[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Pages S14635-S14682]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  The PRESIDING OFFICER. The hour of 12 o'clock noon having arrived, 
the Senate, having been in continuous session since yesterday, pursuant 
to the order of the Senate of February 29, 1960, will suspend while the 
Chaplain offers a prayer.
  Today's prayer will be offered by our guest Chaplain, RADM Robert F. 
Burt, Chaplain of the U.S. Marine Corps and Deputy Chief of Navy 
  Mr. REID. Mr. President, I ask that the time be equally charged 
against both sides during the prayer.
  The PRESIDING OFFICER (Mr. Graham of South Carolina.) Without 
objection, it is so ordered.
  The guest Chaplain, RADM Robert Burt, offered the following prayer:
  Let us pray.
  Almighty God, Lord of our universe, creator, sustainer, protector, 
and comforter, source of our hope, bless us with Your divine presence 
and fill us with Your joy.
  Lord, thank You for these servants of our great Nation. Help them 
today to sense the support and prayers that go out on their behalf, not 
just here in this room, but all over our Nation as citizens lift them 
up before You and sincerely pray for them every day. Answer those 
prayers, O God, and fill these Senators with Your spirit and power.
  Lord, we lift together this Nation up before You and pray that You 
would continue to pour out Your rich blessing upon us. Bless our 
citizens spiritually, financially, physically, and emotionally. Bless 
our military personnel and their families. Lord, continue to use these 
Senators as instruments and channels of Your blessing.
  May they remember ``never to become weary in doing good, for in 
proper time they will reap the harvest.'' Bless each Senator, bless 
their families, bless the States they represent, and, most of all, 
bless our Nation and its commitment to the pursuit of freedom and 
liberty not only within our own borders, but also to so many nations 
that desperately need our help.
  We ask these things in Your awesome and holy name. Amen.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I believe the regular order is that we now 
have half an hour on our side.
  The PRESIDING OFFICER. The time until 1 o'clock will be evenly 
  Mr. GREGG. Mr. President, first, I thank the guest Chaplain for that 
very fine prayer which brings us back to reality in a way that is 
  There has been a tremendous amount of excellent discussion today 
about the issue of the process of approving those four judges who have 
been nominated to the circuit courts of appeals, and the whole issue of 
the filibuster and how filibusters work into the process of the 
Constitution and the management of this Senate. It has been 
appropriate. It has been good. It has been enlightening, I hope, to 
those who have taken the time to listen at whatever hour they happened 
to listen.
  I heard some extraordinary discussions which have been historical and 
legal and factual and informative. The question of whether or not a 
filibuster is appropriate is critical, and the constitutionality of 
using a filibuster relative to the Executive Calendar and the approval 
of judges is a very legitimate question in my mind.
  I think when you look at the Constitution and the language of the 
Founders, they were fairly precise people in how they designed this 
Senate when they decided to be precise. And on the issue of advise and 
consent, they were precise. They said it would take a supermajority to 
approve treaties, but they were silent on the issue of supermajority 
relative to justices, and, therefore, in my opinion, I think it is 
fairly evident that, as far as they were concerned, they expected a 
majority for the purposes of approving justices and, therefore, a 
filibuster is inconsistent with that.
  Really the filibuster, and the issue of the filibuster which has 
received so much appropriate attention today and which is obviously why 
we haven't been able to get to a vote, is systematic of the bigger 
issue, which is why is the opposition evolving relative to these 
  We have to remember--and I think it is important for people to focus 
on this because there have been a lot of charts and signs up talking 
about the number of judges approved--that we are dealing with the 
circuit court of appeals level of the judiciary. We are not dealing 
with district judges. The vast majority of the judges who are approved 
by this body, who are nominated by any President, are district court 
judges. They are the trial judges. What we are dealing with, however, 
is the people who take a look at what happened in the trial and decided 
whether law has been adequately applied to the trial and who basically 
interpret the Constitution and the laws of the land and have, 
therefore, a huge impact, obviously, on how our society functions.
  Fewer and fewer cases make it to the Supreme Court. More and more 
cases are decided on the issue of the question of their 
constitutionality, the implications of the broader law involved by the 
appeals level of our justice system. Therefore, when we look at the 
circuit court of appeals appointments, we are looking at an 
extraordinarily important position within the structure of our 
governance as a nation, a governance which is based on the issue of the 
protection of law. You can't have a democracy unless you have a 
structure of jurisprudence which is fair, honest, and applied 
consistently with principles developed over years.
  Therefore, to look at all the judges out there and say 168 or 200 or 
5,000 have been approved is irrelevant to the question. The question 
is, what is the circuit court issue; what has happened with the circuit 
court? We know in the circuit court area there have only been 29 
approved, and there are presently 4 pending who are subject to a 
filibuster right now, which means they can't get a majority vote. There 
are going to be two more, it looks like, who are going to be subject to 
that same filibuster, who won't get a majority vote, and that will be 
followed by, it appears, another six subject to a filibuster and, 
therefore, cannot get a majority vote. So we have 12 compared to 29.

  Twenty-nine have been approved. That is a very high percentage of the 
circuit court justices who have been basically blocked from getting an 
up-or-down vote as should apply under our form of structure, our 
Constitution, in my opinion.
  There has been a lot of discussion about that point. But what is the 
real implication? What is this fight over getting to a vote really 
about? It is about who these justices are and what they represent, 
because this is a new radicalization of the issue of judges and their 
appointment to the circuit court.
  The use of the filibuster at this time is symptomatic of that 
radicalization, and it is the radicalization of the nominating process 
which is the real issue at hand and on which the American people should 
be willing to focus.
  It appears--not appears--it has occurred now that a litmus test has 
been put in place for the purposes of approving members to the circuit 
court, a litmus test that really has no relationship to the judicial 
temperament, experience, fairness, or expertise of the nominee who has 
been brought forward. It is a litmus test totally outside the bounds of 
what has traditionally been the way in which we evaluate a justice 
nominated to the circuit court. It is a litmus test based on the 
justice's personal and religious views, not the justice's judicial 
  This is a huge departure from what has been the traditional method by 
which we have evaluated and confirmed judges in this country.
  First off, the litmus test as an approach is wrong. I was a Governor. 
I appointed judges. I never asked one judge what his or her view was on 
any issue. What I wanted to know about a justice I was going to appoint 
was: One, were they honest beyond a question of a doubt; two, were they 
smart; three, were they fair; and four, have they life experience that 
is going to give them some sensitivity toward the people who would be 
coming before their court.
  What their views were, I believed, was inappropriate to ask, but that 
was my position. Clearly, it is not the position of the minority in 
this body. The minority in this body decided there

[[Page S14636]]

must be a litmus test which every justice appointed to the circuit 
court has to jump over.
  I could possibly accept that if that litmus test was tied to whether 
the justice was honest, whether the justice was fair, whether the 
justice was intelligent, or whether the justice had the life experience 
that was appropriate to go on the court. But that is not the litmus 
test. The litmus test now is whether or not the justice nominated to 
the position has an individual belief, not a judicial view, which is 
inconsistent with the view of one Member--just one Member--of this 
body. It is a staggering event representing a fundamental change in the 
way in which we appoint justices and nominate and confirm and evolve a 
  Under this philosophy, it is very likely that any person who comes to 
this body who subscribes to the Catholic faith and subscribes to it as 
laid down by the leader of the Catholic faith and by the catechisms of 
the Catholic faith, even though they may, as a justice, have made it 
very clear they do not allow that faith to determine their decisions--
and in one case we have a classic example of that, and that is Justice 
Pryor--that justice will not be allowed to be confirmed because his 
personal views--not his judicial actions, not his judicial review 
process--but his personal views will not have passed the litmus test 
simply because he happens to maintain a religious belief.
  That is an extraordinarily dangerous precedent to set in this body, 
and it will fundamentally change the character of this Nation over time 
if it is allowed to continue, to say nothing of the prejudice that it 
  Since I have been in this body, I have voted for a lot of judges. 
When President Clinton was here, I voted for Justice Breyer to the 
Supreme Court. I voted for Justice Ruth Bader Ginsburg to the Supreme 
Court. These were two Justices I absolutely knew did not subscribe to 
my political philosophies, but they were honest, they were fair, they 
were smart, and they had life experience that was appropriate.
  Had I applied a litmus test coming from the other side of the aisle, 
I could have easily said no, and we could have filibustered those 
judges, but that was not appropriate. That is not the way to proceed.
  Unfortunately, my time is up. I would like to spend more time on this 
issue. Two of my fine colleagues wish to speak. I think this is the 
essence of the issue we are confronting today. The filibuster is 
symptomatic of it. The essence of it is we are radicalizing the manner 
in which we appoint justices, and we are allowing that radicalization 
to be based on personal beliefs rather than judicial action, which is 
fundamentally wrong.
  Mr. President, I now yield 5 minutes to the Senator from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, that was an excellent statement by the 
Senator from New Hampshire. I wish to go further with some of the 
issues about which he was talking.
  Our Constitution specifically spells out only five instances where a 
supermajority is required and moving to consideration, and approval of 
the President's judicial nominees is not on that list. This list 
includes treaties, impeachment, expulsion of a Senator, overriding a 
Presidential veto, and adoption of a constitutional amendment.
  The spirit of our Constitution should mean something. It is in 
defense of our Constitution that we are taking these 30 hours. It has 
been said we are wasting our time. Defending our Constitution is not 
wasting the Senate's time. It is critical to this Senate.
  What the Senator from New Hampshire was just talking about--the 
Supreme Court nominees for whom he voted, even though they were 
different ideologically from him--if this process is allowed to 
continue, it is going to be 12, we know already, appellate nominees who 
are going to be blocked by filibuster--12 out of 41. If this is allowed 
to continue, we know next year it is going to be worse, and when the 
next Supreme Court nominee comes up, if it is Ruth Bader Ginsburg or 
Breyer or Rehnquist, those people would not be approved in the climate 
in the Senate today. Highly qualified people will not be able to make 
it on to the Supreme Court.
  Do my colleagues know what that is going to do to the process? Good 
people are not even going to be part of the process. When the President 
calls them and says: I would like you to consider this, they are going 
to say: Go see somebody else.
  The Judicial Conference is a nonpartisan entity that acts as the 
principal policymaking body for our court system, and it has declared 
12 judicial emergencies on the circuit court of appeals. The President 
is doing his job by sending us the nominees. It is our time to do our 
  The Ninth Circuit, which serves my home State of Nevada, is the 
largest and busiest circuit court of appeals in this Nation and is also 
the most overturned court in the country. In 2001, it took 30 months in 
the Ninth Circuit for a case to go from original filing in the district 
court to the final decision on appeal. That is 5 months longer than the 
average court of appeals.
  In the Ninth Circuit in the 1996-1997 session in the middle of the 
Clinton Presidency, the Supreme Court found it necessary to review 28 
cases in the Ninth Circuit. Of those 28 cases, it overturned 27 of 
them. By the way, this was one-third of the Supreme Court's docket that 
  We know about some of the outrageous cases in the last year or two 
from the Supreme Court. Let me mention a couple of them. We know the 
Ninth Circuit is the one that is trying to overturn the Pledge of 
Allegiance, saying that God should not basically be part of our country 
or part of our Government, or the name ``God.''
  The Senate took up a resolution which then-Senate majority leader Tom 
Daschle brought to the floor, and every Senator voted to condemn what 
the Ninth Circuit had done. This is the circuit to which Carolyn Kuhl 
is nominated. We need to get good people on the Ninth Circuit. It is 
absolutely critical for us to do that.
  I feel passionately that we need to fix the process. We need to fix 
it for when the Democrats are back in power so that good people get an 
up-or-down vote. They shouldn't be blocked simply for ideology from 
getting an up-or-down vote. If a Senator disagrees with them, vote them 
down, but give them an up-or-down vote. A minority of Senators should 
not be able to block the process for judicial nominees as part of the 
advise and consent clause.

  So let's work together. Let's reach across the aisle and say: Let's 
fix the process. Otherwise, as we go into the future, this tit for tat, 
this payback is going to continue to get worse and worse, and it is 
truly a threat to our constitutional Republic.
  I close with this: We appeal to the other side. We are going to try 
to offer a resolution to fix what is going on here, and we encourage 
them to join us so this doesn't just get worse as the years go by.
  I yield the floor.
  The PRESIDING OFFICER. The Senator has used his 5 minutes. The 
Senator from Texas.
  Mr. CORNYN. Mr. President, may I inquire how much time remains on our 
  The PRESIDING OFFICER. Twelve minutes.
  Mr. CORNYN. Mr. President, I yield myself 7 minutes, and I yield the 
senior Senator from Texas the remaining 5 minutes of our time.
  Mr. President, I have been either in the Chamber or watching the 
Chamber from other parts of this building as this debate has gone 
forward since early last evening. I happened to be watching from my 
office just before I came to the floor most recently when the Senator 
from Iowa, Mr. Harkin, made a couple of comments to which I want to 
  First, I want to say what I agree with. I agree with him that the 
people who work so diligently in this Chamber and elsewhere, in the 
cloakroom, the people who report what we say for the Congressional 
Record, how much I and the rest of us appreciate their faithful and 
dedicated service. Some of us got a few hours sleep last night. I am 
not sure all of them did. I just want to say for all of us how much we 
appreciate their service.
  There is something else he said that I disagree with very strongly, 
and that is where my colleague from Iowa charged the Republicans in 
this Chamber, the bipartisan majority really--it is not just 
Republicans--but charged those of us who believe this debate is

[[Page S14637]]

important with ``sanctimonious hypocrisy'' for our attempts to uphold 
the Constitution for what we believe to be the unconstitutional 
obstruction of President Bush's nominees.
  There is a lot about this debate that I think folks at home watching 
TV or listening on the radio may have a little bit of trouble getting 
their head around, their brains around, because some of it involves 
arcane rules of the Senate and the Constitution. There is one thing 
that folks back home understand, and they understand hypocrisy, 
sanctimonious and otherwise.
  I think it is worth noting, indeed I think it is important to note, 
comments that have been made by those who are now on the other side of 
this debate, what they said a few short years ago on this very self-
same subject.
  My mother used to say that the test of one's character is whether you 
are the same person in public as you are in private, and I think using 
something close to that test, we could ask whether the speeches that a 
Senator gave 5, 6, or 7 years ago are consistent with the position they 
publicly take today.
  In that spirit, I would offer this: On March 1, 1994, the Senator 
from Iowa said: I really believe that the filibuster rules are 
  That is the same Senator who accused those of us who believe that the 
same thing he professed in 1994, when he called us sanctimoniously 
hypocritical for what we are doing today--he happened to agree with us 
in 1994 but has obviously changed his position today.
  Senator Lieberman of Connecticut on January 4, 1995, said: The 
filibuster rule, there is no constitutional basis for it. It is in its 
way inconsistent with the Constitution. One might almost say it is an 
amendment to the Constitution by rule of the U.S. Senate.
  Then there was the minority leader, at a time in 1995 when he said: 
The Constitution is straightforward about the few instances in which 
more than a majority of the Congress must vote. The Founders concluded 
that putting such immense power into the hands of a minority ran 
squarely against the democratic principle. Democracy means majority 
rule, not minority gridlock.
  Then there are the comments of the distinguished legal counsel, Lloyd 
Cutler, who served as White House Counsel both to President Carter and 
President Clinton, who said: Nothing would more poorly serve our 
constitutional system than for the nominations to have earned the 
approval of the Senate majority but to be thwarted because the majority 
is denied a chance to vote.

  I would like to agree with the comments made by Senator Lieberman, 
Senator Daschle, Senator Harkin, and Mr. Cutler just a few short years 
ago, but obviously their position has changed, or I should say their 
position has changed because majorities have changed. They find 
themselves in a different posture today than they found themselves in 
then, and it is no longer convenient or expedient for them to claim 
that majority should rule.
  I submit they were right then and they are wrong now. I do not know 
of a nicer way to put it. It is hypocrisy to take inconsistent 
positions based on expedience where they should be made on principle.
  What we are fighting about today is a fundamental principle. My 
colleague from Iowa said he wondered what the moral demarcation line 
was between holds and committee inaction on the one hand and 
filibusters on the other hand. I have an answer for him. I think it is 
a great question. The answer is: The line of moral demarcation is the 
Constitution and majority rule. That is where the moral demarcation 
line is, and there have now been four unconstitutional filibusters.
  The PRESIDING OFFICER. The Senator has consumed the time yielded to 
  Mr. CORNYN. I yield the floor to the senior Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. I thank the Senator from Texas, my colleague, for 
being here most of the night, as most of us were, and for carrying this 
debate as a distinguished member of the Judiciary Committee who is 
maybe the only Member of the Senate--I am not sure--he is the only 
Member I know who has been a member of a supreme court of his State, 
Texas, and the attorney general of his State. I am very pleased that he 
has been such an active participant in this debate.
  I wish to talk a little bit about the issue of the filibuster as it 
pertains to judges. We have had a lot of debate about what is a 
filibuster and did one occur, previous to this, a filibuster on a 
judicial nominee.
  Well, there is an argument about one, and that is Justice Abe Fortas 
who was promoted to Chief Justice and was turned down by the Senate. 
``Turned down'' might not be the right words, but whether or not there 
was a filibuster is in debate.
  There is no debate that there have been no other filibusters of 
judicial nominees because Members of both parties have tried very hard 
not to filibuster until 2002 because they know it is the nuclear 
option. Once it starts, it is going to promote partisanship in this 
very important constitutional responsibility.
  I want to read a letter from former Senator Robert Griffin, who was a 
Member of the Senate during the Fortas debate. He quotes an Associated 
Press piece which, in discussing the nomination of Justice Abe Fortas 
to replace Chief Justice Earl Warren, said:

       Republicans filibustered the nomination and Johnson backed 

  Here are his words:

       Whether intended or not, the inference read by many would 
     be: Since the Republicans filibustered to block Justice 
     Fortas from becoming Chief Justice, it must be all right for 
     the Democrats to filibuster to keep President Bush's nominees 
     off the appellate courts. Having been on the scene in 1968, 
     and having participated in that debate, I see a number of 
     very important differences between what happened then and the 
     situation that confronts the Senate today.
       First of all, four days of debate on a nomination for Chief 
     Justice is hardly a filibuster.

