[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Senate]
[Pages S14532-S14546]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                             Cloture Motion

  Mr. FRIST. With that answer, Mr. President, I send a cloture motion 
to the desk.
  The PRESIDENT pro tempore. The cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant 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. 455, the nomination of Janice R. Brown, of 
     California, to be United States Circuit Judge for the 
     District of Columbia Circuit.
         Bill Frist, Orrin Hatch, Lindsey Graham, Mike Crapo, Jeff 
           Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

  Mr. FRIST. Mr. President, I now ask unanimous consent that the three 
live quorums required under rule XXII be waived en bloc.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, parliamentary inquiry: In terms of the time 
we used on our side, how much time, in terms of my initial speech, was 
used by this side?
  The PRESIDENT pro tempore. The majority has 4 minutes 47 seconds. The 
minority has 11 minutes 22 seconds.
  Mr. REID. If I can make an inquiry through the Chair, Mr. President, 
the unanimous consent request, as I have heard the ruling of the Chair, 
is not counted against anybody; is that the way it is?
  The PRESIDENT pro tempore. The time to object or reserving the right 
to object has been charged to the side making such a reservation.
  Mr. FRIST. Mr. President, I suggest the general agreement is to spend 
an hour, 30 minutes to a side, and if they are not using the time, it 
will be yielded back to the other side. I ask unanimous consent that I 
use 15 minutes, 15 minutes for Senator Hatch, and we go to the other 
side.
  Mr. REID. And we would have an hour?
  Mr. FRIST. You would have 30 minutes.
  Mr. REID. I say to the distinguished majority leader, we have had no 
time agreement the first hour other than listening to me object.
  The PRESIDENT pro tempore. Reserving the right to object and 
statements made under such objection or reservation has been charged 
against the side making that reservation.
  Mr. REID. I understand. So the Chair has ruled that the statement by 
Senator Byrd ran against us; is that true?
  The PRESIDENT pro tempore. That is correct.
  Mr. REID. So the next half hour will be used by Senators Frist and 
Hatch, and then we will use our half hour.
  Mr. FRIST. Again, I think it is time for us to move forward. 
Conceptually, we are going to have an hour, 30 minutes either side. Say 
I used 15 minutes--it may be more--Senator Hatch will speak about 15 
minutes, and 30 minutes will be to your side, and we will be going back 
and forth.
  Mr. REID. Fine. My only concern is we have had Senators we have 
scheduled to speak to use our half hour. Some of them have been 
champing at the bit here. If they don't speak now, they lose their 
time, their day in the sun.
  Mr. FRIST. I thought I had a pretty good 20-minute speech. I was 
ready to start, but because of questions directed to me, again, about 
scheduling--we get things well set and then because of questions--if we 
can just start now and do as I requested, have 15 minutes and you take 
30 minutes, we will be able to get started.
  Mr. REID. I am wondering, I ask if we could use the next 15 minutes 
so my people who have been here, Senators waiting could take the time. 
I would divide whatever by 3 until the time until 7 o'clock.
  Mr. FRIST. Would you please repeat that?
  Mr. REID. Then we can start fresh at 7 o'clock with you and Senator 
Hatch giving us your statements, and we will take the next half hour.
  Mr. FRIST. Mr. President, you mean I have Senator Hatch speak?
  Mr. REID. We would take approximately 4 minutes each until 7.
  Mr. FRIST. No, Mr. President, Senator Hatch is going to follow me, 
and then we will go into going back and

[[Page S14533]]

forth. Senator Hatch has also been waiting 30 minutes. If it hadn't 
been for these questions, we would have been done 15 or 20 minutes ago.
  Mr. REID. I say through the Chair, I am trying to be peaceful and 
calm here. The Chair ruled we have 4 minutes left.
  Mr. FRIST. Would the Chair clarify how much time we have available on 
either side?
  The PRESIDENT pro tempore. The majority has 4 minutes 37 seconds. The 
minority has 10 minutes 47 seconds.
  Mr. HATCH. I ask unanimous consent that immediately after the half 
hour taken by the Democrats, I be given an additional 11 minutes. I 
will take 4 right now.
  Mr. SCHUMER. I could not hear the Senator from Utah.
  Mr. REID. The Senator from Utah said we would go until 7 o'clock and 
then they would do the next half hour; is that right? Is that what you 
said?
  The PRESIDENT pro tempore. Is there objection?
  Mr. HATCH. No, I said I would take the 4 minutes now and then take 
the 11 minutes after you had half an hour. How is that?
  Mr. REID. Out of their time, that is absolutely fine.
  The PRESIDENT pro tempore. The Senator is recognized for 4 minutes.
  Mr. HATCH. Mr. President, I think it is appropriate to have the 
chairman of the Judiciary Committee who has had to go through all this 
rigmarole to say a few words before we get into this debate. I know the 
distinguished majority leader wanted me to do so.
  To be honest with you, Mr. President, just think about it. All we 
want to do is what the Senate has always done. Once a nominee comes to 
the calendar, that nominee deserves a vote up or down under the advise 
and consent clause which is clearly a majority vote.
  Never in the history of this Congress have we had what has been 
happening over the last number of years caused by the Democrats on the 
other side.
  We should be voting on judges tonight, not debating judges. Frankly, 
there is a vocal minority of Senators preventing us from doing our 
constitutional duty to vote on judicial nominees. The American people 
need to know this, and although some of these folks have been moaning 
and groaning on the other side that we are taking this time, I suggest 
to them that there is hardly anything more important in a President's 
life, whoever that President may be, than getting his or her judicial 
nominations through.
  Frankly, it is extremely important because this involves one-third of 
the coequal branches of Government. We found a continual filibuster on 
a number of these nominees.
  Let me say this. Democrats seem to be very fond of saying: We passed 
168 and we only filibustered 4. The fact is, that raw number of 168 we 
have had to fight pretty hard to get as well. But we have. Never in the 
history of this country have we had four stopped. That is only part of 
it.
  I can name at least 15 that I have had various Democrats tell me they 
are going to filibuster. Most of them are circuit court of appeals 
nominees for the very important circuit courts in this country, people 
who have the ABA imprimatur, people such as Miguel Estrada; Priscilla 
Owen, who broke through the glass ceiling for women; Bill Pryor--even 
though he is conservative, he has always upheld the law even when he 
disagreed with the law; Charles Pickering, unanimously confirmed to the 
district court in 1990 and treated like dirt in the Senate--a racial 
reconciling. Yet he has been treated just like dirt. Carolyn Kuhl--we 
are going to have her first cloture vote on Friday because they are 
going to filibuster. Janice Brown--they are filibustering her; Claude 
Allen, I am told they are going to filibuster Claude Allen. How about 
Terrence Boyle of the Fourth Circuit? It looks as if they are going to 
filibuster him. James Deavers is being held up. Bob Conrad is being 
held up.

  Four Circuit Court of Appeals judges for the Sixth Circuit out of 
Michigan are being held up by our colleagues on the other side; two 
district court nominees, and I could name some others.
  The fact is, for the first time in history, they are treating a 
President of the United States in a ridiculous, unconstitutional 
fashion and not allowing him to have an up-or-down vote on his 
nominees. If they can defeat these nominees, that is their right, but 
they should not be dragging their feet and making it very difficult for 
these nominees to come up.
  I heard some of the comments about how important the appropriations 
process is. It is important, but I can tell you we have had foot 
dragging almost all year by our colleagues on the other side, and it is 
important, but there is nothing more important than making sure that 
our courts are well staffed with competent judges who are going to 
enforce the law for the benefit of the American citizens.
  There is nothing more important than that. Frankly, it is the one 
legacy that any President can leave. When Bill Clinton was President, 
we helped him put through 377 judges, the second all-time record. I 
might add Ronald Reagan was the all-time record holder at 382, 5 more 
than President Clinton. President Reagan had 6 years of a Republican 
Senate to help him and President Clinton had only 2 years of a 
Democratic Senate, and he was treated abundantly fair.
  There were 47 holdovers at the end. Contrast that to when Democrats 
controlled the committee and Bush 1 was President. There were 54 
holdovers.
  Mr. President, this is really wrong what they are doing. It has the 
potential of exploding this body. Frankly, we can't allow it to 
continue. It is time for the American people to understand this. I 
understand my time is up.
  Mr. REID. Mr. President, I yield 2\1/2\ minutes to the Senator from 
New York, Mr. Schumer; 2\1/2\ minutes to the Senator from California, 
Mrs. Feinstein; and 2\1/2\ minutes to the Senator from Wisconsin, Mr. 
Feingold; in that order.
  The PRESIDENT pro tempore. The Senator from New York.
  Mr. SCHUMER. Mr. President, they say one picture says a thousand 
words; one sign will equal 30 hours of palaver. The bottom line is very 
simple, we have supported and confirmed 168 judges whom President Bush 
has sent us. We have blocked 4.
  All the rhetoric, all the splitting of hairs, all the talking about 
angels on the head of a pin don't equal that. This debate will 
boomerang on my colleagues from the other side of the aisle because all 
the American people have to do is look at that sign and they say: Gee, 
you're right.
  The bottom line is the President, the majority leader, and the 
chairman of the Judiciary Committee will not be content unless every 
single judge the President nominates is rubberstamped by this body. 
That is what they want. We all know it. We have been very careful and 
very judicious in whom we have opposed.
  People who are getting life appointments should not be extremists, 
should not be out of the mainstream, should not be asked to roll back 
30 or 60 years of jurisprudence, and the four we have blocked fall in 
that category.
  The bottom line is very simple: If you want agreement, then read the 
Constitution and tell the President, in all due respect, to read the 
Constitution. It says advise and consent. Advise means consult. We get 
no consultation. Consent means the Senate does its own independent 
review. That is what we have done.
  So I understand why early on this sign vexed my colleagues from the 
other side. The bottom line is simple: We have been reasonable; we have 
been careful; we have been moderate; we have been judicious. The other 
side and the President simply say my way or the highway. That will not 
stand.
  The PRESIDENT pro tempore. The Senator's time has expired. The 
Senator from California is recognized 2\1/2\ minutes.
  Mrs. FEINSTEIN. I thank the Chair.
  Mr. President, I have served as a member of the Judiciary Committee 
since I came to the Senate. I take the job very seriously. I try to do 
my homework in looking at these judges. I very deeply believe that this 
election provided no mandate to skew the courts to the right. I deeply 
believe that judges should be in the mainstream of American legal 
thinking, that they should have the temperament and the wisdom and the 
intellect to represent us well on the highest courts of our land.
  What I wanted to use my time for--and the 2\1/2\ minutes will not be 
enough to do it--is to indicate that during the

