[Congressional Record Volume 149, Number 160 (Thursday, November 6, 2003)]
[Senate]
[Pages S14090-S14104]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


     The Interfaith Alliance

  Mr. LEAHY. Madam President, the ABA indicates concern about this 
nomination. The Standing Committee of the Federal Judiciary gave Mr. 
Pryor a partial rating of not qualified to sit on the Federal bench. 
And indications from these peer reviews have been enough to raise red 
flags in the confirmation process.
  Let me talk about some more of the reasons we oppose William Pryor. 
Like Jeffrey Sutton, Mr. Pryor has been a crusader for the federalist 
revolution, but Mr. Pryor has taken an even more prominent role. Having 
hired Mr. Sutton to argue several key federalism cases in the Supreme 
Court, Mr. Pryor is the principal leader of the federalist movement, 
promoting state power over the Federal Government. A leading proponent 
of what he refers to as the ``federalism revolution,'' Mr. Pryor seeks 
to revitalize state power at the expense of Federal protections, 
seeking opportunities to attack Federal laws and programs designed to 
guarantee civil rights protections. He has urged that Federal laws on 
behalf of the disabled, the aged, women, minorities, and the 
environment all be limited.
  Limiting Worker And Environmental Protections: He has argued that the 
Federal courts should cut back on the protections of important and 
well-supported Federal laws including the Age Discrimination in 
Employment Act, the Americans with Disabilities Act, the Civil Rights 
Act of 1964, the Clean Water Act, the Violence Against Women Act, and 
the Family and Medical Leave Act. He has repudiated decades of legal 
precedents that permitted individuals to sue states to prevent 
violations of Federal civil rights regulations. Mr. Pryor's aggressive 
involvement in this ``federalist revolution'' shows that he is a goal-
oriented, activist conservative who has used his official position to 
advance his ``cause.'' Alabama was the only state to file an amicus 
brief arguing that Congress lacked authority to enforce the Clean Water 
Act. He argued that the Constitution's Commerce Clause does not grant 
the Federal Government authority to prevent destruction of waters and 
wetlands that serve as a critical habitat for migratory birds. The 
Supreme Court did not adopt his narrow view of the Commerce Clause 
powers of Congress. While his advocacy in this case is a sign to most 
people of the extremism, Mr. Pryor trumpets his involvement in this 
case. He is unabashedly proud of his repeated work to limit 
Congressional authority to promote the health, safety and welfare of 
all Americans.
  Mr. Pryor's passion is not some obscure legal theory but a legal 
crusade that has driven his actions since he was a student and 
something that guides his actions as a lawyer. Mr. Pryor's speeches and 
testimony before Congress demonstrate just how rooted his views are, 
how much he seeks to effect a fundamental change in the country, and 
how far outside the mainstream his views are.
  Mr. Pryor is candid about the fact that his view of federalism is 
different from the current operation of the Federal Government and that 
he is on a mission to change the Government to fit his vision. His goal 
is to continue to limit Congress's authority to enact laws under the 
Fourteenth Amendment and the Commerce Clause--laws that protect women, 
ethnic and racial minorities, senior citizens, the disabled, and the 
environment--in the name of sovereign immunity. Is there any question 
that he would pursue his agenda as a judge on the Eleventh Circuit 
Court of Appeals--reversing equal rights progress and affecting the 
lives of millions of Americans for decades to come?
  Mr. Pryor's comments have revealed insensitivity to the barriers that 
disadvantaged persons and members of minority groups and women continue 
to face in the criminal justice system.
  Attacking the Voting Rights Act: In testimony before Congress, Mr. 
Pryor has urged repeal of Section 5 of the Voting Rights Act--the 
centerpiece of that landmark statute--because, he says, it ``is an 
affront to federalism and an expensive burden that has far outlived its 
usefulness.'' That testimony demonstrates that Mr. Pryor is more 
concerned with preventing an ``affront'' to the states' dignity than 
with guaranteeing all citizens the right to cast an equal vote. It also 
reflects a long-discredited view of the Voting Rights Act. Since the 
enactment of the statute in 1965, every Supreme Court case to address 
the question has rejected the claim that Section 5 is an ``affront'' to 
our system of federalism. Whether under Earl Warren, Warren Burger, or 
William Rehnquist, the United States Supreme Court has recognized that 
guaranteeing all citizens the right to cast an equal vote is essential 
to our democracy--not a ``burden'' that has ``outlived its 
usefulness.''

  His strong views against providing counsel and fair procedures for 
death row inmates have led Mr. Pryor to doomsday predictions about the 
relatively modest reforms in the Innocence Protection Act to create a 
system to ensure competent counsel in death penalty cases. When the 
United States Supreme Court questioned the constitutionality of 
Alabama's method of execution in 2000, Mr. Pryor lashed out at the 
Supreme Court, saying, ``[T]his issue should not be decided by nine 
octogenarian lawyers who happen to sit on the U.S. Supreme Court.''
  Aside from the obvious disrespect this comment shows for the Nation's 
highest court, it shows again how results-oriented Mr. Pryor is in his 
approach to the law and to the Constitution. Of course, an issue about 
cruel and unusual punishment ought to be decided by the Supreme Court. 
It is addressed in the Eighth Amendment, and whether or not we agree on 
the ruling, it is an elementary principle of constitutional law that it 
be decided by the Supreme Court, no matter how old its members.
  Mr. Pryor has also vigorously opposed an exemption for persons with 
mental retardation from receiving the death penalty, exhibiting more 
certainty than understanding or sober reflection. He authored an amicus 
curiae brief to the Supreme Court arguing that the Court should not 
declare that executing mentally retarded persons violated the Eighth 
Amendment. After losing on that issue, Mr. Pryor made an unsuccessful 
argument to the Eleventh Circuit that an Alabama death-row defendant is 
not mentally retarded.
  Mr. Pryor has spoken harshly about the moratorium imposed by former 
Illinois Governor George Ryan, calling it a ``spectacle.'' Can someone 
so dismissive of evidence that challenges his views be expected to hear 
these cases fairly? Over the last few years, many prominent Americans 
have begun raising concerns about the death penalty, including current 
and former supporters of capital punishment. For example, Justice 
O'Connor recently said there were ``serious questions'' about whether 
the death penalty is fairly administered in the United States, and 
added: ``[T]he system may well be allowing some innocent defendants to 
be executed.'' In response to this uncertainty, Mr. Pryor offers us 
nothing but his obstinate view that there is no problem with the 
application of the death penalty. This is a position that is not likely 
to afford a fair hearing to a defendant on death row.
  Mr. Pryor's troubling views on the criminal justice system are not 
limited to capital punishment. He has advocated that counsel need not 
be provided to indigent defendants charged with an offense that carries 
a sentence of imprisonment if the offense is classified as a 
misdemeanor. The Supreme Court nonetheless ruled that it was a 
violation of the Sixth Amendment to impose a sentence that included a 
possibility of imprisonment if indigent persons were not afforded 
counsel.
  Like Carolyn Kuhl, Priscilla Owen and Charles Pickering, Mr. Pryor is 
hostile to a woman's right to choose. There is every indication from 
his record and statements that he is committed to reversing Roe v. 
Wade. Mr.

[[Page S14096]]

Pryor describes the Supreme Court's decision in Roe v. Wade as the 
creation ``out of thin air [of] a constitutional right,'' and opposes 
abortion even in cases of rape or incest.
  Mr. Pryor does not believe Roe is sound law, neither does he give 
credence to Planned Parenthood v. Casey. He has said that ``Roe is not 
constitutional law,'' and that in Casey, ``the court preserved the 
worst abomination of constitutional law in our history.'' When Mr. 
Pryor appeared before the Committee, he repeated the mantra suggested 
by White House coaches that he would ``follow the law.'' But his 
willingness to circumvent established Supreme Court precedent that 
protects fundamental privacy rights seems much more likely.