  Now, we are talking about people who have been nominated for over 2 
years, who have had numerous cloture votes. That is a big difference. 
He goes on to say:

       While a few Senators, individually, might have contemplated 
     use of a filibuster, there was no Republican party position 
     that it should be employed. Indeed, the Republican leader of 
     the Senate, Everett Dirksen, publicly expressed his support 
     for the Fortas nomination shortly after the President 
     announced his choice. Opposition in 1968 to the Fortas 
     nomination was not partisan. Some Republicans supported 
     Fortas; and some Democrats opposed him.
       When on October 1, 1968, a vote was taken on the first and 
     only cloture motion, the count was: 45 in favor of the motion 
     [for cloture] and 43 against. Of course, those opposed to the 
     nomination were jubilant, not only because the count fell far 
     short of the \2/3\ then required to impose cloture but, after 
     reviewing the leanings of the absentees, we were more 
     confident than ever that we had, or would achieve, majority 
     support for our position [against Justice Fortas]. Of course, 
     it also demonstrated that the White House could not produce 
     the showing of a majority in favor of the nomination. Even if 
     four days of debate were to be characterized as a filibuster, 
     it could not be claimed that our debate was thwarting the 
     will of the majority. Needless to say, that picture stands in 
     stark contrast with the tactics employed these days by Senate 

  President Johnson the next day withdrew the nomination.
  The difference here is, there was not a partisan filibuster. There 
was not a majority that could be counted, and if anyone knows former 
Senator Lyndon Johnson, who was President of the United States, they 
know he was a vote counter. The Senator, now President Johnson at the 
time, withdrew the nomination because he did not have the majority vote 
for the nomination. So there has not been this kind of partisan 
filibuster. Both parties have refused to allow it to happen for good 
reason, and I would hope it would end today as well.
  The PRESIDING OFFICER. The majority's time has expired.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, this has been interesting, and I think for 
the public who might be watching, they may want to know what they are 
getting for their $100,000 to $150,000 of taxpayer's money that is 
being spent in this filibuster and those staff members who have lost 
any ability to have time for themselves and their families.
  So I thought I might boil this down to its essence. Have filibusters 
been used before on Executive Calendar nominees, including judicial 
nominees to the lower courts, as well as to the

[[Page S14638]]

Supreme Court? Of course they have. No matter how much my friends on 
the other side say no, of course they have. They know that.
  The Congressional Record is open for all to read, and we do not even 
have to go back to ancient history for this. Three years ago, there 
were even two simultaneous Republican filibusters on the Senate floor 
against Richard Paez and Marsha Berzon, two of President Clinton's 
nominees. In fact, here is a list of Republican filibusters of 
nominees. It is a pretty long list.
  I do not think we have to remind our friends on the other side of the 
aisle about the dozens more that were blocked not through votes in the 
open, on the Senate floor, but through holds by anonymous Republican 
Senators. In fact, these were filibusters by one or more anonymous 
Republicans. If one or more Republicans objected to one of President 
Clinton's nominees, they never got a vote. They never got on the floor. 
They never got out of committee. One actually did get out, and then by 
a party line vote he was voted down. That was the African-American 
chief justice of the Missouri Supreme Court.
  So what happened in these one-person anonymous filibusters by the 
Republicans? Not 4 people being held up, it was 63 of President 
Clinton's nominees. Sixty-three of President Clinton's nominees were 
blocked by the Republicans by a one-person anonymous filibuster.
  So are filibusters, including judicial nominees, rare? Sure, they 
are. And, incidentally, these are the Clinton circuit court nominees 
blocked by the Republicans during 1995 to the year 2000. As we can see, 
it is a pretty large number: James Beatty, Rich Leonard, Jorge Rangel, 
Robert Raymar, Barry Goode, Alston Johnson, James Duffy, Elena Kagen, 
James Wynn, Kathleen McCree Lewis, Enrique Moreno, James Lyons, Allen 
Snyder, Kent Markus, Robert Cindrich, Stephen Orlofsky, Roger Gregory, 
Christine Arguello, Elizabeth Gibson, Bonnie Campbell, Andre Davis, 
Richard Paez, Marsha Berzon, H. Lee Sarokin, and Rosemary Barkett.
  The Senate's rules are intended to protect against abuses by the 
majority that at any given time controls the Senate. I have been here 
eight times in the majority, eight times in the minority. So the 
majority and minority go back and forth all the time. In this case, the 
Senate's rules protect against abuses of power--we have a system of 
checks and balance--especially by a White House that is so bent on 
controlling all the levels of power. They even want the Senate to 
change their rules, rules that have governed this body for over 200 
  Now, should filibusters be used sparingly? Of course. And they have 
been used sparingly. But unlike the times of the recent Republican 
filibusters where 63 of President Clinton's nominees were stopped, we 
have used this very sparingly against a President who wants to run 
roughshod over other safeguards built into our system of government and 
into the very rules and practices of the Senate and its committees.
  By using it sparingly, all this talk--you know, it is almost ironic 
to see my Republican friends with a straight face say how terrible this 
is and spend $150,000 or so of the taxpayers' money to tell us how 
terrible this is, after they stopped, by using 1-person filibusters, 63 
of President Clinton's nominees.
  Let us put the chart up there, if we might. Here is what we have 
done. We did not stop 63, as they did. We have stopped four. We have 
confirmed 168, and we stopped 4. There is even a T-shirt floating 
around which says: We confirmed 168 of President Bush's nominees and 
what did we get for it? When you look at the back, it says: All I got 
was this lousy T-shirt.

  So this year, with breathtaking arrogance and a certain disdain for 
the past and certainly an unwillingness to be honest about the history 
of the Senate, we have seen a systematic dismantling of the Judiciary 
Committee's own rules. One by one, Republican majorities have changed, 
bent, and even broken the longstanding rules and practices that are 
intended to protect the rights of Senators to defend the rights of 
their States and their constituencies. These are the very same rules 
they used--some would say abused--when there was a Democratic 
  Would filibusters be necessary at all if the President lived up to 
the Constitution's injunction that he seek not only the Senate's 
consent but also its advice in selecting candidates for the independent 
Federal judiciary? Remember, the Federal judiciary is not supposed to 
be an arm of the Republican Party or the Democratic Party. Of course, 
it is supposed to be independent. It is a real question: Is there a 
clear way forward without the need to prevent the confirmation of any 
judicial nominee? The President has the ability to stop all of this. 
None of this impasse would be necessary if the President actually 
followed advice and consent.
  If the President did what other Presidents of both parties have done, 
where they have tried to be a uniter, not a divider, if the President, 
who has declared his disdain for what he calls judicial activism, had 
nominated people who were not judicial activists, if he had tried to 
unite and not divide, none of this would be happening.
  Instead of working with the Senate to name mainstream nominees to our 
courts, he has chosen instead to try to politicize the courts. He and 
his aides have unabashedly declared that they are out to remake the 
federal judiciary in the image of ideological activism. Our courts are 
foundational to our system. Our independent judiciary is the envy of 
the entire world.
  In deference to groups on the far right, he has nominated judicial 
activists who cannot help but raise questions about their impartiality 
and their capability to administer justice for all.
  What we need is an independent judiciary. Time and again, Democratic 
Senators have acted in good faith to fill vacancies that Republicans 
kept open for years when there was a Democratic President. Time and 
again they have blocked, by one or two anonymous Republican holds, 
Democratic nominees of President Clinton's from going forward.
  We have filled those. That is why we are able to get 168 of the 
President's nominees through. We have stopped four. Come on. Is this 
worth spending the taxpayers' money? Perhaps not. Maybe, though, they 
believe it is worth it to send out fundraising letters.
  The public's priorities v. the Republican leadership's priorities: 
During this 30-hour talkathon, the Republican leadership of the Senate 
again is following a script laid out for it by a White House intent on 
bending all other branches of government to its will. This is a White 
House intent on establishing some sort of unitary government and intent 
on removing the checks and balances among our three branches of 
government that are a foundation of the American system. In furtherance 
of this script, in these rare final hours of this year's legislative 
session, the Republican leadership has decided to abandon work on the 
real priorities of the American people. They are obstructing those 
priorities, in favor of repetitive speeches about promoting these four 
controversial nominees to lifetime positions as federal judges--four 
people who already have good, well-paying jobs--is more important than 
the three million Americans who have been struggling to find any jobs 
at all.
  The Republican leadership has already overshot the Senate's 
adjournment date by more than a month. We have already had to enact 
three continuing resolutions to keep the Federal Government operating 
because the appropriations bills that the Congress needs to pass have 
not been enacted. It is now more than five weeks after the fiscal year 
began and we should have completed all 13 appropriations bills, but the 
Republican Congress has enacted a total of only four out of 13.

  The remaining annual appropriations bills include the funds that go 
to improve our schools. The funds that NIH uses to advance our medical 
knowledge in fighting disease and illness. The resources used by EPA to 
enforce our clean air and water laws. They include appropriations for 
our veterans and for law enforcement.
  Yesterday evening as the Republicans gathered to accommodate the 
programming requests of a certain television network, the senior 
Senator from West Virginia was trying to get the Senate to do its work. 
Senator Byrd, as the ranking Democrat on the

[[Page S14639]]

Appropriations Committee, was searching for the Republican leader and 
urging the Senate to complete its work on the appropriations bill that 
funds services for our military veterans. He asked that the Senate 
continue that work so that we could finish Senate consideration of this 
important bill and proposed that we do so in just two hours. The 
Republican leadership objected. He renewed his request when the 
Republican leader did appear on the floor but was, again, rebuffed by 
Republican objection. Those few minutes may turn out to be the most 
telling of this entire so-called debate. Republicans chose to sacrifice 
the work of the Senate, the priorities of the American people and the 
interests of our veterans to a partisan political stunt.
  In one of their many press conferences on this diversion, on November 
6, the Republican leader committed to ``complete the appropriations 
process'' before beginning this charade. Even the junior Senator from 
Pennsylvania, agreed with that and said: ``The leader's right. What 
we're about to embark in next week, after the appropriations process 
has run its course, is to enter into a debate. . . .'' Well, when given 
the chance to honor that commitment last night, the Republican caucus 
chose partisan theater over the work of the Senate.
  There is the unfinished business of providing a real prescription 
drug benefit for seniors. There is the Nation's unemployment and lack 
of job opportunities that confound so many American families. With 
millions of Americans having lost their jobs in the last three years, 
the Republican Senate is, instead, insisting on spending these final 
days of this session on a handful of highly controversial judicial 
nominations that divide the Senate and the American people and ignoring 
the needs of the almost 10 million Americans who are out of work, 
including those more than three million Americans who have lost their 
jobs since President Bush took office.
  There are the corporate and Wall Street scandals that concern so many 
of those who have invested and placed their trust and financial 
security at risk in our securities markets. While we are listening to 
Republicans pontificate about a handful of highly controversial 
judicial nominees, some Republican has an anonymous hold on S. 1293, 
the Criminal Spam Act of 2003. This is a bipartisan bill that can do 
something about the worst spam abuses. Earlier this week, the 
Washington Times reported that spam is doing more damage to our economy 
than hackers or viruses. A few weeks ago the entire Senate joined in 
adopting a version of S. 1293 to the Burns-Wyden bill and we joined to 
pass that bill. Now some Republican has turned around and under cover 
of anonymity is holding up the bipartisan bill that can be enacted 
before adjournment this year that can stem the tide against the worst 
abuses and fraudulent conduct that is gumming up our internet economy 
and communications. This is the type of anonymous Republican hold that 
was likewise responsible for holding up more than 60 of President 
Clinton's qualified nominees to the federal judiciary from 1995 through 
  There is the need for Congress to continue the federal highway 
programs that build and repair our roads and highways and bridges. 
There is the need to perform real oversight of the U.S.A. PATRIOT Act 
and to provide real oversight for the war in Iraq. Just as Republicans 
objected to the Senate Judiciary Committee investigating the factors 
that led to September 11, Republicans are now objecting and preventing 
a full investigation by the Select Intelligence Committee of what led 
the Bush administration to contend that Saddam Hussein had weapons of 
mass destruction and was about to use them against the United States 
and that we had to embark earlier this year on a preemptive war.
  Nor has the Senate taken any action on the misrepresentations made to 
us by Bush administration officials about their efforts to gut Clean 
Air Act enforcement. When they appeared and testified before us, they 
declared that their policies would not affect enforcement of the Clean 
Air Act and ongoing cases. Over the last two weeks we have seen how far 
from the truth that testimony was.
  For the last three years this Administration has run roughshod over 
environmental protection and the Republican Senate has done nothing to 
stem the tide. They have catered to special interests in rolling back 
protections for clean water, clean air, toxic cleanups and public 
health. The Senate should be focusing attention on these attacks upon 
the environment and these rollbacks, but nothing could be farther from 
the agenda of the Republican Senate leadership.
  Forty-two environmental rollbacks by the Bush administration that 
have been announced on Friday is the number the Senate should be 
working on. There have now been more environmental rollbacks than there 
are vacancies throughout the entire federal judiciary. The Bush 
administration's announcement that they are halting enforcement actions 
against industrial polluters under the New Source Review provision of 
the Clean Air Act flatly contradicts the assurances by Justice and EPA 
officials to the Senate last year. The toxic pollutants that will cause 
asthma and heart disease for our children and grandchildren is 
apparently of little interest to the Republican leadership of the 
Senate. That would be worthy of serious inquiry, debate and Senate 
  Last week the House passed by an overwhelming bipartisan margin the 
Advancing Justice through DNA Technology Act of 2003, H.R. 3214. This 
landmark legislation provides law enforcement with the training and 
equipment required to effectively, and accurately, fight crime in the 
21st Century. More specifically, the bill would enact the President's 
DNA Initiative, which authorizes more than $1 billion over the next 
five years to eliminate the backlog crisis in the nation's crime labs, 
and to fund other DNA-related programs. It also includes the Innocence 
Protection Act, a death penalty reform effort I launched three years 
ago with Senators and Congressmen on both sides of the aisle.
  The House vote was a major breakthrough in finding solutions to the 
flaws in our justice system. I understand that Republican Senators are 
now blocking action on the bill in the Senate. This bill is the result 
of extensive, exhaustive negotiations among Democratic and Republican 
leaders in the House and the Senate. It has broad support, both in the 
Congress and across the country and deserves the Senate's immediate 
attention and passage.
  We have shown that the death penalty system is broken, we know that 
the reforms in this bill will help, and we know that every day we delay 
action may be another day on death row for some innocent people. These 
mistakes in our system of justice carry a high personal and social 
price. They undermine the public's confidence in our judicial system, 
they produce unbearable anguish for innocent people and their families 
and for the victims of these crimes, and they compromise public safety 
because for every wrongly convicted person, there is a real criminal 
who may still be roaming the streets. This matter is also being stalled 
by Senate Republican inaction.
  The Senate has yet to take up the Anthrax Victims Fund Fairness Act 
of 2003, S. 1740, which Senator Daschle and I introduced with a number 
of other Senators because we are concerned that the citizens harmed by 
the anthrax letters addressed to Senator Daschle and to me in October 
2001 are the forgotten victims of the aftermath of September 11. They, 
too, should have access to the Victim Compensation Fund. The Senate has 
yet to consider the September 11th Victim Compensation Fund Extension 
Act, S. 1602, which must be passed before we adjourn or hundreds of 
families who suffered on 9/11 will likely be left out in the cold 
without the compensation Congress and the American people intended to 
provide. Nothing will take away the pain and loss of September 11 and 
its aftermath for the victims but we owe them the Senate's attention 
before we adjourn.
  New rules for Republican nominees: Rather than consider those 
important matters, why would the Republican leadership insist on 
rehashing the debate on the handful of judicial nominees on which 
further Senate action is unlikely? When they were considering the 
judicial nominees of a Democratic President in the years 1995 through 
2000, they showed no concern about stranding more than 60 of President

[[Page S14640]]

Clinton's judicial nominations without hearings or votes. They did not 
demand an up or down vote on every nominee but were content to use 
anonymous holds to scuttle scores of qualified nominees. Indeed, they 
stood cavalierly by while vacancies rose from 65 in January 1995 to 110 
when Democrats assumed Senate leadership in the summer of 2001. They 
presided over the doubling of circuit court vacancies from 16 to 33 
during that time.
  Indeed, the Republican leader at that time famously came to the 
Senate floor to defiantly declare that the Senate had confirmed too 
many of President Clinton's judicial nominees as far as he was 
concerned. That was when the Senate was considering less than half as 
many judicial nominees and had more than twice as many judicial 
vacancies as there are today. During those days the Republican leader 
said he only had one regret, one apology regarding his obstruction of 
President Clinton's judicial nominees: ``I probably moved too many 
already.'' Four years ago, toward the end of the third year of 
President Clinton's term, a year in which only 34 judges were 
confirmed, the Republican leader left no doubt that Republicans and the 
Republican leadership were unrepentant about their delays and 
obstruction of scores of qualified judicial nominees when he 
proclaimed: ``Getting more federal judges is not what I came here to 
do.'' That Republican leader would not schedule votes on President 
Clinton's judicial nominees when vacancies were much higher and growing 
in the summer of 2000 and, ironically, sought to use appropriations 
bills as an excuse. The Senator from Mississippi said: ``[S]pending 
bills must move first. . . . . Until we get 12 appropriations bills 
done, there is no way any judge, of any kind, or any stripe, will be 
confirmed.'' Of course, now the Republican caucus shows little interest 
in completing the Senate's work on appropriation bills, even though we 
are no longer in the summer but four months later in the year, well 
past the deadline and already into the next fiscal year without having 
even had the Senate initially consider these fundamental legislative 
matters. As I have noted, just last evening the Republican leadership 
rebuffed Democratic efforts to complete action on appropriations for 
our veterans, which could have been done in two hours.
  In those years, the Republican chair of the Senate Judiciary 
Committee repeatedly argued that 67 vacancies in the federal judiciary 
was ``full employment'' as far as he was concerned. He wrote in USA 
Today in September 1997, when there were more than 100 judicial 
vacancies, that there was no judicial vacancy crisis and that the 742 
active judges were sufficient. Over the last three years, Democrats 
have cooperated in confirming 168 judges nominated by this President, 
including 68 this year; we have reduced judicial vacancies on an 
expanded federal judiciary to 40; and we have 837 active judges, the 
most in U.S. history. We have 40 percent fewer vacancies than what 
Republicans used to call ``full employment'' for the federal judiciary 
and almost 100 more active judges than just a few years ago when 
Republicans were content to delay and obstruct President Clinton's 
nominees and argue that there was no problem.
  So why do Republican partisans insist that the Senate now devote its 
time to rehashing the debate on some of this President's most 
controversial nominees to the independent federal judiciary? Is it 
merely coincidence that the Republican leadership has chosen to 
schedule these proceedings for the week of the Federalist Society's 
National Convention in Washington? Perhaps this is to give Republicans 
the opportunity to preen and posture while such an important segment of 
their base activists are in town. Perhaps it is to give the Republican 
leadership another chance to make false arguments about judicial 
nominations. Perhaps it is to give some a platform for baseless and 
McCarthyite accusations against Democratic Senators. Or perhaps it is 
to distract from the real concerns that affect Americans every day. 
Newspapers this week report that this exercise is precipitated because 
of a ``brewing rebellion by conservative activists.'' Reportedly 
partisan diehards ``are accusing the Senate GOP leaders of going too 
easy'' and apparently when Republicans appear on conservative radio 
talk shows ``they are often barraged with questions'' about why the GOP 
is not successfully ramming every judicial nominee through the Senate 
that they control. Apparently this dissatisfaction has even begun to 
affect Republican fundraising and, according to the Washington Post, 
``a recent mailing [by a conservative group] to raise money for 
candidates yielded empty envelopes'' from those who had formerly 
contributed. Let us hope that this is not the real reason for this 
grandstanding. Let us hope that when something begins to affect 
Republican fundraising, it is elevated to the top of the agenda--the 
public, the responsibilities of the Senate be dashed.

  Mr. President, 168 nominees have been confirmed. If the Republican 
leadership has staged this vote in order to try to persuade the 
American people that Democrats are obstructing the President's judicial 
nominees, they are going to have to stray far from the facts, because 
the facts show that the Senate has made dramatic progress on judicial 
vacancies when and where the Administration has been willing to work 
with the Senate. Indeed, last week the Senate confirmed the 168th of 
this President's judicial nominees 100 of them, confirmed by the 
previous Democratic-controlled Senate, in just 17 months. We could 
confirm several more if the Republican leadership would just schedule 
the votes. There are other nominees who were reported unanimously by 
the Judiciary Committee and are just waiting to be confirmed. The 
number of confirmations could easily total 170 or more if the 
Republican leadership were truly interested in filling vacancies. Of 
course, more progress might undercut the partisan message that some are 
trying to peddle. Maybe that is why for weeks at a time the Republican 
leadership in the Senate has repeatedly refused to schedule votes on 
judicial nominees who will be approved, and have chosen is choosing, 
instead, to focus on the handful of the President's most extreme and 
divisive nominees.
  The truth is that in less than three years' time, the number of 
President Bush's judicial nominees the Senate has confirmed has 
exceeded the number of judicial nominees confirmed for President 
Reagan, the ``all time champ'' at getting Federal judges confirmed, in 
all 4 years of his first term in office. A handful of the most extreme 
and controversial nominations have been denied consent by this Senate 
in the proper exercise of its duties under the rules. Only four. One-
hundred-sixty-eight to four. That is in stark contrast to the more than 
60 judicial nominees from President Clinton who were blocked by a 
Republican-led Senate.
  McCarthyite smears: If this show is being staged to give some a 
platform for repulsive smears that Democrats are opposing nominees 
because of their religion, Republicans will have entered a realm of 
demagoguery, repeating false allegations and innuendo often enough to 
hope that some of their mud will stick.
  Before they do that again, I would refer them to what the 
distinguished Senator from Louisiana, Ms. Landrieu, said this morning, 
because if this was not almost ridiculously contrary to the facts, 
there is one part in this whole debate that should be troublesome to 
both Republican and Democratic Senators, and that is the religious 
McCarthyism that has crept into this debate. The distinguished 
predecessor of mine, Ralph Flanders of Vermont, stood up on this floor 
and brought a halt to a member of his own party, Senator Joseph 
McCarthy, because of the smears he was making, the unsubstantiated 
smears he was making on people. Now, some of my friends on the right 
and some of my friends in the Republican Party have been making this 
smear. They are saying if you are opposed to these people, you are 
anti-Catholic or anti-Christian. If it was not so hurtful it would be 

  I first heard this when a radio talk show said I was anti-family, 
anti-Catholic. On Sunday morning, they asked my press secretary about 
it. He said: The Senator did not hear it because he was at mass with 
his wife of 41 years.
  We should not sink to something that we know is not so. Slanderous 
accusations have already been made by Republican Senators, and ads run 
by a group headed by the President's father's former White House 
counsel and

[[Page S14641]]

a group whose funding includes money raised by Republican Senators and 
even by the President's family when they falsely claimed that judicial 
nominees were being opposed because of their religion. These 
contentions are despicable and unfounded. Other Republican members of 
the Judiciary Committee and of the Senate have either stood mute in the 
face of these McCarthyite charges, or, worse, have fed the flames. Such 
accusations are harmful to the Senate and to the Nation and have no 
place in this debate or anywhere else.
  Just a few weeks ago, President Bush rightly told the Prime Minister 
of Malaysia that his inflammatory remarks about religion were ``wrong 
and divisive.'' He should say the same to members of his own party. 
Today, Republican Senators have another chance to do what they have not 
yet done and what this Administration has not yet done: Disavow this 
campaign of division waged by those who would misuse religion, race and 
gender by playing wedge politics with it. I hope that the Republican 
leadership of the Senate will finally disavow the contention that any 
Senator is being motivated in any way by religious bigotry or for 
racial or gender-based reasons.
  This week rumor is that the Republican public relations machine will 
be cranking overtime to try to make Democratic Senators appear anti-
woman. Led by Senators Mikulski, Feinstein, Boxer, Murray, Landrieu, 
Lincoln, Cantwell, Clinton, and Stabenow, it is hard to see how 
Democrats can be subjected to such allegations with a straight face, 
but that is what the rumor is.
  The facts are that under Democratic leadership, the Senate confirmed 
100 judicial nominees, including 21 women, nominated by President Bush 
in just 17 months, including four to our Courts of Appeal. During the 
107th Congress, President Bush nominated only 18 women to district 
court seats, out of 98 district court nominees (18 percent), and only 8 
women to circuit courts out of 32 circuit court nominees (25 percent). 
This year Democrats have supported the confirmation of 12 additional 
women nominated to the Federal bench, including three to our Courts of 
Appeal. This President's nominees have included only one woman in each 
five judicial nominees. The 33 women judges confirmed represent 20 
percent of the 168 judges confirmed.
  By contrast, nearly one of every three of President Clinton's judges 
are women. Of course, the Republicans who controlled the Senate and the 
Judiciary Committee during the Clinton Administration also blocked 18 
women nominated to Federal judgeships by President Clinton. Women who 
were blocked from getting Senate action on their judicial nominations 
include Kathleen McCree-Lewis, Elena Kagen, Elizabeth Gibson, Helen 
White, Christine Arguello, and Bonnie Campbell, all of whom were 
nominated to the circuit courts. These six outstanding women lawyers 
were not extreme or ideologues. They were outstandingly qualified women 
lawyers whose nominations were blocked anonymously by Republican 
Senators, without explanation, without a vote, without accountability.
  Records of activism: On important issues to the American people--the 
environment, voting rights, women's rights, gay rights, Federalism, 
privacy rights, equal rights, civil rights and more--too many of this 
President's nominees have records of activism and advocacy. That is 
their right as American citizens, but that does not make them qualified 
to be judges. As a judge it would be their duty to impartially hear and 
weigh the evidence and to impart just and fair decisions to all who 
come before the court. In their hands, we entrust to the judges in our 
independent Federal judiciary the rights that all of us are entitled to 
enjoy through our birthright as Americans.