[[Page S14534]]

time I have been on the Judiciary Committee how I have seen the rules 
and the procedures of the committee change. Those changes have not been 
good. They have served to divide the committee more. They begin with 
changing the American Bar Association's 50-year tradition of rating the 
qualifications of potential nominees before the President nominates 
them, to after the President nominates them. I would like to say why I 
think that is important.
  There have been changes made in the so-called blue slip policy so 
that concerns Senators from a nominee's home State are no longer given 
any consideration whatsoever. There has been a reinterpretation of a 
longstanding committee rule, rule 4, prohibiting the majority from 
prematurely cutting off debate over a nominee in committee. There has 
been the elimination of the tradition of holding a hearing on only one 
controversial nominee for appellate vacancies at one time. There have 
been changes to committee practice----
  The PRESIDENT pro tempore. The Senator's time has expired.
  Mrs. FEINSTEIN. I hope in the next hour perhaps I might have more 
time. I yield the floor.
  The PRESIDENT pro tempore. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I think we ought to be spending 30 hours 
on the manufacturing crisis in our country. Since January 31, we have 
lost 2.5 million manufacturing jobs and over 70,000 of them are from 
Wisconsin alone.
  These jobs are more than numbers on a page. They are all too real. 
The thousands of Wisconsin residents who have petitioned their 
Government know this firsthand.
  In their letters to me--and, Mr. President, I have with me over 2,000 
letters that were sent recently to my home by manufacturers, not labor 
union members but manufacturers from the State of Wisconsin that are 
desperate about this problem. Thousands of people from all around 
Wisconsin, from places such as Sparta and Trempeleau and West Bend and 
Muskego, write that the first and foremost reason behind these lost 
jobs is our trade policy.
  These letters say: Our elected officials say workers will benefit 
from this free trade policy and the free trade agreements that come 
with it, but the opposite has occurred. Our trade deficit is increasing 
at a pace of $1.5 billion per day. That is how many more products we 
are importing than we are making. As you can see, these trade 
agreements are not working to the benefit of U.S. workers.
  These letters go on to talk about how manufacturing in America is 
dying a slow death. That is a much higher priority than spending 30 
hours talking about four judicial nominations, and we should respond to 
the desperate situation that the American people are facing with 
manufacturing job loss.
  I yield the floor.
  The PRESIDENT pro tempore. Under the previous order, the next hour is 
equally divided between the two parties, 30 minutes to each side. Who 
yields time? The Senator from Utah.
  Mr. HATCH. As I understand it, I have 11 minutes left; is that 
correct?
  The PRESIDENT pro tempore. The Senator has a half hour.
  Mr. HATCH. Mr. President, we should be voting on judges tonight. 
Instead we are debating judges tonight because a vocal minority of 
Senators is preventing us from doing our constitutional duty to vote on 
judicial nominees.
  The American people need to know that. That is why we are here. If 
you stop and think about this sudden new set of arguments or at least 
arguments they have used for a long time, the Democratic leadership has 
been blocking all kinds of passage of bills that are America's 
priorities for the whole year.
  Now they are complaining because we want to let the American people 
know how bad they have been about Federal judges, which, after all, is 
one of the most important things we do around here. Just think about 
it. The long overdue fiscal year 2003 appropriations bills were finally 
enacted on February 20, 2003. For the first time in history, there were 
filibusters to defeat the President's circuit court nominees, now up to 
six who are actually filibustered, and at least another nine whom, I 
have been told, they will filibuster. The sign they have is an absolute 
outright falsehood.
  We needed legal reforms to stop lawsuit abuse against doctors, 
businesses, and industries that have been virtually banned by the 
tactics of the minority. Medical liability, class action reform, gun 
liability, and asbestos reform: they have all been subject to delays or 
filibuster by the minority.
  Similar delays led to a record number of days spent on the budget 
resolution and the near record number of rollcall votes on amendments, 
many of which were virtually identical. The distinguished Senator from 
Alaska understands that as chairman of the Appropriations Committee.
  The most innovative waste of time came on the Energy bill. After 
spending 22 days on the Energy bill last year, we spent 18 days on the 
Energy bill this year, only to pass the same version of the Energy bill 
that passed the Senate last year.
  Bioshield legislation necessary to ensure proper vaccines in medicine 
to counter bioterrorism attacks has still not cleared.
  The State Department reauthorization has been stalled by Democrats 
insisting upon unrelated poison pill amendments be voted on prior to 
passage. I could go on and on.
  The fact is, there has been a steady slowdown, steady slow walk 
around here, ever since we became the majority.
  Now, the issues we are highlighting tonight could not be more 
fundamental to our country, to democracy, to the rule of law: 
separation of powers. All are at stake in this ongoing debate. Among 
the constitutional Framers' conceptual breakthroughs was that the 
judicial branch would receive equal status to that of the executive and 
legislative branches. An independent judiciary is the thread that binds 
the country together and ensures law and order. It is important. It is 
indispensable to the survival of a civilized society.
  If it had not been for the restraining force of an independent 
judicial branch, either the executive or the legislative branches would 
have usurped incredible power and destroyed the checks and balances 
that are at the very foundation of our constitutional form of 
government. So we all have a stake in this debate tonight, and it is my 
hope that our opponents across the aisle will act to restore the 
constitutionally required up-or-down vote for judicial nominees. 
Ultimately, through the ballot box, the people in my home State of Utah 
and across America will decide who nominates and who confirms judges.
  Let me repeat that our Nation's founding document requires that every 
judicial nominee who reaches the Senate floor receive an up-or-down 
vote. It is a simple, clear, and fair fact that lies at the heart of 
this debate. Once they hit the floor, they have always gotten a vote.
  Every one of President Clinton's judges who hit the floor got a vote 
up or down, and only 1 out of 377 was defeated. But a minority of the 
Senate is rigging the system by engaging in an unfair set of 
unprecedented filibusters which are the culmination of an outright 
assault on the independence of the Federal judiciary.

  When our colleagues across the aisle controlled the Senate, we saw 
nominees with the full support of their home State Senators denied 
hearings and votes for months and months. We saw nominees stalled by 
demands for unpublished opinions and volumes of written questions. We 
saw this become more and more serious since the beginning of this year.
  We have continued to see ideology used to threaten the independence 
of our Federal judiciary by essentially requiring nominees to announce 
their views on issues that may come before them as Federal judges, 
something that has not happened in the past. But that is what they are 
requiring of President Bush's nominees, at least some of them.
  They treated Miguel Estrada like dirt, while they allowed John 
Roberts to go through. Roberts was also in the Solicitor General's 
office. They did not ask for the highly privileged confidential matters 
for Roberts, but they did for Miguel Estrada.
  By the way, most all of these people have high ratings from their 
gold standard, the American Bar Association.

[[Page S14535]]

  We have seen for the first time in American history true filibusters 
of judicial nominees which are preventing the Senate from exercising 
its constitutional right and duty of advice and consent. This is 
harmful to the Nation, it is harmful to the judiciary, and it is 
certainly harmful to our institution. It is harmful to the President. 
It is harmful to these people who are willing to put their names up and 
to do this.
  Article II of the Constitution of the United States invests in the 
President alone the power to nominate judges. There is no room for 
interpretation. The words are explicit. Yet we have seen efforts to 
usurp the President's constitutional authority not by constitutional 
amendment but through various proposals on how nominations should be 
made and demands on who should be nominated that exceed any reasonable 
interpretation of consultation.
  We have also seen the filibusters of judicial nominees that brought 
us here tonight and prevent us from exercising our constitutional 
obligation of an up-or-down vote.
  This assault on the judiciary is not without victims. There is no 
question that it is harmful to the Federal judiciary. More than half of 
its existing vacancies are considered judicial emergencies. So it is 
harmful to the President. He is not being treated fairly compared to 
all Presidents before him. And it is harmful to the Senate, whose 
constitutional roles are turned on their heads. It is perhaps most 
harmful to the individual lives of the nominees who have been denied a 
simple up-or-down vote, which they have always gotten before when they 
have been brought to the floor on the Executive Calendar.
  Now let me talk about some of these nominees because I think it is 
important to remember that they are very real people who want to get on 
with their very real lives instead of hanging in the limbo of what has 
become the Senate's confirmation stall.
  Let me turn to this particular picture. Former DC Circuit nominee 
Miguel Estrada, who is an American success story, unanimously gets the 
highest rating from the American Bar Association, the Democrats' gold 
standard. He was stopped for over 2 years--actually 3 years. Priscilla 
Owen broke through the glass ceiling for women and made it so women 
could become partners in major law firms, one of the most brilliant 
people in our society. She was an excellent witness, but they just do 
not want her.

  William Pryor, of course, in my opinion, the outside groups tried to 
smear Pryor, and they did so with regard to his strongly held personal 
beliefs on abortion.
  I might add that Charles Pickering, who I mentioned before, was 
passed by this body unanimously in 1990. Yet all of a sudden in the 
next 13 years he is unworthy to be on the circuit court of appeals?
  No. It all comes down to abortion. We can go further. We can go 
further than just these nominees. I have mentioned a whole raft of 
others. I could name at least 15 colleagues on the other side who have 
indicated they are going to filibuster. Now that is abominable. All 
four of those nominees have been waiting years, and in some cases many 
years, for confirmation. All of them have been denied up-or-down votes.
  On Friday, the Senate will consider the nomination of two more 
outstanding jurists, and let me just put up this second chart. Carolyn 
Kuhl served in the Reagan administration. She was only 28 years old at 
the time and they have tried to act like she had all kinds of authority 
to do things with which they disagree. She has virtually unanimous 
support from her fellow judges in California, many of whom are 
Democrats, who say she will make a terrific addition to the Ninth 
Circuit Court of Appeals.
  Take Janice Rogers Brown, this African American woman who was the 
daughter of sharecroppers. She put herself through college and law 
school as a single mother--just think about that--and yet she is being 
treated in a very improper fashion.
  I might add that nearly 100 of her fellow judges on the Los Angeles 
County Superior Court are in support of Carolyn Kuhl. She is a terrific 
nominee, but they suspect that she is probably pro-life. I do not know 
what she is. I do not know what Janice Rogers Brown is. They may be 
right on that, but so what?
  I think if a person is otherwise qualified, no single issue should 
stop them from being able to serve their country on the Federal bench, 
and if we had taken the attitude they are taking, my gosh, President 
Clinton would have got very few judges. Instead he got 377, the second 
all-time record for confirmations.
  DC Circuit Court nominee Janice Brown has spent nearly a quarter 
century in public service, including nearly a decade as a judge in the 
California State courts. This daughter of a sharecropper became the 
first African American woman to sit on the California Supreme Court in 
1996. Why are they against her? Because they know she is conservative, 
and they want just one way of thinking among African Americans. She 
does not qualify because she happens to be conservative. No matter that 
she won 76 percent of the vote in the last election, more than any 
other nominee for the California Supreme Court, and wrote most of the 
majority opinions in the last year.
  On Friday, we will have the opportunity to give these two nominees 
the up-or-down vote they deserve, but it is apparent the minority whip 
has said they are going to filibuster them.
  I am proud to say in my 27 years in the Senate, some of my Democratic 
colleagues expressed similar views when a different President was in 
the White House. For example, the distinguished minority leader stated:

       As Chief Justice Rehnquist has recognized: The Senate is 
     surely under no obligation to confirm any particular nominee, 
     but after the necessary time for inquiry it should vote him 
     up or vote him down. An up-or-down vote, that is all we ask.

  That was their philosophy when they had the Presidency and they had 
the Senate Judiciary Committee and were the leaders in the Senate.
  On this point, I agree with Senator Daschle. All we ask for is an up-
or-down vote. If they want to vote against these people, that is their 
right, but they need to have an up-or-down vote. Why are they afraid of 
allowing simple up-or-down votes in the cases of these excellent 
nominees? Well, because we think--I think--there is more than adequate 
evidence that on a bipartisan set of votes these nominees would be 
confirmed by the Senate. If not, let the chips fall where they may. But 
these nominees deserve a vote. Vote them up or vote them down, but just 
vote.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, my Democratic colleagues try to justify 
their unprecedented filibusters of President Bush's nominees by arguing 
that they want mainstream judges and that President Bush's nominees do 
not fit that criteria. Mainstream judges--I am a little puzzled by that 
assertion. I would think, for example, that Priscilla Owen is in the 
mainstream. She was rated unanimously well qualified by the ABA. She 
was endorsed by the past 16 Texas Bar Association presidents, both 
Democrats and Republicans. She has been twice elected to statewide 
judicial office in Texas, one of the States where they elect judges, 
and the last time, interestingly enough, she got 84 percent of the 
vote--unanimously well qualified by the ABA; supported by 16 presidents 
of the State bar of Texas, Democrats and Republicans, and gets 84 
percent of the vote. Sounds like mainstream to me. Yet Democrats 
filibustered her nomination because of her interpretation of a Texas 
law saying minor girls could not have an abortion without their parents 
being notified--not consent but merely notified.
  After all, school nurses need a parent's consent to dispense an 
aspirin to a child. Should not a parent be entitled to a simple 
notification when their child seeks an abortion? Over 80 percent of 
Americans think they should. That is a very mainstream notion.
  So I was astonished that Democrats would say she was not ``in the 
mainstream,'' and, frankly, I think the American public would be 
astonished by such a conclusion that a person so ruling would not be in 
the mainstream. But ``mainstream,'' of course, is a relative term.
  To help the American people understand the Democrats' view, we should 
look at some of the Clinton judges my Democratic colleagues have 
supported. Upon doing so, it should be pretty clear

[[Page S14536]]

that the Democrats' view of mainstream is colored by the fact that they 
are sitting on the far left bank.
  Clinton class of 1994, Judge Shira Scheindlin, a get-out-of-jail-free 
card for terrorist sympathizers. In the days after 9/11, Federal agents 
did their job by detaining a material witness to the 9/11 attacks, a 
Jordanian named Osama Awadallah. Osama knew two of the 9/11 hijackers 
and met with one at least 40 times. His name was found in the car 
parked at the Dulles Airport by one of the hijackers of American 
Airlines Flight 77, and photos of his better known name's sake, Osama 
bin Laden, were found in Osama Awadallah's apartment.
  Under the law, a material witness may be detained if he or she has 
relevant information and is a flight risk. The Justice Department 
thought Osama met both of those tests. While detained, he was indicted 
for perjury. But Judge Shira Scheindlin, a 1994 Clinton nominee, 
dismissed the perjury charges and released this man on the street. Her 
reason? She ruled that the convening of a Federal grand jury 
investigating a crime was not a criminal proceeding, and therefore it 
was unconstitutional to detain this Mr. Awadallah.
  This was quite a surprise to Federal prosecutors who, for decades, 
had used the material witness law in the context of grand jury 
proceedings for everyone from mobsters to mass murderer Timothy 
McVeigh. So much for following well-settled law.
  If anyone wants to read a good article about this case, I recommend 
the Wall Street Journal editorial from last year entitled ``Osama's 
Favorite Judge.'' It notes that thanks to Judge Scheindlin, this fellow 
is out on bail. We wonder how he is spending his time.