  Mr. Pryor has expressed his opposition to fair treatment of all 
people regardless of their sexual orientation. The positions he took in 
a brief he filed in the recent Supreme Court case of Lawrence v. Texas 
were entirely repudiated by the Supreme Court majority just a few 
months ago when it declared that: ``The petitioners are entitled to 
respect for their private lives. The State cannot demean their 
existence or control their destiny by making their private conduct a 
crime.'' Mr. Pryor's view is the opposite. He would deny certain 
Americans the equal protection of the laws, and would subject the most 
private of their behaviors to public regulation.
  A record of activism: On all of these issues--the environment, voting 
rights, women's rights, gay rights, federalism, and more--William 
Pryor's record of activism and advocacy is clear. That is his right as 
an American citizen, but it does not make him qualified to be a judge. 
As a judge it would be his duty to impartially hear and weigh the 
evidence and to impart just and fair decisions to all who come before 
the court. In their hands, we entrust to the judges in our independent 
Federal judiciary the rights that all of us are entitled to enjoy 
through our birthright as Americans.
  The President has said he is against what he calls ``judicial 
activism.'' How ironic, then, that he has chosen several of the most 
committed and opinionated judicial activists ever to be nominated to 
our courts.
  The question posed by this controversial nomination is not whether 
Mr. Pryor is a skilled and capable politician and advocate. He 
certainly is. The question is whether--not for a 2-year term, or a 6-
year term, but for a lifetime--he would be a fair and impartial judge. 
Could every person whose rights or whose life, liberty or livelihood 
were at issue before his court, have faith in being fairly heard? Could 
every person rightly have faith in receiving a just verdict, a verdict 
not swayed by or yoked to the legal philosophy of a self-described 
legal crusader? To read Mr. Pryor's record and his extreme views about 
the law is to answer that question.
  The President has chosen to divide the American people, the people of 
the Eleventh Circuit, and the Senate with this highly controversial 
nomination. He should clean the slate and choose a nominee who can 
unite the American people.
  I see the distinguished senior Senator from New York on the Senate 
floor. Would he seek time?
  I yield the floor. How much time is remaining?
  The PRESIDING OFFICER (Mrs. Dole). Twenty-three minutes 11 seconds.
  Mr. LEAHY. I thank the Chair. I yield 10 minutes to the distinguished 
Senator from New York.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Thank you, Madam President. I thank our great leader of 
the Judiciary Committee, Pat Leahy, leader on our side, for his 
stalwart defense of having a mainstream Judiciary and for his 
leadership on so many other issues.
  I will note what we all start by noting: We have now confirmed 168 of 
the President's nominees and opposed 4. The President is getting his 
way 98 percent of the time on judicial nominations. To say that is 
obstructionism is to rewrite Webster's Dictionary. We have bent over 
backwards to be fair.
  In fact, in many of our States, including my own State of New York, 
when the President and the White House ask for an agreement, we do 
agree; we are in the process of filling every vacancy in New York. I 
don't agree with many of the judges we are nominating on particular 
issues but they meet the fundamental test. The only litmus test I have 
is not on any one issue but, rather, will the judge interpret the law, 
not make it. That is what the Founding Fathers wanted judges to do in 
their infinite wisdom. I say ``infinite'' because my hair stands on 
edge; the longer I am around, the more I respect the wisdom of our 
Founding Fathers. In their infinite wisdom, they wanted judges to 
interpret law, not make it; they wanted the Senate, in its infinite 
wisdom, to be a check--a real check, not a rubberstamp--on the 
President's power to nominate. The Senate is a cooling saucer.
  The other side says, let the majority rule. We know what will happen. 
Every single one of the President's nominees, so many chosen through 
ideological prisms, will be approved. I don't think we have had a 
situation, since the President has nominated anyone--I may be wrong--
where a single Republican opposed any of the President's nominees. Is 
that the open, grand debate the Founding Fathers envisioned? I may be 
off by an instance here and an instance there, but I am sure if you 
tabulate all the votes taken by Republicans on all of the nominees, the 
number of ``no'' votes, the percentage of ``no'' votes, is 
infinitesimal.
  Yes, we are blocking judges by filibuster. That is part of the 
hallowed process around here of the Founding Fathers saying the Senate 
is the cooling saucer. We do not work as quickly as the House. We are 
not as restricted as the House. That is how it was intended to be. I 
don't believe in tit for tat. This is not a tit-for-tat comment, but 
the other side did not even let 50 judges come up for a vote in 
committee. They blocked a far higher percentage of President Clinton's 
judges than we have blocked of President Bush's judges.
  The means is not the issue here; it is the end. So that is how it is. 
We have been very careful when we have opposed nominees. We have tried 
to give the President--it makes sense to do it--the benefit of the 
doubt. But some nominees are so far out of the mainstream, it is so 
clear they are going to make law, not interpret law, that we believe it 
is our constitutional obligation to our country and to the next 
generation of Americans to oppose them. Mr. Pryor is one of those 
nominees.
  What the other side has tried to do is two types of things. One, they 
say we are opposing someone because of their race or sex, his or her 
religion. Those are cheap shots. We are opposing people because they 
are ideologically out of the mainstream, without any discrimination. If 
they are Black and out of the mainstream, or a woman and out of the 
mainstream, or Protestant, Catholic, or Jewish and out of the 
mainstream, we are going to oppose them.

  The second thing they try to do is say it is because of one 
particular issue. There is a litmus test on Justice Brown; they are 
saying it is on affirmative action. On Attorney General Pryor, they are 
saying it is because of the issue of abortion.
  Let's look at the record. I, myself, Senator Leahy, and just about 
every Democrat have voted for a majority of judges who disagree with 
our views on affirmative action and abortion. The number of judges I 
have voted for who are pro-life in the last 2 years far exceeds the 
number I have voted for who are pro-choice. That demolishes any 
argument of a litmus test. I have not asked too many judges their views 
on affirmative action, but my guess is, how ideologically driven the 
President's nominees are, that I have voted for a large number of 
nominees who disagree with my view on affirmative action as well. But 
it is not a litmus test. It is again a question, Will they make law or 
will they interpret law?
  If we look at Attorney General Pryor's record, he is not a mainstream 
conservative. He is far out of the mainstream. Let me give some 
examples.
  On criminal justice issues, I tend to be conservative. I tend to 
agree often with my Republican colleagues on criminal justice and other 
such issues. But, again, there are limits. He defended his State's 
practice of handcuffing prisoners to hitching posts in the hot Alabama 
summer for 7 hours

[[Page S14097]]

without giving them a drop of water to drink, and when the conservative 
supreme court said this violated the 8th amendment ban on cruel and 
unusual punishment, he criticized the court's decision, saying they 
were applying their ``own subjective views on the appropriate methods 
of prison discipline.''
  How about States rights? Attorney General Pryor has been one of the 
staunchest advocates of the Reagan court's efforts to roll back the 
clock not just to the 1930s but to the 1890s. He is an ardent supporter 
of an activist Supreme Court agenda cutting back Congress's power to 
protect women, workers, consumers, the environment, and civil rights.
  As Alabama attorney general, why was he the only one of 50 attorneys 
general urging the Supreme Court to undo significant portions of the 
Violence Against Women Act? The Violence Against Women Act is not out 
of the mainstream. In fact, it has overwhelming support from both 
parties. But here is Pryor, way beyond.
  How about on the case of child welfare? At the same time he was 
conceding that Alabama had failed to fulfill the requirements of a 
Federal consent decree regarding the operation of the State's child 
welfare system, he was demanding that the State be let out of the deal. 
It is not so much the position he took but the comments he made 
afterward. Attorney General Pryor said:

       My job is to make sure the State of Alabama isn't run by 
     federal courts. . . . My job isn't to come here and help 
     children.

  I wonder how many Alabamians would agree with that statement.
  When it comes to the environment, more of the same concerns. We have 
had a consensus for 40 years that the Constitution allows the Federal 
Government to regulate interstate waters. Not Attorney General Pryor--
again, the lone attorney general to file an amicus brief arguing the 
Constitution does not give the Federal Government the power to regulate 
interstate waters. He took this position despite decades of precedent 
and the Federal Clean Water Act, standing for the contrary position.
  He has been probably the staunchest advocate of States rights of all 
the attorneys general, of the ability of the States to do what they 
want and the Federal Government cannot tell them what to do. But then, 
all of a sudden, when the Supreme Court in Bush v. Gore made a decision 
that overruled the State of Florida, only one attorney general 
intervened on behalf of either side; 49 attorneys general, whatever 
their views, had the good sense not to intervene in that highly charged 
case. Not Attorney General Pryor. It is so contrary to everything he 
believed in, everything else, that when he says, I will interpret the 
law--which he has stated before us; every nominee does, and some do, 
and some don't, and we have to make a judgment whether, when they say 
it to us, it will actually happen. As we all know, once we appoint 
them, the horse is out of the barn--lifetime appointment; they are 
there forever. But when he goes through a pretzel-like contortion--

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SCHUMER. Madam President, I ask my colleague to yield me another 
2 minutes.
  Mr. LEAHY. I yield the Senator 2 minutes.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. But when he goes through such a contortion to advocate 
against States rights on Bush v. Gore, you say this is not a man 
interpreting law; this is a man who is outcome determinative. He comes 
to the result he wants and then takes the law in that direction.
  I do not have an easel here, so I thank my staff aide for helping me 
hold up this very heavy sign. It is heavy in its words.
  Here is what Grant Woods, a former Republican attorney general of 
Arizona, said:

       I would have great question of whether Mr. Pryor has an 
     ability to be nonpartisan. I would say he was probably the 
     most doctrinaire and most partisan of any attorney general I 
     dealt with in 8 years. So I think people would be wise to 
     question whether or not he's the right person to be 
     nonpartisan on the bench.