  The President has said he is against what he calls ``judicial 
activism.'' How ironic, then, that he has chosen several of the most 
committed and opinionated judicial activists ever to be nominated to 
our courts.
  The question posed by his controversial nominations is not whether 
they are skilled and capable advocates. The question is whether--not 
for a 2 year term, or a 6 year term, but for a lifetime--they would be 
fair and impartial judges. Could every person whose rights or whose 
life, liberty or livelihood were at issue before their courts, have 
faith in being fairly heard? The President has chosen to divide the 
American people and the Senate with his highly controversial 
nominations. If Republicans want to clean the slate and start fresh, we 
should do so with nominees who unite the American people, nominees who 
can be supported by a strong bipartisan majority in the Senate.
  We are also hearing the claim by Republicans that the filibuster of a 
judicial nomination in unprecedented. Republicans themselves 
filibustered the nominations of Judge Richard Paez and Marsha Berzon as 
recently as 2000. They previously filibustered the nominations of Judge 
Rosemary Barkett and Judge H. Lee Sarokin. Of course, while in the 
majority, Republicans took full advantage of the secret hold and of 
their control of the agenda to prevent a vote on 63 nominations by not 
scheduling hearings and votes on them. Many of those now claiming that 
Senate filibusters are unprecedented participated in them and voted 
against cloture just a few years ago.
  Indeed, as the Senate's own website notes in an articled entitled 
``Filibuster Derails Supreme Court Appointment,'' the 1968 nomination 
of Abe Fortas to be Chief Justice was filibustered with the help of 
Republicans: ``Although the committee recommended confirmation, floor 
consideration sparked the first filibuster in Senate history on a 
Supreme Court nomination.'' The attempt at cloture on the Fortas 
nomination was rejected by the Senate.
  In addition, Republican Senators turned the filibuster of President 
Clinton's nominees and of legislation into a destructive art form. A 
nomination to be Surgeon General, Dr. Henry Foster, was defeated by a 
Republican filibuster, ambassadorial nominations were filibustered and 
bill and bill was filibustered as Republicans obstructed the work of 
the Senate and the legislative agenda. For Republicans to claim foul 
now, after their use of the filibuster tactic, may earn them the 
political equivalent of an Oscar, Tony or Grammy.
  For 3 years I have asked the President and Senate Republicans to join 
with us to fill the vacancies on the Federal courts with qualified, 
fair, nonideological judges. Democrats have bent over backwards to 
support a record number of nominees. When the White House will work 
with all Senators, we have been able to identify and confirm judges 
quickly and by consensus. When the President has chosen to select 
ideological activists and try to pack the courts, we have opposed a 
handful of his most extreme nominees.
  The Federal courts should not be an arm of the Republican Party, nor 
should they be an arm of the Democratic Party. The Senate should 
continue to honor its constitutional responsibilities to this third 
branch of our Federal government and to the American people whose 
rights are protected by our Federal courts. No President, with or 
without the complicity of any current majority in the Senate, can be 
allowed to relegate the Senate to the role of rubber stamp.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. Mr. President, I thank the Senator from Vermont for his 
exemplary leadership on these issues. During a very difficult time in 
the Senate's history, he has continued to deal with the challenges and 
criticism in his usual humorous, self-deprecating way. It is a real 
example for all Members.
  I, like many of my colleagues, have been following this debate not 
just for the last hours but for the last months. It is troubling for 
the two views being presented here to be so diametrically opposed about 
what the history is, what the facts are, what the law is, what the 
Constitution says and demands.
  My friends on the other side of the aisle have chosen this 
opportunity to try to garner public attention for their perspective, 
which is that somehow the Democrats, acting in what we believe is the 
highest sense of duty, our understanding of the Constitution and the 
law, have drawn a line. We have seen this hour after hour now in the 
Senate, in the big chart that says 168. That is how many of the 
President's nominees

[[Page S14642]]

have already been confirmed. Those men and women are sitting on our 
Federal benches. They are making decisions that affect our lives. I 
voted for virtually all of them. They would not have been my choices. I 
would not have nominated some of these people in that 168 number, but 
they passed the test. They passed the test of judicious temperament. 
They passed the test of being people who understood the critical role 
of what it meant to be a judge in a free society like ours.
  So what is this really about? We got some hints from some of our 
colleagues on the other side of the aisle. This is about trying to gain 
political partisan advantage and also increase fundraising. I was 
amused to read a story about how some of their more extreme supporters 
sent back empty envelopes when solicited for funding for the Republican 
Senate campaign committee. Those contributors said: You are not tough 
enough. You need to make a big issue out of it.
  So, in obedience, the Republican leadership decided to do that. That 
is their choice. They can dominate the floor on whatever issue they 
choose. It is a shame they keep the attention on this issue to the 
exclusion of so many other important issues such as the economy, 
education, homeland security, what is happening in Iraq, and should 
happen. But that is their choice. That says a lot about their 
priorities as they respond to the music played by the most extreme of 
their privileged contributors.
  It is somewhat disquieting for those who have a memory longer than 24 
hours, or longer even than 2\1/2\ years, to see the distortions that 
have been presented with great passion and conviction. But, 
nevertheless, beating on the table does not necessarily mean what you 
are saying is true.
  I am concerned, too, about the misleading way that the treatment of 
nominees during the Clinton administration has become a mantra on the 
other side of the aisle. I think 168 to 4 shows the Democrats in the 
Judiciary Committee and here on the Senate floor have shown great 
deference, 98 percent deference to the President's nominees and the 
will of the majority. That is certainly not something that nominees by 
President Clinton or the Democrats on the Judiciary Committee and in 
this body received when the shoe was on the other foot.
  I am a little bewildered by this because time and time again my 
friends on the other side overlook the history of how extremely 
qualified men and women from all walks of life, all races and ethnic 
backgrounds, were treated under the Clinton administration.
  The other side suggests that there were no mistreatments because 
there were so few, if any, filibusters. That is what they claim. Here 
are the pictures of the circuit court nominees blocked by Republicans. 
I know many of these people personally. I have the same feelings about 
them that I know some of my colleagues on the other side have about the 
nominees from their State. I know what they and their families have 
been put through for months, for years. And why was that? Because the 
way they were treated was done essentially in secret.
  I give the other side great credit. They did not come out in the open 
like we are. They did not come out and debate the merits and demerits 
of the nominees from the current administration. What happened is, 
these distinguished men and women never even got a hearing. They never 
got to appear before a committee in most cases. They never got a vote 
out of a committee. The Judiciary Committee, under Republican 
leadership, became a judge buster. You could not get out of the 
committee. You could not get to the Senate floor. So, of course, there 
could not be a filibuster because they never had the opportunity.
  I have a little chart that shows the difference in how nominees were 
treated, that clearly demonstrates we had 63 nominees, 23 circuit court 
nominees, 40 district court nominees. They are represented by apples on 
my chart. We grow a lot of apples in New York so I am partial to 
  These 63 well-qualified, distinguished lawyers and judges were 
stiffed. They were not even given, in many instances, the decency of a 
committee hearing. They were left hanging out there, twisting in the 
wind, by a Republican majority that decided: We do not want to have to 
stand up and say why we will not confirm these people because if we 
have to talk about it publicly, everyone will see through us and it 
will be demonstrated conclusively that this is not about the 
Constitution or the law. This is about blocking well-qualified nominees 
from a Democratic President from having lifetime tenure on the Federal 
  So, 63 qualified people were blocked. We have blocked 4 for a variety 
of reasons. We have been publicly willing to go on the record and say, 
for the world to hear, they are lemons. We cannot support these people. 
They do not have the temperament, the quality that should sit on the 
Federal bench.
  I find this sad. That is the word I would use. Neutral, nonpartisan 
experts agree that the Clinton administration judicial nominees were, 
by and large, moderate, accomplished, excellent choices. What are we 
given? We are given four people who, for a variety of reasons, are just 
waving red flags. I understand that. This is not about confirming 
judges. This is about exciting a base. This is about scoring political 
points. This is about raking the money in. I can imagine the phones are 
ringing over at the Republican Senate campaign headquarters. They are 
making so much money today because they have their hard-core base 
sending those dollars in. Keep standing up there, keep fighting. But I 
venture a guess that even a majority of those folks do not know the 
facts. They certainly are not going to get it from what is said on the 
other side of the aisle.

  It is sad, it is kind of heart breaking, actually. We had an 
opportunity during the 8 years of the Clinton administration to 
nominate 63 well-qualified people, none of whom were given the decency 
of fair treatment. It was done under the cloak of secrecy. It was done 
behind closed doors. It was done with anonymous holds. It was done with 
no committee hearing being scheduled. You can go through the individual 
accomplishments of these people, and it is stunning how well qualified 
they were. You can look at the names. I know many of these people. 
Republicans blocked 15 times more judicial nominees of President 
Clinton than have been blocked here. It has been a little difficult for 
many on this side of the aisle to explain to our constituents why we 
did not block more of them. A lot of the people who got through in that 
168 were people many Members would prefer not to be on the bench, but 
we could not stand up in public and say why we would vote against this 
person, so we voted for them. When it comes to the four we blocked, we 
have more than ample reason.
  I regret the majority has chosen to politicize this important 
process. I regret that they have chosen to ignore history and to 
distort the facts. I regret they would decide to spend time on these 
matters instead of the many important issues that confront our Nation 
and our world. We have a lot of big challenges around the world. I am 
personally concerned about what is happening in Iraq, what is happening 
in Afghanistan. I wrote to the Secretary of Defense yesterday because 
of reports about potential threats from al-Qaida to hijack cargo 
aircraft and fly them into nuclear powerplants. We have a lot of very 
difficult issues facing us. But instead, my friends on the other side 
want to rewrite history, want to ignore the well-qualified people they 
blocked through every maneuver, faint, and incredible behind-the-scenes 
stealth they could come up with.
  I will now yield the remaining time on our half hour to my good 
friend and colleague, Senator Schumer, who has been a champion on this 

                   Unanimous Consent Request--S. 1853

  Mrs. CLINTON. Before I yield, I ask unanimous consent the Senate 
proceed to legislative session, the Finance Committee be discharged 
from further consideration of S. 1853, a bill to extend unemployment 
insurance benefits for dislocated, displaced workers; that the Senate 
proceed to its immediate consideration, the bill be read the third time 
and passed, and motion to reconsider be laid upon the table.
  Mrs. HUTCHISON. Mr. President, reserving the right to object, I ask 
consent that the Senator modify her request so that just prior to 
proceeding as requested, the three cloture votes be vitiated, the 
Senate would then immediately proceed to three consecutive

[[Page S14643]]

votes on the confirmation of the nominations, with no intervening 
action or debate.
  The PRESIDING OFFICER. Will the Senator from New York modify her 
  Mrs. CLINTON. No, Mr. President.
  Mrs. HUTCHISON. Then I object.
  Mr. REID. Mr. President, before the junior Senator from New York 
speaks, I want to spread on the record the entire Democratic Caucus's 
appreciation for his stalwart service during the last many hours. The 
Senator has been here now for his fifth shift. On behalf of all the 
caucus, I extend my appreciation.

                       Unanimous Consent Request

  Mr. REID. I ask unanimous consent the Senate stand in recess today 
from 4:15 to 5:15 so we can all go upstairs and find out what is 
happening from Ambassador Bremer, our No. 1 person in Iraq on the war 
in Iraq. It seems to me the fact that we talked 23 hours instead of 24 
hours should not have any bearing on the outcome of the proceedings, 
but it would help every Senator, Democratic and Republican, to be able 
to give their full attention to the proceedings in the secret room 
upstairs. I so move.
  Mrs. HUTCHISON. Mr. President, reserving the right to object, I 
certainly understand the sentiments of the distinguished deputy leader. 
We do all want to be able to do that, and we will be able to go in 
shifts. All Members are very interested in what is going on and very 
pleased that there is action by the United States to make sure that we 
do everything possible for the stability of Iraq. But we are in a very 
important debate. We are debating a constitutional issue. I would have 
to object.
  The PRESIDING OFFICER. The objection is heard.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I thank all of my colleagues for the 
debate. I repeat something I have repeated in the five other times I 
have been here. We have had a lot of talk, a lot of palaver. But this 
one sign, this one chart is more persuasive than everything that has 
been said. No one, except a far-right militant, extreme minority, 
believes that the courts are obstructed when 168 judges are approved 
and four are not approved. Say whatever you will, that fact is 
transcendent. That fact is dominant.
  I thank my colleagues on the other side for giving us the opportunity 
to repeat it over and over.
  Now, we have been engaged in a lot of sophistry, a lot of arguments 
that do not make a difference. The lead argument is that there should 
not be filibusters. Last night, I talked at some length about all the 
filibusters that have gone on before. By the way, if you believe that 
the Constitution prohibits filibusters, you certainly believe it 
prohibits them not only for the judicial branch but the executive 
branch. Of course, that would be interpreting the Constitution because 
there are no words in there that say it. So my colleagues on the other 
side who are so worried about those who expand the law are doing it 
  I make another point today. We have heard this morning a little bit 
of a shift in the themes from my colleagues. Majority should rule. Just 
give them a vote. That is all we want, they say. If we want to give 
every nominee a vote, how is it different preventing the vote by 
speaking on the Senate floor or preventing the vote by refusing to 
bring the nominee up in the committee?
  Did Annabelle Rodriguez get a vote? All she wanted was a majority 
vote. No. Did Clarence Sundram or John Bingler or Robert Freedberg or 
Lynette Norton or Legrome Davis or Robert Raymar or Robert Cindrich or 
Stephen Orlofsky get a vote? Nope, these are President Clinton nominees 
who were not brought before the committee.

  What is the rule? That when the President nominates someone, all the 
other side is saying is, majority vote. Here is a list of 63 people who 
did not get that majority vote. If the Constitution is telling us every 
nominee should get a majority vote, why didn't it apply to these 63 as 
well as those 4?
  And one other thing my learned colleague from Texas got up and said, 
hypocrisy is when you did one thing 10 years ago and do a different 
thing now. These were not 10 years ago; these were 5 years ago. I would 
ask but he is not here. Is it hypocrisy for the members of the 
Judiciary Committee on the other side, who never called these people 
for a vote, who deprived them of the principle of a majority vote, not 
to bring them up and now complain they want a majority vote for these 
four? I am not sure either measures up for hypocrisy. That is a strong 
word. But what is good for the goose is certainly good for the gander.
  The whole issue of majority vote----
  The PRESIDING OFFICER. Time controlled by the minority is consumed.
  The Senator from Pennsylvania.
  Mr. SPECTER. While the Senator from New York is on the Senate floor, 
I ask him to respond to a question, and that is, Does he consider this 
Senator a far-right extremist militant?
  Mr. SCHUMER. Is this on the time of the Senator from Pennsylvania?
  Mr. SPECTER. Yes.
  Mr. SCHUMER. Please repeat.
  Mr. SPECTER. It was argued a few moments ago with a chart, 168 to 4 
that only ``a far-right extremist militant'' would say that was an 
insufficient record.
  So my question to the Senator from New York is, Do you consider Arlen 
Specter a far right extremist militant?
  Mr. SCHUMER. I do not, in answering his question. But sometimes he 
has occasional lapses in his very fine judgment. And this is obviously 
one of those.
  Mr. SPECTER. Well, I do not know how the Senator from New York can 
say there is a defect in judgment when I have not asserted anything 
yet. All I asked, Mr. President, was a question as to whether he 
considered Arlen Specter a far right extremist militant. And he said, 
no, but sometimes there are lapses in my judgment.
  I will ask a followup question to the Senator from New York. In the 
absence of any assertion or statement of judgment, where are the lapses 
in my judgment at the moment?
  Mr. SCHUMER. I will say to my colleague, I heard him speak on this 
before, and when it comes to the issue of judicial nominees, where my 
colleague has usually quite good judgment, in recent months he is sort 
of edging way over to the right side, for reasons I am not sure of. But 
his normally sound and moderate judgment, in my judgment, when some of 
these nominees came up, has abandoned him, at least in this moment.
  I say to my colleague, any nominee who believes that Lochner--and my 
colleague is very erudite, so I do not even have to describe to him 
what it is--who says that Lochner was correctly decided does not belong 
on the bench, in anyone's book, and, my guess is, really in his heart 
of hearts, does not belong on the bench in the book of the Senator from 
Pennsylvania. I know he will dispute that, but seeing his record, I 
have admired his record. And a judge who believes that property rights, 
that zoning is taking----
  The PRESIDING OFFICER (Mr. Bunning). The Senator from Pennsylvania 
has the floor.
  Mr. SCHUMER. I was responding to the question.
  Mr. SPECTER. Mr. President, I do thank you for your intervention. I 
had not wanted to interrupt the Senator from New York by calling for 
regular order, which would be in order when the comments go beyond--far 
beyond the scope of the question. But I thank the Chair for his 
  I would ask the Senator from New York another question, and ask him 
to be as restrained in time as he can be because we only have a half an 
hour, for I was concerned the last answer might use up the entire half 
  When the Senator from New York made the comment that he questions my 
judgment, did he disagree with my judgment when President Clinton 
nominated Berzon to be a Court of Appeals judge for the Ninth Circuit 
and I joined with Democrats to get her confirmed?
  Mr. SCHUMER. As I said--and I will try to be brief; and I know 
neither the Senator from Pennsylvania nor I is known for brevity on the 
  Mr. SPECTER. Mr. President, that calls for a yes or no answer.
  Mr. SCHUMER. As I said, normally I think the judgment of my colleague 
is a good one. Berzon, in my judgment, the nomination of Judge Berzon, 
she was quite far to the left. But I spoke about this last night. I 
believe, at least, because President Clinton, by and large----
  The PRESIDING OFFICER. The Senator from Pennsylvania is not 
privileged to ask a question of the Senator

