[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Senate]
[Pages S14532-S14538]
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.