  That did not come from some wild-eyed, crazy, liberal Democrat. It 
came from the attorney general--a Republican--of a conservative State, 
Arizona. He makes the case as good as anybody.
  Let me say, in conclusion, Bill Pryor is a proud and distinguished 
ideological warrior. I respect him for it. But ideological warriors, 
whether from the left or from the right, are bad news for the bench. 
They want to make law, not interpret it. That is not what the Founding 
Fathers wanted and that is not what the American people want from their 
judges. I oppose the nomination.
  The PRESIDING OFFICER. The Senator's time has expired.
  Who yields time?
  Mr. SESSIONS. Madam President, I ask unanimous consent for 3 minutes 
and then I will yield to the Senator from Texas.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Alabama.
  Mr. SESSIONS. I would like to respond briefly to Senator Schumer's 
comments.
  There have been a lot of words used: ``extreme views,'' ``radical 
views,'' words of that nature, ``way outside the mainstream of legal 
thought.'' Then you listen. Show me what happened, what positions he 
has taken that are outside the mainstream.
  He cited this hitching post case and said people were held without 
water, which was very much disputed, and I submit was not the truth. 
But, at any rate, the State had stopped that procedure. The case the 
attorney general defended was whether or not guards could be sued 
personally and made personally liable for carrying out what at one time 
had been the established policy of the prison system. That is what went 
before the Supreme Court. He did the right thing.
  He was criticized for certain States rights issues on the Violence 
Against Women Act. He challenged a small part of that act that violated 
a State's procedures and rights of immunity and won that case in the 
Supreme Court.
  He is recognized for the Children's First Program in Alabama that was 
to put large amounts of money into improving procedures for children in 
Alabama. He was one of the leaders in the State in promoting and 
working for that.
  Time and time again, he has proven to be a powerful, effective 
lawyer. Thurbert Baker--the Senator talked about an attorney general 
from Arizona, who only knew Mr. Pryor, I am sure, only at attorneys 
general meetings. But Thurbert Baker, the Democratic attorney general 
of Georgia, an African American, knows him. This is what Thurbert 
Baker, an attorney general, an African American, said about Bill Pryor:

       [He] has always done what he thought was best for the 
     people of Alabama.

  And Mr. Baker said:

       [He] know[s] that his work on the bench will continue to 
     serve as an example of how the public trust should be upheld.

  Former Democratic Alabama Governor Don Seigelman said:

       Bill Pryor is an incredibly talented, intellectually honest 
     attorney general. He calls them like he sees them. He's got a 
     lot of courage, and he will stand up and fight when he 
     believes he's right.

  Madam President, I yield the floor and reserve the remainder of my 
time.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Madam President, I want to say a few words about the 
nomination of Bill Pryor to serve on the Eleventh Circuit Court of 
Appeals. I come to this debate with some personal knowledge of the 
nominee, having served as attorney general of Texas for 4 years during 
the time Bill Pryor served as attorney general of Alabama.
  Before I get to the specific comments about this outstanding nominee 
and distinguished law enforcement official, I want to say a little bit 
about the process.
  The process of confirming judicial nominees in the Senate is broken, 
and it cries out for reform and a fresh start. Since I have been in the 
Senate, I have heard those who have attempted to justify the poor 
treatment of President Bush's judicial nominees based upon alleged poor 
treatment of President Clinton's judicial nominees. We have somehow 
gotten involved in this game of tit for tat, of recrimination, that 
does not serve the best interests of the American people. We have 
gotten into unprecedented obstruction of

[[Page S14098]]

judicial nominees by filibuster, which has never in the history of this 
great Nation happened until recently, and it is a tragedy.
  As some of my colleagues on this side of the aisle observed, if a 
minority of Democrats are successful in blocking a bipartisan majority 
in the Senate from an up-or-down vote on a judicial nominee, when the 
roles are reversed, which at some time in the future they may be, and a 
Democrat is in the White House, Republicans are going to want to use 
the same tactic on nominees of a Democratic President--something I 
believe would be wrong, but my views do not necessarily control what 
happens in this body.
  The point is, we are on a downward spiral of destruction not only of 
this great institution, but damaging in the process the fine 
reputations of these individuals who have come forward to offer to 
serve the American people. We are treating them as common criminals. We 
are mischaracterizing their resumes, their reputations in the process, 
and I believe doing great harm in the process.
  I want to say our colleagues on the other side of the aisle, who 
claim to be--in the words of Thomas Jefferson, supposedly, when he was 
asking Washington about the role of the Senate in our form of 
Government, he called the Senate the cooling saucer. But the truth is, 
rather than a cooling saucer when it comes to judicial confirmation, 
the Senate has become a stone wall, not a cooling saucer, particularly 
as it pertains to these nominees the minority Democrat leadership has 
decided to obstruct and prevent from an up-or-down vote.
  I realize they are grasping at straws, but somehow they have grasped 
on to this notion that since they have not blocked 168 of President 
Bush's nominees, they should be congratulated for blocking only 4. 
Well, we learned this morning in the Judiciary Committee that that four 
may soon become five, and then possibly six.
  My point is they simply cannot be congratulated for an 
unconstitutional, unprecedented filibuster and preventing up-or-down 
votes, which is democracy in action.
  There is another thing. For example, the Senator from New York, who 
just spoke a few moments ago, who also serves on the Judiciary 
Committee, said something which I think bears some scrutiny. This 
morning he repeated an allegation he and others have made that somehow 
President Bush has hijacked the judiciary by nominating a narrow band 
of people who he claims are ideologically driven to overturn the law 
and run roughshod once they get on the courts.
  They really need to make a decision what they believe. They either 
believe President Bush's nominees are all ideologically driven and 
determined to reach a particular result regardless of what the Congress 
says, regardless of their oath of office, where they put their hand on 
the Bible and agreed to serve as a judge and interpret the law, not 
make law, or this argument about being congratulated for somehow 
confirming 168 of these people, which simply does not stand up.
  They have to make a choice. The truth is, they want it both ways. 
They really can't have it both ways.
  Bill Pryor is simply an outstanding human being and a great attorney 
general. I believe he will be an outstanding judge. He is a deeply 
religious man. Some have criticized him for his deeply held beliefs. 
Unfortunately, sometimes in this debate, I worry that by criticizing 
somebody for their deeply held beliefs, which happen to be founded in 
their religious beliefs, we are setting a bar or perhaps building a 
wall against the opportunity for these people to participate in our 
government, particularly on the bench. That should not be the case. Our 
Constitution bars religious tests from service in public office.
  General Pryor has demonstrated his ability to enforce the law as 
written, which is what he would do on the bench, interpret the law as 
written and not elevate his personal agenda or his personal beliefs 
above what the law says. Time and time again, he has done so.
  I worry about two things in this process. One is obstruction, 
preventing a bipartisan majority from voting, and destruction of good 
human beings and their reputations they have worked a lifetime to 
achieve. They come here, honored to receive the nomination of our 
President to serve in these positions of great honor, and then they are 
placed in the dock where they become an accused and are expected to 
defend themselves against unwarranted and unjustified charges.
  I wish we could see a fresh start to a process that does not serve 
either the nominees or this body or the American people well. I do not 
believe anyone should be congratulated for an unconstitutional 
obstruction of the democratic process going forward, when a bipartisan 
majority is ready to confirm these outstanding nominees, such as Bill 
Pryor. But that is what we have seen, obstruction and destruction of 
these fine individuals.
  I see the distinguished chairman of the Judiciary Committee. I thank 
the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I thank my colleagues for their excellent 
remarks for and on behalf of Attorney General Pryor who is one of the 
best nominees I have seen in a long time, a person of great character.
  Today we will again vote for cloture on the nomination of William 
Pryor for the Eleventh Circuit Court of Appeals. Denying undisputedly 
well-qualified nominees the up or down vote they deserve does not 
fulfill our Senatorial duties--it abdicates them. This filibuster not 
only damages our accountability to the people who elect us, but it 
erodes the credibility of the Senate itself.
  Today, let me take a few moments to explain why every single Member 
of this body should vote to invoke cloture, and end debate, on the 
Pryor nomination so that he is afforded the dignity of an up-or-down 
vote that is all we are asking for.
  Not even those most vigorously opposed to Bill Pryor's nomination 
contend that his record is insufficient. He has been a bold, vocal, and 
successful advocate for his state as Attorney General, an elected 
office in Alabama. Prior to and during his campaigns seeking re-
election to the attorney general position in 1998 and 2002, he made his 
positions on the contentious issues of the day crystal clear--and he 
won his most recent election with almost 60 percent of the vote. Rarely 
has the Judiciary Committee reviewed such a full and unmistakably clear 
record for an appellate nominee; rarely has a nominee at his hearing 
been so honest, intelligent and forthright in his answers to every 
Senator's questions, even though he surely knew that his legal and 
policy positions on many, if not most, issues, clashed head-on with the 
positions of the liberal Democrats who questioned him.
  The problem that those opposed to giving Bill Pryor an up-or-down 
vote in the Senate have is that they cannot credibly make any 
substantive arguments against him. So they oppose him based on what he 
has stated he personally believes. They cannot cast aspersions on his 
legal ability--the undisputed quality of his legal work as Attorney 
General of Alabama is reflected in several major cases in which Supreme 
Court majorities have agreed with his arguments. They cannot say he is 
only a one-party horse because so many Democrats, and many prominent 
African-American Democrats, in Alabama support him even though they 
disagree with him politically. They cannot really find anything 
substantive that might reflect poorly on his qualifications to sit on 
the federal bench.
  Therefore, their accusations against General Pryor have relied on an 
all-too familiar script: he is a so-called states' rights fanatic; he 
is anti-environment; anti-disability rights; anti-women; opposes 
minority voting rights; and wants to turn America into a Christian 
theocracy. These sound bites are easy to make, but General Pryor's 
record speaks with far more authority than the fulminations against 
him. So his opponents attack his personal beliefs, even though in every 
instance in which a conflict between those beliefs and the law has 
arisen in Bill Pryor's career, he has unfailingly put the law first.
  The most recent example is his response to Chief Justice Roy Moore's 
refusal to comply with the Federal injunction ordering removal of the 
Ten Commandments monument from the rotunda of the Alabama Supreme Court