  Just last Friday, the Second Circuit reversed Judge Scheindlin. The 
appellate court seemed quite puzzled that she would release this man 
given his obvious connection to terrorists. The Second Circuit held 
that his detention as a material witness was a scrupulous and 
constitutional use of the Federal material witness statute.
  It is too bad Judge Scheindlin did not act in a similarly scrupulous 
fashion. Nevertheless, to Democrats she is probably ``in the 
mainstream.''
  Let us take a look at the Clinton class of 1995, Judge Jed Rakoff. 
One of Judge Scheindlin's colleagues, a 1995 Clinton nominee, has ruled 
that the Federal death penalty is unconstitutional in all instances.
  Now, some of my colleagues may share this position, but their views 
differ from the majority of Americans. When Judge Rakoff acts on his 
personal views, it is a very clear failure to follow Supreme Court 
precedent. Indeed, Judge Rakoff's rulings so brazenly violated 
precedent that even the Washington Post, which is against the death 
penalty as a policy matter, came out against his decision as gross 
judicial activism.
  In an editorial entitled ``Right Answer, Wrong Branch,'' the Post 
noted that the fifth amendment specifically contemplates capital 
punishment three separate times. The Post noted:

       [T]he Supreme Court has been clear that it regards the 
     death penalty as constitutional. . . . The High Court has, in 
     fact, rejected far stronger arguments against capital 
     punishment. . . . Individual district judges may not like 
     this jurisprudence, but it is not their place to find ways 
     around it. The arguments Judge Rakoff makes should, rather, 
     be embraced and acted upon in the legislative arena. The 
     death penalty must be abolished, but not because judges beat 
     a false confession out of the Fifth Amendment.

  Another editorial, this one from the Wall Street Journal entitled 
``Run for Office, Judge,'' said as follows:

       It hardly advances th[e] highly-charged debate [on capital 
     punishment] to have a Federal judge allude to Members of 
     Congress who support capital punishment as murderers. If 
     Judge Rakoff wants to vote against the death penalty, he 
     ought to resign from the bench and run for Congress or the 
     state legislature, where the Founders thought such debates 
     belonged.

  Judge Rakoff's ruling would prevent the application of the death 
penalty against mass murderers like Timothy McVeigh or Osama bin Laden. 
I guess Judge Rakoff is the kind of mainstream judge the Democrats 
would like to see on the bench.
  There have also been some interesting rulings from the Ninth Circuit, 
finding the right to long distance procreation for prisoners. My 
friends on the other side believe very strongly in a living and 
breathing constitution. They also believe that the rule of law should 
not be confined to the mere words of the document and the Framers' 
intent. To them, those are anachronistic concepts. I was truly 
surprised, however, to read what a panel of the Ninth Circuit had tried 
to breath into the Constitution.

  Three-time felon William Geber is serving a life sentence for, among 
other things, making terroristic threats. Unhappy with how prison life 
was interfering with his social life, Mr. Gerber alleged he had a 
constitutional right to procreate via artificial insemination.
  A California district court rejected Mr. Gerber's claim. A split-
decision of the Ninth circuit, though, reversed. Infamous Carter-
appointee Stephen Rhinehardt joined President Johnson's appointee, 
Myron Bright, to conclude that yes, the farmers had indeed intended for 
``the right to procreate to survive incarceration.''
  In his dissent, Judge Barry Silverman--a Clinton appointee who was 
recommended by Senator Kyl--wrote that ``This is a seminal case in more 
ways in one'' because ``the majority simply does not accept the fact 
that there are certain downsides to being confined in prison.'' One of 
them is ``the interference with a normal family life.''
  Judge Silverman noted that while the Constitution protects against 
forced sterilization, that hardly establishes ``a constitutional right 
to procreate from prison via FedEx.'' The Ninth Circuit, en banc, 
reversed this decision, but only barely. And it did so against the 
wishes of Clinton appointees Tashima, Hawkins, Paez and Berzon, who 
dissented from the en banc ruling.
  If anyone wants to read more about this case, I'd recommend George 
Will's piece entitled, ``Inmates and Proud Parents.'' If there ever was 
a circuit in need of some moderation, balance, and ideological 
diversity, it is the Ninth Circuit. It is made up of 17 Democrat 
appointees, but only 10 Republican appointees.
  It is the Nation's largest circuit, covering nine states and 51 
million people. It is also reversed far and away more than any other 
circuit. Indeed, it is reversed so often--from 1996-2000, the Supreme 
court reversed it 77 out of 90 times--it is known as a ``rogue'' 
circuit. This has forced its representatives to introduce legislation 
to allow their States to secede from the Ninth Circuit.
  But my Democrat colleagues probably won't give Ninth Circuit nominee 
Carolyn Kuhl the simple dignity of an up or down vote. Evidently she is 
not as ``mainstream'' as all these Democrat judges.
  If these Democrat judges represent the ``mainstream,'' then quite 
frankly, I am glad the Democrats think that Priscilla Owen, Carolyn 
Kuhl, and Janis Rogers Brown aren't in it. Unlike these Democrat 
judges, I am confident these women will follow precedent and act with 
commonsense.
  The Senate should, as it did with Judge Paez, Judge Berzon, and other 
controversial Democrat nominees, give these women the simple dignity of 
an up or down vote.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Thank you very much, Mr. President.
  I talked quite a bit on Monday about this matter dealing with jobs. 
We should be talking about jobs. We should be talking about 
unemployment, not four people who have jobs.
  What I am talking about, what we are talking about on this side is 
absolutely valid. One needs only to go to the Web site of the majority 
leader, Senator Frist, prior to his pulling from his Web site the 
information to the following question: Should the President's nominees 
to the Federal bench be allowed an up-or-down vote on confirmation as 
specified in the Constitution? Sixty percent, no.
  Even the majority leader's Web site indicates that what is going on 
here is absolutely wrong. The majority of the people who responded, 
almost 10,000 people, said this is the wrong approach. This is from the 
majority leader's own Web site.
  I also say that this has been referred to as a carnival--I don't know 
if that is an exact term. But as an indication that it is circus-like, 
one need only get

[[Page S14537]]

an e-mail that was sent to various Senators on the majority side 
saying:

       It is important to double your efforts to get your boss to 
     S-230 on time. Fox News channel is really excited about the 
     marathon. Britt Hume at 6 would love to open the door to all 
     our 51 Senators walking on to the floor. The producer wants 
     to know, will we walk in exactly at 6:02 when the show starts 
     so we can get it live to open Britt Hume's show? Or, if not, 
     can we give them an exact time for the walk-in start?

  Mr. President, we have said this should be about jobs, about 
unemployment. Even Senator Frist's people who respond to him on his Web 
site say yes. Is it a circus? Absolutely. You can see from this it is a 
circus.
  Mr. DURBIN. Will the Senator yield?
  Mr. REID. I am happy to yield.
  Mr. DURBIN. Is it possible for us to get an update during the course 
of the evening on what Fox News is going to be looking for during this 
marathon? This opening about the march into the Chamber clearly was 
priority for the ``fair and balanced'' network. Will we get updates 
from time to time how Fox News would like to orchestrate the rest of 
this?
  Mr. REID. I say to my friend, perhaps so. If not, maybe we could 
check with the Federalist Society, which, coincidentally, is starting 
their convention tomorrow.
  The PRESIDENT pro tempore. The Senator is warned to speak through the 
Chair and not risk the probability of being interrupted and losing the 
floor.
  Mr. REID. Mr. President, I don't understand. I was speaking through 
the Chair, answering the Senator's question.
  The PRESIDENT pro tempore. The Senator from North Dakota must address 
the Chair and ask for permission.
  Mr. DURBIN. There is no Senator from North Dakota.
  Mr. REID. I respond through the Chair to the distinguished Senator 
from Illinois.
  The PRESIDENT pro tempore. It protects the Senator's right to the 
floor.
  Mr. REID. I say to my friend that the Federalist Society, as we know, 
is not mainstream dealing with judicial issues, but extreme, and 
indicate that may be the case. One of the lead speakers, of course, is 
Mr. Bork. To even compound the political nature of the operation, 
Attorney General William Pryor of Alabama is speaking there.

  For everyone within the sound of my voice, it sounds to me rather 
unusual that someone who has the nomination and is trying to get 
confirmed to be a member of a very high Federal court--I cannot imagine 
it would be appropriate for that person to appear at an organization 
that is not in the mainstream, but extreme.
  So what we have here, even by Senator Frist's standards, looking at 
his Web site, we have the facts as I have indicated previously.
  Mr. SESSIONS. Will the Senator yield?
  Mr. REID. Not right now. I will not.
  We have here from Senator Frist's own Web site the fact that 60 
percent of the people--about 10,000 responded before it was pulled from 
the Web site--say that the procedure being sought here is wrong.
  I also say it is very clear this is a carnival-type atmosphere as 
indicated by the e-mail setting up the various presentations to satisfy 
Fox News.
  Finally, the Federalist Society, coincidentally, is the typeset for 
this matter.
  I yield 12 minutes to the Senator from California, Mrs. Feinstein.
  The PRESIDENT pro tempore. The Senator from California is recognized 
for 12 minutes.
  Mrs. FEINSTEIN. Mr. President, what I was trying to do was 
essentially trace changes in committee procedure with the difficulties 
the Judiciary Committee seems to be countenancing in present days. A 
good deal of it has to do with blue slip policy because it was the 
second tradition to fall by the wayside when President Bush took 
office.
  Under the Clinton administration, nominees were often blocked not 
only by home State Senators but by any single Republican Senator. At 
the very least throughout the years preceding the Bush administration, 
a home State Senator's objection to a nominee would effectively stop 
that nominee from moving forward.
  Let me show a copy of a blue slip used during the Clinton 
administration, starting in January of 1999, and sent to each home 
State Senator. The document itself specifically states that no 
proceedings on this nominee will be scheduled until both blue slips 
have been returned by the nominee's home State Senators.
  That policy was followed without fail and without question. Even 
before 1999, during the Clinton Presidency, the blue slip said ``unless 
a reply is received from you within a week from this date, it will be 
assumed that you have no objection to this nomination.''
  But still, if there was an objection from a home State Senator, that 
nominee simply did not move, did not get a hearing, did not get a vote, 
did not get confirmed. It was, in fact, a filibuster of one.
  Today, there is a new blue slip policy, one in which the objections 
of one or even both of the home State Senators is no longer 
dispositive. That is part of the problem. This keeps changing, 
dependent on who is President. This latest policy puts Democrats on the 
committee and in the Senate in a difficult position.