[[Page S14644]]

absent consent. The regular order is that the Senator from Pennsylvania 
has the floor.
  Mr. SCHUMER. I ask unanimous consent that he be allowed to continue 
asking me questions.
  Mr. SMITH. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. SMITH. I would like to speak.
  Mr. SPECTER. Mr. President, the Senator from Oregon will have time to 
speak. We are in a 30-minute sequence. I would follow up the question 
to the Senator from New York: Did he disagree with my judgment on 
agreeing for the confirmation of Judge Paez, along with the Democrats, 
nominated by President Clinton?
  Mr. SCHUMER. Mr. President, there was no--do we have unanimous 
consent? I did not hear.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I withdraw the question.
  The PRESIDING OFFICER. You withdraw the question.
  Mr. SPECTER. We will proceed with the debate.
  Mr. SPECTER. We have quite a number of people here who are already 
prepared to speak, and we will go on in regular order. But I asked the 
Senator from New York those questions because I think his assertion, 
when you hold up the chart with 168 to 4 and then say that only a far 
right extremist militant would question that, is grossly in error. I 
sought to illustrate it by asking the question as to whether Arlen 
Specter fits that bill of a far right extremist militant.
  The reality is that the 168 to 4 does not tell the picture. It is a 
misconstruction. Beyond the 4 who have been rejected by the filibuster 
by the Democrats, there are 5 others who are currently being 
filibustered; there are 14 others pending where the filibuster is 
imminent. President Bush has had only 63 percent of his appellate 
judges confirmed, whereas in similar circumstance for the past three 
Presidencies, there have been 91 percent confirmed.
  So the chart, which has been seen more often than the most activist 
commercials, simply is misleading. These filibusters have gone very 
deeply into the heart of the nomination power of the President. The 
tradition has always been that the President gets substantial latitude 
in selecting judicial nominees. And where you have a challenge in 
ideology, the Democrats have, in this proceeding, gone to a new level 
in filibustering circuit judges. It simply has never been done before.
  Last night, the Senator from Illinois made a comment that all the 
Republicans were doing here was theater. And I spoke shortly 
thereafter, and I agreed with him that this is theater. But it happens 
to be factual theater, and the theater is being utilized for a very 
important purpose; that is, to acquaint the American people with what 
is happening in the Senate on the politicization of judicial nominees.
  I outlined in some detail yesterday, and will summarize it only 
briefly, the business of it being difficult when the party in the White 
House is different from the party in the Senate, which is what happened 
during the last 2 years of President Reagan's administration, and all 
of the administration of President George Herbert Walker Bush, where 
the percentages were very low. Then, in the first 2 years of President 
Clinton's administration, the percentages were high because he had a 
Senate controlled by his own party. And when President Clinton made 
nominations in the last 6 years, the percentages again were low. So the 
fault has been attributable to both parties when one party controlled 
the White House and the other party controlled the Senate.
  But what has happened here more recently has been a new low. It has 
been a new low because for the first time there has been a filibuster 
of a circuit judge, which had never happened in the preceding 216 years 
of the Republic. And what we are doing here in this marathon--aptly 
named; it is not a filibuster, it is a marathon--is to call the 
attention of the American people to what has happened.
  I related the filibuster sequence back in 1987, which is worth 
repeating, because it illustrates the point about how these proceedings 
are effective in telling the American people what is going on.
  In 1987, there was a filibuster by Republicans on campaign finance 
reform. Senator Byrd was the leader of the Democrats. At about 2 a.m.--
one early morning--Senator Dole, the Republican leader, called us all 
back into the cloakroom, a few feet to the rear of where I stand now, 
and said he would request that no Republican Senator go to the floor, 
so as to compel the Democrats to maintain a quorum--51 Senators--
because in the absence of a quorum on the floor, any Senator may 
suggest the absence of a quorum and then there is no further business 
to be transacted.

  Senator Byrd then responded with a motion to arrest absent Senators, 
and the Sergeant at Arms, Henry Giugni, was armed with the warrants of 
arrest. The Sergeant at Arms started to patrol the halls, and the first 
Senator he found was Senator Lowell Weicker. Sergeant at Arms Henry 
Giugni was about 5 feet 6 inches and 150 pounds. Senator Lowell Weicker 
was 6 feet 4 inches and 240 pounds--in fact, still is 6 feet 4 inches 
and 240 pounds. The Sergeant at Arms decided not to arrest Senator 
Weicker, which I think was a wise decision.
  I note the Senator from Connecticut, Mr. Dodd, smiling. He was 
Senator Weicker's colleague at the time from Connecticut and I think 
would confirm the wisdom of not arresting Senator Weicker.
  So then the Sergeant at Arms started to knock on Senate doors. It is 
interesting how, when you tell a story, there is so much more attention 
paid to what is going on. People are snoozing here generally during 
this marathon.
  At any rate, Henry Giugni went to knock on doors, and he knocked on 
Senator Packwood's door, and Senator Packwood foolishly answered the 
door. Then Senator Packwood was carried, feet first, in through that 
door. I was in the Chamber at the time. They carried him feet first.
  This is a true story. You do not get many true stories out of 
Washington, but this is a true story. Even the pages think it is funny. 
It was really funny that night. It attracted a lot of attention. And 
that is what we seek to do here today, is to attract attention, because 
if the American people focus on what is going on with this filibuster, 
of the politicization of the judges, we think we can end it. And we are 
trying to make C-SPAN the channel of choice, to replace Jay Leno in the 
late hours.
  There are many people who are surfing as we speak. It is amazing how 
many people will even watch C-SPAN or get to C-SPAN inadvertently in 
surfing. And I would urge them to continue to listen because what is 
happening here is substantively important, and I think even more 
interesting than the soaps, or at least stay tuned for the next 20 
minutes, until after Senator Smith and Senator Sununu have had an 
opportunity to speak.
  I want to cover one other subject very briefly before yielding to my 
colleagues, and that is the subject of the quality of the nominees who 
have been filibustered. I will cite only one in the interest of time, 
and that is Miguel Estrada.
  This is a young man who was born in Tegucigalpa, Honduras. He came to 
the United States as a teenager. Really, it is the great American 
story. He went to Columbia, where he was Phi Beta Kappa and magna cum 
laude, and that is a considerable achievement. He then went to the 
Harvard Law School where he was magna cum laude and on the Harvard Law 
Review. That is a unique achievement.
  He then was a law clerk to two distinguished Federal judges, one of 
whom was on the Supreme Court of the United States. He then had a 
distinguished career as a practicing lawyer. Then he went to the U.S. 
Attorney's Office in the Southern District of New York. And I can tell 
you from my own experience as an assistant DA, that is a very valuable 
experience. Then he was an Assistant Solicitor General and had really a 
remarkable record.
  He was rejected by the Democrats on a filibuster and ultimately 
withdrew, and it was really because he was potentially a Supreme Court 
nominee. And the reasons given: the reasons were that he was a stealth 
candidate. But any fair analysis of his responses to other nominees' 
would demonstrate

[[Page S14645]]

that he answered the questions at least up to the standard level, and 
then the Democrats objected to his nomination because he refused--the 
administration refused to turn over memoranda he had written as an 
Assistant Solicitor General. But if those memoranda are to be turned 
over under that circumstance, every lawyer who is an Assistant 
Solicitor General or an assistant DA or in any legal position would be 
chilled by the prospect of having such memoranda disclosed at some time 
in the future when that individual was subject to the confirmation 

  Now, it is my hope that these proceedings will produce something 
useful by way of focusing the attention of the American people.
  I was on a radio program in Fargo, ND, for about 25 minutes earlier 
this morning, and these ideas have been spread across the country. It 
is my hope that the American people will communicate with the Senators 
on both sides of the aisle, both Republicans and Democrats. I think 
when the American people focus on this issue, there will be great 
pressure to change, to take politics out of the selection of Federal 
  I now yield to my distinguished colleague from Oregon, Senator Smith.
  I ask the Senator, how much time would you like?
  Mr. SMITH. Ten minutes.
  Mr. SPECTER. Done.
  Mr. President, how much time remains?
  The PRESIDING OFFICER. Thirteen minutes 20 seconds.
  The Senator from Oregon.
  Mr. SMITH. Mr. President, for those of you who may still be watching 
this debate, I know the suggestion has been made by our friends on the 
other side that essential work is not being done. This time, I assure 
you, what is being done is a lot of work, and it is being done 
currently in conference committees.
  What we are doing here, I think, is also very important. In terms of 
dialog and debate in our democracy, we have an important issue before 
us. You have seen the sign. It says: 98 percent. All these judges have 
been confirmed. It is important not to get locked into that number 
because what is being missed is whether we are upholding our oath to 
the Constitution only 98 percent of the time or 100 percent of the 
  In my view, my reading of the Constitution, it is that 
supermajorities are provided for in our Constitution in cases of 
Presidential vetoes, expelling a Member, and other areas.
  Mr. President, I listened to my friend from Connecticut last night. 
He made a very good speech. He talked about his boyhood and sitting 
here in the time of his father. I am sure he was listening to great 
civil rights debates, and the filibusters went on and on in terms of 
civil rights.
  But I will tell you, based on my reading of the recent book on Lyndon 
Johnson's life, by Robert Caro, ``Master of the Senate''--central in 
the fight among Democratic southerners and Democratic northerners, 
along with Republican northerners--there was the frustration over the 
issue of the filibuster. Hubert Humphrey and Clinton Anderson of New 
Mexico repeatedly began each session trying to change the rules on 
filibuster because they knew if they could not change them, then 
Senator Russell would make it impossible for them to break the veto and 
deny the African-American community civil rights in this country.
  What is the difference between that fight over a filibuster when it 
comes to a legislative issue such as civil rights versus an executive 
appointment or Executive Calendar issue such as we are dealing with 
  Well, I suggest that what has happened ever since the defeat of 
Robert Bork is each side is upping the ante and we are exalting now 
single-issue politics in our country in a way that I think truly 
disserves our country.
  There is an old maxim in the law that justice delayed is justice 
denied. It is a fact that many justices or judges have been confirmed, 
but the real potential exists not just to delay justice--and thereby 
deny justice--but to dumb down justice in our country. Let me tell you 
why I believe that this could happen.
  Right now, we are seeing the winnowing out of anyone in the law who 
is learned, well written, well spoken, and whose views are well 
revealed to the American people. I remember as a new lawyer listening 
to the debate in the Senate over Robert Bork. I remember as a law 
student, prior to that, particularly enjoying the writings of Laurence 
Tribe and Robert Bork. These two great legal scholars would debate in 
their writings over the word ``liberty'' and the proper role of judges 
in enforcing and providing for liberty.
  You couldn't find two scholars with more polar opposite positions 
than Tribe and Bork. But, I loved their readings. I had the feeling 
when I would read them that I was a part of the contest of ideas. I 
remember the feeling when Robert Bork was defeated that, doggone it, I 
would sure have given them Laurence Tribe if they would have given us 
Robert Bork. Because I knew the writings of our country's legal 
journals would be all the better if the judiciary could attract the 
best and the brightest.
  Now we are saying as the Senate, if you have strongly held views, you 
had better check them at the door. And, if you don't do that, you had 
better not expose them. We are saying to the judicial branch of 
Government--we, the Senate, the legislative branch--we don't want the 
best and the brightest; we want the mediocre, we want the mushy middle; 
we want those who are just going to go along and get along.
  I think we also disserve the marketplace of ideas when both parties 
ratchet up these politics. This is what has happened. The difference 
between the filibuster as it relates to the Legislative Calendar and 
the Executive Calendar is simply that we, the legislative branch, are 
now attacking the judicial branch.
  American justice will be the poorer for this because, you watch, when 
we have a Democratic President and a Democratic majority in the 
Senate--this will happen again--watch the filibusters come up. That is 
unfortunate because we have elections for a reason. This is an ebb and 
flow in American politics that is important.
  Am I suggesting we get rid of filibusters? I am not, but I am 
suggesting we have escalated this too high. I believe we are exacting 
single-issue politics, I believe we are delaying justice, and I believe 
we are dumbing down justice in America.
  The unspoken word here is the single issue of a woman's right to 
reproductive choice. The word is ``abortion.'' Every one of us has 
wrestled with that issue. I truly believe and I understand why a woman 
doesn't want the Government part of such a decision. I also believe 
there are times when life is so viable and so obvious that the law 
ought to protect that life.
  As I looked in the mirror and then presented myself to the people of 
the State of Oregon, I had to say: You know, I am pro-life. I am pro-
life with exceptions, but I am pro-life. My State is pro-choice. But, 
they had a right to know my position. I told them. Ultimately, I was 
elected anyway. I promised them I would not have a single-issue litmus 
test on judicial appointments.
  I am here to tell the people of Oregon, I have kept that promise. I 
voted for President Clinton's nominees who were pro-choice because I 
believe we should not let single-issue interest groups rule the day on 
an issue so constitutionally fundamental to the future of justice in 
our country. But that is what is happening here. That is why this time 
is so important, that we spend it debating and hopefully resolve this 
  Mr. President, I will not take more time. My colleague, Senator 
Sununu, deserves to be heard.
  I pray, I plead, I hope we can get beyond this as it comes to 
executive appointments, the Executive Calendar, because we are 
disserving America with this process that has now ratcheted up to a new 
level that is constitutionally dangerous.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SUNUNU. Mr. President, I very much appreciate the remarks of my 
colleague from Oregon and in particular the emphasis he placed on what 
the tone and the tenor of our current debate on nominees could mean for 
future nominees, for future qualification of those who might be 
interested in serving on the bench.
  As elected officials, we talk all the time about tenor in politics, 
big media,

[[Page S14646]]

and advertising campaigns, and all the rest that a modern campaign 
involves, and the way in which the introspection and intrusiveness of 
that process discourage good people from running for office.
  Anyone who has ever spent time looking at the political process is 
aware of that concern. It doesn't matter if you are running for the 
Senate or not; you could be running for school board or mayor or 
dogcatcher, for that matter; but people understand that there is a 
level of intrusiveness, an invasion of personal life, that discourages 
good people from running for office.
  There is not much we can do about that as a Senator, as an elected 
official, but there is something we can do about this process, the 
judicial nomination process, the vetting process, the approval process. 
If we allow this current tone and tenor to remain, then, as the Senator 
from Oregon has described, we will not only discourage good people from 
wanting to serve on the Federal judiciary to bring their judgment and 
intellect to bear, to help provide justice to those who deserve and 
need justice, we will even discourage people from engaging in debate, 
from putting their ideas out on the table, from writing, from thinking 
about different ways to look at or evaluate the law.
  I am not a lawyer. I am about as far from the law as one can get. I 
am an engineer by training, and I am proud of that fact. I understand 
the value of creativity, innovation, and debate, and the marketplace of 
ideas. When we have Members of the Senate come to the floor and say: I 
am voting against someone because I don't like the way they decided a 
case, that raises a red flag for me. If there is a specific case and a 
specific issue and you truly believe the way they decided the case 
means they are not capable, they are not fit, they are not qualified, 
that is fine, but let's not suggest for a minute that we will ever or 
should ever seek to find candidates who agree with us on every issue on 
every legal point.
  My constituents back home won't agree with me on every issue anytime. 
I don't think there is a member of my family who agrees with me on 
every issue. And we certainly shouldn't accept that kind of bar for our 
judicial candidates. What we should look for are qualifications of 
experience, intellect, or a sound, consistent case record.
  I think we have moved away from that. When we have nominees who have 
the support and endorsement of every paper in their State, liberal or 
conservative, or we have nominees for the judiciary who have received 
the support of 70 or 75 percent of the people in their State, liberal 
and conservative, or we have nominees who have demonstrated time and 
again, as we do, their commitment to uphold the law as written 
regardless of their own point of view, I think these nominees deserve 
the fairness of an up-or-down vote, and that is ultimately what I think 
is at stake here.
  We can look at the numbers and discuss whether or not there has ever 
been a cloture vote at a particular time or a particular place on a 
particular nominee, and we have had cloture votes before, but what is 
different about the current debate is that cloture votes have never 
been used in a partisan way to prevent a nominee from getting that up-
or-down vote on the floor. It certainly hasn't been used on the past on 
four, five, six, seven, or eight nominees. It is that process that I 
think has Members of this Senate, Democrat and Republican, and the 
public very frustrated.

  Technically, is it within the right of the minority to force these 
cloture votes? Sure. It is not a question of whether it is technically 
within the right of a Member of the Senate or the minority to engage in 
this kind of obstruction. The question is, Is it the right thing to do, 
is it the fair thing to do?
  Ultimately, it is important that we take a stand as to whether or not 
we believe it is right. I certainly do not. And ultimately the public 
will also be asked to decide whether they think this is appropriate 
behavior for their Senators and for their leaders in Washington, DC.
  I yield the floor.
  The PRESIDING OFFICER. The majority time has expired.
  Mr. SPECTER. Mr. President, that is what I was about to inquire. I 
thank the Chair.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Ms. STABENOW. I thank the Chair.
  Mr. President, every debate we have in the Senate comes down to a 
question of values and priorities for all of us, how we spend our time 
personally, how we spend our time in the Senate, where we choose to put 
our efforts.
  I wish to speak today about where I believe we should be putting our 
efforts if we are going to spend 30 hours of time speaking on the floor 
of the Senate.
  First, I remind colleagues again, lest we get lost in all of the 
discussion of what we are talking about, we have, since I have been in 
the Senate, approved 168 judges. We have confirmed 168 judges, and we 
have said no to 4--168 to 4. Almost every one of those 168 I voted for.
  We are talking about four people who currently have jobs who want to 
be promoted to lifetime positions as Federal judges. What I would like 
to spend my time talking about today are the 3 million people who don't 
have jobs. Three million Americans have lost their jobs during this 
same time period, in the last 2\1/2\ years.
  What I want to spend my time speaking about are the 162,000 people 
and more who have lost their jobs in the great State of Michigan, most 
of those in the manufacturing sector.
  I am very proud of the fact that Michigan is first in the Nation in 
the manufacturing of automobiles. About 31 percent of all of the 
automobiles that are made in this country and almost 17 percent of all 
the trucks made in this country are made in the great State of 
  I am proud of the fact that we produce about half the office 
furniture. Three leading office furniture manufacturers in the Nation 
are based in Michigan. I am proud of our tool and die makers. I am 
proud of everyone in our small manufacturing businesses. Most of our 
businesses are very small with under 20 people in auto supply and in 
the tool and die industry. I know they are under severe crisis today.

  We are under severe crisis in Michigan and in this country as it 
relates to our manufacturing economy. That is worth 30 hours of debate 
on the floor of the Senate. That is worth 30 hours of action on the 
floor of the Senate.
  We cannot afford to lose our ability to make products in this 
country. That is what we do in Michigan. I am proud of the fact that we 
make products, we grow products, and we do it well. Give us a level 
playing field for our businesses and our workers, and we will compete 
and win. That is not happening, and I am deeply concerned about the 
stories after stories I have heard.
  I wish to share a couple stories today. I look at the headlines: 
``2,700 jobs in danger as Electrolux considers closing Greenville 
refrigerator plant.'' This is in the Grand Rapids Press:

       Electrolux Home Products announced today it may eliminate 
     2,700 jobs at Greenville refrigerator plant and shift 
     production to Mexico.

  That is all too common a headline, and it is something that is going 
on in Michigan.

       Such a move would be a huge blow to the city of Greenville 
     and Montcalm County, where Electrolux and its predecessors 
     have long been the largest employers and among the largest 

  That is what we should be talking about: What is happening in 
Greenville and Electrolux.
  ``Ford sets a timetable for plant closings. Revitalization plan 
called for cutting 35,000 jobs.''

       Ford Motor Co. will close plants in Ohio and Michigan by 
     year's end and another in New Jersey in the first quarter of 
     next year.

  It goes on:

       Another factory in Ohio will end production in the next 
     four years.

  Not four people who already have jobs, but people who right now are 
working hard every day, 9 to 5 or longer, to earn a paycheck so they 
can have a good-paying job in the United States of America and send 
their kids to college, to afford their health care, to afford their 
house, maybe a cottage up north, which is something we like to do in 
Michigan, maybe a boat, maybe a snowmobile--those things that allow a 
good quality of life in our country. We are in danger of losing that 
when we lose manufacturing jobs.
  ``Straits Steel closing sad news for plant's 180 employees.'' This 
comes from Ludington.

[[Page S14647]]

  We read in the Lancing State Journal: ``Jobless rate could rise in 
the winter.'' There is more concern about what happens when we lose 
construction jobs in the wintertime.
  I receive a lot of letters from people writing me and asking for 
help. They would love to see us spending 30 hours on the floor of the 
Senate not only talking but actually doing something to save their jobs 
and to support our manufacturers.
  I would like to read you just one letter from Walker, MI:

       I am writing to you in the hope you will read my letter. 
     What I want to write you about is how much of our industry is 
     disappearing. Factories continue to close or lay off. 
     Often they leave the State and, even worse, they leave the 
     country. A lot of these are American companies, like 
     Lifesavers plant in Zeeland.
       Yes, we need bankers, lawyers, doctors, and computer 
     consultants. I am one. But that is not our strength. Our 
     strength is in our industry, in our farms, in our shops. I 
     live in Grand Rapids, MI, and I see a lot of construction, 
     but it is all retail and restaurants. How can we continue to 
     grow if we are all making only $8 to $10 an hour? Most of the 
     time you can't even make that. Henry Ford knew that he had to 
     pay his employees a living wage so that they could afford to 
     buy his cars.