[[Page S14099]]

building. General Pryor said, ``Although I believe the Ten Commandments 
are the cornerstone of our legal heritage and that they can be 
displayed constitutionally as they are in the U.S. Supreme Court 
building, I will not violate nor assist any person in the violation of 
this injunction. . . . We have a government of laws, not of men. I will 
exercise any authority provided to me, under Alabama law, to bring the 
State into compliance with the injunction of the federal court. . . .''
  In fact, the committee received a letter from Justice Douglas 
Johnstone, the only Democrat on the Alabama Supreme Court, praising 
General Pryor's actions during this high-profile dispute in Alabama. He 
writes, ``General Pryor immediately offered us all appropriate support 
of his office and fostered public support by announcing publicly that 
the injunction was due to be obeyed in the absence of a stay. . . . 
Before the Monument crises, General Pryor's political prospects, 
irrespective of any federal appointment, were brighter than most I have 
observed in my decades in politics. Now he is as full of political 
bullet holes as Fearless Fosdick. My personal acquaintance with him and 
observation of him over his years in office satisfy me that he fully 
expected the damage but did his duty, and is doing his duty and a 
splendid job of it regardless of the consequences. I am endorsing 
General Pryor because over the years he has proven his honesty and 
intelligence. I do not pretend to agree with him on all issues. I would 
rather have the honesty and intelligence than the agreement.''
  On the issue of abortion, General Pryor's record provides another 
example of his commitment to following the law even when it conflicts 
with his deeply held personal beliefs. After the Alabama legislature 
passed a partial-birth abortion ban in 1997, General Pryor issued 
guidance to State law enforcement officials to ensure that the law was 
enforced consistent with the Supreme Court's 1992 decision in Planned 
Parenthood v. Casey. Although there was considerable outcry against his 
decision from the pro-life community, the ACLU praised General Pryor's 
decision, emphasizing that his order had ``[s]everely [l]imited'' 
Alabama's ban. He issued similar guidance after the Supreme Court's 
2000 ruling in Stenberg v. Carhart, which struck down another State's 
ban on partial-birth abortion. Again, the dictates of the law trumped 
his personal beliefs. He stuck with the law even though he totally 
disagreed with it.
  The President has nominated a good and honest man with a sterling 
legal career, a bipartisan reputation for enforcing the law impartially 
as attorney general, and an enviable record of success before the 
nation's highest Court. At General Pryor's inauguration as Attorney 
General, he opened with the statement: ``Equal under law today, equal 
under law tomorrow, equal under law forever.'' Despite the distortions, 
half-truths, and outright falsehoods we have heard about him, General 
Pryor is a diligent, honorable man whose loyalty as a public servant 
has been to the law and its impartial administration. He has told us 
under oath that he will continue to follow the law, just as he has 
demonstrated during his distinguished career in Alabama. Quoting again 
from Justice Johnstone's letter--Justice Johnstone is a Democrat--to 
our Committee: ``The crucial question in judging a judicial candidate 
or nominees is not what sides of legal issues he or she has advocated 
but whether he or she has enough reverence for the rule of law, enough 
humility, and enough self-control to follow the law whether he or she 
likes it or not. My observation tells me General Pryor does.''
  A minority of the Senate is again attempting to prevent us from 
voting on Attorney General Pryor despite his outstanding record. Such 
an attempt is profoundly at odds with what the Constitution demands of 
us as Senators. The President and the American people have a right to 
an up or down vote on judicial nominees. Playing politics or political 
games with judicial nominees must stop and we must do our duty and vote 
on this excellent nominee, Bill Pryor.
  Accordingly, I urge my colleagues not to deny Bill Pryor the courtesy 
of an up or down vote on the Senate floor. He deserves better, the 
President deserves better, and the majority of the Senate that stands 
ready to confirm him deserves better. Most importantly, the American 
people deserve the opportunity to hold their Senators accountable for 
the votes they cast on the President's judicial nominees. We must 
invoke cloture on Bill Pryor's nomination.
  I reserve the remainder of my time and yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Illinois is recognized.
  Mr. DURBIN. Madam President, how much time remains on the Democratic 
side?
  The PRESIDING OFFICER. There are 11 minutes 30 seconds remaining.
  Mr. DURBIN. In the absence of the chairman, I will say a word or two 
about the nomination.
  At the outset, I will say this may be the toughest part of this job--
standing in judgment of other people. It is easy to deal with issues 
and abstractions and numbers and policy. But when you stand in judgment 
of another person, I think it is one of our most solemn 
responsibilities, complicated even more by the fact that many of the 
people who are in controversy here have very close friends in the 
Senate among my colleagues. In this case, my friend and colleague, 
Senator Sessions of Alabama, I believe counts William Pryor as one of 
his close friends. They have worked together for many years.
  I can tell you, from his statements in committee and on the floor, he 
is totally committed to him and believes he would be a fine circuit 
court judge. That is why opposition to his nomination is all that much 
more difficult.
  I come here today to oppose his nomination because, frankly, as I 
listened carefully to Attorney General Pryor's positions on the issues 
in the Judiciary Committee, it struck me that on issue after issue he 
has not only taken an extreme position but has been unashamed, 
unabashed, and unembarrassed to express it in some of the clearest 
language we have had before us. You have to ask yourself, if he is that 
strident, if he is that committed to these extreme positions, can he 
possibly perform his responsibilities as a member of the circuit court 
of appeals--a lifetime appointment--in the way that we expect?
  We don't want judges to make laws but, rather, to interpret them. 
When somebody comes to this position with a long history and pedigree 
of taking these strongly held, extreme positions on the law, is it 
reasonable for us to believe they will cast them aside once taking the 
oath of office and then be dispassionate in the way they rule? I think 
that really strains credulity.
  There are some who believe that if a nominee comes before us and 
says, ``I will just apply the law,'' that is all we need to hear; that 
we can ignore what they have done beforehand. You cannot do that. You 
have to make an honest assessment.
  We find time and again that nominees for the Federal circuit court--
the second level before the Supreme Court--are those nominees with the 
strong ideological backgrounds. They are the ones who have run into 
controversy and trouble on the Senate floor.
  I believe that this White House, if it wanted to, could focus more on 
finding common ground between Republicans and Democrats. We expect to 
receive conservative Republican nominees for all of these vacancies. 
That is a reflection of the President's philosophy.
  In the case of Attorney General William Pryor, this goes beyond 
mainstream conservatism. Some of the things he has said relative to 
issues relating to judicial activism and the like are difficult for us 
to reconcile with the person who we want to be fair and dispassionate 
in his rulings.
  Mr. Pryor stated:

       Our real last hope for federalism is the election of 
     Governor George W. Bush as President of the United States, 
     who has said his favorite justices are Antonin Scalia and 
     Clarence Thomas.

  He went on to say:

       Although the ACLU would argue that it is unconstitutional 
     for me as a public official to do this in a Government 
     building, let alone a football game, I will end my prayer for 
     the next administration, ``Please, God, no more Souters.''