  In the past, if a home State Senator objected to a nominee, that 
nominee did not proceed; there would be no committee vote and no 
filibuster on the floor. Fifty-five Clinton nominees did not receive a 
hearing. This well could have been a filibuster of one. The blue slip 
is secret; nobody knows.
  Let me name some of the Clinton nominees who were filibustered by one 
or two members of the Judiciary Committee. Elena Kagen, nominated to 
the District of Columbia Circuit, nominated by Clinton, June 17, 1999. 
The nomination was returned December 15, 2000. She waited 547 days 
without getting a hearing or a vote in the Judiciary Committee. She is 
currently the dean of Harvard Law School.
  Lynette Norton, nominated for the District Court for the Western 
District of Pennsylvania. Nominated by President Clinton on April 28, 
1998, in the 105th Congress. Her nomination, which was submitted to the 
105th and 106th Congresses, was returned both times without a hearing. 
She waited 961 days without a hearing or a vote in the Judiciary 
Committee. Again, a successful filibuster by one or two Senators, in 
secret.
  Barry Goode, nominated for the Ninth Circuit. Goode was nominated by 
President Clinton on June 24, 1998. After 3 years of inaction, 
President Bush withdrew his nomination, on March 19, 2001. Mr. Goode 
waited 998 days without ever getting either a hearing or a vote in the 
Judiciary Committee. A filibuster of one or two, in secret--no hearing, 
no opportunity to read a transcript, no opportunity to go back and read 
writings, speeches, or look into a nominee's background. Just because 
of one or two Senators, a hearing is denied; the filibuster is 
complete.
  H. Alston Johnson, nominated for the Fifth Circuit, a Louisiana slot. 
President Clinton nominated Johnson on April 22, 1999. His nomination 
was returned December 15, 2000. He waited almost 697 days without 
getting a hearing or a vote in the Judiciary Committee.
  This goes on and on and on.
  Now, the nominees before us today had hearings. There was debate. 
There was a markup. There was a debate. There was a vote. We did read 
their background. And based on knowledge, the minority of this body 
made a decision that we do not wish to proceed to affirm them. We have 
over 40 votes to do so. This is not the vote of one person in secret 
preventing a hearing from taking place. Now that is as much a 
filibuster as this is.
  You are looking at me strangely, Mr. President?
  The PRESIDING OFFICER (Mr. Talent). There is no reason for that. I am 
just inquiring of the Parliamentarian about the time remaining.
  Mrs. FEINSTEIN. And I don't want to use the time because I know 
Senator Durbin--how much time do we have remaining?
  The PRESIDING OFFICER. The minority has 18 minutes, of which 5\1/2\ 
minutes, approximately, still remain for the Senator from California.
  Mrs. FEINSTEIN. Thank you.
  So my point is that much of what has been happening in the Judiciary 
Committee has been to make it more confrontational. The blue slips are 
an excellent case in point. Changing when the American Bar Association 
ratings are known is a good point.

  I remember during the Clinton administration when the ratings were

[[Page S14538]]

done earlier and I had to call a nominee and tell them that because 
they had been out of the practice of law for a period of time, they 
were deemed unqualified by the American Bar Association and the 
President was not going to move their nomination. So without 
embarrassment to the individual, that nomination was withdrawn.
  Today, you do not get the American Bar Association's qualified or 
partially qualified or unqualified rating until after the nominee is on 
the Hill.
  Now there are those who do not think the American Bar Association's 
evaluation is worth anything. There are those on the committee who 
believe it is. So there is a difference in point of view. But at least 
have the qualification or nonqualification done early enough so that it 
can save the individual humiliation and also play a major role.
  Let me talk for a minute about rule IV because I think rule IV again 
divided our committee in a way that it did not have to be. Rule IV has 
been a Senate tradition. It is a rule. It is a hard and fast rule. It 
prevents closing off debate on a nominee unless at least one member of 
the minority agrees to do so. Twice this rule has been reinterpreted, 
really violated, and votes have been forced on nominees well before 
debate has ended. The committee's rule in question contains the 
following language:

       The chairman shall entertain a nondebatable motion to bring 
     a matter before the committee to a vote. If there is 
     objection to bringing the matter to a vote without further 
     debate, a rollcall of the committee shall be taken and debate 
     shall be terminated if the motion to bring the matter to a 
     vote without further debate passes with 10 votes in the 
     affirmative, 1 of which must be cast by the minority.

  That enables the minority to delay a matter. It is in the rules of 
the committee to give it more time. This rule is not being followed.
  This is one of the only protections the minority party has in the 
Judiciary Committee. Without it, there might never be debate at all. A 
chairman could convene a markup, demand a vote, and the entire process 
would take 2 minutes. This is not how a deliberative body should 
function. More importantly, it is contrary to our rules. That is one of 
the reasons we are where we are today.
  This rule was first instituted in 1979 when Senator Kennedy was 
chairman of the Judiciary Committee. It has been followed to the letter 
until very recently.
  This is a nation of laws. We expect these laws to be obeyed even if 
they are just Judiciary Committee rules.
  Let me give another situation, and that is ignoring traditional State 
vacancies. There is also a willingness by this administration to simply 
change the playing field if they do not like a result. Fourth Circuit 
nominee Claude Allen is one such instance. He is from Virginia. He has 
been nominated for a position that has traditionally been filled from 
Maryland. Why? Because President Bush became frustrated that Maryland's 
two Democratic Senators would not sign off on the nominees he wanted 
for that position. So he decided to simply go where he could find more 
friendly company--Virginia's two Republican Senators.

  This stark determination to simply fill the bench with conservative 
jurists at all costs is what gives the minority in the Senate pause 
when considering whether to simply approve every Bush judge who comes 
our way or make a stand on some. We have chosen to make a stand on 
some. There are other attempts to ignore the minority. There are little 
things as well, things that add up over time to give the clear 
impression that the majority does not care about the needs or the will 
of the minority. That simply serves to create, increasingly, a bunker 
mentality among Democrats in today's Senate.
  For instance, earlier this session, the Judiciary Committee scheduled 
a hearing with three very controversial circuit court nominees on a 
single panel for an appellate court.
  The PRESIDING OFFICER. The Chair needs to inform the Senator from 
California she has used her 12 minutes.
  Mrs. FEINSTEIN. May I finish my statement?
  Mr. REID. I yield the Senator 2 more minutes.
  Mrs. FEINSTEIN. The point is, these were all controversial nominees. 
A controversial nominee's hearing can run 8 hours. If you schedule 
three, you truncate the hearing for each, and you do not allow the 
minority to do their due diligence in terms of their homework.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I yield the remainder of our time to the 
distinguished Senator from Illinois, Mr. Durbin.
  The PRESIDING OFFICER. The Senator from Illinois is recognized, and 
he has 11 minutes 45 seconds.
  Mr. DURBIN. Thank you, Mr. President, and I thank the minority whip.
  First, for those who are following this debate, if it can be 
characterized as such, you should understand we had an opportunity to 
finish the appropriations bill for the Veterans' Administration, a $62 
billion bill to fund veterans hospitals, clinics, and health care 
across the United States. We tried.
  Senator Byrd of West Virginia came to the floor and said: Can we 
postpone what we are doing tonight here to finish this important 
appropriations bill so we can go to conference and get ready to adjourn 
this session in a timely fashion? Sadly, the Republican side objected 
to finishing the appropriations bill for the Veterans' Administration. 
It is their belief what we are doing now took precedence, is more 
important. It will be up to the voters and the public to make a 
judgment as to whether they were right.
  I would also say that instead of addressing some issues families 
across America might tune in to follow, such as the unemployment in 
this country, and what we are doing about it, we are here debating a 
situation where 4 judges have been held out of 172 submitted by 
President Bush.
  I would think, frankly, we ought to spend a little time really 
addressing the problem of unemployment in this country. This President 
has witnessed, in his administration, a loss of more than 3 million 
private-sector jobs. That is a record. Unless something changes 
dramatically, this President will be the first President since Herbert 
Hoover to have lost jobs during the course of his administration. Over 
3 million Americans unemployed. Sadly, we have 9 million unemployed 
across the country today and their unemployment benefits are running 
out.


                   Unanimous Consent Request--S. 1853

  In the interest of at least trying to do something constructive and 
legislative this evening, rather than just exchanging our comments back 
and forth, I am about to make a unanimous consent request that the 
Senate proceed to legislative session, and the Finance Committee be 
discharged from further consideration of S. 1853, a bill to extend 
unemployment insurance benefits for displaced workers, that the Senate 
proceed to its immediate consideration, and that this bill be read a 
third time and passed, and the motion to reconsider be laid upon the 
table.
  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DURBIN. I am not surprised because what we are about tonight is 
not the issues families care about. We are about a political script. 
Senator Reid of Nevada read to us this all-points bulletin that was 
sent out to the Senators saying: Be sure and get over here exactly at 6 
o'clock. It said: The Fox News channel is really excited about this 
marathon. Britt Hume at 6 would love to open with all of our 51 
Senators walking on to the floor. The producer wants to know, will we 
walk in exactly at 6:02 when the show starts so they can get it live to 
open Britt Hume's show, or, if not, can we give them an exact time for 
the walk-in?
  That is what this is about: It is about theater. The theater we are 
witnessing tonight is one where, frankly, the curtain should come down. 
We ought to start talking about things people really care about across 
America. I can tell you, it is not about 4 judges out of 172. We have 
approved for this President 168 of his nominees. I think it is a new 
record. I do not think any President in that brief a period of time has 
had 168 nominees approved. Lest you believe the Democrats dragged their 
feet, we approved 100 of these judges during the 17 months Pat Leahy 
was chairman of the Senate Judiciary Committee. The remaining 68 came 
through under Republican Chairman Hatch. I think there has been a 
concerted and conscientious effort to give the President

[[Page S14539]]

his nominees. Then, of course, there were 4 who were not approved--168 
to 4. So 98 percent of this President's nominees have been approved. By 
any reasonable standard, this President is doing very well. Most people 
would agree, except for the 51 Senators on the other side of the aisle. 
They believe unless the President gets every nominee, this is a 
miscarriage of justice.
  Sadly, though, they are ignoring the obvious. The obvious is the 
Constitution of the United States gives this Senate the authority to 
say yes or no, to advise and consent. Article II, section 2: Advice and 
consent of the Senate. Some of these Republican Senators would like to 
see this phrase go away and make their argument at least a little 
plausible, but it is a fact. We have the authority under the 
Constitution we swear to uphold to make these decisions; and we have 
made them.
  Of course, not only is the Constitution on our side, but the rules of 
the Senate are on our side. It reminds me in law school, they told you 
early in a trial advocacy course--and this a cliche, I know--they used 
to say: If you have the law on your side in your trial, beat on the 
law. If you have the facts on your side, beat on the facts. But if you 
do not have the law or the facts on your side, beat on the table. That 
is what is happening in this 30-hour marathon. Our Republican 
colleagues are beating on the table. The law is not on their side.