  There is story after story coming from the State of Michigan, across 
the Midwest, and all across our country. They are asking for our help. 
With over 3 million jobs that have been lost--3 million, not 4--3 
million jobs that have been lost, what is the response of the 
administration? We have had to fight to stop them from taking people's 
overtime pay. Can you imagine, 3 million people lose their jobs and 
what is the response? Take away the other people's overtime pay.
  Then we have to fight to extend unemployment compensation for the 
people who have lost their jobs and are having difficulty finding new 
jobs. Of deep concern to me is what is happening as relates to a lack 
of a level playing field in China and Japan and other Asian countries. 
We know in the Banking Committee--and the esteemed Senator presiding 
today I know has expressed concerns as well as to what is happening to 
the currency manipulation in China and Japan. Effectively, we are 
seeing a tax on American goods and services sold in China and Japan, 
and they get a tax break here or a price break because of what they are 
doing. We need a level playing field.
  We asked the administration to do something; join us; we know it is 
happening, and yet they refuse to step up and join us in the tough 
efforts that need to happen to give our businesses the level playing 
field they need to keep jobs in America.
  We have seen a refusal to address the high health insurance costs. We 
need to create more competition with pharmaceutical drugs. We need to 
be working with our employers to lower health care costs, the No. 1 
pressing issue that has caused layoffs, that has caused people to pay 
more in deductibles and premiums and has caused businesses to struggle 
to survive.
  Let's talk about those issues that create jobs, that relate to our 
ability to have a standard of living that we have been accustomed to 
and deserve in this country. If people are willing to put in a day's 
work, they ought to be able to know there will be a good-paying job 
there so they can care for themselves and their families and they can 
do those things that will allow them to have the best possible life in 
this great country of ours.
  Finally, we have seen a continual block over and over on the issue of 
increasing the minimum wage. An awful lot of folks working for minimum 
wage are women. They are women with children. They are working minimum-
wage jobs, most often without insurance. They are paying for daycare. 
They are wanting to work and yet finding themselves in a situation 
that, no matter how hard they try, working 40, 50, 60 hours, they just 
can't make it because the minimum wage has not kept up.
  So it is very concerning that we have seen a continual effort to 
block a simple $1.50 increase in the minimum wage for 7 million people 
living in the United States of America, who work hard and play by the 
rules and assume that if they do that, they will be able to succeed and 
care for their families. Seven million people need our help today with 
a $1.50 increase in the minimum wage.
  Thirty-seven percent of those folks right now are seeking emergency 
food aid, and they are working. They are working, and yet they cannot 
make it and are having to ask for food assistance. So we over and again 
have asked for the support of our colleagues on the other side of the 
aisle to address those 7 million individuals who work hard every day 
and believe in America and want to be able to be successful.
  So I am very hopeful that we will be able to do that.

                   Unanimous Consent Request--S. 224

  At this time, I ask unanimous consent that the Senate now return to 
legislative session and proceed to the consideration of Calendar No. 3, 
S. 224, the bill to increase the minimum wage; that the bill be read a 
third time and passed, and the motion to reconsider be laid upon the 
  Mr. SMITH. Mr. President, I would ask that the Senator modify her 
request so that just prior to proceeding as requested, the three 
cloture votes would be vitiated, and the Senate would then immediately 
proceed to three consecutive votes on the confirmation of the 
nominations, with no intervening action or debate.
  Ms. STABENOW. Mr. President, I would object.
  The PRESIDING OFFICER. The Senator will not modify her request?
  Mr. SMITH. I would object.
  The PRESIDING OFFICER. The objection is heard.
  Ms. STABENOW. Mr. President, I am going to turn in a moment to my 
esteemed colleague from Connecticut who has been in this Chamber time 
and again, not only addressing the issue that brought us here but other 
issues as well. He is someone who has been fighting for those good-
paying jobs. He is a consensus builder and problem solver and somebody 
who knows how to get things done. I am very grateful to be sharing this 
time with him today because of the wonderful leadership he brings to 
the Senate and the way in which his work has touched so many lives of 
people in Michigan as well as across the country.
  In conclusion, I end as I started by saying what we do around here 
always relates to values and priorities. I hope we will choose to focus 
our time and attention on those things that affect the most people in 
our country, those things that are best to move our country forward and 
to keep the economic engine moving forward for all of us, that will at 
the end of the day allow us to say that what we did on the Senate floor 
today gave people an opportunity to work hard and create a better life 
for themselves and their families.
  We are losing the manufacturing sector in this country. We need a 
sense of urgency about that. We need to act to give our businesses and 
employees a level playing field and address those issues that will 
allow them to keep jobs in this country. I hope as we are debating 
about 4 people, we will remember 3 million people who are counting on 
us to act.
  I now yield time to my colleague from Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, first, I thank my colleague from Michigan 
not only for her work today but her tremendous contribution in the 
relatively short time she has been a Member of this body. We thank her 
immensely for her very balanced and deliberate approach. I thank her 
particularly for raising the issue she has today.
  While the subject matter defined by the majority is the question of 
judicial nominations, I think the point she has raised, that there are 
an awful lot of people all across this country who are--while they may 
be interested from an intellectual standpoint, even some maybe on a 
more passionate level on the question of judicial nominations, there 
are a significant number, the overwhelming majority, I think, of 
people, if asked how they would like to see the Senate of the United 
States allocate its time and resources, the Senator from Michigan has 
identified a subject matter that is of far more compelling interest to 
a larger number of people in this country, the issue of putting people 
back to work; what has happened to the closure of so many small 
manufacturing firms all across the United States that have seen their 
products no longer marketable in this country and elsewhere because of 
the onslaught of foreign products that have come in through misguided 
and failed

[[Page S14648]]

trading agreements we have reached, particularly with the People's 
Republic of China and elsewhere.
  So I thank her. I suspect there are an awful lot of people across 
this country who appreciated the fact that she took 15 or 20 minutes to 
talk about the 3 million people who over the last 29 months have lost 
their jobs in this country and who are sitting there today wondering 
whether or not they are going to be able to keep that home, whether or 
not they are going to be able to afford their children going on to 
college, whether or not if they get sick they will be able to pay for 
that illness, if they had a job that provided health insurance for 
  So I thank her and I suspect there are an awful lot of people across 
this country who appreciate immensely her determination to see that 
those jobs, not just the jobs of some people who were unable to have a 
vote on the Senate floor to confirm them for a judicial nomination, 
will be the consideration of this institution.
  I must say as well, I appreciate my colleague's kind comments about 
my efforts as a legislator. I try to take some pride in that. I think 
my colleagues on the other side know this. I work very hard to maintain 
my relationships with every Member. Regardless of what battle may ensue 
today, tomorrow is a new day and I always reach across the aisle 
wherever I can because I have never seen an issue in my 24 years here 
that had any value and merit be accomplished without it being 
bipartisan, ever. I defy any Member to mention a single issue of any 
significance that was ever adopted by this body that was not bipartisan 
in nature.
  When we lose our ability to do that, we not only suffer as an 
institution but the people we seek to represent suffer terribly. So it 
is critically important that we make those efforts.
  I have spent a lot of time over this last number of weeks trying to 
get something done on asbestos reform. My colleague from Michigan and 
my colleague from Oregon know of the efforts we made in this regard. It 
is terribly worrying to me that we are about to end this session. We 
have 700,000 lawsuits that have been filed for people who were exposed 
or could get ill from exposure to asbestos. Seventy thousand cases are 
being filed a year. There are major companies that have gone bankrupt 
because of the problems with exposure and the liabilities as a result 
of the asbestos issue. I would have hoped, maybe vainly, that we might 
spend some time on an issue such as that, candidly. I noticed to my 
colleagues the other day that while I voted against cloture on the 
class action reform issue, I immediately took the floor to say I am 
very interested in a class action reform bill and I am prepared to 
support one. There were issues that needed to be worked out.

  I know there are businesses all across this country that would like 
very much to see us address the issue of class action reform. There is 
nothing like 30 hours' worth of debate on class action reform. There 
will be no 30 hours of debate on asbestos issues here, unfortunately.
  So I say with all due respect--and I do respect my colleagues, all of 
them--that it is a reflection to some degree of what your sense of 
priorities is. There are a lot of issues that deserve attention, but I 
would ask any average American to identify for me, when given the 
choices to debate, whether or not we ought to do something about class 
action reform, something about asbestos legislation, something about 
joblessness, something about Medicare reform, prescription drug 
benefits. I have seen nothing even remotely close to 30 hours of debate 
in this Chamber on any of those issues at all--none, absolutely none.
  So while we in the minority cannot set the agenda, the power of the 
majority is the power to be recognized, and the power to be recognized 
means you set the agenda. Even though our ranks are only separated by 
two Members, the division of two Members makes it possible for the 
majority to decide what this Chamber will do, what this institution 
does, on a daily basis, on an hourly basis.
  The majority, in their judgment, have decided that this issue, the 
issue involving four judicial nominations, is far more important than 
anything else on which this Congress, this session, with hours away 
from terminating it, should spend its time and efforts.
  I do not disagree that this is an important issue. I think it is an 
important issue, particularly where we may be asked to vote on changing 
the rules of the Senate to either eliminate or virtually eliminate the 
right to filibuster judicial nominations. That is a profound question, 
and I just regret that it ends up being debated at 2, 3, 4, and 5 
o'clock in the morning and not something that ought to consume a 
serious debate in this Chamber as to the wisdom of such a potential 
move. I am not sure that amendment is going to be offered, or that idea 
will be suggested to us by tomorrow, but I have been told it will. I 
will come to that in a minute.
  I do think it is important that people wonder whether or not this 
body, or politics or Congress, ever gets it. One of the questions we 
all face from time to time when we conduct our town meetings is: Do you 
have any idea, Senator, what it is like to raise a family today, with 
all the pressures we are under? Do any of you in Congress--I do not 
care whether you are Democrats or Republicans--do you have any idea 
what we are going through out here?
  When we conduct 30 hours of debate about four judicial nominations, I 
sometimes think that question has a lot of merit, unfortunately.
  So I wish we were spending some more time on some of these other 
issues. Maybe we will get to them. Hope springs eternal, and I will 
keep trying to work on it. I have been asked to come and spend some 
time to protect our interests on the floor and so I will utilize some 
time, as I did last night, to talk about the issue at hand.
  I am terribly disappointed that we are spending the time of this 
institution on something such as this when we need to be spending our 
time, what little time we have, on so many other questions, that so 
many people in this country want to see us address and try to come up 
with some answer for. They know it is difficult.
  Look, what we love about this institution is also what galls us the 
most about it. The beauty of the Senate is not only the manner in which 
we do things but also the frustrations that are evoked as a result of 
how we do things. Had the Founders of this great Republic sought 
efficiencies, they never ever would have set up this system. The last 
system you would ever set up, if you were trying to get the job done 
expeditiously, is the one we have lived with for 217 years. This is a 
terribly frustrating system. It will drive you to madness watching it 
happen, particularly this institution of the Senate.
  When the Framers were debating the existence of a legislative 
branch--in fact, the idea was pretty much to have a unicameral system I 
think in the early discussions: One house, simple majority rules. I sit 
in the seat of a man by the name of Roger Sherman, from the State of 
Connecticut, who was one of those Framers of the Constitution, the only 
one of the Framers, by the way, to ever have signed all four of the 
cornerstone documents of the United States. He signed the Articles of 
Confederation, the Declaration of Independence, the Constitution of the 
United States, and the Bill of Rights. I am very proud to sit in his 
seat in the Senate, after 217 years.
  In that Constitutional Convention, it was Roger Sherman, my forbearer 
in this job, who suggested, along with Oliver Ellsworth from 
Connecticut as well, the creation of a separate body in the Congress of 
the United States that we have come to know as the Senate.
  The argument was about small States and large States. The fear was, 
for people who came from smaller States, that in the House of 
Representatives, since it would be determined by population, large 
States by population would so dominate the Congress of the United 
States that those who lived in smaller States would be overwhelmed. 
They were about to vote against the Constitution when Sherman and 
Ellsworth came up with the idea of a Senate, where every State, 
regardless of size, would have equal representation--two Senators from 
every State.
  My colleague from New Hampshire and I from Connecticut, small States, 
we have two Senators; my colleague from Michigan, a large State, and 
from California, two Senators. It is a rather beautiful system in a 
way. They went beyond the idea of just small States

[[Page S14649]]

and large States. The seed of the notion that there ought to be a place 
where the rights of a minority get protected was also included in this 
  In the House of Representatives, in which I had the privilege of 
serving for 6 years before coming to this body 24 years ago, the 
majority rules. If you are in the minority in the House--I do not know 
if my colleague from New Hampshire ever served in the minority in the 
House, but I certainly did not; I was always in the majority there--
being in the minority in the House is painful because it can roll right 
through you. What the majority wants to do happens. That is it.

  In this body, the idea was to create a place where the minority 
interests, including a minority of one, would have rights that you 
would never get in the House of Representatives. Hence the right of one 
Senator, if they stand up and can stand long enough and do not leave 
the floor, to have the right not to be interrupted, extended debate; 
the right to amend. It has been a wonderful balance. The rights of a 
majority are down the hall. The rights of a minority are here in this 
Chamber. We have tried over the years to see to it that those unique 
rights give us a sense of balance, what one of the Framers called the 
saucer--the Senate--in which the passions would cool, because the 
tyranny of a majority can be overwhelming. So the Senate was a place to 
say let's stop, let's take a look, let's think again about whether or 
not this is the right way to go.
  Now, if we go back and look at the genesis of the thought process 
that was involved in the creation of the Constitution in this Republic, 
a unique event in the history of mankind, certainly they had been 
through an experience where a king had been overbearing. Remember, two-
thirds of the population of this country in 1776 was not terribly 
enthusiastic about a revolution. Only about a third of the population 
thought that was necessary. As the tyranny of a king grew larger and 
people's rights were being deprived, taxations levied without their 
ability to be heard, they decided: We need to move away from that.
  So as this system evolved and a discussion of what it would look 
like, the last thing the Founders wanted to do was create an executive 
without some checks and balances on it, an unlimited tyranny of an 
executive. In fact, as I pointed out last night, there is ample 
evidence, of course, that when it came to judicial nominations, the 
Framers did not want to give the right to nominate to the President. It 
was only an afterthought that said, on judicial nominations, they ought 
to go to the President, and then the Senate would provide its advice 
and consent.
  I carry with me every day a copy of the U.S. Constitution. It was 
given to me by my seatmate Robert C. Byrd many years ago. It is a 
rather worn-out copy of this wonderful document, but I carry it with me 
7 days a week. I read it constantly. As I get older, my appreciation 
for the wisdom of these people grows deeper.
  It is very clear article III of the Constitution lays out judicial 
power, the judicial part of it. It says that people are appointed to 
the courts, supreme and inferior courts, and they will serve for life, 
during good behavior for life. It is unique. It is the only office in 
the country where one gets a lifetime appointment. The President does 
not. Members of Congress do not. A Federal judge gets a lifetime 
appointment. If you are appointed when you are 35 years of age and you 
live to be 85--50 years--unless you do something terribly wrong, you 
are there; you are not going anywhere.
  Of course, in article II, they lay out in section 2: He--speaking of 
the President--shall have the power, by and with the advice and consent 
of the United States Senate, to make treaties, and so forth. It goes 
on. And by and with the advice and consent of the Senate shall 
appoint ambassadors, other public ministers, and so forth, judges of 
the Supreme Court, and all other officers of the United States.

  Does anyone really believe for a single moment that the Framers of 
this unique document intended that the President, the executive branch, 
would appoint and that it was then the duty of this body to just 
rubberstamp that choice? Of course not. In fact, they did not even want 
to give him the power to appoint to begin with because they were uneasy 
about someone having too much power in their own hands.
  I suspect our predecessors probably had in mind what some of the more 
recent predecessors did with postmasterships.
  I remember my father talking about the postmastership appointment. He 
used to say that this was a dreadful idea, to give Senators the right 
to appoint postmasters, because he said inevitably you would have about 
100 applicants for the job. Of course, once they were confirmed, they 
could never get involved in politics again. So he used to say you would 
end up with 99 enemies who did not get the job and 1 ingrate who did 
who could never talk to you again.
  I suspect that may have been true as well about Federal judgeships, 
that our colleagues in the Senate, in the earliest days, probably said: 
Look, we do not want the business of having to nominate these guys 
because inevitably we are going to pick someone and the other guys are 
people who are going to be upset with us. So why do we not give that to 
the President, let him appoint them, and then we will decide whether or 
not they deserve to be confirmed.
  The notion somehow that one has a constitutional right to a vote--I 
have read this document; I read it every day--there is nowhere in this 
document one gets a constitutional right to a vote on anything, any 
more than the American people have a right to a constitutional vote on 
the minimum wage or on Medicare reform or any other matter I want to 
bring up. There is no constitutional right to that. There is certainly 
no constitutional right that if one gets nominated to be a judge, they 
have a constitutional right to be voted on. Nowhere does the 
Constitution give someone that, in any area whatsoever.
  The idea somehow that we would only apply a filibuster to legislative 
matters and not judicial nominations, so one can filibuster a sense-of-
the-Senate resolution----
  The PRESIDING OFFICER. The time of the Senator has expired. The 
Senator's half hour is up.
  Mr. DODD. I thank the Chair very much. I apologize to my colleagues 
for going a little bit. I appreciate the indulgence of the Chair.
  The PRESIDING OFFICER. Does the Senator from Alabama seek 
  Mr. SESSIONS. Mr. President, the Senator from Alaska is prepared to 
  The PRESIDING OFFICER. The Senator from Alaska is recognized.
  Ms. MURKOWSKI. Mr. President, I thank the Senator from Alabama for 
this opportunity.
  I join today with my colleagues in the Senate to address the judicial 
confirmation process and really the procedural quagmire in which we 
find this body right now. I take very seriously my obligation under the 
Constitution to provide the advice and consent to the judicial 
nominations of individuals who are nominated by the President to serve 
on the Federal bench. I have heard repeatedly over the hours the term 
``rubberstamp,'' there is a rubberstamp approval. Those on my side of 
the aisle would automatically take the President's nominees. I do not 
take part of my job to mean that my vote is intended to be a 
rubberstamp of approval for the President's nominations to these 
critical judicial positions.

  I am frustrated that after serving in the Senate for almost a year, 
and contrary to what some Members may assert, the Senate has not been 
permitted to vote up or down on the merits, on the qualifications of 
the individuals who are embroiled in this current dispute. Rather, we 
have been prevented, I have been prevented as a Member of the Senate, 
as an individual, from voting for or against a nomination by a 
legislative procedure, legislative procedural rules unique to this 
  We are engaged in the Senate in a historic session for not quite 24 
hours, during which time we have heard about the nomination process, 
the qualifications of certain individuals to be Federal judges, the 
need for jobs, unemployment issues--a variety of compelling, 
interesting significant issues. I bring to this debate this afternoon a 
new issue and explain why legislation I have proposed, along with 
several other

[[Page S14650]]

colleagues of the Senate, to split the Ninth Circuit Court of Appeals, 
why this is relevant and important to the debate today.
  The Senate has debated the qualifications and character of specific 
individuals to serve on the Ninth Circuit. As some would argue, by 
invoking the Senate procedures to filibuster the current judicial 
nominations, those on the other side of the aisle are simply trying to 
ensure the balance or the mainstream ideology on the U.S. court of 
  But there is little doubt in my mind they seek to maintain what I 
perceive to be philosophical bias on the Ninth Circuit Court of 
Appeals. For those looking for circuit courts whose actions may raise 
concerns about ideology and balance, I suggest my colleagues take a 
close look at the U.S. Court of Appeals for the Ninth Circuit. In the 
makeup of who is currently serving on the Ninth Circuit, the court 
currently has 9 judges appointed by Republican Presidents and 17 judges 
appointed by Democrat Presidents. I will put the Ninth Circuit record 
into a historical precedent, a recent historical precedent.
  During the United States Supreme Court October 1996 term, the Supreme 
Court found it necessary to review 28 cases decided by the Ninth 
Circuit. These cases from the Ninth Circuit made up approximately one-
third of the Supreme Court docket despite the fact that the Supreme 
Court has jurisdiction over 11 other Federal circuits and over Federal 
questions decided in courts of all 50 states.
  Of those 28 Ninth Circuit cases back in 1996, the Supreme Court 
reversed 27. Some could argue this reversal rate is simply the impact 
of a more conservative Supreme Court disagreeing with the Ninth Circuit 
on close questions. However, most of the reversals were unanimous. In 
fact, six were summary reversals. The Supreme Court did not even ask 
for briefing or oral arguments. The Supreme Court simply reversed the 
Ninth Circuit on the basis of the petition for certiorari. This 
lopsided reversal rate has since continued since that 1996 term.