  That is a reference to Supreme Court Justice Souter. These remarks 
don't lend themselves to the argument that Attorney General Pryor is 
going to be

[[Page S14100]]

measured and moderate and fair if he is given this lifetime appointment 
to the circuit bench.
  I have looked at his record on a variety of issues and I can tell you 
that, time and time again, what I have seen is a position that is hard 
to reconcile with the standard we should set for all judges to this 
position.
  I yield the floor.
  Mr. FEINGOLD. Mr. President, much of the debate on this nomination 
has focused on the views and qualifications of this nominee. I want to 
call the attention of the Senate to the violation of the rules of the 
Judiciary Committee that occurred when Mr. Pryor was considered in the 
committee. I will vote no on cloture because I believe that the 
committee rules were violated in reporting the nomination to the floor 
and that, before the Senate acts on this nomination, more investigation 
is needed of Mr. Pryor's involvement with the Republican Attorneys 
General Association and the truthfulness of his testimony on that 
topic.
  We faced a similar procedural problem early this year in the 
committee. I thought we had reached a resolution of that dispute. A 
number of us lifted our objection to proceeding with floor votes on 
John Roberts and Justice Deborah Cook after we received assurances that 
the committee's rule IV would be reinstated and abided by from that 
time forward. That agreement was put to the test during consideration 
of the Pryor nomination, and I'm sorry to say that the Committee failed 
that test.
  Just as we did in connection with the Roberts and Cook nominations in 
late February, in July, Democrats on the committee invoked rule IV and 
asked that a vote on the Pryor nomination not be taken. But once again, 
the rule was violated.
  The interpretation of rule IV that the chairman of the Judiciary 
Committee followed in connection with the Pryor nomination conflicts 
with the text of the rule, the practice of the committee for 24 years 
under five separate chairmen, and the history of the adoption of the 
rule. It was as wrong in July as it was in February when the chairman 
first expressed it. I won't repeat those arguments today, but I ask 
unanimous consent that a copy of my statement in the Judiciary 
Committee from March 27 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          Senator Russ Feingold--Statement on Judiciary Rules

       Mr. Chairman, last week we readopted the Committee's rules. 
     I had no problem with us taking that action, although as I 
     said at our meeting, I think we need to have an opportunity 
     to discuss that agenda item rather than acting off the floor 
     without anytime for consideration. But with the understanding 
     that we would have the opportunity to have a discussion and 
     debate, I was fine with readopting the rules for this 
     Congress.
       As I understand it, the rules have been in effect 
     throughout the year. I have no problem readopting those 
     rules, which as I understand it, have been in effect this 
     year in the debates we have had so far. But having done that, 
     I want to make some comments on what happened in our meeting 
     on February 27. I believe that a clear violation of the 
     committee rules occurred on that day, and we really need to 
     discuss this as a committee before proceeding with further 
     business.
       What happened on February 27 was a sad moment for our 
     Committee and does not bode well for the harmonious 
     functioning of the Committee this year. Indeed, since that 
     day we have been in a free fall it seems to me. 
     Communications have broken down among us and among our 
     staffs. On the Democratic side, we feel unfairly taken 
     advantage of, and I know there are bad feelings on your side 
     as well. I am very sorry about this because we have much work 
     to do for the country, and we can do that work much more 
     efficiently and much more successfully if we work together 
     with respect and good will than if we are constantly fighting 
     with each other.
       Mr. Chairman, you have the votes in this Committee to do 
     pretty much whatever you want. But that does not mean that 
     you should ignore the rights of those who disagree with you. 
     That is what occurred at the February 27 meeting.
       Let me quickly review the background of this dispute. The 
     Chairman sought to have votes on circuit court nominees 
     Justice Deborah Cook and Mr. John Roberts. A number of us on 
     the Democratic side believed that those votes should not 
     occur because those two nominees had not received an adequate 
     hearing in this Committee. I'm not going to take the time to 
     review our position on that score in any detail, but I do 
     want to point out that we have not engaged in a policy of 
     blanket obstruction of nominees in this Committee. We voted 
     on Miguel Estrada. We voted on Jeffrey Sutton. We voted on 
     Jay Bybee. We voted on Timothy Tymkovich. We will soon vote 
     on Priscilla Owen.
       Many of us voted against some or all of those nominations, 
     but we agreed to have a vote because we thought that the 
     Committee's consideration of the nominees had been sufficient 
     for us to make up our minds. We have not sought to use Rule 
     IV to obstruct the functioning of the Committee.
       In the case of Justice Cook and Mr. Roberts, however, we 
     had asked repeatedly for another hearing. We had asked, as an 
     alternative, for a public meeting with the nominees. Having 
     been rebuffed at every turn, we simply did not feel ready to 
     proceed with votes on their nominations. We did not believe 
     the Committee has been given adequate opportunity to assess 
     the qualifications and examine the record of Justice Cook and 
     Mr. Roberts.
       But when we objected to a vote on February 27, the Chairman 
     overruled the objection and forced a vote, in clear violation 
     of Rule IV. This was an astonishing act in a body that 
     functions in large because all members respect the rules and 
     abide by them.
       When an objection to proceeding to a vote was made, the 
     proper course under our Committee's longstanding Rule IV was 
     to hold a vote on a motion to end debate on the matter. The 
     Rule provides that debate will be ended if that motion 
     carries by a majority vote, including one member of the 
     minority. In this case, our side was united in opposing 
     ending debate, so the motion would have failed. It is, in 
     effect, as the Chairman himself recognized in 1997 when the 
     Rule was invoked in connection with the Bill Lann Lee 
     nomination, a kind of filibuster rule in the Committee. The 
     vote to end debate is like a cloture vote, and it cannot 
     succeed unless at least one member of the minority assents.
       Now Mr. Chairman, I have read your letter to Senator 
     Daschle in which you attempt to justify your actions. With 
     respect, Mr. Chairman, your interpretation of the rule is 
     erroneous. In fact, it is clearly erroneous, and I don't use 
     that term lightly.
       Your position is that the Chairman of this Committee has 
     unfettered power to call for a vote on a matter and that Rule 
     IV is only designed to allow a majority of the committee to 
     force what you call an ``obstreperous Chairman'' to hold a 
     vote on a matter on the agenda when he doesn't want to. That 
     interpretation conflicts with the text of the rule, the 
     practice of the Committee for 24 years under five separate 
     Chairmen, including the current Chairman, and with the 
     history of the rule itself.
       I want to start with the history because I think it so 
     plainly shows what the rule is designed to do. The rule was 
     adopted in 1979 when Sen. Kennedy chaired the Committee. The 
     Committee at that time had 10 Democrats and 7 Republicans. 
     You were on the Committee at the time, as was Senator 
     Leahy.
       At that time, there was no way at all to end debate in 
     Committee if even one member wanted to continue debate. 
     Senator Thurmond, who was the ranking member at the time, 
     stated during the committee meeting: ``The present rule is 
     the Senator can talk as long as he wants to.''
       Recent years had seen controversial matters such as the 
     Equal Rights Amendment stalled for long periods of time in 
     Committee. The Civil Rights era had seen the Committee headed 
     by a segregationist Chairman block civil rights legislation. 
     Chairman Kennedy sought a new committee rule to allow him to 
     bring a matter to a vote. His original proposal was simply to 
     let the Chairman call a vote when he believed there had been 
     sufficient debate. This is how the original proposal read, 
     from the transcript of the Committee's meeting on January 24, 
     1979: ``If the Chairman determines that a motion or amendment 
     has been adequately debated, he may call for a vote on such 
     motion or amendment, and the vote shall then be taken, unless 
     the Committee votes to continue debate on such motion or 
     amendment, as the case may be. The vote on a motion to 
     continue debate on any motion or amendment shall be taken 
     without debate.''
       That was the original proposal to change the right of 
     unlimited debate. And if that rule had been adopted, and 
     remained in effect until the present, what happened on 
     February 27 would have been just fine because a majority of 
     the committee would not have supported our request to 
     continue debate.
       But Chairman Kennedy's proposed rule was not adopted. Sen. 
     Thurmond noted that the minority on the committee were 
     opposed to the change. He stated: ``We feel it would be a 
     mistake, if there is going to be a change we do think there 
     ought to be some compromise between the unlimited debate 
     maybe and a majority. That is what I was discussing with 
     Senator DeConcini. I felt maybe 12 members could cut off 
     debate. Senator DeConcini suggested 11.''
       Mr. Chairman, during this 1979 markup--and I have to say 
     that the transcript makes for fascinating reading--Democratic 
     members like Sen. Howard Metzenbaum, Sen. Kennedy, and even 
     Sen. Biden spoke about the need for the Committee to be able 
     to conduct business and not be thwarted by what Sen. 
     Metzenbaum called a ``talkathon.'' On the other hand, 
     Republican members of the Committee were wary of a rule 
     change. And Mr. Chairman, you spoke against the rule that 
     Sen. Kennedy proposed. You said the following: ``I would be 
     personally upset. There are not a lot of rights that each 
     individual Senator has, but at least two of them