  The Constitution says we have the authority to say no. We have said 
no 4 times out of 172 opportunities. It is constitutional to do so. Are 
the facts on our side? Are we being unfair to stop 4 judges, approving 
168 and stopping 4? I do not think so.
  Frankly, if you look at the record of the Republicans in control of 
this same committee with a Democratic President, you will find some 63 
nominees were never given the decency of a hearing. They never had a 
chance to even appear and introduce themselves to the committee. The 
decision was made by the Republican leadership, with a Democratic 
President, not to even let them in the building.
  I have been through this. Three of my nominees that happened to. Do 
you know what it consisted of? If any one Republican Senator objected 
to any nominee, end of story. They effectively had a filibuster by one 
Senator. They stopped these nominees in their tracks.
  I can recall going to Senator John Ashcroft, our Attorney General, 
with one extraordinarily talented nominee, and pleading with him, after 
the man had waited for a year for a hearing, pleading with him to at 
least meet the man. Let him come before the committee. No way. The 
answer was no. End of story. End of nomination.
  That was the treatment accorded to three judges from my State during 
the short period of time when I was here and President Clinton was 
President, as the Republicans ruled the Senate Judiciary Committee.
  I lost 3 nominees. Did I rally my Democratic colleagues: ``Let's all 
get together and hold our breath and turn blue for 30 hours because I 
have lost 3 nominees''? No. Maybe I could have. Maybe I should have. 
But I did not. I understood it. I thought it was fundamentally unfair, 
and I still do.
  What we have done to these four nominees is not unfair. Each and 
every single one of them has had a hearing. Each and every one of them 
has been able to come to the committee and present their credentials. 
That never happened to 63 nominees offered by President Clinton.
  This President has a pretty good batting average when it comes to the 
Senate: 98 percent of his nominees have gotten through. But for the 2 
percent, we are meeting this evening.
  I might add here, if you take a look at the issues at hand, the 
Senator from Nevada raised an interesting one. Almost without fail, the 
majority of the 168 nominees were all members of this Federalist 
Society. It sounds like a secret handshake society. It is something 
else. I am not sure exactly what it is. I will tell you why I am not 
sure.
  I do know this. If you are an aspiring law student who one day wants 
to be a Republican nominee for a judgeship, my recommendation to you is 
to join the Federalist Society today and do not miss a meeting because, 
frankly, that is a requirement if you are going to make it into the 
ranks of judges in the future.
  What is it about this society? I don't know. But if you scratch the 
DNA of all these Republican nominees, you are going to find that 
Federalist Society chromosome. It is in every one of them. Time and 
again, I have said to these nominees: What is the Federalist Society? 
What does it mean to you? Some people say it is a rather extreme 
organization that views the law and the Constitution in a manner that 
most Americans do not. But when I ask these nominees--I can remember a 
Professor Viet Dinh of Georgetown Law School where I went to school 
many years ago. I said: You belong to the Federalist Society. Why? He 
said: Because I get a free lunch in Chinatown once a month.

  Well, I think it is more than that. If you go to their Web site and 
ask the Federalist Society what they believe, what they put on their 
Web site is they talk about how we have lost control of the law and the 
liberals are taking over--all the stuff you expect. Then when you ask 
each of these nominees: Well, do you agree with that? ``Oh, no,''--with 
one exception: Mr. Pryor. William Pryor of Alabama says, yes, he does 
agree with it. If you got to know Mr. Pryor, you would understand he is 
rather unabashed in his political beliefs.
  The fact of the matter is, the nominees we are receiving from the 
White House are not mainstream nominees. Sadly, of the 168 we have 
approved, many could be challenged as outside the mainstream, and that 
is not what America is looking for.
  President Clinton knew if he sent up a real liberal, someone who, 
frankly, had the credentials of the left, he did not stand a chance 
before Senator Orrin Hatch's Judiciary Committee. We would strive to 
find people with extraordinary legal credentials, people who really 
have made a difference in terms of their practice of law and what they 
have done; and they, too, suffered before that same committee.
  This President has no qualms. The people he sends to us, whether it 
is Miguel Estrada or whether it is William Pryor or Priscilla Owen, 
each and every one of them have come back--Charles Pickering--with 
credentials that just do not pass the middle-of-the-road test.
  Why are we doing this for 30 hours? Let's lay it on the line. This 
memo from Fox News tells you why we are here. We are here to grind raw 
meat for the Republican rightwing, so television networks like the fair 
and balanced Fox News network can rail on for days and weeks about this 
30-hour tribute to the Republican point of view, so the radio talk show 
hosts, who blather on every single day from the right, will have much 
more to talk about. And instead of dealing with real issues, paying for 
the Veterans' Administration, so we can get that done, and meet our 
obligations, taking care of the unemployed across America, so they can 
feed their families and avoid bankruptcy, we do not have time for that. 
Our time has to be focused and dedicated to this debate.
  I will say to my colleagues in the Senate, I think my friends on the 
Republican side will have to agree with this: Though they do not like 
the outcome of the four judges we have talked about here, we have given 
the nominees, even when Senator Leahy was chairman, ample opportunity 
to explain who they are and what they stand for. I think what we have 
asked for is reasonable.
  What we ask of every judicial nominee, from a Democrat or Republican 
President, is really basic. They have to be people who are honest, of 
high integrity. They have to understand the law. They should be people 
who do not come to this job with an ax to grind. That is not too much 
to ask. Four have failed that test; 168 have been approved.
  The PRESIDING OFFICER. The time of the minority has expired.
  The Senator from Alabama.
  Mr. SESSIONS. Mr. President, how much time is left in the first 
section for the majority?
  The PRESIDING OFFICER. Five minutes 45 seconds.
  Mr. SESSIONS. Mr. President, in response to a number of things that 
have been said, first of all, I want to correct Senator Durbin. I think 
he misspoke when he said the Senate has said no to these nominees. What 
the Senate has said no to is an up-or-down vote. They have denied these 
nominees a vote. In

[[Page S14540]]

each case, these nominees have proven they have a majority of the 
Senators in this body ready and willing to confirm them, if they are 
given the up-and-down vote. The systematic use of the filibuster that 
is occurring now has never before occurred in the history of this 
Senate.
  As to the Constitution, I will just point out article II, section 2, 
quoted by the Senator--this is what it says--the President ``shall have 
Power, by and with the Advice and Consent of the Senate, to make 
Treaties, provided two-thirds of the Senators present concur; and he 
shall nominate, and by and with the Advice and Consent of the Senate, 
shall appoint Ambassadors [and] judges. . . .''
  Historically, this body has felt that constitutional language meant 
treaties required a supermajority, two-thirds vote, and judges would be 
confirmed by a majority vote, and that is what we have done.
  I would just like to ask--I was going to ask Senator Reid early, the 
distinguished assistant Democratic leader--name one position taken by 
the Federalist Society that is extreme. He will not be able to give you 
one of those, and neither would Senator Durbin. This is a society of 
people who meet and discuss ideas. For example, they have had, in 
recent weeks, Senator Schumer's chief counsel speaking to the 
Federalist Society, as has Cass Sunstein, Marcia Greenberger, Laurence 
Tribe--three of the architects of the Democratic strategy for changing 
the ground rules of nominating judges.
  This is really odd for me. I know Senator Durbin said he has some 
legislation he would like to offer. Maybe he should have offered it 
Monday when the assistant majority leader was talking 10 hours down 
here about rabbits and cactus in Nevada and his book. That was all very 
interesting, but why weren't we doing any work then? I did not hear any 
complaints then when we were not passing legislation. That would have 
been an outstanding opportunity, I submit, to move forward.
  Let me just say one thing about where we are on nominations. 
President Clinton had 377 judges confirmed. One judge was voted down on 
an up-or-down vote on this floor, a majority voted no--only one. When 
he left office, there were 41 judges pending and unconfirmed--only 41. 
President Clinton personally withdrew the nominations of 18. That is 
how they get 60.
  When former President Bush left office, under Democrat control of the 
Senate, as Republicans were under Clinton, he had 54 nominees left 
unconfirmed. The record of the Republican Senate under President 
Clinton was superior under any standard of confirmations to that of the 
Democrats.
  I believe we need to remember those numbers. We need to remember the 
Republicans rejected consistently the use of the filibuster. It was 
discussed by people. They said: Why don't we filibuster? Senator Hatch 
and others would say: We do not filibuster judges. This is why you do 
not filibuster judges. We never filibustered judges. In fact, one 
nominee I felt strongly about, whom I voted against, I voted for 
cloture to bring that nominee up for a vote to overcome a hold that was 
on the nominee.

  My colleagues complain about the Federalist Society. They say they 
are extreme. They take no extreme positions whatsoever. They are a 
society that believes in the rule of law and they discuss those issues 
in free and open debate. But they have moved forward here such as 
Marsha Berzon and Ruth Bader Ginsburg on the Supreme Court.
  ACLU members, American Civil Liberties Union members--do you want to 
know what their stated positions are on a lot of issues? They oppose 
steadfastly the death penalty. They openly support partial-birth 
abortion. They are consistently hostile to law enforcement. They oppose 
pornography laws, all pornography laws, in fact, even child pornography 
laws. They favor legalization of drugs.
  We have confirmed a lot of ACLU members, as the Senator knows. They 
have stated positions that are contrary to the mainstream of American 
thought--no doubt whatsoever.
  Somebody such as Attorney General Bill Pryor, who has a record of 
following the law to the letter, whether he agrees with it or not, is 
castigated because he makes a talk to the Federalist Society. It is 
suggested that is an extreme thing for him to do and it is not correct.
  Mr. President, I yield back the time.
  The PRESIDING OFFICER. The Senator from Alabama has 15 seconds.
  Mr. SESSIONS. I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, parliamentary inquiry: Are we now 
starting 30 minutes of time on this side of the aisle?
  The PRESIDING OFFICER. That is correct.
  Mr. SPECTER. I thank the Chair.
  Tonight the Senate is engaging in a proceeding to call the attention 
of the American people to a very serious matter which exists on the 
confirmation of Federal judges. It is not a matter which occurs just 
when there has been a Republican President, but it has occurred also 
when there has been a President of the Democratic party, when the 
Republicans controlled the Senate. It has gone back at least to 1987, 
during the second 2 years of President Reagan's administration.

  When the Senator from Illinois calls this theater, he may be right, 
but it is factual theater, and it is worth the time of the Senate for 
the American people to focus on this important issue.
  It is now a little after 8 o'clock Eastern standard time. Frequently, 
the Senate Chamber is dark at this time. It is true we could be 
conducting other business, but there are many days when the Senate has 
tarried. For example, on Monday, the day before yesterday, when there 
had been a longstanding expectation that the Senate would not be in 
session because Veterans Day is traditionally not a day in session, but 
we came back specially to try to finish our work by the projected date 
of November 21, unexpectedly we were greeted with a 10-hour filibuster 
by Senator Reid on the other side of the aisle. He has a right to do 
that--he is a Senator--under our rules.
  It doesn't lie in the mouth of somebody to say we are spending time 
where we could have been working very hard on the appropriations 
process. I do hope we finish that process. I have been an appropriator 
for my 23 years in the Senate, and we should move to complete that work 
as promptly as possible.
  But the subject matter tonight is the confirmation process, and it is 
a very serious subject. When President Reagan was in office, during the 
first 6 years where the Republican Party controlled the Senate, 
President Reagan secured confirmation of 82 percent of his district and 
circuit court nominees. In 1987 and 1988, when the Democrats were in 
control, that percentage dropped from 82 percent to slightly above 63 
percent. When President George H.W. Bush was in office, all 4 years had 
the Senate in the control of the Democrats. The Senate confirmed 
slightly more than 62 percent of President Bush's nominees, and 54 
percent of his nominees to both circuit and district courts were still 
pending in the Senate when his term ended.
  President Clinton had about the same experience. In 1993 and 1994, 
there was an average of 79 percent of his district and circuit court 
nominees confirmed when his party controlled the Senate. For President 
Clinton's remaining 6 years, the percentage dropped to 54\1/2\ percent. 
So that the business of having the President of one party stymied or 
reduced in effectiveness on confirmation when the Senate is controlled 
by the other party has been really an apportionment of blame pretty 
much equally between Democrats and Republicans during the course of the 
Reagan, first Bush, and Clinton administrations.
  The matter has come to a substantial decline, when, for the first 
time in the history of the Republic, some 216 years, there has been a 
filibuster of circuit court nominees.
  I think it is important to note that we are not seeking tonight to 
break a filibuster. That would occur when we would seek to have those 
who were objecting to the judges continue to talk and talk until they 
ran out of energy or effort and stopped talking so that we could come 
to a vote. That was what happened in the filibusters on civil rights 
legislation in the 1960s.
  The last time there was a filibuster in the Senate was 1987 when the 
subject was campaign finance reform. Senator

[[Page S14541]]

Byrd was the leader of the Democrats. Senator Dole, the leader of the 
Republicans, called all of us into the cloakroom behind us in the 
Senate Chamber at about 2 o'clock one morning and said: I would like 
all Republican Senators to stay off the floor. The reason Senator Dole 
asked everyone to stay off the floor was to compel the party in power, 
the Democrats, to maintain a quorum of 51 Senators because if there are 
not 51 Senators present, then any Senator may suggest the absence of a 
quorum, and the Senate conducts no further business.