  As we compare other circuit court reversal rates, it is helpful 
because it puts the Ninth Circuit into a context and helps us review 
the balance.
  In 1997, of those cases decided by the Supreme Court in a full 
opinion, the Supreme Court reversed or vacated four cases from the DC 
Circuit cases and affirmed five. Balance that against the Ninth 
Circuit, where in that same year the Supreme Court affirmed 3 cases 
from the Ninth Circuit and reversed or vacated 14.
  Let's go to 1998. The Supreme Court affirmed one case from the DC 
Circuit, vacated one case, and reversed no DC Circuit case. In 
comparison to the Ninth Circuit, in 1998 the Ninth Circuit was affirmed 
4 times and reversed or vacated 14 times.
  1999, the Supreme Court affirmed three DC district cases and reversed 
or vacated no cases from that court.
  In 1999, the Ninth Circuit in comparison was reversed or vacated 9 
times that year and affirmed only once.
  In 2000, the DC Circuit was reversed once and only had one case from 
that court to go up to the Supreme Court that year. The Ninth Circuit 
was affirmed 4 times, and in the year 2000 reversed or vacated 13 
  Over the last 3 years, one-third of all cases reversed by the Supreme 
Court came from the Ninth Circuit, the circuit that my State is part 
of. That is 3 times the number of reversals for the next nearest 
circuit, and a 33 times higher reversal rate than the Tenth Circuit.
  I suggest these statistics are astounding in their proportion. One of 
the reasons the Ninth Circuit is reversed so often is it has become too 
large and too unwieldy. It is a simple fact. The circuit serves a 
population of more than 54 million people, almost 60 percent more than 
served by the next largest circuit. By the year 2010, the Census Bureau 
estimates that the Ninth Circuit will preside over a population of more 
than 63 million people. According to the Administrative office of the 
United States Courts, the Ninth Circuit alone accounts for more than 60 
percent of all appeals pending for more than a year. The shear 
magnitude of cases brought before the court explains why it takes 
nearly 50 percent longer than the national average, almost 1 year and 4 
months, to get a final disposition of a case in the Ninth Circuit. It 
takes 5 months longer to resolve a case in the Ninth Circuit than the 
national average for a court of appeals, and the delay increased by a 
full month in 2003 compared to the time it took in the year 2001. Talk 
about justice delayed, this is it here in the Ninth Circuit.
  With such a huge caseload, the judges cannot possibly have the 
opportunity to keep up with the decisions within the circuit, let alone 
track decisions made in other circuits. I suggest that now is not the 
time to have vacancies on the bench in the Ninth Circuit.
  One of the individuals who is the subject of these 30 hours, Carolyn 
Kuhl, has been waiting for an up-or-down vote to the Ninth Circuit 
since June 22, 2001. There are many who believe the U.S. Court of 
Appeals, the Ninth Circuit, is out of touch with the mainstream. This 
is part of the reason that I support splitting the Ninth Circuit and 
part of the reason the Senate must complete the pending nominations.
  We only need to look back to March of this year when the Ninth 
Circuit decided that the Pledge of Allegiance was unconstitutional. 
Talk about a very graphic example of the Ninth Circuit being out of 
touch with mainstream America. The Senate, by a 94-0 vote, went on 
record expressing unanimous opposition to the Ninth Circuit decision in 
Elk Grove Unified School District. The U.S. Supreme Court shortly 
thereafter granted certiorari and briefs to be filed before the end of 
the year.

  Another part of the problem with the Ninth Circuit is it is never 
able to speak with one voice. All other courts have one entity to hear 
full court en banc cases. The Ninth Circuit sits in panels of 11. This 
system injects unnecessary arbitrariness to decisions. In an en banc 
decision, a case is decided 6 to 5. There is no reason to think it 
could actually represent the views of the majority of 24 active members 
of the bench. In fact, there are some commentators who have suggested 
that a majority of the 24 members of the Ninth Circuit may have 
disagreed with the pledge decision. But there was a concern that a 
random pick of 11 members of that circuit to hear the case en banc 
might have resulted in the decision being affirmed.
  The time has come to fill the vacancies in the Ninth Circuit and to 
enact legislation to split the circuit. We have heard again many times 
in the Senate over the course of these hours: Justice delayed is 
justice denied. That is most certainly happening in the Ninth Circuit. 
That is happening to the individuals who are pending before the Senate 
seeking confirmation of their judicial appointments. Filling the 
current vacancies would decrease the time it takes to resolve cases and 
would therefore provide better administration of justice.
  I see the Senator from Ohio is in the Senate, and I know he was to 
have a share of our side's time.
  Mr. SESSIONS. What is the time situation?
  The PRESIDING OFFICER. The majority controls 17 minutes and the 
minority controls 30 minutes allocated.
  Mr. SESSIONS. I yield to the Senator from Ohio for 10 minutes or so.
  Mr. VOINOVICH. How much time remains?
  The PRESIDING OFFICER. There are 16\1/2\ minutes.
  Mr. VOINOVICH. Mr. President, today I rise to talk about this body's 
treatment of President Bush's judicial nominations. This is not the 
first time I have been forced to come to the floor to protest this 
treatment, but I hope it will be the last.
  Over the past few years we have seen highly qualified nominees wait 
sometimes two years before their nomination reaches the floor of the 
Senate, only to see their records and reputations vilified for 
political purposes in the interim or to watch as cloture vote after 
cloture vote fails.
  And where has this filibustering and posturing gotten us?
  I want to underscore that one might question spending 30 hours on the 
issue of the Democrats using the filibuster to frustrate the Senate's 
right to advice and consent on presidential nominees, but we would not 
be here today if my colleagues across the aisle had not created a 
constitutional crisis with their use of the filibuster--and have

[[Page S14651]]

now driven us--in order to protect the Constitution to consider 
changing the cloture rules of the Senate.
  Beyond the constitutional crisis, there is a diminishing of the third 
branch of Government, the Judiciary, at the hands of the legislative 
branch that has serious implications for the people of the United 
  We have 12 judicial emergencies on the circuit courts of appeal. The 
President has done his job, nominating new judges for 11 of the 12 
appellate court vacancies. But the Senate has not done its job in 
confirming these judges.
  And there is a cost associated with these vacancies. The American 
taxpayers spend $5.1 billion for the federal judiciary every year. The 
American people are paying for fully staffed courts--not for political 
games. When courts are vacant and cases take longer than they otherwise 
could, lives are disrupted; businesses can be crippled, and financial 
resources are drained from the productive economy.
  My circuit in particular, the Sixth Circuit, is getting slower and 
slower as the obstruction continues. It has been plagued by political 
game-playing by my friends, the Senators from Michigan, who want to 
control who President Bush appoints to the circuit court vacancies that 
currently happen to exist in Michigan.
  Over the last 2 years, court delays in the already-slow Sixth Circuit 
have increased by nearly 2 months.
  In 2001, it took 28.9 months, that's over 2 years, in the Sixth 
Circuit for a case to go from original filing in district court to 
final decision on appeal.
  By June, 2003, it took 30.8 months. This 2-month increase difference 
may seem small, but there are more than 2,000 cases in the Sixth 
Circuit affected by this growing delay. With 2,000 plus cases being 
delayed nearly 60 days, more than 120,000 extra days have been spent by 
both parties waiting for a decision. What a waste of resources.
  I would like to draw your attention to a nominee who has faced the 
harshest of criticism from this body: Charles Pickering. I preface my 
comments on Judge Pickering, with a brief review of my civil rights 
record. The utility of this will be important in a few minutes.
  I have always been very proud of my record on civil rights. When I 
was Mayor of Cleveland, we created the first Minority Business 
Development Center operated by a city. As a result, minority 
participation in city contracts rose from 1.5 percent to 28 percent in 
the first 2 years.
  As Mayor, we also increased the amount of business the city did with 
minority and female businesses from less than $1 million per year to 
more than $90 million/year by 1989.
  We recruited and promoted more minority firefighters than any other 
administration in the city's history. We increased minority hiring on 
the police force by 63 percent in 5 years.
  We successfully defended our fire and police hiring program in a 
landmark U.S. Supreme Court case that established that prospective 
race-conscious relief for past discrimination is constitutional.
  I also lobbied Congress on behalf of establishing a Martin Luther 
King Day and made sure, as President of the National League of Cities, 
that it was properly celebrated across America. I was one of only 2 
invited to the inauguration of Martin Luther King Holiday in Atlanta.
  As Governor, we established the Governors Challenge Conference, to 
discuss positive human relations. We established the Disadvantaged 
Black Male Commission, which helped achieve a 200 percent funding hike 
for the Commission on African American Males; the Urban Schools 
Initiative, to improve accountability and performance in Ohio's urban 
school districts; and the Cleveland Scholarship Program, recently 
upheld by the U.S. Supreme Court, to give scholarships for low-income 
families and allow them to send their kids to the school of their 
  These are just a few of the civil rights initiatives I worked on 
before coming to the Senate. And yes, I broke ranks with my colleagues 
on this side of the aisle to support hate crimes legislation, and I 
have been working with one of my colleagues on the other side of the 
aisle on racial profiling legislation.
  I mention all of this now so that people know that I would not 
support a nominee such as Charles Pickering if I thought for one minute 
that he would undo any of the progress we have made in the civil rights 
area, or if I thought he would treat individuals differently because of 
the color of their skin.
  Judge Pickering has been a leader for equal rights, integration, 
inclusion and reconciliation in his community, church, political party, 
and state.
  As a county attorney in the 1960's, he worked with the FBI to 
dismantle, disrupt and prosecute violent members of the Ku Klux Klan. 
In 1967, he testified against the Imperial Wizard of the KKK for a fire 
bombing of a civil rights activist in Mississippi. That was not easy in 
  In 1976, he hired the first African-American staffer for the 
Mississippi Republican Party.
  In 1981, he successfully represented a black man falsely accused of 
robbing a 16-year-old white girl.
  In 1985, as President of the Mississippi Baptists he presided over 
the first Convention session addressed by an African-American pastor 
and the first African-American congregation to join and integrate the 
  In 1988, he chaired a race relations committee for Jones County, 
  In 1991, he worked with his son and son-in-law to integrate his 
former fraternity at the University of Mississippi. He helped establish 
and still serves on the Board of the Institute of Racial Reconciliation 
at the University of Mississippi.
  In 2000, he helped establish a group to work with at-risk African-
American youth in Laurel, Mississippi.
  Mr. President, in examining Judge Pickering's fitness for this 
judgeship, it is important to not only look at his record, but also his 
broad base of support from individuals of varying backgrounds and 
political affiliations.
  Judge Pickering has been endorsed by the current president and 17 
past presidents of the Mississippi State Bar. He has been endorsed by 
all major newspapers in Mississippi. He has been endorsed by all 
statewide elected Democrats and the chairman of the Mississippi 
Legislative Black Caucus.
  James Charles Evers, brother of slain civil rights leader Medgar 
Evers has said of Judge Pickering:

       As someone who has spent all my adult life fighting for 
     equal treatment of African-Americans, I can tell you with 
     certainty that Charles Pickering has an admirable record on 
     civil rights issues.

  Rev. Nathan Jordan, Pastor, St. John United Methodist Church and 
former President of the Forrest County NAACP:

       Without hesitation, I can truthfully say that Judge 
     Pickering is an extremely fair judge who serves all our 
     citizens. . . . It seemed to me that he pushed very hard to 
     insure the fair treatment of minorities.

  Ruben V. Anderson, the first African American Supreme Court Justice 
in Mississippi and former associate counsel for the NAACP stated:

       I have known Judge Pickering for at least a quarter of a 
     century. At all times I have found him to be an honorable 
     man. . . . Judge Pickering would be an asset to the Fifth 
     Circuit Court of Appeals and I recommend him without 

  There is no reason--no reason--as one looks at the qualifications of 
hundreds of people that this Senate has already confirmed over the 
years that Charles Pickering should not be sitting on the Fifth Circuit 
Court of Appeals.
  The reason he is not is because my colleagues on the other side of 
the aisle, for all intents and purposes, have modified the Constitution 
by filibustering his nomination and denying this man an up or down vote 
on the floor of the Senate.
  It is an outright violation of the advise and consent provision of 
the Constitution, and all Americans--Democrats and Republicans, 
liberals and conservatives--should demand that it stops now so that the 
judicial branch of Government can go about doing the job envisioned for 
it by the Constitution, and this body can get on with the other 
business of the people.
  This has to end--it has to end--and I prayerfully and respectfully 
ask my colleagues on the other side of the aisle to cease and desist 
their obstructionist tactics for the benefit of our Constitution and 
the people of the United States of America.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, will the Senator yield? He has been 

[[Page S14652]]

about the Sixth Circuit and this chart they have been placing in the 
  By the way, Mr. President, what is the time on this side?
  The PRESIDING OFFICER. The majority controls an additional 7\1/2\ 
  Mr. SESSIONS. They have been saying there are four judges being held 
up. But there are four being held up in the Sixth Circuit.
  This is a resolution just passed I believe yesterday by the Michigan 
State Senate, expressing concern about this. I would just like to read 
from it. I know the Senator from Ohio was concerned about this circuit. 
It is his circuit.
  They say:

       Whereas, The Senate of the United States is perpetuating an 
     injustice and endangering the well-being of many Americans. 
     Its actions are jeopardizing our system of justice in 6 out 
     of the 12 federal judicial circuits that have been declared 
     ``judicial emergencies,'' including the 6th Circuit Court of 
     Appeals which includes the state of Michigan. . . .

  They say:

       Whereas, The Senate of the United States is allowing the 
     continued, intentional obstruction of the judicial 
     nominations of all these nominees put forth by the President 
     of the United States, including four fine Michigan jurists: 
     Judges Henry W. Saad, Susan B. Nielson, David W. McKeague, 
     and Richard A. Griffin, nominated to serve on the United 
     States 6th Circuit Court of Appeals. . . .

  I ask the Senator from Ohio, isn't it true that the chart they have 
been putting up says four judges are being mentioned; it does not 
include these four judges whom they are also obstructing?
  Mr. VOINOVICH. They do not include those four judges who are being 
  Mr. SESSIONS. I will just point out, Mr. President, if the Senator 
will yield the floor----
  Mr. VOINOVICH. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I will just conclude by noting this is a 
very strong resolution from the Michigan State Senate. They say:

       Resolved by the Senate--

  That is the Michigan Senate--

       That we memorialize the United States Senate and Michigan's 
     United States Senators to act to end the filibusters of the 
     federal circuit court nominees pending on the Senate floor, 
     to release those being upheld in the Judiciary Committee of 
     the Senate of the United States, and to vote for the 
     bipartisan Frist-Miller Resolution. . . .

  I ask unanimous consent that this resolution be printed in the 
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Senator Cropsey offered the following resolution:

                       Senate Resolution No. 199

       A resolution to memorialize the United States to end the 
     filibusters of the federal circuit court nominees pending on 
     the Senate floor, to release those being held up in the 
     Judiciary Committee of the Senate of the United States, and 
     to support the reforms of the federal judicial confirmation 
     process, all which will be addressed during 30 hours of floor 
     debate this week.
       Whereas the Senate of the United States is perpetuating an 
     injustice and endangering the well-being of many Americans. 
     Its actions are jeopardizing our system of justice in 6 out 
     of the of 12 federal judicial circuits that have been 
     declared ``judicial emergencies,'' including the 6th Circuit 
     Court of Appeals which includes the state of Michigan; and
       Whereas the Senate of the United States is allowing the 
     continued, intentional obstruction of the judicial nomination 
     of all these nominees put forth by the President of the 
     United States, including four fine Michigan jurists: Judge 
     Henry W. Saad, Susan B. Nielson, David W. McKeague, and 
     Richard A. Griffin, nominated to serve on the United States 
     6th Circuit Court of Appeals; and
       Whereas there has never been a filibuster on any Court of 
     Appeals nominee in the history of the Senate. This 
     obstruction continues to harm the lives, careers, and 
     families of eminently qualified judicial nominees and is 
     prolonging the judicial emergencies that have compromised the 
     administration of Justice for many of our fellow citizens in 
     Michigan and around the country; and
       Whereas both of Michigan's Senators continue to block the 
     Judiciary Committee of the United States Senate from holding 
     hearings regarding these nominees. This refusal and the 
     refusal by many of their colleagues to allow the United 
     States Senate to complete its constitutional obligation of 
     advice and consent is denying all of the nation's 
     filibustered nominees an up or down vote on their nomination. 
     All the while, the severe backlog of cases is growing; and
       Whereas the 30 hours of debate on the floor of the Senate 
     of the United States aims to improve our judicial system by 
     attempting to end the filibuster on several nominees, and the 
     blocking of our Michigan 6th Circuit nominees, while 
     instituting necessary reforms in the judicial confirmation 
     process; now, therefore, be it
       Resolved by the Senate, That we memorialize the United 
     States Senate and Michigan's United States Senators to act to 
     end the filibusters of the federal circuit court nominees 
     pending on the Senate floor, to release those being upheld in 
     the Judiciary Committee of the Senate of the United States, 
     and to vote for the bipartisan Frist-Miller Resolution (S. 
     Res. 249); and be it further
       Resolved, That copies of this resolution be transmitted to 
     Michigan's United States Senators, The Senate Majority 
     Leaders, the President Pro-Tempore of the United States 
     Senate, and the President of the United States.

  Mr. SESSIONS. Mr. President, there has been a lot said here. I just 
want to share a few thoughts. This matter is, at its core, about the 
rule of law in this country. We have a system that believes judges are 
here to apply the law as written, they are not here to enforce their 
rules, their personal political agenda, do what they think is nice in 
every case.
  Clients have rights. If the rights they have protect them from 
lawsuits, they should be protected. If they are entitled to recover or 
be successful, they ought to be successful. It is up to the judge to 
apply the law fairly and objectively.
  President Bush has his hand on the heart of the problem. He 
understands what is wrong with the judiciary in America. He knows it is 
out of control. He knows we are allowing verdicts to run wild. He knows 
we have a radical secularization of America that is occurring through 
the power of the Federal courts. It is not healthy. We have things such 
as the Pledge of Allegiance being struck down. He knows criminal cases 
are being tossed over at record rates.
  Two judges we confirmed--Berzon and Paez--and I voted to give them an 
up-or-down vote, and I voted against them on the merits--these two 
nominees, in separate cases, struck down California's highly effective 
``three strikes and you are out'' law that has helped drive down the 
crime rates significantly in California. And I say that as a former 
prosecutor of over 15 years. Absolutely, that has had an impact in the 
reduction of the crime rate in California. They struck those down as 
  Mr. President, 170 death penalty cases have been overturned, as the 
Senator noted, by this Ninth Circuit, the most liberal circuit in 
America, and they struck down the Pledge of Allegiance. The U.S. 
Supreme Court has reversed the Ninth Circuit--in 1 year--in 27 out of 
28 cases; in another, 14 out of 17 cases. In fact, the New York Times 
several years ago, in a news article, said a majority of the Supreme 
Court considers the Ninth Circuit to be a rogue circuit.
  So what we are trying to do is come back to the mainstream. I am 
shocked that the distinguished Senator from New York, Mr. Schumer--who 
is really the point man on the advocacy of judicial activism in the 
Senate--I would submit this is what he said in this debate earlier, and 
I am just shocked by it. No wonder when I came in, I saw Senator 
Specter having his feelings hurt. Senator Schumer said:

       No one except a far right militant extreme minority 
     believes that the courts are being obstructed when 168 judges 
     are approved and 4 are not.

  So that is not the language of moderation. That is not the language 
of collegiality. They are accusing Members over here of being far right 
extremists because they do not agree with the filibuster tactics that 
are going on here.
  In another comment recently, on the Internet site 365Gay.com:

       New York's other Senator, Democrat Chuck Schumer [was 
     quoted as saying he] launched a broadside at conservatives, 
     accusing the President of ``loading up the judiciary with 
     right-wingers who want to turn the clock back to the 1980s.'' 
     Schumer said America is under attack from ``the hard right, 
     the mean people,'' and said ``They have this sort of little 
     patina of philosophy but underneath it all is meanness, 
     selfishness and narrow-mindedness.''