[[Page S14101]]

     are that he can present any amendments which he wants and 
     receive a vote on it and number two, he can talk as long 
     as he wants to as long as he can stand, as long as he 
     feels strongly about an issue. I think these rights are 
     far superior to the right of this Committee to rubber 
     stamp legislation out on the floor.
       Later you continued: I think it is a real mistake, Joe, and 
     Mr. Chairman. I see the advantages of being able to expedite 
     legislation and try to balance that. I think it is a real 
     mistake to take away these rights.
       Senator Thad Cochran was then a member of the committee and 
     at the end of the meeting, he, echoing Sen. Thurmond, 
     suggested a compromise. He said: ``Mr. Chairman, I don't have 
     anything to add other than except I do support writing into 
     the rule the requirement that there be an extraordinary 
     majority to shut off debate in our Committee. I think we can 
     arrive at some number agreeable to everyone.
       There was quite a lengthy discussion of the proposed rule 
     change. One particularly significant remark was made by 
     Senator Bob Dole, who was then on the Committee said: ``[A]t 
     least you could require the vote of one minority member to 
     terminate debate. I'm sure you could always secure one vote 
     over here.''
       The next week, the Committee reached agreement and adopted 
     Rule IV, which has been in effect ever since. The transcript 
     of the Committee's meeting indicates only that the rule 
     change was acceptable to both sides. There is no further 
     discussion or debate.
       The text of the rule takes up Sen. Dole's idea, requiring 
     at least one member of the minority to vote to end debate. 
     The compromise ended the ability of one or a few Senators to 
     tie up the Committee indefinitely. But it gave the majority 
     the power to end debate over an objection if it could 
     convince one member of the minority to agree. The Committee 
     didn't adopt Sen. Thurmond's or Sen. Cochran's suggestion 
     precisely, but it specified a super-majority to end debate, 
     10 out of the 17 member of the committee. Because ten of the 
     17 members of the Committee at the time were democrats, the 
     new rule made it even more difficult for the majority to end 
     debate by taking up Sen. Dole's suggestion and specifying 
     that at least one member of the minority had to agree. That 
     was the compromise reached, and that is the rule we have had 
     for over two decades.
       Mr. Chairman, the argument that the rule places no limit on 
     the Chairman's ability to end debate is clearly answered by 
     this history. It is clearly wrong. The committee rule was 
     violated when Justice Cook and Mr. Roberts were reported over 
     the objection of some members without a vote in the Committee 
     to end the debate. There is simply no question about this.
       You have mentioned a number of times that the 
     Parliamentarian agreed with your interpretation of the 
     Committee's rules. I do not believe that is accurate. What 
     the Parliamentarian has told us is that if a point of order 
     is made on the floor he would only look to make sure the 
     Senate rules were followed. Those rules simply require a 
     majority vote of the committee when a quorum is present. No 
     Senate rule was violated on February 27, but a Committee 
     rule, Rule IV, clearly was.
       During the February 27 meeting, a new member of our 
     Committee, the Senator from South Carolina, stated that if 
     our intention of Rule IV prevailed, ``you could not ever do 
     any business, have any votes, unless the other side totally 
     agreed.'' I just want to point out that that is not the 
     result we seek at all. There is a big difference between the 
     other side ``totally agreeing'' and having one member of the 
     minority voting to end debate. The Senator from South 
     Carolina actually described the situation in this Committee 
     before Rule IV was adopted, but not after.
       I do want to point out to my colleagues once again that it 
     is hardly the case that we on the Democratic side have tried 
     to block all action on judges using Rule IV. We voted on 
     Miguel Estrada. We voted on Jeffrey Sutton. We voted on Jay 
     Bybee. We voted on Timothy Tymkovich. We will vote on 
     Priscilla Owen. In the last Congress we approved 100 of 
     President Bush's nominees. I voted against a few of them, but 
     I never tried to hold up a vote.
       We tried to invoke Rule IV on February 27 only because of 
     the special circumstances surrounding the Cook and Roberts 
     nominations. We felt, and we still feel, that the Committee's 
     consideration of these two nominees was inadequate. That's 
     why we objected to the votes.
       Now Mr. Chairman, this might seem like a petty matter. But 
     is isn't. Honoring the rules of the Senate and the rules of 
     the committees gives credibility and legitimacy to the work 
     we do here. Rules that survive changing tides of political 
     power are the hallmark of a democracy. In may ways our 
     committee rules are analogous to the rule of law in our 
     society. We have to respect those rules or we have nothing 
     left.
       Mr. Chairman, it is clear from the history of Rule IV that 
     it we insisted on in 1979 by Republican Senators then in the 
     minority to preserve their rights in Committee to debate 
     matters fully and not just, in your own words at that time, 
     ``rubber stamp legislation out to the floor.'' The 
     justification for ignoring the rule given in the letter to 
     Sen. Daschle simply doesn't hold water when you look at the 
     history and practice in this Committee. This kind of results-
     oriented approach to the rules of the Committee does not 
     serve us well. The rules of this body, like the laws of this 
     country, protect all of us. We must stand up to efforts to 
     ignore them.
       What happened in the Committee on February 27 with respect 
     to Rule IV did not reflect well on the Committee or the 
     Senate. I sincerely hope that these rulings will be 
     reconsidered. The Committee must enforce its rules, not run 
     roughshod over them. And if that means that we consider and 
     discuss certain nominations a little longer before reporting 
     them to the floor, so be it. That is what happens in a 
     deliberative body governed by rules not fiat.
       Thank you Mr. Chairman.

  Mr. FEINGOLD. I want to emphasize that we have never sought to use 
rule IV to indefinitely delay a nomination in committee. With respect 
to Mr. Roberts and Justice Cook, we only wanted adequate hearings so 
that we could properly exercise our constitutional responsibility to 
advise and consent on the nomination. With respect to Mr. Pryor, we 
only wanted to complete an investigation that was well underway 
already. We have never tried to kill a nomination in committee by never 
voting on it, even though that was done dozens of times to President 
Clinton's nominees. But we should not be forced to vote on a nomination 
before we have all of the information that we feel is needed to make an 
informed recommendation to our colleagues in the full Senate.
  We needed more time to investigate the issues raised by records from 
the Republican Attorneys General Association, RAGA, that the committee 
received. The documents raise what seem to me to be serious questions 
about the accuracy of Mr. Pryor's testimony before the Judiciary 
Committee and the answers he provided to written questions. We needed 
more time to contact the people who know about Mr. Pryor's activities 
as the Treasurer of RAGA and ask them questions. And we should have 
called Mr. Pryor back to ask him further questions in person and under 
oath. I don't know where this investigation might have led, but I do 
know that it was not nearly completed when the committee voted in July.
  It was the committee's duty and responsibility to provide the full 
Senate with a complete record about a nominee. But, as we expected, 
once the committee voted, the investigation stopped. So there are still 
many unanswered questions.
  Let me just cite a few examples of the questions that the RAGA 
documents raise. In answer to one of my written questions about who 
administered RAGA and who might have records of its activities, Mr. 
Pryor stated that RAGA was administered by the RNC and that to his 
knowledge all records were maintained by the RNC. He also stated that 
all solicitations for membership in RAGA were made by the staff of the 
RNC or the 5 State attorneys general who served on RAGA's executive 
committee. He failed to identify a single individual who worked for 
RAGA or raised money for RAGA.
  The documents we received indicate that RAGA was administered for 
over a year by an individual who had previously been Mr. Pryor's 
campaign manager. She served as RAGA's finance director. That person 
did not work for the RNC. They also identify an RNC employee who 
previously had worked for Mr. Pryor on his campaign. Both of these 
individuals maintained records of RAGA at some point. But Mr. Pryor did 
not identify these individuals, even though our questions clearly 
sought that information.
  The documents also show that solicitations were made by a finance 
committee of lobbyists and political fundraisers, in addition to RNC 
and RAGA staff and the attorneys general. The documents seem to 
indicate that Mr. Pryor was familiar with the finance committee and 
even participated in conference calls with them. Yet he failed to 
discuss the finance committee in his answers, even though, again, the 
questions specifically sought that information.
  The documents also suggest that Mr. Pryor received reports specifying 
the companies that had contributed to RAGA. This is inconsistent with 
Mr. Pryor's testimony that he received only e-mail and oral reports of 
overall fundraising totals.
  These are just a few examples. There may be good explanations for Mr. 
Pryor's testimony and answers, but we don't have them yet. And we 
should get