  When Republican Senators, including Arlen Specter, absented ourselves 
from the floor at Senator Dole's request, Senator Byrd, the leader of 
the Democrats, countered with a motion to arrest absent Senators. 
Sergeant at Arms Henry Giugni was then armed with warrants of arrest 
and started to patrol the halls, and the first Senator he found was 
Senator Lowell Weicker.
  Sergeant at Arms Henry Giugni was a little fellow, about 5 foot 6 
inches, 150 pounds. Senator Weicker was a big guy--still is--about 6 
foot 4 inches, 240 pounds. This was at about 3:30 in the morning. 
Sergeant at Arms Giugni decided not to arrest Senator Weicker. I think 
he made a good judgment. Then he started to go around and knock on 
Senators' doors.
  Senator Packwood foolishly answered his door. Senator Packwood was 
then carried feet first into the Senate Chamber. This is a true story. 
You don't get many out of Washington, but this is a true story. That 
incident attracted a great deal of attention. C-SPAN became the channel 
of choice instead of Jay Leno.
  In having this proceeding, it is more accurately called a marathon 
than a filibuster because it is not a filibuster. Republicans are doing 
most of the talking. We seek to attract the attention of the American 
people to what is going on in the judicial system.
  We have at the present time judicial emergencies in four of the 
circuit courts of appeals in the United States: the Fourth Circuit, the 
Fifth Circuit, the Sixth Circuit, and the Ninth Circuit. When these 
judicial emergencies occur, people are denied their day in court, cases 
languish, the matters are not decided, and the fact of life is that 
justice delayed is justice denied.
  Without burdening the record unduly, it is worth noting that in the 
Sixth Circuit where there is a judicial emergency, a 50-percent vacancy 
rate on that court, a death penalty case has been pending for more than 
8 years. A plaintiff in a civil case on a job discrimination suit 
trying to get a job had to wait some 15 months before the case came up. 
That individual died before the case was ever heard.
  The ultimate answer, I suggest, is that cooler heads are going to 
have to prevail, and we are going to have to establish a principle 
where it applies regardless of what party controls the White House or 
what party controls the Senate.
  Three years ago, I proposed a judicial protocol to establish a 
timetable that 60 days after the President submitted a nomination to 
the Judiciary Committee, there had to be a hearing; 30 days thereafter, 
there had to be action by the Judiciary Committee on the nomination; 30 
days later, the matter had to be brought to the floor of the Senate. 
Those times could be extended on cause shown by the chairman of the 
committee with notice to the ranking member or by the majority leader 
with notice to the minority leader. But those time parameters should be 
established.
  If there were to be a strictly party-line vote in the Judiciary 
Committee, then that matter ought to be advanced to the Senate floor 
even without having the customary majority vote to bring it to the 
floor.
  One of the grave problems which may confront the Senate is what is 
going to happen next when there is a Supreme Court vacancy. The 
filibusters conducted up until the present time constitute an effort to 
elevate the confirmation process which under the Senate rules calls for 
51 votes, or a majority, to 60 votes which it takes to end a 
filibuster.
  For those who may not know what a filibuster is, that is when one 
party keeps talking and talking and talking endlessly. But that may be 
brought to a close under the rules of the Senate with 60 Senators 
voting to cut off debate. That then leaves 100 more hours to debate, 
plenty of time even after cloture, even after debate is ended or 
limited, before the matter comes to a vote.
  It does not require a Nostradamus to predict or to understand that 
the current approach on imposing an ideological test is a precursor for 
the Supreme Court of the United States. When the Senate is constituted 
as it is at the present time, it is easy to project that we will find a 
Supreme Court nominee, who does not satisfy the standards of the other 
party, subjected to a filibuster and to have a vacancy on the Court. 
What we are moving toward is deadlock.
  Right now, there still remains an aura of some civility in this 
Chamber, notwithstanding our disagreements on the tactics that one side 
or the other may use in the Senate. We know that the next vote is the 
most important vote. Notwithstanding the rancor of the arguments, we do 
understand that we are here to conduct the business of the people of 
the United States. The judicial system is limping along--still in 
motion but limping along.
  We face a grave potential problem. If the current course of conduct 
continues so that when we have a nominee for the Supreme Court of the 
United States, we have this deadlock, and then with so many 5-to-4 
decisions by the Supreme Court deciding the cutting-edge questions in 
our society, we may look to 4-to-4 decisions, and that means no ruling 
by the Supreme Court of the United States.
  One additional thought. Senator Santorum and I use in Pennsylvania a 
judicial nominating panel under an arrangement where the President has 
three nominees and the Democrats have one nominee. During the 24-year 
period from the time President Nixon was elected until the time 
President Reagan was elected, Republicans controlled the White House 
for 20 of those 24 years. It seemed to me it was an undue balance of 
judicial nominees without having the Democrats with any nominees in the 
district courts, so an arrangement was made when Senator Heinz and I 
were the Senators, carried on by Senator Santorum and myself, to allow 
the party out of power, the Democrats, to have one nominee out of three 
for the President--one for the party out of power. That has had a very 
salutary effect in bringing a little bipartisanship into the process.
  I do not suggest that for the Supreme Court. I do not press it for 
the court of appeals. But I think it is an idea worth considering for 
the U.S. district courts.
  In conclusion--the two most popular words of any speech--it is my 
hope that something constructive will come out of this marathon. It is 
my hope that there will be some attention attracted to it. When the 
Senator from Illinois characterizes this as theater, I don't think that 
is especially derogatory because it is fact theater. The American 
people would be well advised to watch this theater than some of that 
which is on the national networks tonight. This is real. Those sitcoms 
go on and on and are repetitious. More important than the factual 
theater is that we are on a vital issue.

  I hope the Senators hear from the American people. I hope the 
American people tell us what they would like to have done: Whether you 
would like to have this kind of projected stalemate where nominees wait 
endlessly and where it takes 60 votes, a supermajority, to cut off 
debate and bring it to a vote, or whether you would like us to follow 
the constitutional mandate of 51 votes in confirmation so that these 
judges may be confirmed, may take their places to see that justice is 
done in an equitable way within a reasonable time period.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I want to focus on a chart that was 
displayed earlier by the Senator from New York where he proudly 
displayed the numbers 168 to 4. I think it is important we ask the 
question: what is that chart designed to prove?
  On one hand, our colleagues on the other side of the aisle in the 
Judiciary Committee and here in the Chamber rail against the 
President's judicial nominees, calling them out of the mainstream and, 
even worse, mean-spirited, right wing. But if, in fact, our colleagues 
on the other side of the aisle have voted to confirm 168 of President

[[Page S14542]]

Bush's nominees, it refutes that allegation because they have to agree 
that at least 168 of those nominees met their definition of mainstream.
  I would like to associate myself with the outstanding comments of the 
Senator from Kentucky, the assistant majority leader, Mr. McConnell. I 
wonder what their definition of mainstream truly is.
  The second number of 4 is a number they want to be congratulated for 
blocking. I submit that just because you observe a stop sign 168 times 
and comply with the law, you are not to be rewarded for running that 
stop sign four times. It is still a violation of law, and you are still 
likely to get a ticket from the police officer.
  This is more than just about breaking the law. This is about 
violating our Constitution, the fundamental law of this Nation.
  We know really, rather than 168 to 4, the true number we ought to be 
focusing on is 0 to 4, and let me explain.
  From 1789 to 2002--that is, for all of our Nation's history up until 
this year--the number of filibusters against judicial nominees of a 
President was--you guessed it--zero. But this year alone, because of 
this tactic that our colleagues have devised, to deny a bipartisan 
majority of this body its right under the Constitution to vote up or 
down on a judicial nominee, this number is 4.
  So rather than 168 to 4--and as I explained, I think that repudiates 
and flies in the face of some of their arguments about President Bush's 
judicial nominees, and I deny that they are to be congratulated for 
unconstitutionally obstructing only 4. The real number we ought to be 
focusing on, and I hope the American people are focusing on, is zero to 
four because never, ever, in the history of this Republic has a 
minority in the Senate denied the right of the majority the vote up or 
down on judicial nominees. It is just not right. It is not fair. It has 
resulted in a degradation and a downward spiral in the judicial 
confirmation process of which no one should be proud.
  I submit that four unconstitutional filibusters of these 
distinguished nominees is four filibusters too many. If we want to look 
at maybe a little bit of a history lesson, as this chart demonstrates, 
when Franklin Delano Roosevelt was President of the United States, 
4,473 laws were enacted, 4 civil rights laws were filibustered--hardly 
something to be proud of. But I guess if our colleagues across the 
aisle are proud of their four, the argument would be that the people 
who filibustered these civil rights laws during FDR's term ought to be 
proud of that number.
  When President Truman was in office, 3,414 laws were passed, 3 civil 
rights laws were filibustered. Is that something to be proud of? What 
our colleagues across the aisle say, because 3,414 laws were passed and 
only 3 were filibustered, that these folks who filibustered those three 
civil rights laws ought to be congratulated. I think not.
  Then when President Lyndon Baines Johnson was in office, 1,931 laws 
were enacted, 3 civil rights laws were filibustered. To this hall of 
shame, I would add the 168 to 4, which is nothing to be proud of; it is 
something to be ashamed of.
  Unfortunately, some people have lost their sense of shame in this 
process, which has become so degraded and so destructive. Indeed, I 
submit that the filibusters we have of the President's nominees are an 
abuse of the process. How can they justly claim that a 60-vote 
requirement to close off debate can somehow trump the Constitution?
  As we have heard before on this floor, everyone knows, who has 
studied the Constitution, that there are supermajority requirements for 
certain things, and they are stated in the Constitution: To ratify a 
treaty or to pass a constitutional amendment, the Constitution is very 
clear that it requires a supermajority. Everything else requires 
majority rule.
  Indeed, majority rule is fundamental to the democratic form of 
government. Majority rules: We fight our best fight; we make our best 
argument. Then we have a vote up or down. If we lose, well, we come 
back to fight another day. We try to persuade others that we were right 
and the majority was wrong. That is what our form of government is all 
about; not denying a majority their right, as stated in the 
Constitution, to let majority rule.
  Believe it or not, that is what is happening and that is the reason 
we are standing here tonight trying to let the American people know 
that a terrible abuse of this process is occurring and an abuse of the 
Constitution, indeed a violation of the Constitution, is occurring. It 
is a disgrace. It is nothing to be proud of.
  The other thing I would point out in the few minutes I have 
remaining, before I turn the floor over to the senior Senator from 
Texas, is this process is not only abusing the Constitution and 
creating a downward spiral in the judicial confirmation process that is 
very destructive of relationships in this institution, of our ability 
to get things done, it has made it too partisan, too bitter, too angry, 
and it is destructive.