  That hurts my feelings.
  Mr. President, these nominees who are here who are being held up are 
not extreme. Janice Rogers Brown, an African American, who grew up in 
Alabama under racial discrimination, went to California, got her law 
degree at UCLA, a single mom, got elected to the Supreme Court of 
California, not a conservative State. She got 76 percent of the votes. 
Are these mean-spirited, selfish, narrow-minded people? Not Janice 
Rogers Brown, if you saw her testify, as I did.
  Carolyn Kuhl went to Duke Law School, graduated on the Law Review, 
clerked with Justice Anthony Kennedy

[[Page S14653]]

on the Ninth Circuit when he was on the Ninth Circuit, and has served 
for a number of years on the courts out there and has won bipartisan 
praise from those courts.
  Mr. President, I ask unanimous consent that I be given an additional 
3 minutes to be deducted from the majority time in the next section.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. SESSIONS. And Priscilla Owen. I guess they claim she is a right-
wing, mean-spirited person. Priscilla Owen graduated at the top of her 
class in law school, made the highest possible score on the Texas bar 
exam. She was one of the most successful legal practitioners in all of 
Texas. They asked her to run for the supreme court. She did. She won 
reelection with 84 percent of the vote and the support of every major 
newspaper in Texas.
  Bill Pryor, the attorney general from Alabama, got 59 percent of the 
vote in his reelection bid.
  These are people out of the mainstream of this country, right-wing 
extremists? No, sir. The values this country holds dear with regard to 
the legal system, that were bequeathed to us from the English 
tradition, need to be cherished and protected and valued. America 
understands this. Mainstream America is very troubled by courts that do 
not adhere to the traditions of how to interpret law in America. They 
do not believe judges are entitled to reinterpret the meaning of words 
and statutes, and in our Constitution to legitimate the perpetuation of 
a political agenda.
  That is what it is all about. President Bush understands that. The 
American people understand that. That is mainstream. The kind of 
allegations we have had here against these fine nominees is not 
mainstream. It is typical of the hard left that comes from the People 
for the American Way, the American Civil Liberties Union, and those 
kinds of groups.
  Mr. President, I feel really strongly about it. I believe the 
majority acted responsibly during the Clinton years. We did not 
maintain a filibuster against Clinton judges, as has been done now for 
the first time in history. That is what is occurring today, a 
filibuster, systematically, of a number of highly qualified judges for 
whom there is no basis to object on the merits.
  I yield the floor and I reserve the remainder of the time.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. KOHL. Mr. President, I have been in the Senate now 15 years, and 
I must say I never experienced what will be 30 hours, when this debate 
ends at around midnight tonight, that I thought were as off point and, 
in many ways, as not relevant to what we are talking about here--which 
is Federal judgeships in our country--as this debate has been.
  In my judgment, that is because our colleagues on the other side of 
the aisle have not wanted to deal with the facts and have wanted to, 
instead, try to create impressions which are not true. Because the fact 
is--and it has been said now on many occasions and many times since 
this debate started last night--the President and the committee have 
sent to the floor 172 nominees since he came into office, and we have 
voted out 168 of them positively, and 4 have been held up.
  So how can anybody claim that in fact there is a conspiracy to deny 
those nominees sent up by the President a vote? Mr. President, 168 have 
been voted on and are now sitting in their Federal judgeships, and 4 
have been held up.
  Furthermore, the vacancy rate at the Federal judgeship level is less 
than 5 percent. In other words, over 95 percent of all the Federal 
judgeships in this country are now presently occupied. When you have a 
vacancy rate of less than 5 percent, how can anybody make the argument 
that there is something sinister going on?
  Just a minute ago, my colleague from Alaska suggested that in the 
Ninth Circuit, because of the vacancies, apparently, justice delayed is 
justice denied. That phrase has been used time and again to suggest 
that perhaps a third or a half of all of the Federal judgeships in this 
country today are vacant. Again, I repeat, it is less than 5 percent. 
It is at its lowest point since 1985 in terms of vacancies.
  Now, on the Ninth Circuit, which was referred to by my colleague from 
Alaska, there are 25 circuit court judges who are supposed to be 
sitting, and there are but 2 vacancies at the present time. So how can 
we make the argument that justice delayed is justice denied because 
there are ``so many vacancies on the Federal judiciary''? It simply is 
not true.
  So what is the argument about? What are we spending these 30 hours 
on? To suggest that the Democrats are holding up the Federal judiciary 
by some vast conspiracy which, in fact, the numbers do not suggest in 
any way to be true?
  In fact, when President Bush took office, we did have a vacancy rate 
of about 12 percent, and now it is down, as I said, to less than 5 
percent, which is at its lowest point since 1985.
  So to my colleagues on the other side of the aisle, what is the 
point? Why are we spending 30 hours debating an issue which, in fact, 
is not an issue? If we want to debate ideology, that is an entirely 
different story. But that is not what this 30-hour debate is all about. 
It is about the assertion made by the other side that the Democrats are 
preventing our Federal judiciary from doing its job by decimating 
Federal judgeships all over the country.
  As I pointed out here, in the most clear manner, in an arithmetic 
way, the argument in no way has any merit. So I wish we could move on 
and talk about the things that are really important to the American 
people today, on which they are looking to us for leadership: Our 
economy, our deficit, our unemployment rate, our health care crisis, 
our educational crisis, the problems men and women who are leading 
their regular lives every day face and on which they are looking to the 
Federal Government for at least some help and assistance.

  They are not all hot and bothered about the fact that 4.5 percent or 
5 percent of the Federal judgeships in this country are today vacant, 
which is to say that over 95 percent are occupied. They are not 
concerned about that. They are concerned about their real problems and 
what we are doing to try to alleviate them. And here we are, taking 30 
hours and, in my opinion, just wasting it in talking about a problem 
which the other side alleges exists and does not exist.
  Finally, when President Clinton was in office, and the Republicans 
controlled the Senate from 1995 to the year 2000, nominees were also 
denied votes in that era. They were denied votes because they were not 
given hearings by the Republican Judiciary Committee. So they were 
denied their vote in much the same way that some are being denied a 
vote right now. That is the way the process works. There is nothing 
sinister about it, and it certainly does not cripple our country's 
judicial system.
  My colleague from New Jersey is, I believe, waiting to speak.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. I thank my friend from Wisconsin, Mr. President, and 
I was very interested in what he had to say. I thought it was right on 
the mark.
  The fact is, this is a clear example of misplaced priorities, those 
of the Republican leadership and the White House. It is hard to 
understand why there is such outrage on the other side of the aisle 
about these four people being denied a spot on the Federal bench.
  If they are worried--and I heard it requested here: Give these people 
a break. Be fair with them.
  They are worried about these four people being denied their 
opportunity, but there is an expense to putting them on the bench that 
is going to be felt by Americans across this country.
  What about the 3 million people who are denied jobs? What about the 
millions of jobless being denied unemployment benefits? What about the 
White House's attempt to deny millions of workers their overtime pay? 
What about lower income, working Americans being denied an increase in 
the minimum wage? What about the millions of women being denied their 
right to reproductive freedom by nine men surrounding the President 
when he signed the new anti-choice law? They took away a woman's right 
to make a decision, in concert with their doctor, about their health 
because these nine men--the male oligarchy--decided that it was 
appropriate that they take away a woman's rights.

[[Page S14654]]

  There was not one woman on the floor to defend that decision. Not one 
woman spoke about it. Not one woman in this picture or even in the 
other picture that was shown in the top newspapers across the country. 
Not one woman, but they are making decisions about women.
  I said the other day on the Senate floor, and I repeat it, I have 
three daughters, and I respect their judgment about how they ought to 
conduct their pregnancies and how they ought to live their lives to 
make sure they are healthy to take care of the nine grandchildren I 
have been blessed with, and not run any risk--my middle daughter is on 
her fourth pregnancy right now--not to run any risk that anything was 
amiss with her health that she couldn't take care of her three 
  What about the administration's attempts to deny our troops their 
imminent danger pay?
  I just came from Walter Reed Hospital with other Senators, and I met 
a couple of people there. One was a young double amputee from Rockland, 
MA. He was in Iraq 3 weeks. He has no hands. Part of one arm is still 
in place. Most of the other arm is missing. It is a tragedy.
  My guess is he was somewhere in his early twenties. He had been a 
member of the National Guard a few months and was called up from 
Rockland, MA.
  By the way, two of our Senators--one former and one present, amputees 
themselves; one with three limbs missing--went to Walter Reed to 
console this young man and encourage his spirit and his belief that 
life can be functional. Senator Cleland, now out of office, and Senator 
Inouye with an arm missing that he lost in southern Italy, went to 
cheer up this young man.
  What about them? We are using time here to talk about these choices 
when they are not choices. They are not qualified by the judgment of 
many. But why carry on this battle? Why this stick in the eye to the 
public at large when there are so many other issues about which to 
  I had a chance to be on TV this morning with one of our Republican 
colleagues. We talked about what was going on. He said: We are not 
losing any time. My duty was at 5 o'clock in the morning. What time did 
we lose? It occurred to me, what a foolish response. If it is important 
enough to be here at 5 o'clock in the morning, then why isn't it 
important enough for us to be taking care of what we have to in Iraq 
and getting those kids home and making sure we get as many allies as we 
can to pick up this burden we have and share it.
  Why can't we talk about that at 2 o'clock in the morning or 3 o'clock 
in the morning or 4 o'clock in the morning? I don't get it. Why can't 
we talk about 3 million jobs lost and talk about a way to adjust that 
situation--jobs lost.
  What about the administration denying photographers the right to 
honor our fallen heroes coming back in flag-draped coffins? When do we 
say the public doesn't have a right to honor them and remember that 
these people gave their lives on behalf of our country? Why is that not 
permitted? Why is it so obscure? We can't see them. They don't show the 
people what has really happened in the war. Maybe they won't think it 
is such a bad idea that we don't have the kind of partnership we ought 
to have over there fighting the battle.
  On Monday, I went to a funeral in Newark, NJ, of a young man named 
Joel Perez. He was a sergeant. He was on the Chinook helicopter, as was 
the man we visited this morning. There are bones broken all over his 
body, but he is glad to be alive. He is very happy to be alive. He 
knows what happened to the 16 others. They lost their lives.
  Since May 1, the President has found time for 36 fundraisers. How 
many families did he visit to console, to tell them he is sorry and 
acknowledge their bravery in serving? No, the debate is on four judge 
nominees. What do the American people think about that?
  Look at the majority leader's own Web site. He said he did a poll. 
The poll said: Should the President's nominees to the Federal bench be 
allowed an up-or-down vote on confirmation as specified in the 
  First error, ``as specified in the Constitution.'' I will talk about 
that in a minute. The poll answers came in: 60 percent said no, the 
President's nominees to the Federal bench ought not be allowed an up-
or-down vote if the opposition doesn't want to give it to them--60 
percent. But they quickly changed this Web site because they didn't 
like the answer they got. So they changed it to a more mealy-mouth kind 
of thing: Should we do it or shouldn't we do it? The Constitution says 
``advise and consent.'' It doesn't say consent and then advise, which 
is what they would like to see us do here. They would like to see us go 
ahead and say: Mr. President, that is what you asked for; that is what 
we are giving you. No, our responsibility in the minority and in the 
majority is to stand up for what we believe and what the people who 
sent us here want us to say, and if they don't want us to say it, then 
they will reject it at the appropriate time.
  This Senate spending 30 hours to talk about four judicious--judicial; 
they are not judicious at all--judicial nominees? Meanwhile, 3 million 
have lost their jobs since this President took office.
  I ask my colleagues to listen closely to this fact. In the private 
sector, two Americans have lost their jobs every minute that George W. 
Bush has been President. Two families without an income; two families 
where there may be some humiliation about an inability to go to work.
  I remember my late father who finally, in the desperate days of the 
Depression, had to take a job with the WPA. He was embarrassed about 
doing it because it looked like welfare. It was a job. The Government 
had created jobs. He was humiliated having to take that job, but he did 
it because he wanted to provide for me, my mother, and my little 
sister. He had to do it.
  What about those 3 million people? What are we doing to help them go 
to work? The latest survey shows there are a total of 8.8 million 
Americans currently unemployed; 3 million have lost their jobs since 
this administration took office; and the reality is this administration 
doesn't have a jobs plan. Not surprising. It has a bad record on jobs.

  Let's look at this chart of the last 80 years. It shows jobs gained 
or lost during administrations, in the millions. We have two 
administrations identified in red. By the way, those in green were 
Harding, Coolidge, Roosevelt, Truman--a variety. None of them, except 
President Herbert Hoover and George W. Bush, have lost jobs during 
their administrations. It is a sad commentary.
  The chart shows actual jobs gained or lost in the millions, and here 
we see there are 3 million lost.
  The two blobs on this chart are the administrations of Herbert Hoover 
and the current administration. When we look at this chart, there are 
only two administrations in the last 80 years that have resulted in a 
net job loss: this administration and Herbert Hoover's administration. 
I don't remember thinking about it during Hoover's time, but I was 
there at the time. I knew it was a disaster in my house.
  I would think the Bush administration doesn't enjoy sharing this kind 
of company, but the inaction of this administration on this issue makes 
me wonder if they understand the damage they are causing to the economy 
and families across the country. But we are taking 30 hours of time. 
The 30 hours don't belong to us. They belong to the people of the 
country. It belongs to our constituents.
  Taking 30 hours of the time of the Senate not to pass a jobs creation 
bill, not to pass incentives for companies to continue manufacturing in 
the United States, not to extend the unemployment benefits for people 
victimized by this economy--none of that. We are here to discuss a 
couple of extremist judicial nominees the President wants to force down 
our throats.
  President George W. Bush presented himself in the beginning days of 
his campaign and in the early days of his administration as being a 
uniter, not a divider, except that is far from the truth. I have never 
seen a more ideologically partisan White House, and I served with 
Ronald Reagan when he was President. I served with George Bush, Sr., 
when he was President. I served with President Bill Clinton. I have 
never seen a more ideologically partisan White House. This 
administration and my colleagues across the aisle are driven 
ideologically to the point that I think there is kind of an impaired 
vision to the simple, clear, and irrefutable facts.

[[Page S14655]]

  The Senator from Wisconsin said it. As of today, the Senate has 
confirmed 168 judicial nominees recommended by President Bush and 
blocked 4 in 3 years. President George W. Bush has gained more 
confirmations than President Reagan did in his first full term. Mr. 
President, 168 confirmed judicial nominees is particularly impressive 
because 100 nominees were confirmed when Democrats still controlled the 
Senate in the last Congress. We did our share, and we will continue to 
do our share, but we will not let the judicial system and the citizens 
of this country be taken advantage of, not if we can help it.
  This is a 98-percent rate of confirmation for President Bush's 
judicial nominees. That is an impressive rate. As I said before, the 
Constitution says that the Senate must advise and consent, not consent 
and then advise, which is what we would like to see happen here. It is 
the Senate's job to put a check on the President's appointments. If it 
were not, then the Founding Fathers would not have written the consent 
requirement into the Constitution.

  I think it is instructive to look back at the treatment of President 
Clinton's judges by the Senate. During the Clinton administration, 248 
Clinton judicial nominees were confirmed, and 63 were blocked from 
getting votes. That is 20 percent of all President Clinton's nominees, 
and now there are complaints from the other side because President Bush 
is not getting just 2 percent of his choices.
  During the Clinton administration, Republicans placed secret holds on 
judicial and executive nominees preventing many fine Americans from 
even having a hearing in the Senate Judiciary Committee.
  The Senator from Wisconsin is on the Judiciary Committee. He knows 
and everybody in this room knows that you don't have to have a 
talkathon to kill nominees. All you have to do is just not bring it 
before the committee, or if they go before the committee, not bring 
them before the Senate. That is the control of the majority.
  We did it differently when we were in charge. We processed most of 
the administration's recommendations.
  In total, 63 Clinton judicial nominees and more than 2,200 Clinton 
executive nominees were defeated by delay or no votes. These numbers 
are unchallengeable. We see it here: Clinton nominees from 1995 to 
2000, number confirmed, 248; nominees blocked, 63, 20 percent of the 
total. Of the Bush nominees, we processed 168; nominees blocked, 4; 
total, 2 percent. That is what is happening. And now to have this 
circus taking place with the crocodile tears about how we treated these 
nominees, and not one word about how we are treating the public. No, 
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. LAUTENBERG. No, I would like to finish, Mr. President. I am 
sorry. At such time as the floor shifts hands, I will be happy to 
answer any questions.
  The fact is, Democrats have used the filibuster only to block 
nominees with records of extremism. Americans deserve an independent 
judiciary with fair judges who will enforce their rights and uphold the 
law. Republicans want Democrats to blindly confirm result-oriented, 
agenda-driven judges whose rules of judicial interpretation change to 
meet their ideological agenda.
  It is pretty obvious, I guess, to the American people, we are not 
consenting. That is the choice and the right that the Founding Fathers 
gave us as Senators. I am not about to give up that right.
  I ask the Chair, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator from New Jersey has 4\1/2\ minutes 
  Mr. REID. Will the Senator yield for a question?
  Mr. LAUTENBERG. I will.
  Mr. REID. Through the Chair to the distinguished Senator from New 
Jersey, I ask my friend, we have spent--how many hours it has been 
since last night at 6 o'clock--talking about four people. I am sure the 
State of New Jersey, like the State of Nevada, and all 48 other States, 
has people who are unemployed. New Jersey is a very heavily populated 
State. Does the Senator from New Jersey think the people in New Jersey 
would care about our dealing with, for example, unemployment insurance 
where during the last 3 years we have lost 3 million jobs, or does the 
Senator think they would like to talk about some way to get jobs for 
the more than 9 million people who are unemployed in this country?
  Would the people in New Jersey rather we be doing that or what we are 
doing now?
  Mr. LAUTENBERG. I say to my friend from Nevada, I hear two principal 
concerns from the people in New Jersey: One, jobs; having to get to 
work because not only is it the deprivation of funds and the shortage 
of being able to afford, many times, the necessities, but it is the 
humiliation of not being able to provide for your family. That is what 
they talk about.
  Do you know what else they talk about in New Jersey? They talk about 
health care. They talk about prescription drugs. People in the senior 
community--and I happen to fit, thankfully, in that community--are 
concerned about the prescription drugs they can't get to sustain 
  We saw things in the paper today--I read these with great interest--
about the successful effects of a drug that is called Lipitor. I am not 
advertising any medication, but look in the paper and you will see that 
it has reduced the possibility of heart attack. People want those 
drugs. We have got to live this long because, A, we were lucky and, B, 
maybe because we had the right doctors and the right prescription drugs 
to keep us going. So that is what they think about.
  I have yet to have a call, that I am aware of, that said: Senator, 
for crying out loud, pass those four judges and, by the way, I am 
jobless, in case you should think about it; or: Pass those four judges 
and do not worry about the environment because we can stand some more 
toxic waste in our skies or on our ground. No, do not worry about those 
things. Senator, you just take care of getting those four people the 
job that the President and the Republican Party want them to have.
  To answer the question the Senator from Nevada asked--and I am 
reminded about this constantly--3\1/2\ million people, since January 
2001, have lost their jobs in manufacturing. It also breaks the 
economic structure that we desperately need. We need manufacturing jobs 
because those are decent-paying jobs. One does not have to have a 
college education there, or a master's degree, or anything like that 
for most of those jobs. It is for the people who want to go to work who 
have not had the advantage of getting the extended education.
  That is what they want us to talk about. They want us to talk about 
what is happening: Where are these jobs going that are leaving our 
shores? What should we do about it?
  Well, we do not have time for that debate. I have to remember to tell 
them that when they call up. Sorry, we cannot discuss jobs or 
prescription drugs, or your kid's schooling. We do not have time for 
it. We are busy, very busy, and we are under the gun, and that is to 
get our appropriations bills done and things of that nature. We have to 
get it done so that we can end this session and we can get back to our 
communities and talk to our people and do what we have to, to stay in 
touch. No, we do not have time for that.
  The PRESIDING OFFICER (Mr. Crapo). The time of the minority has 
  Mr. LAUTENBERG. Mr. President, I reluctantly yield.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, may I inquire how much time now is allotted 
to the majority side?
  The PRESIDING OFFICER. The majority has 27\1/2\ minutes.
  Mr. CRAIG. Mr. President, I recognize the Senator from Wisconsin is 
still in the Chamber. Let me say, in all fairness, I was listening from 
my office to the Senator when he asked how justice delayed is justice 
denied when the vacancy rate is so low. He also wondered why we are 
spending time on judges. I think his own words answer the question.
  Senator Kohl declared that the judicial confirmation process should 
not be about politics. In a quote in the Congressional Record of 1997, 
Senator Kohl said: We need these judges both to prosecute and sentence 
violent criminals and to prevent more backlogs in the civil cases.

