelection in 2000.
  Next we have Caroline Kuhl who is one of President Bush's nominees to 
the Ninth Circuit Court of Appeals, which handles Federal appeals in 
many of the States out west. Caroline Kuhl has been a State trial judge 
in California since 1995. Judge Kuhl is another well-qualified nominee 
who is being denied an up-or-down vote on her nomination. But you don't 
have to take my word on her qualifications. The American Bar 
Association, the gold standard, has rated her as ``Well Qualified.'' 
Yet, despite her credentials, Judge Kuhl has also been branded as 
``outside the mainstream.''
  Then there is Bill Pryor, the attorney general for the State of 
Alabama, a dedicated public servant who has shown time and again that 
he can separate his personal beliefs from his professional duties. 
Again, ``outside of the mainstream.'' That is, sadly, what you will 
hear about Bill Pryor.
  It doesn't matter that Thurbert Baker, the attorney general for my 
State of Georgia, Mr. Pryor's counterpart in my State, an elected 
Democrat, has said that Bill Pryor possesses the qualities and 
experience needed to serve the people of Georgia on the Eleventh 
Circuit.
  Earlier this year, Attorney General Baker wrote a letter to Senators 
Shelby and Sessions of Alabama to express his support for Bill Pryor. 
In support of Bill Pryor, Thurbert Baker wrote, and I quote:


[[Page S13843]]


       Bill has distinguished himself time and again with the 
     legal acumen that he brings to issues of national or regional 
     concern as well as with his commitment to furthering the 
     prospects of good and responsive government. Close quotation.

  Across State lines and across party lines comes this endorsement of 
Bill Pryor. Again, you will hear the same, lame excuse: ``He's out of 
the mainstream.''
  I mentioned earlier Judge Charles Pickering, who is nominated to the 
U.S. Circuit Court of Appeals for the Fifth Circuit. A few weeks ago, 
in our last Judiciary Committee hearing on Judge Pickering's 
nomination, Senator Kennedy spoke of the important role the Fifth 
Circuit has played during the civil rights struggle, and he is 
absolutely correct in that. As a lawyer from Georgia who once was a 
proud member of the old Fifth Circuit bar, before that circuit was 
split in half in 1980 to create the Eleventh Circuit, I am well aware 
of the tremendous role the Fifth Circuit played in the civil rights 
struggle.

  It is with a deep and abiding respect for the tradition of the Fifth 
Circuit that I support Judge Charles Pickering's nomination to that 
bench as one who deserves the honor of this service.
  While Judge Pickering's critics have and will continue to unfairly 
label him as a racist and segregationist and, again, ``out of the 
mainstream,'' nothing could be further from the truth. Charles 
Pickering has worked to eliminate racial disparities in Mississippi. 
Judge Pickering has not just talked about improving race relations, he 
has backed up his words with a lifetime of action. For example, in 
Mississippi during the 1960s, he testified and helped prosecute Sam 
Bowers, the imperial wizard of the Klu Klux Klan, for the murder of a 
civil rights activist, Vernon Dahmer. He served as a leader in his 
community to integrate the public schools. In 1976, he hired James King 
as the first African-American political staffer for the Mississippi 
Republican Party. He represented an African-American man falsely 
accused of robbing a 16-year-old girl in 1981. He chaired the Race 
Relations Committee for Jones County, MS, in 1988. He helped establish 
a group to work with at-risk African-American youths in Laurel, MS, and 
he serves on the board of the Institute of Racial Reconciliation at the 
University of Mississippi.
  Now, I grew up in the South, and for those who did not grow up in the 
South, to criticize this man, during a very difficult time in the 
history of our country, is not only unfair and unjust, it is almost un-
American. This man made a commitment to ensure that race relations in 
Mississippi would improve every single day of his life, and unless one 
has walked in the shoes of somebody like Judge Pickering and looked 
race in the eye as he did, they cannot understand the principle, the 
integrity, and the character of this man.
  What he did says a lot about Charles Pickering in and of itself, 
outside of the decisions he has made on the bench as a district court 
judge.
  Judge Charles Pickering has tremendous bipartisan support from the 
people back home who know him best, including the top Democratic 
elected officials of Mississippi. This shows that he is well within the 
mainstream of legal thinking in Mississippi today and in the Fifth 
Circuit, just as Priscilla Owen's reelection by the people of Texas, 
with 84 percent of the vote, shows that she is in the mainstream in 
Texas and in the Fifth Circuit.
  In September, Miguel Estrada withdrew his nomination after a minority 
of Senators prevented him from getting a vote for 28 months. This is a 
man who came to the United States from Honduras as a teenager, 
graduated from Columbia undergrad and then Harvard Law School, worked 
in the Justice Department for two administrations, including the 
Clinton administration, and was rated ``Well Qualified'' by the 
American Bar Association. So I guess we should not forget Miguel 
Estrada when we tally these filibusters. It is really not four, it is 
five. I suspect it is about to be six because we have another 
nomination that will likely come out of the Judiciary Committee on 
Thursday of this week, and that is the nomination of California Supreme 
Court Justice Janice Rogers Brown.
  The American people will not continue to stand for this inaction, and 
they will not forget this obstructionist game playing. While we can 
still try to maintain the dignity and tradition of the Senate, I ask my 
colleagues to vote to give each of these qualified nominees an up-or-
down vote. I ask my colleagues to make up their minds. Their 
constituents deserve it. Let us move forward on the merits.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. On behalf of the Senator from Texas, I claim 9 minutes of 
the time that has been reserved for her and ask that the Chair notify 
me after 8 minutes.
  The PRESIDING OFFICER. The Chair will do so.

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