  I would also point out that the tactics that are being used against 
some of these nominees are despicable. Unless we stand up and repudiate 
the tactics of some of those who are opposing the fine nominees of 
President Bush, such as Janice Rogers Brown, I believe those who have 
joined cause with them in opposing this fine nominee ought to examine 
their conscience. I think they ought to reconsider their tactics. I 
think they ought to reconsider whom they associate with, whom they are 
joining cause with to tear down some of the fine nominees of this 
President, such as Janice Rogers Brown.
  This is a cartoon that was posted on The Black Commentator on 
September 4, 2003, with President Bush, a racist caricature of Janice 
Rogers Brown with Justice Clarence Thomas, Colin Powell, Secretary of 
State, and Condoleezza Rice standing there. The caption says: ``Welcome 
to the Federal bench, Ms. Clarence--I mean, Ms. Rogers Brown. You'll 
fit right in.''
  It is easy to see why this process has gone downhill and needs a 
wake-up call from all of us, because we need a fresh start. We need to 
disavow tactics such as this. Those who are opposing Justice Brown and 
other nominees should not be proud of that association any more than 
they claim to be proud of an unconstitutional filibuster of four of 
these nominees, including Justice Brown, because if, in fact, we do not 
get a fresh start, we do not have a clean break with this destructive 
process, if we do not quit tearing down people who want nothing more 
than to offer themselves to the American people by serving in positions 
of honor, such as Federal judges, who will answer the call? If they 
know that answering the call of public service means that they are 
going to have their reputation destroyed, they are going to be 
besmirched, they are going to be painted into a caricature that bears 
no resemblance to who they really are, who will answer the call? We 
will all be poorer for it.
  I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Texas is recognized. The Chair informs the Senator 
from Texas that there are 2 minutes 20 seconds remaining on the 
Republican side.
  Mrs. HUTCHISON. Mr. President, just to get an understanding, after 
that 2 minutes 20 seconds, then it goes to the Democratic side for 30 
minutes and then back to the Republican side? Is that the way it is?
  The PRESIDING OFFICER. The Senator is correct.
  Mrs. HUTCHISON. Mr. President, in the 2 minutes that I have, I say I 
think the junior Senator from Texas made a very important point and 
that is the importance of the delicate balance of powers that was put 
in our Constitution. I think it is important that we do not say, well, 
98 percent of the time we adhere to the Constitution. We need to adhere 
to the Constitution 100 percent of the time.
  The Constitution has always said, from its beginning, that we would 
have a majority required to confirm the judicial nominees of the 
President. Now, this is by implication, because when the Constitution 
meant to have a supermajority, it so stated. We have always had a 
majority, and that is what, by its silence, the advise and consent part 
of the Constitution has required for judicial nominees, until last 
year.
  In fact, I think the President is losing his constitutional right to 
appoint Federal judges. I think this whole situation is going to deter 
good people from offering themselves for the bench,

[[Page S14543]]

and the judiciary must have good people if we are going to keep that 
very strong separation of powers with three separate but equal branches 
of Government.
  In his first 2 years of office, President Bush was able to get 53 
percent of his circuit court judges confirmed. The previous three 
Presidents each had 91 percent in the first 2 years of their office in 
the very important circuit court judge appointments.
  Now, the circuit court, of course, is the next step below the Supreme 
Court. So a 53 percent record in the first 2 years is something that I 
think should not be accepted. It is very important that we try to get 
votes on these judges.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Nevada.
  Mr. REID. Mr. President, I yield 15 minutes to the Senator from 
Indiana and 15 minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Indiana.


                   Unanimous Consent Request--S. 1853

  Mr. BAYH. Mr. President, I ask unanimous consent that the Senate 
proceed to legislative session and the Finance Committee be discharged 
from further consideration of S. 1853, a bill to extend unemployment 
insurance benefits for displaced workers; that the Senate proceed to 
its immediate consideration; the bill be read a third time and passed, 
and the motion to reconsider be laid upon the table.
  Mrs. HUTCHISON. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator is recognized.
  Mr. BAYH. Mr. President, this is an unfortunate debate, and I regret 
that all of us are here this evening. This debate will do nothing to 
speed the confirmation of judges about which this session has been 
called to consider. It will do nothing for the economy, for health 
care, for education, to protect the environment, or to advance the 
interests of our Nation's security.
  It will, however, at least in small part, bring this august body, 
about which we care so much, to additional disrepute with the American 
people, making us look ineffectual and irrelevant.
  In some respects, the Senate is being reduced to something close to a 
farce. It is becoming rapidly not the world's greatest deliberative 
body but instead the world's greatest Kabuki theater, a place where 
speeches are given to which very few people listen, no minds are 
changed, and votes are then held with complete predictability of 
results.
  The search for principled compromise, which has always been a long 
and honorable part, distinguishing this body from other legislative 
bodies, has been abandoned in favor of sterile, ideological warfare, 
satisfying to only the most fervent of partisans. After this debate, I 
suspect that the far right will be satisfied, I suspect that the far 
left will be satisfied, and that the rest of the American people will 
be left scratching their heads, wondering, what on Earth are they 
doing?
  I am reminded of nothing quite so much as some lines from Shakespeare 
when he characterized another instance as: Great sound and fury that 
signifyeth nothing.
  That is tonight's debate: Sterile, empty, barren of results.

  This debate, unfortunately, is a microcosm of everything the American 
people have come to not like about both the Congress and Washington, 
DC, something that is all too often all process and partisanship, with 
no progress on matters of substance and importance to the American 
people.
  Too often the American people view Washington as totally self-
absorbed, indifferent to their real concerns, and ineffectual in 
accomplishing much of value on the things that do matter in their daily 
lives: Health care, jobs, education for our children and grandchildren.
  We must stop this cycle of constant recrimination, a process in which 
the minority obstructs to gain power and then turns around and 
complains about obstruction once power has been obtained. It makes us 
all look bad.
  If hypocrisy had a monetary value, we could easily erase the Federal 
deficit because of debates such as the one we are engaged in tonight.
  What is this all about? What are the facts that the American people 
deserve to know? Is it true that judges are being obstructed solely 
because of their partisan affiliation? That obviously cannot be the 
case. One hundred and sixty-eight of President Bush's judicial nominees 
have been confirmed. I assume that all of them, if not almost all of 
them, are good card-carrying Republicans or he would not have nominated 
them. Obviously, there cannot be some stonewall to object to 
Republicans being appointed to the Federal judiciary. This simply is 
not the case.
  Are judges being rejected up to a point based solely upon ideological 
concerns? This also cannot possibly be the case. Of these 168 judges 
who have been confirmed, I assume that all, if not almost all, are in 
fact fairly conservative jurists, or hold out the prospect of being 
fairly conservative jurists. Otherwise, they would not have been 
nominated by this President.
  So up to a point, it is obvious that conservatives are not being 
denied their place upon the Federal judiciary. This is all about power, 
the balance of power between the executive and legislative branches and 
whether the advise and consent function should be abolished whenever 
the Senate is controlled by the party of the President. It is all about 
the balance of power between the minority and the majority caucuses in 
this Senate and whether the right to debate should be limited in the 
case of judicial nominees, unlike any other business taken up by this 
body.
  It is also about tipping the balance of power within the Federal 
judiciary and setting the stage for a Supreme Court vacancy to be 
filled by someone of even the most extreme ideological conviction and 
views.
  Is that possibly what the Constitution had in mind when it 
established the right of advise and consent in this Senate? Is that 
something for which we should abrogate the right to unlimited debate in 
this Senate, selecting judicial nominees in exclusion to all other 
topics in this regard? Of course it is not.
  We are ignoring the issues this evening that are of most importance 
to the balance of the American people. When I go home, I hear great 
talk about the economy and job losses. In the last 3 years, we in the 
State of Indiana have lost approximately one out of every six of our 
manufacturing jobs. One hundred fifty-nine thousand jobs, nonfarm jobs, 
have been lost during this period of time. That is what I hear 
people talking about. Small business men wonder how they are going to 
compete in the global economy today. Large business men and women 
wonder how they are going to make ends meet, particularly with the 
skyrocketing cost of health care. Many people ask how we are going to 
compete with China, India, and other countries that all too often seek 
to abuse the rules of international trade to seek unfair economic 
advantage. Those are the subjects we should be debating tonight.

  Those are the topics that are on the minds of Hoosiers to whom I 
talk. Very rarely am I asked about vacancies in the Federal judiciary.
  When I was returning from Indiana just last evening, one of the 
security guards, a gentleman who looked somewhat advanced in his years, 
called out to me as I was going through security, saying: Senator, what 
about the Medicare drug benefit? Is something going to get passed?
  I said: I hope so.
  He said: Well, it probably will not be structured the way it ought to 
be anyway.
  I said: Well, I hope not. We are going to go back and see if we 
cannot hammer out a reasonable compromise.
  I see some of my colleagues, including Senator Grassley, who are 
laboring mightily toward that very end, and I salute him for that. That 
is what we should be debating tonight, how to reconcile our differences 
on providing drug coverage to senior citizens who are asking about it; 
how to make health care available to the American people in a way that 
is accessible and affordable. That is what is on the minds of Hoosiers 
to whom I talk. That is what we should be debating this evening in this 
body.
  What about our education standards and what about providing our 
children and grandchildren with access to quality affordable education? 
When I think about the economy of the future, more than anything else 
it is going to require advanced levels of education,

[[Page S14544]]

skill, and know-how. We are going to prepare my young sons and the rest 
of our children and grandchildren to have a better standard of living 
in a prosperous economy. It is going to be based not upon how strong 
they are but upon how knowledgeable they are, how well trained they 
are, how skilled they are. That is going to enable us to build a better 
economy. We are not debating that tonight.
  At no point, in my recollection, have we set aside 30 hours to debate 
quality health care. At no point, in my recollection, have we set aside 
30 hours to debate the economy or what we are going to do to create 
quality jobs. At no point, in my experience in the Senate, have we set 
aside 30 hours to talk about what we can do to debate quality education 
in the way we are setting aside these 30 uninterrupted hours in the wee 
hours of the morning. This is a clear example of misplaced priorities.
  I hope this Senate will extricate itself from the morass into which 
we have sunk and begin to rehabilitate ourselves in the eyes of our 
countrymen and women. I hope we can once again begin to address the 
great issues that are of concern to the American people, that press all 
around us--what our country can do to be more prosperous, more just and 
more free. Above all, I hope that we as Senators can remember why we 
are here, and that is not to wage war upon one another but instead to 
once again renew the struggle against the ancient enemies of man: 
Ignorance, poverty, disease. That is why we are here, not sterile 
ideological debates.
  I hope we can learn from this experience so that we will not have to 
repeat it. I hope we can focus on making progress, not dividing this 
body over the country. This aisle that separates the chairs, 
Republicans on one side and Democrats upon the other, gives us the 
opportunity to build bridges of reconciliation and 
understanding, forging principled compromise which has always been the 
hallmark of this institution. We have strayed from this heritage for 
too long. It is a tradition to which we must return if we are to once 
again recapture the confidence of the American people.

  The final thing I will say is that we had an election in Indiana for 
our mayors this last Tuesday, a week ago yesterday. Something on the 
order of 20 percent of the people of my State turned out to vote for 
our mayors. When I had the privilege of being elected to this body in 
1998, about 36 percent of the eligible voters in my State took the time 
to go to the polls. That is barely one out of three. In the closest 
Presidential election in the history of our country 2 years ago, 
decided finally by the Supreme Court, barely half of the American 
people felt connected enough to their institutions of self-governance 
to take even the most elementary step of citizenship--going to the 
polls to register their preference.
  What has happened to our democracy? What has happened when 20 percent 
or 36 percent or a bare majority feel invested enough in the cause of 
shaping their own destiny to take the time to participate in our 
elections? If we are going to renew our democracy, if we are going to 
lead this country to meet the great challenges of our time, if there is 
one thing I am absolutely certain, it is that it will take all of us, 
each and every one of us from every ethnic group, racial group, gender, 
and walk of life.
  Too many people have become disillusioned. Too many cynical, too many 
skeptical whether this body and their government can make a difference 
anymore. Events such as this debate tonight do not help.
  We need to get back to the business at hand, putting before the 
American people an agenda of hope and opportunity so we can once again 
reenlist them in the cause of making this the greatest democracy known 
to man. That, at the end of the day, is what has brought us here. I 
suggest that is the business to which we must once again return.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized. There 
are 16 minutes 54 seconds remaining.
  Mr. DURBIN. I begin by commending my colleague from Indiana. That was 
an extraordinary speech. I hope that for a moment Senators on both 
sides of the aisle will stop and reflect on what he just said. I think 
it was a challenge to everyone, as strongly as we feel about what we 
are debating tonight, the appointment of Federal judges; the Senator 
from Indiana is right. The people across America wonder why we are 
wasting the time of the Senate on issues that have no importance or 
relevance to their lives, and because they cannot understand us, they 
are estranged from us. They do not feel invested in this process, they 
do not feel a responsibility to vote; they, frankly, think we spend too 
much time in partisan posturing. The 30 hours of this debate are a 
classic example of that kind of partisan posture. That is unfortunate.
  What the Senator hears in Indiana and I hear in Illinois and I 
daresay every Senator hears in their State--I have been going back to 
Illinois for 4 straight years in the month of August trying to tour the 
State, meeting with business and labor leaders and community leaders, 
to ask what is going on. For 4 straight years they told me the same 
thing: Senator, can you do anything about the cost of health insurance? 
It is killing us. It is killing my small business. It is killing my 
large business. My family is worried about coverage. What are you going 
to do in Washington about the cost of health insurance? I have to 
basically shrug my shoulder and say: I am sorry, that is not on our 
agenda. We have other things we debate in Washington, not the things 
you and your family worry about, that keep you up at night. This is a 
good example.
  Would it not have been inspiring if we came together as Democrats and 
Republicans on the floor to talk for 30 hours about the future of 
health care in America, to speak to it in honest, nonpartisan fashion, 
to try to address some of the most controversial parts of it in a 
responsible, gentlemanly way?
  That is what we are expected to do. That is not what this is about. 
This is about alerting FOX News to grind out their cameras at the 
entrance of the Senate to watch a parade of Senators come in--Senators 
who have now disappeared. This is about charts being made, night and 
day by Democrats and Republicans, to argue their case.
  My people living back home in Springfield, IL, and Chicago, IL, I am 
sure, turned off C-SPAN a long, long time ago, if this is the best we 
can offer them. Sadly, that is all we are offering them.
  We left the Veterans Administration appropriations bill--we could 
have finished it--for veterans hospitals and the millions of veterans 
across America because we did not have time; we had to start this 
never-ending 30-hour debate. We cannot entertain a motion made by the 
Senator from Indiana, a motion I made, as well, to try to do something 
about the 9 million unemployed Americans whose benefits are running 
out. We do not have time for that. We have time for this political 
debate.
  That is unfortunate. It is distressing. I have given 21 years of my 
adult life to public service. I have never regretted a moment of it. I 
walked away from a law practice and never looked back. This is the most 
exciting and interesting thing I can think of to do with your life, to 
be involved in public service. I encourage everyone, regardless of your 
political stripe, to get involved. You will love the opportunity it 
gives you to help people. But, frankly, we are not seizing that 
opportunity or we would not be here tonight. We would not be here 
discussing a question about whether 168 or 172 judges is the right 
number.