[[Page S14102]]

them before we vote on the nomination. I will therefore vote no on 
cloture.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, how much time remains?
  The PRESIDING OFFICER. On the Republican side, 7 minutes 41 seconds 
remain. Five minutes two seconds remain on the other side.
  Mr. HATCH. I yield time to the Senator from Alabama.
  Mr. SESSIONS. Madam President, there has been a repeated suggestion 
that somehow Alabama's brilliant, principled, courageous attorney 
general, who has stood firm time and again in serious types of disputes 
within the State legally, is extreme or radical or out of the 
mainstream. When you ask why and say show me something he has done that 
indicates that, they say, well, he struck down the Americans with 
Disabilities Act.
  As I explained earlier, he appealed a portion of that act that dealt 
with 4 percent of the cases, cases against States; and the Supreme 
Court agreed with him and struck down that small portion of the act.
  He was not against the disabled. He has great compassion for the 
disabled. It was a legal action taken by this Congress that upset and 
struck down legitimate States rights issues, and the Supreme Court, 
when reviewing it, agreed with Attorney General Pryor.
  This is the kind of argument that has been raised. There is no basis 
to say this man is extreme. He stood firm on a matter of 
reapportionment in Alabama, which benefited the Democrats. He took 
complaints from the Republicans. He declared that the State 
reapportionment plan dictated by the Democratic majority that favored 
the Democrats was legally done and he defended it. He lost it in the 
court of appeals and he won it on behalf of the Democrats in the 
Supreme Court. At least their provision prevailed.
  What Bill Pryor said and what he believed was it was his duty to 
defend Alabama law if it was constitutional. He found that it was, so 
he defended it, even though he personally would not have agreed with 
it.
  In one of the affidavits that Senator Leahy quoted Bob James III is 
complaining about Attorney General Pryor. In his affidavit, he said:

       The last conversation I recall with Bill Pryor occurred 
     late in Governor James' last term after the Governor signed 
     Alabama's ``partial-birth'' abortion law. When the law 
     passed, Mr. Pryor instructed Alabama district attorneys not 
     to enforce the law as to previable fetuses. In my review, 
     this gutted the law and defeated its very purpose. An 
     equivalent to Pryor's action would be for Attorney General 
     Ashcroft to instruct U.S. attorneys not to enforce an act 
     of Congress.
  Everybody knows Bill Pryor is pro-life. Everybody knows Bill Pryor 
personally abhors partial-birth abortion. Why did he do this?
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. Because he was following the law.
  I yield the floor and reserve the remainder of the time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time? The assistant Democratic 
leader.
  Mr. REID. Madam President, I ask permission of the distinguished 
manager of this matter, Senator Leahy, if I may direct some questions 
to him.
  Mr. LEAHY. Madam President, I understand I still have almost 5 
minutes left. Of course.
  Mr. REID. Through the Chair to the distinguished ranking member of 
the Judiciary Committee, is this the same William Pryor the Senate 
spent a great deal of time on previously and there was an attempt by 
the majority to invoke cloture and that failed? Is this the same 
person?
  Mr. LEAHY. Madam President, I answer the distinguished senior Senator 
from Nevada by saying, yes, it is. I answer further, although he didn't 
ask this question, I am not aware of any votes that have changed since 
that time.
  Mr. REID. Madam President, I direct a further question to my friend. 
Is he telling me then, in the waning days of this legislative session 
of the National Legislature that we are spending time on a vote that 
has already been taken--there will not be a single vote changed--when 
we have appropriations bills to complete, we have Internet taxation, 
and many other items we are trying to complete in a matter of days; 
that we are, for lack of a better description, wasting the Senate's 
time on a nomination that has already been rejected by the Senate?
  Mr. LEAHY. Madam President, the senior Senator from Nevada is 
absolutely right. In fact, of those appropriations, we have held up the 
appropriations for our veterans, and we can't find time to vote on the 
floor. Appropriations for our law enforcement people are being held up 
and we can't find time to vote on the floor. Appropriations for the 
Federal judiciary, for the State Department, for housing, and a number 
of others are being held up, and we can't seem to find time to vote on 
the floor. But we are doing this revote when everybody knows the result 
will be precisely what it was the last time.
  Mr. REID. Madam President, I further direct the Senator's attention 
to an article--I am not confident he has had time to read it because it 
is from a western newspaper, the L.A. Times. Is it true the vacancy 
rate on the Federal bench is at a 13-year low, as indicated in the 
headlines of today's L.A. Times?

  Mr. LEAHY. Madam President, the Senator is absolutely right. The 
vacancy rate in the judiciary is at a 13-year low. It was at a high at 
the end of President Clinton's term because the Republican majority in 
the Senate had blocked over 60 of President Clinton's nominees, usually 
by either threatening filibusters or not even allowing them to have a 
vote.
  In the 17 months that the Democrats were in charge of the Senate, we 
confirmed 100 of President Bush's nominees, which brought down that 
rate. In the 17 months the Republicans have been in charge, they have 
confirmed another 68. So the vacancy rate is at a 13-year low. In fact, 
I say to my friend from Nevada, President Bush, in less than 3 years, 
has seen more of his nominees confirmed than President Reagan did in 
his first 4 years, with a Republican majority in those 4 years, and he 
was the all-time champ.
  Mr. REID. Madam President, I further direct a question to my friend, 
it is true, then, that this article written by David Savage states that 
experts who track Federal judgeships say Republican complaints about a 
Democratic filibuster has skewed the larger picture. The article 
further goes on to say, and I ask the Senator if he is aware of this, 
that 168 Federal judges have been approved and 4 turned down--168 to 4; 
is that the record as the Senator understands it?
  Mr. LEAHY. Madam President, it is. As a good friend of mine in the 
Republican Party said the other day: Pat, I know this whole argument is 
bogus. I guess we are making it for fundraising letters. But I do know 
President Bush has had far more of his nominees confirmed with both 
Democrats and Republicans in the Senate than anybody has in decades.
  Yes, it is true, and I do agree with my Republican friend that the 
argument is bogus. But the only objection I have to the bogus argument 
being made is that we should be voting on the money for our veterans. 
We should be voting on the money for our law enforcement. We should be 
voting on the money for housing. And, we should be passing those bills 
that, by law, we were supposed to have passed way back in September.
  I ask unanimous consent that the entire L.A. Times article that has 
been referred to by the distinguished Senator from Nevada be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Los Angeles Times, Nov. 6, 2003]

           Vacancy Rate on Federal Bench Is at a 13-Year Low

                          (By David G. Savage)

       Washington.--The vacancy rate on the federal bench is at is 
     lowest point in 13 years, because of a recent surge of judges 
     nominated by President Bush and confirmed by the Senate.
       The intense partisan battle over a handful of judges aside, 
     Bush has already won approval of 168 judges, more than 
     President Reagan achieved in his first term in the White 
     House. And with 68 of his nominees winning confirmation in 
     2003 as of Wednesday, President Bush has had a better record 
     this year than President Clinton achieved in seven of his 
     eight year in office.

[[Page S14103]]