  Is this the best we can do? I think not. I think we can rise to a 
greater challenge but we have to put aside the partisanship.
  I readily concede I have struck a few partisan blows and a few have 
been thrown my way. That is part of life in the Senate, I am sure, and 
life in the big leagues. But at the end of the day when it is all over, 
at the end of the year or end of the session, each of us would like to 
point back to something we did to improve the lives of the people we 
represent. What have we done to make the schools better? What have we 
done to deal with the economic uncertainty of middle-income families? 
What have we done to deal with the trade laws that are killing us in 
the Midwest and across the Nation?
  I have been a proponent of free trade. It is almost impossible to 
defend at this moment in time. We are not enforcing our trade 
agreements. We have lost five or six manufacturers in Indiana and the 
same is true in Illinois. We

[[Page S14545]]

lost 3 million jobs across America. Frankly, many of those jobs will 
never come back. When we read headlines that say there are 120,000 new 
jobs in America, that is good news. But ask the hard question, are the 
jobs we created paying as much as the jobs we lost? If they were 
manufacturing jobs, the answer is pretty obvious. The answer is no, 
they are not. We are losing more and more good jobs. Instead of 
focusing on that as we should, on the things that people care about, we 
are spending our time in 30 hours of debate over four judges.
  The senior Senator from Texas said earlier that the President has a 
constitutional right to appoint judges. I don't want to correct the 
Senator from Texas, but she is wrong. The President does not have a 
constitutional right to appoint judges. The President has a 
constitutional right to nominate judges. The judges are appointed 
through the advice and consent of the Senate. Therein lies the 
difference in our points of view. From the Republican side of the 
aisle, the President has a constitutional right to name the judges he 
wants. End of story. But the Constitution says otherwise. And it always 
has.
  Even the most powerful and beloved President has to be held 
accountable to the people of America through the Senate, through the 
House, and that is why we are here tonight. At one moment in history 
when President Roosevelt had been reelected with the largest majority 
in the history of the United States, Franklin Roosevelt, he decided he 
had had his fill with the U.S. Supreme Court across the street and they 
were not treating him well and he came up with a scheme to pack the 
court, to add more Supreme Court Justices because they just were not 
ruling on his laws the way he wanted them to. He proposed that to an 
overwhelmingly Democratic Congress in the House and the Senate and ran 
into a firestorm of opposition from his own party.
  President Franklin Roosevelt, as popular as he was, with the mandate 
he brought to office--and I will not reflect on this President's 
mandate in this discussion, but President FDR's mandate was 
substantial. He felt that he had a moment in history when he could 
change the Supreme Court. And this Senate, the Democrats in the Senate, 
said: No, we have to draw the line; this executive branch cannot 
control the judicial branch and we will stand in the path of a popular 
and beloved President. And they did. They stopped him.

  That, to me, was an important moment in history--when Senators of the 
same political party said to a President, this Constitution created 
three branches of Government for good reason.
  So tonight we are in a position where many are arguing that this 
Senate should step back and not assert its constitutional right to 
speak to the qualifications of judges. It will be a sad day if we allow 
that to occur.
  Let me try to synthesize this into what it is about. It is not about 
the four judges or two more who might be added on Friday. It is about 
the next appointment to the Supreme Court across the street. That is 
the real story. There are a lot of good reasons we are here tonight but 
the real reason is the next Supreme Court vacancy and the belief on the 
Republican side of the aisle that if we can hold fast with our approach 
in stopping people unqualified, unfit, to serve on a Federal court, 
they will have a difficult time passing through a controversial nominee 
to the U.S. Supreme Court.
  I think, in my heart of hearts, that is why we are here this evening. 
They are trying to smooth the road, prepare the way for that Supreme 
Court nominee from this President.
  Now, let me give advice to my friends--and they are not likely to 
take it--on the Republican side. There is a way to avoid all that. Pick 
a man or a woman who is of such impeccable legal background, great 
credentials, the kind of person with the integrity that they will be 
above this kind of political debate. It can happen and it has happened.
  In my State of Illinois, a State with two Senators from opposite 
political parties, we have not had one problem in filling the Federal 
judicial vacancies. We have done so, Democrat and Republican, with good 
men and women whom I am certain will serve this country well. I just 
gave the green light to a nominee who sits on our calendar, and I hope 
we will move quickly, Mark Philip, who was a clerk to Justice Antonin 
Scalia. I am a Democrat, approving a former clerk to Justice Scalia. I 
met him and trust him and I think he will be a great Federal district 
court judge.
  That can happen again. But we have to move away from those who are 
ideological extremes. We have to move away from those who are lightning 
rods. We have to move to a center path, which most Americans expect of 
us.
  Sadly, tonight, we are being told this Senate should not even ask 
questions of these nominees. That is wrong. We have a constitutional 
responsibility, a responsibility that must be met.
  Some have said, incidentally, that ours are the first to ever 
filibuster nominees. In fact, the Senator from Pennsylvania said it is 
the first time in the history of the United States anyone has ever 
filibustered a judicial nominee. Well, this chart shows that is not 
correct. Abe Fortas of the Supreme Court, subject to cloture motion, 
filibuster; Stephen Breyer, First Circuit--I am going through the 
list--Rosemary Barkett, Eleventh Circuit; Lee Sarokin, Third Circuit; 
Marsha Berzon, Ninth Circuit; and Richard Paez, Ninth Circuit.
  The fact is, there have been judges brought to the Senate floor who 
have been filibustered in the past. The fact is, most of those 
filibusters failed. The motion for cloture prevailed but the filibuster 
was on. On the four who are under contention this evening, the 
filibuster has succeeded. The motion for cloture has not been filed 
successfully. That is the difference. To say it has never happened 
before in our history is to defy the obvious. It certainly has happened 
before.

  The point we are trying to make is it is not unreasonable to have 4 
nominees out of 172 questioned, to be found lacking.
  Let me close by saying, again I commend my colleague from Indiana 
because I think he put it in perspective. We all know it is true. We 
could be spending our time doing a lot more important things for 
America and a lot more important things for the people we represent 
than squabbling over four judges.
  Mr. REID. Will the Senator yield?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. I ask the Senator, through the Chair, there have been 
statements made by the majority, for weeks, months, that never ever in 
the history of the country has there been a filibuster conducted 
regarding a Federal judge. Would the Senator again state whether or not 
those statements regarding filibusters of Federal judges having never 
been held is true or false?
  Mr. DURBIN. It is false. It is clearly false. Justice Abe Fortas, 
1968; Judge Stephen Breyer, 1990; Judge Rosemary Barkett, 1994; Judge 
Marsha Berzon, 2000; Judge Paez, 2000. And many others.
  The fact is, for those who say there have never been filibusters by 
nominees, that is clearly not right.
  Mr. REID. Another question I ask my friend from Illinois, through the 
Chair, what I have heard the Senator state tonight is that on numerous 
occasions--in fact, the chart that is behind you indicates this--that 
there would be numerous occasions going back to at least 1968, there 
have been filibuster after filibuster, and sometimes they have tried to 
invoke cloture on more than one occasion; is that true?
  Mr. DURBIN. That is accurate. As noted here, for Judge Breyer, twice. 
That is a clear example. On some of the others, there could have been 
more than one time, as well.
  The point I would like to make to my friend from Nevada, we also know 
that under President Clinton, 63 of his nominees never got a hearing. 
They were never given a chance to come to the floor for this vote 
because the Republican-controlled Senate Judiciary Committee would not 
even give them a hearing.
  Mr. REID. Will the Senator yield for a question that I ask through 
the Chair?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. The Senator from Illinois is a member of the Judiciary 
Committee. Would you explain to the people watching this--whatever it 
is--would you explain to the people how a person gets to the Senate 
floor to be nominated for a judge? How do they

[[Page S14546]]

get here? What is the process? Explain to the people of the country 
what you mean when you say someone never had a hearing.
  Mr. DURBIN. It is customary for a Senator of a State, depending on 
the President's party, to be able to suggest to the White House a 
nominee to fill a vacancy on the Federal district judge and the Federal 
circuit court. That nominee is then given to the White House for 
approval and investigation, FBI background checks, the normal things. 
If the White House then clears that nominee, the name is sent to the 
Senate Judiciary Committee. A hearing is scheduled in the normal course 
where the person is brought before the committee. After the committee 
has done its investigation, questions are asked and then the person is 
brought for a vote and eventually finds their way to the floor.

  Under the Clinton administration, after the nominee came out of the 
White House, 63 times, 20 percent of the President's nominees were 
stopped at that point and never brought to a hearing before the Senate 
Judiciary Committee. So the argument that we have stopped four belies 
the reality that when we looked at the numbers from the Clinton 
administration, 20 percent, not 2 percent but 20 percent, of the judges 
never got their chance before the Judiciary Committee to even present 
their credentials and argue for their nomination.
  I say to the Senator from Nevada, that is a sad reality. Frankly, 
this President is being treated far better than President Clinton. This 
Senate Judiciary Committee, under the leadership of Senator Patrick 
Leahy, a Democrat, approved 100 of President Bush's nominees, gave them 
hearings and moved them forward.
  We tried in a bipartisan fashion to meet our constitutional 
responsibility. Only 4 times out of 172 have we said no. Only four. It 
is reasonable for us to stop and ask hard questions of nominees who are 
asking for lifetime appointments to some of the highest courts of the 
land.
  Mr. REID. Will the Senator yield?
  The PRESIDING OFFICER. The time of the Senator from Illinois has 
expired. However, there is a minute and a half left on the Democratic 
side.
  Mr. REID. Will the Senator answer this question?
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. REID. I direct the question through the Chair to my friend from 
Illinois. The number 168 on the chart behind you, does that represent 
168 people who have been nominated by President Bush who are now 
serving in the Federal judiciary who have lifetime appointments?
  Mr. DURBIN. That is correct. I say to the Senator from Nevada that 
there are some among those 168 about whom I have had misgivings. Many 
of them I voted for anyway, understanding this is the President's 
prerogative to nominate people for the Federal courts.
  Going back to the point I made earlier, the President does not have a 
constitutional right to appoint Federal judges. He has the right to 
nominate them. Only with the advice and consent can they be appointed 
to the Federal judicial vacancies. Therein lies the real difference in 
the argument we brought forward this evening.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada has the floor with 27 
seconds.
  Mr. REID. When the majority uses their time, the half hour will be 
divided in whichever way the Senator from Michigan, Mr. Levin, and the 
Senator on the other side wishes to divide 30 minutes.
  The PRESIDING OFFICER. The Senator from Texas is recognized.