       Experts who track federal judgeships say Republican 
     complaints about Democratic filibuster of four judges have 
     obscured the larger picture.
       ``The Bush administration has been spectacularly successful 
     in getting the overwhelming proportion of its judicial 
     nominations confirmed,'' said political scientist Sheldon 
     Goldman at the University of Massachusetts, Amherst. ``There 
     are only a relative handful being filibustered and held up. 
     And this contrasts with the dozens of Clinton nominees who 
     were held up by the Republicans in the last six years of the 
     Clinton administration. The truth is the Republicans have had 
     an outstanding record so far.''
       The Republican-controlled Senate Judiciary Committee lists 
     39 vacancies among the 859 seats on the U.S. district courts 
     and the U.S. courts of appeal--a 4.5% vacancy rate.
       This is the fewest number of vacancies since 1990. During 
     Clinton's term in office, the number of vacancies on the 
     federal bench was never fewer than 50, according to the 
     Administrative Office of the U.S. Courts.
       Today, the Senate committee is set to vote on four more 
     judicial nominees, including California Supreme Court Justice 
     Janice Rogers Brown. She is likely to be opposed by almost 
     all of the panel's Democrats, one of whom called her a 
     ``right-wing judicial activist'' during a hearing two weeks 
     ago.
       If confirmed by the full Senate, Brown would fill a seat on 
     the U.S. Court of Appeals in the District of Columbia that is 
     vacant in part because Republicans blocked two candidates 
     that Clinton nominated in 1999.
       Washington lawyer Allen Snyder, a former clerk to U.S. 
     Supreme Court Chief Justice William H. Rehnquist, had a 
     hearing in the committee, but despite a lack of opposition, 
     he failed to gain a confirmation vote in the Senate. White 
     House lawyer Elena Kagan was denied even a hearing in the 
     GOP-controlled Judiciary Committee. She has since become a 
     dean of Harvard Law School.
       Upon taking office, President Bush named Washington lawyers 
     John Roberts and Miguel A. Estrada to the same appeals court. 
     Roberts, also a former clerk to Rehnquist, won confirmation 
     this year and is now the junior judge on the U.S. Court of 
     Appeals for the District of Columbia. Democrats filibustered 
     and blocked a final vote on Estrada, who subsequently 
     withdrew.
       In July, President Bush chose Brown to fill the vacancy.
       Even if she wins a narrow approval today, the minority 
     Democrats may block her from a final vote in the Senate. 
     Besides Estrada, they have blocked votes on Mississippi Judge 
     Charles W. Pickering Sr., Texas Supreme Court Justice 
     Priscilla R. Owen and Alabama Atty. Gen. William H. Pryor Jr. 
     Also waiting a final confirmation vote is Los Angeles 
     Superior Court Judge Carolyn B. Kuhl, Bush's nominee to the 
     U.S. 9th Circuit Court of Appeals.
       Administration officials concede that most of Bush's judges 
     are being approved, but they point to the blocking of the 
     appeals court nominees as extraordinary.
       The vacancy rate ``has been getting lower, but the real 
     problem is the showdown at the circuit courts. We have seen 
     an unprecedented obstruction campaign against the president's 
     nominees for the circuit courts,'' said John Nowacki, a 
     Justice Department spokesman. The department's Web site says 
     there are 41 vacancies on the federal bench, if the U.S. 
     Court of Claims and the International Trade Court are 
     included in the total.
       The administration says Bush has made 46 nominations to the 
     appeals court, but only 29 have won confirmation. ``That's a 
     63% confirmation rate.
        Clinton had an 80 percent confirmation rate at the same 
     time,'' Nowacki said. ``There is something different going on 
     here. It's an obstruction at entirely different level.''
        Goldman, the University of Massachusetts professor, said 
     both parties have blocked prospective judges they viewed as 
     extreme, but they have done it in different ways.
        ``The Republicans obstructed quietly in the committee,'' 
     Goldman said. ``If they didn't want to approve you, you just 
     didn't get a hearing. The Democrats have obstructed through 
     the use of the filibuster, which is very open and visible.''
        During Clinton's final six years in office, Republicans 
     controlled the Senate, and they refused to confirm more than 
     60 of his judicial nominees.


                             Bench strength

        Here's how President bush's confirmed nominations to 
     Federal judgeships compares with his three predecessors:
        President George W. Bush: 2003: 68; 2002: 72; and 2001: 
     28**.
        President Bill Clinton: 2000: 40*; 1999: 33*; 1998: 65*; 
     1997: 36*; 1996: 20*; 1995; 55*; 1994: 101; 1993: 28; and 
     1992: 66*.
        President George H. W. Bush: 1991: 56*; 1990: 55*; and 
     1989: 15*.
        President Ronald Reagan: 1988: 41*; 1987: 43*; 1986: 44; 
     1985: 84; 1984: 43; 1983: 32; 1982: 47; and 1981: 41.

        * Senate controlled by opposition.
        ** Senate evenly divided until Sen. James M. Jeffords of 
     Vermont left the Republican Party to become an independent.

        Sources: Administrative Office of the U.S. Courts.

  Mr. LEAHY. How much time is remaining?
  The PRESIDING OFFICER. Ten seconds.
  Mr. LEAHY. I will yield back my 10 seconds.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I yield 1 minute to the distinguished Senator from 
Alabama.
  Mr. SESSIONS. Madam President, I wish to respond to some comments 
that were just made. The distinguished assistant Democratic leader 
asserts Mr. Pryor has been rejected before. He has not been rejected 
before. He has not been given an up-or-down vote. He has not been given 
a vote. We have a majority of Senators who supported him previously. A 
majority will support him, and it is absolutely wrong to say he has 
been rejected. He has not been given a vote.
  For the first time in the history of this country, we are facing a 
filibuster of judges, and it is not right. It is time to deal with this 
situation. I hope our colleagues on the other side will yield. If not, 
I hope they hear from the American people.
  I yield time back to the distinguished chairman of the Judiciary 
Committee.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I couldn't agree more with the 
distinguished Senator from Alabama. What is happening here is a very 
fine man, an excellent lawyer, an excellent attorney general in this 
country, one who has always stood for upholding the law even when he 
disagreed with it, which is the ultimate in judicial nominees, is being 
deprived of the dignity of an up-or-down vote, which has never been 
done before, other than in these four filibusters that the Democrats 
have waged in this body.
  This is dangerous stuff. I admit during the Clinton years there were 
a few of our Republicans who wanted to filibuster some of their liberal 
judges, and we stopped it. Senator Lott and I made it very clear that 
was not going to happen because not only is that a dangerous situation, 
politically it is a terrible situation, and it is something that should 
not happen in this body.
  One of the Democrats' favorite tactics, which they used again before 
last week's failed cloture vote on Judge Pickering's nomination, is to 
try to excuse their indefensible treatment of the President's nominee 
by citing the raw number of President Bush's nominees confirmed by the 
Senate. That number now stands at 168. They trumpet this number, and 
then note they have blocked only 4. We know it will be a lot more than 
that. We already know the future nominations they are going to block, 
but the Democrats believe this sounds reasonable to the American people 
who hear it.
  The more the real story gets out, the less acceptable it is to the 
American people. First, there are more Federal appellate vacancies 
today, 18, during President Bush's third year in office than there were 
at the end of President Clinton's second year in office, 15. Over half 
of President Bush's appeals court nominees have not been confirmed. 
There are 41 total vacancies on the Federal district and appellate 
benches, 22 of which are classified as judicial emergencies by the 
nonpartisan Administrative Office of the U.S. Courts. A staggering 67 
percent of the vacant appeals court slots are judicial emergencies.
  Here is the point. No raw number of confirmations means anything in 
and of itself, while there are not one but three filibusters--exemplary 
nominees going on now. We just voted out Janice Rogers Brown from the 
committee on a straight party-line vote, and it is clear they are going 
to filibuster this fine African-American justice who wrote the most 
majority decisions issued by the California Supreme Court last year. 
Their argument is: She is outside the mainstream. That is always the 
argument they bring up because she does not conform to the liberal 
ideology they demand.
  Just think, one nominee, Miguel Estrada, has withdrawn after more 
than 2 years of a filibuster against him.
  The Democrats are virtually certain to filibuster Justice Janice 
Rogers Brown, another DC Circuit nominee; and emergency vacancies 
continue to exist on our Federal courts.
  Are we supposed to be grateful that only a small handful of President 
Bush's nominees are being filibustered? Is there an acceptable 
filibuster percentage the Democratic leadership has in mind? The mere 
fact that we have to ask these questions makes it crystal

[[Page S14104]]

clear we have a broken process. Even one filibuster of a judicial 
nominee is one too many, and we are now up to four, and I might add 
there are others they have made very clear they are going to 
filibuster. These are appellate nominees. For the first time in 
history, these filibusters are occurring. I think it is shameful.
  I yield the floor.


                             cloture motion

  The PRESIDING OFFICER. Under the previous order, the cloture motion 
having been presented under rule XXII, the Chair directs the clerk to 
read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 310, the nomination of William H. Pryor, Jr., to 
     be United States Circuit Judge for the Eleventh Circuit.
         Bill Frist, Rick Santorum, Ben Nighthorse Campbell, 
           Lindsey Graham, Norm Coleman, John Sununu, Jon Kyl, 
           Mike DeWine, Wayne Allard, Elizabeth Dole, Pete 
           Domenici, Mitch McConnell, Robert F. Bennett, Jeff 
           Sessions, Michael B. Enzi, John Ensign, and John 
           Cornyn.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 310, the nomination of William Pryor, of 
Alabama, to be United States Circuit Judge for the Eleventh Circuit, 
shall be brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Colorado (Mr. 
Campbell) and the Senator from New Hampshire (Mr. Sununu) are 
necessarily absent.
  I further announce that if present and voting the Senator from New 
Hampshire (Mr. Sununu) would vote ``yes.''
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Dayton), the Senator from North Carolina (Mr. Edwards), the Senator 
from Massachusetts (Mr. Kerry), and the Senator from Connecticut (Mr. 
Lieberman) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  The PRESIDING OFFICER (Mr. Graham of South Carolina). Are there any 
other Senators in the Chamber desiring to vote?
  The yeas and nays resulted--yeas 51, nays 43, as follows:

                      [Rollcall Vote No. 441 Ex.]

                                YEAS--51

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

                                NAYS--43

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

                             NOT VOTING--6

     Campbell
     Dayton
     Edwards
     Kerry
     Lieberman
     Sununu

                          ____________________