[[Page S14656]]

  I think he also stated it was in our system where judges got blocked 
and that there was nothing sinister about it.
  Let me read a couple more of the Senator's quotes because we have 
been accused of hypocrisy on this floor and I do not think any of us 
ought to be accused of that. Different circumstances and different 
times oftentimes produce less than consistent quotes. My guess is that 
this Senator has been a bit guilty of that on occasion, too.
  In the Congressional Record of May of 1997, it says that Senator Kohl 
urged votes on nominees who had been approved by the Judiciary 
Committee. Let's breathe life back into the confirmation process, let's 
vote on these nominees who have already been approved by the Judiciary 
Committee, and let's see a timetable for future hearings on pending 
judges. Let's fulfill our constitutional responsibilities. Justice 
denied demands that that be at a minimum--and so forth and so on. I 
could read other quotes. My guess is that if we searched the Record, I 
would find quotes by myself.
  I come to this debate in probably a slightly different way than some. 
I am a freshman on the Judiciary Committee. I have spent plenty of time 
over the last year watching the inner workings of the Senate judicial 
nomination process. With all due respect to our colleagues on the other 
side of the aisle, there is an emerging trend in the process that is 
very disturbing to this freshman Senator on the Judiciary Committee.
  I refer to an effort by a select few to legitimize probes into the 
nominee's personal and political ideology, in addition to the nominee's 
judicial philosophy. That is, they would have us ask what the nominee 
thinks about such items as abortion, the death penalty, affirmative 
action, even though the future job of the nominee has nothing to do 
with what he or she thinks about these issues and everything to do with 
how the nominee would apply and enforce constitutional, statutorial, 
and common law in the cases involving those issues.
  Now, that ought to be very clear and it ought to be a clear 
difference between how one approaches a judicial nominee and how we are 
now approaching judicial nominees. Those who have mounted this crusade 
have tried to divert attention from serious constitutional problems 
this process poses. They have held straw hearings and brought in 
heavyweight legal scholars to say, of course, a nominee's political 
ideology should be considered in the nomination process in an effort to 
pass off. Everybody knows that sort of attitude. But the academic gloss 
quickly wears off when there is no substance underneath, and they find 
out this is not a probative debate on judicial philosophy, this is 
really raw politics of the first instance.
  In a 2001 Senate judicial committee hearing, the leading proponent of 
the personal ideology probe said this: For whatever reason, possibly 
Senators' fear of being labeled partisan, legitimate concerns of 
ideological beliefs seem to be driven underground. It is not that we do 
not consider ideology, we just do not talk about it.

  Now you talk about it openly. If you do not have the right ideology, 
you cannot make it to a vote on the Senate floor. You may be the 
brightest legal scholar in the country, with an absolutely gold-plated 
record, but if you do not walk the fine line of political attitude, 
political philosophy, you do not cut it.
  That Senator may truly not know that political ideology is not 
traditionally the subject of an extensive probe. However, I would 
submit that the rest of us do know the reason.
  Law students--I have never been one--in their first year of law 
school know the reason. They cannot tell you that when they are called 
into the class, but a professor makes it very clear that it does not 
matter what they think about the legal issue at hand but only what the 
law is on the issue and how they should apply the law. That is what a 
freshman law student finds out.
  From the very beginning, it is not the politics of the issue, it is 
the law: What does the law say, and how do you apply the law?
  We are in the Chamber today not about law. We are in the Chamber 
today because of politics, because these judges who have been 
responsibly nominated by a President, brought before the Judiciary 
Committee, with the highest possible credentials in almost every 
instance, gold-plated records in the judicial process, cannot now come 
to the floor for a vote, not even a simple up-or-down vote.
  Why? Because the other side has now established a litmus test of 
political philosophy, and if they do not meet it, they do not cut it. 
That is the bottom line.
  Our Democratic colleagues even know the reason. Let me tell my 
colleagues what Senator Pat Leahy has said. I am quoting him. I would 
not take him out of context. Nobody should take any Senator out of 
context. Here is what he said: We need to get away from a rhetorical 
and litmus test and focus on rebuilding a constructive relationship 
between Congress and the courts. We need balance and moderation that 
respects the democratic will and the weight of precedence. We do not 
need our Federal courts further packed with ideological purity. We do 
not need nominees put on hold for years while we screen them for their 
Republican associations.
  I guess the only thing I can say about that quote is: that was then, 
this is now.
  Senator Tom Harkin said: I thought that if the President nominated 
them, they had a fair hearing, and they were reported out, my own 
decision was whether or not they were qualified, not whether they were 
ideologically opposed to me or to how I feel about what they believe. 
Again, that was then, this is now.
  So then Senator Harry Reid said: I do not think we should have a 
litmus test on members of the subcabinet, the Cabinet, or the judges. 
But then again, that was Harry Reid then, not Senator Reid now.
  Although I myself have never studied the law, I know the reason, too. 
I am going to try to be as honest as I always am on the floor and as 
direct as I can be. When the nomination of Ruth Bader Ginsburg came up 
for the U.S. Supreme Court in 1993, I was confronted with a nominee 
whose past revealed that she had a vastly different political ideology 
than my own. My constituents from Idaho, in fact, made it clear how 
different she was in what she had done from the mainstream of my 
State's thinking. However, Justice Ginsburg was a judge of great 
ability, character, intellect, and temperance. Her record was replete 
with this evidence, and though at one time she had been a vocal 
advocate of particular political issues, she had a sharp understanding 
of the limit, of the character of the judiciary and the role she would 
play as a judge, a neutral arbiter, not an advocate.

  Well, I voted for Ruth Bader Ginsburg, not because she had the same 
ideology--my guess is she was here and I am there, and I think the 
record probably clearly demonstrates that, but I was convinced she was 
a bright legal mind who would, in fact, not be an advocate but a 
neutral arbiter.
  That is not the kind of judgment nor is that the kind of test that is 
being applied to the nominees who are before us now. It is raw 
politics, folks--nothing more, nothing less. It is a fine litmus test 
of the attitude on the part of the Democrats, and if it does not match 
the litmus test, they do not get the vote.
  Now and then, of course, we probably ought to make a few examples 
here to prove that you have that kind of power, or that you can exert 
that kind of power, even in fact when the advice and consent clause of 
the Constitution, in my opinion, and I think the opinion of a lot of 
constitutional scholars--of which I am not one--is that we advise and 
we dispose, or consent, and that you do that not by suggesting to the 
President that he can only send up those who meet the narrowest of a 
litmus test but those who meet the broadest and the most easily 
substantiable character, quality, training, expertise, and talent. That 
is what we want.
  Our Founders also understood the reason judicial nominees should not 
be subjected to personal ideologies. For instance, in Federalist Paper 
78, Alexander Hamilton underscored how important an independent 
judiciary was to the separation of powers:

       The courts must declare the sense of the law; and if they 
     should be disposed to exercise will instead of judgment, the 
     consequence would equally be the substitution

[[Page S14657]]

     of their pleasure to that of the legislative body.

  To guard against such legislative encroachments, Hamilton emphasized 
the need for qualified judges; that is, individuals who possess virtue, 
honor, requisite integrity, competent knowledge of the law, be of fit 
character, and those who have the ability to conduct the job with 
utility and dignity. Character and competence is what Hamilton talked 
of and was, therefore, the foundation of the judicial selection 
process. Consideration of an individual's independent political will 
would undermine it.
  Yet today, we have slipped into that morass of politics. We are not 
holding up individuals looking at them for the character of the 
individual and the quality of the legal mind and how they have 
demonstrated the use of that talent in their lifetime and through their 
professional ways.
  Those are the issues that are debated on the floor, and that is the 
substance of this debate. For the first time, this freshman on the 
Judiciary Committee is witnessing something unique, and that uniqueness 
is quite simple. We are now applying politics instead of the judgment 
of character to the judges the President is sending forth for us to 
  May I ask how much time remains on our side?
  The PRESIDING OFFICER. Thirteen minutes, 50 seconds.
  Mr. CRAIG. I yield such time to the Senator from Wyoming as he may 
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. THOMAS. I will not take much time. I have been listening, of 
course, as we all have, to the debate, some of it from the chair this 
morning. Nearly everything has been said, I suppose. Not all of us have 
said it, and so it is important that we all do.
  I am no expert in the judicial system. I am not on the committee. But 
I have been here and I have observed what has gone on throughout this 
whole last year. We keep talking about the fact that we ought to be 
talking about unemployment, we ought to be talking about a number of 
things, and I agree with that. We should have been doing that over the 
last year, but we spent a lot of time on this very issue right here on 
the floor when we could have been talking about energy; we could have 
been talking about health care; we could have been talking about all of 
those things.
  So I kind of hate to hear that this 30 hours is holding things up 
when we spent much more than that with the other side simply holding up 
moving things along.
  I am convinced there needs to be a system in the Senate we can depend 
on and work with, that we can bring it to a vote and decide yes or no. 
There has to be that system. That is what this is all about. There 
seems to be a lot of talk, of course, about the individual candidates 
we are talking about here who have not been able to be dealt with. But 
the real fact is it is the system that is in question. That is what it 
is really all about, and I think we need to deal with that issue.
  There has been obstruction, frankly. There has been obstruction on 
almost all of our issues. It has been called slow-walking. Some 
evidence of that from last year is that we did not even get a budget. 
Remember that? We did not even get appropriations through the whole 
  That same obstructionism has been going on this year. It is all 
political. It is too bad, really, because we have so much we can do and 
so much we really ought to do. We have a constitutional duty, of 
course, to provide the advice and consent of these nominations. It is 
pretty simple. The Constitution specifically requires a supermajority 
for overriding a veto, for impeachment, for ratification of treaties. 
Advice and consent is not in that category and has not been in that 
  As I said, I will not take long. Some of the past comments from the 
other side of the aisle I think have been interesting as time goes by. 
Let me quote from Senator Edward Kennedy from the Congressional Record 
in 1999, in September: Delays can be described as an abolition of the 
Senate's constitutional responsibility to work with the President and 
ensure the integrity of the Federal courts.
  Another quote: The delay has been especially unfair to nominees who 
are women and minorities, selected for that sort of business.
  Another from the Senator from California: I am very glad we are 
moving forward on judges today.
  We have all heard, as we were growing up, that justice delayed is 
justice denied. We have vacancies in many of our courts that have gone 
on for a year or 2 years, in many cases getting to a crisis level. I am 
pleased we will be voting. I think whether the delays are on the 
Republican or Democrat side, let the names come up and let us have a 
vote. Let us debate and have a vote. The Senator from California and I 
agree with that point of view.

  I yield the floor.
  Mr. CRAIG. Mr. President, I thank the Senator from Wyoming for his 
comments as we debate this issue. How much time remains on our side?
  The PRESIDING OFFICER. There are 9 minutes 40 seconds.
  Mr. CRAIG. I yield to the Senator from Utah 8 minutes.
  Mr. BENNETT. Mr. President, we have compared numbers around here, 
particularly the number of 168 to 4 over and over again. I make it 
clear that these two numbers are not in the same ballpark; that is, 
this is not 168 who have been approved and 4 who have been disapproved. 
There has been no vote disapproving the 4. Rather, it is 168 who have 
received a vote in the tradition and the precedent set and maintained 
for 214 years.
  The Constitution was ratified in 1789, and from that time forward 
there has never been an instance where a judge reported out of the 
Judiciary Committee, or whatever committees preceded the Judiciary 
Committee in the existence of the Senate, never been a time when a 
judge whose name has come to the floor has been denied a vote until 
this year. If you take apples and apples, if you take the number of 
those reported to the floor and voted on until this year, the number 
was 2,372-0 for 214 years. Whether it was under control of the 
Democrats or the Republicans, this body never denied a reported nominee 
a vote. Some of those who got votes got defeated, but no one who was 
reported was denied a vote until this year.
  We talk about the law. We talk about the Constitution. One of the 
parts of the law as I understand it becomes established is the question 
of precedent, 214 years of precedent, 2,372 cases of precedent upset in 
this Congress by the Democratic leadership.
  A lot of people have called a lot of people names during this debate. 
I don't want to do that. I was urged to do that just before I came over 
here by some who said: Why don't you say the kind of things about them 
they are saying about you or their nominees? Mix it up.
  I don't want to do that because I don't think that is useful. What I 
would like to urge on the Senate on this occasion is that we go back to 
a proposal that was made some years ago by the Democrats, specifically, 
Senator Lieberman and Senator Harkin, a proposal endorsed by Senator 
Daschle, that said let us eliminate the filibuster for nominees, start 
out with a 60-vote cloture motion, followed up with a second cloture 
motion at a lower level, follow it up with another cloture motion at 
another level, and so on. The Republicans did not endorse that. I am, 
today, rising to endorse that. I am today rising to say, we thought 
that rule change was not necessary because we thought the precedent 
would hold. But the precedent has now been broken. The precedent did 
not hold.
  The time has come to recognize the wisdom of Senator Lieberman and 
Senator Harkin and Senator Daschle and others to change the rules. The 
vote we will have tomorrow on what is now called the Frist-Miller 
proposal is a vote to endorse the wisdom and farsightedness of Senator 
Lieberman, Senator Harkin, and Senator Daschle in previous Congresses. 
And the practical effect of passing Frist-Miller will be to establish 
in the Senate rules a 214-year-old precedent that has been broken in 
this Congress for the first time. The effect would be to establish in 
the Senate rules a precedent that has held up 2,372 times, and has only 
fallen in this Congress. It will be a vote to make a bipartisan 
solution to a problem that has spawned far too much acrimony, far too 
much controversy. It will be a permanent solution to this matter.

[[Page S14658]]

  It will not solve the question of Miguel Estrada who was tired of 
having his reputation trashed and decided to withdraw and thus deprive 
the United States of the opportunity to have the services of a man who 
excelled academically, who excelled professionally, who, though he was 
appointed to the Solicitor General's office by the first President 
Bush, was maintained in that office for several years by President 
Clinton because they thought he was that good.
  Today he has been attacked on this floor as a lemon, someone who 
deserved to be rejected. We have fallen to that level of discourse, and 
we should avoid that level of discourse. Let us adopt a bipartisan 
solution which Republicans previously blocked. This Republican is 
prepared to repent. This Republican is prepared to say, OK, I recognize 
the wisdom of Senator Lieberman's proposal. I am willing to endorse it. 
Now it is before us once again. Let us not kill it just because it 
bears the name Frist-Miller instead of the names Lieberman-Harkin as it 
originally had.
  Give Members an opportunity to put the bitterness, the wild and 
sometimes excessive statements behind us and move forward in the future 
as we have done in the past for 214 years to see to it that any nominee 
who makes it through the committee process and gets reported to the 
floor gets voted on, whether he or she is a Republican or a Democrat, 
Hispanic or an African American, a Roman Catholic or a Jew or whatever 
the situation. If he or she survives the committee process and comes to 
the Senate floor, he or she deserves a vote in the same tradition that 
we have followed for 214 years.
  I yield the floor.
  Mr. CRAIG. How much time remains on this side?
  The PRESIDING OFFICER. There are 2 minutes 15 seconds.
  Mr. CRAIG. Mr. President, let me be brief and close. I see the 
Senator from Washington and the Senator from Wisconsin ready to speak. 
As the Senator from Washington engages this afternoon, I would like to 
quote some of her comments so they are fresh in her mind.
  Senator Murray raised the issue of the action on female and minority 
nominees was denying justice and holding the system hostage. On 
September 14, 2000, she said at a press conference: Our justice system 
is being held hostage and American communities are paying the price.
  Senator Murray went on to say at a press conference on September 14: 
This delay is especially troubling when we look at what happens to 
women and minorities. It is time to dismantle the glass ceiling and let 
qualified jurists take their place on the bench. We are here to send a 
message. Confirm the judicial nominees pending before the Senate and 
let these qualified men and women fill the vacancies of the courtrooms 
across America.
  That is a quote from the Senator who is about to address this 
afternoon the issue of the filibuster of the qualified judges who are 
before the Senate. I hope her statements of less than 3 years ago would 
be fresh again in her mind as she resumes the debate this afternoon.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, this morning on the Senate floor I spoke 
at length about the importance of the Senate's role in confirming 
judges for lifetime appointments and talked of the success in the 
Senate confirming 98 percent of the judges sent to the floor. We have, 
I remind our colleagues, confirmed 168 judges on the Senate floor. That 
is pretty impressive. But all the Senate action that is important to 
occur before the end of the year is now being held up over four judges.
  I also talked this morning about the success we had in Washington 
State using a bipartisan commission to select and confirm qualified 
judges. This morning I noted that we should be spending our time on 
much more pressing issues like helping the many unemployed workers who 
are about to run out of unemployment benefits.
  We are wasting 2 days of the Senate's very limited time left in this 
session on four judges. We certainly have more important things to do. 
We were supposed to pass 13 appropriations bills by October 1. We did 
not. Today, more than half the bills that fund the Federal Government 
are incomplete, waiting for congressional action. We have a lot of work 
to do that affects millions of families. But instead, we are wasting 30 
hours of the Senate, precious hours of time talking about four judges.
  What we are not doing is we are not helping laid-off workers in these 
30 hours. We are not improving health care. We are not fixing roads 
across this country. We are not improving the economy. We are not 
helping our troops. And we are certainly not improving veterans care. 
We are not doing anything for the millions of Americans who need help 
today because the other side is tying the Senate in knots so nothing 
can get done.
  What we are doing right now reminds me a little bit of the behavior 
back in 1995 when the other side did not get exactly what they wanted 
on the budget, so they shut down Government. Boy, we really heard from 
people across the country when the Government was shut down. Federal 
services were shut down, people could not get their Social Security 
check, agencies were shut down. The needs of every American were set 
aside at that time so Republicans could complain about a budget with 
which they disagreed.
  The same thing happened here today. The needs of every American are 
being set aside so Republicans can complain about four judges they want 
confirmed. Forget the laid-off workers, forget health care, forget 
education. The other side wants to make a point, and they are shutting 
down the Senate and the needs of the American people so they can make 
that point.
  Each passing hour on this floor feels more and more like the 
Government shutdown of 1995. We cannot work on critical needs because 
the other side is holding things up. After 30 hours of hearing about 
this, the American people will get it. They will see that we are not 
working on the things that really do matter to them. I am sure many 
Americans are scratching their heads, wondering what is going on in the 
Senate. The answer is, we are not working on jobs. We are not working 
on education. We are not working on health care because the majority is 
upset we have confirmed only 98 percent of President Bush's judicial 
  As I mentioned this morning, there are much more important things we 
need to be doing. We do need to extend unemployment benefits for laid-
off workers. I tried to bring up the bill to help laid-off workers get 
unemployment benefits, but when I bring it up the majority says it is 
not the right time to discuss helping laid-off workers.

  I invite the majority to explain to laid-off workers in my State who 
are going to exhaust their benefits on December 31 why we are talking 
about judges instead of helping those laid-off workers? These hours 
that we are wasting on this manufactured crisis could be much better 
spent on the real crisis facing so many Americans.
  Two weeks ago I introduced legislation to extend unemployment 
benefits to workers who will run out of benefits on December 31, right 
after Christmas. For millions of Americans who cannot find jobs, the 
clock is ticking and every day counts. Unless this Congress acts, those 
families are going to start the new year without a job and without any 
help paying for the basics like housing and food and medicine.
  Two weeks ago I introduced the amendment in the Senate. If the 
majority wants to vote against helping laid-off workers, that is their 
choice, but we are going to force them to take a vote because working 
families should not be punished any more than they already have been in 
this tough economy.
  Congress cannot leave town for the year--and many people are talking 
about ending next week--we cannot end next week without extending the 
benefits on which these many families rely. We have extended benefits 
in past recessions and we need to do it in this recession because the 
clock is ticking.
  In my home State of Washington, we have the third highest 
unemployment rate in the Nation. It is 7.6 percent. Since President 
Bush took office, we have lost more than 70,000 jobs in Washington 
State. Those laid-off workers want jobs. They are eager to work. In 
King County alone, 10,000 people are on a waiting list for job 
training. They want to provide for their families, but they are about 
to get cut off unless the

[[Page S14659]]

Congress does the right thing and extends unemployment benefits. If 
Congress does not extend those benefits, another 124,000 in my home 
State, Washington State, will exhaust their benefits by December 31. 
These families are draining their savings accounts just to hang on. 
Many of them have run out of options. But they still have to pay their 
mortgage. They still have to pay their medical bills. They still have 
to pay college tuition. That is why they need these unemployment 
insurance benefits.
  The bill I introduced will do three things. First, it will help 
families as they try to get back on their feet. These benefits simply 
will help them buy groceries, pay the mortgage, keep their kids in 
college. It will give them a little bit of cushion as they try to find 
  Second, extending benefits will help stimulate the economy in every 
State and every Member wants their economy to be better in their State 
because when we send the unemployment insurance, people then have the 
money they need to buy things for every day. That will be a shot in the 
arm for the hard-hit States, for our hardware stores, for grocery 
stores, and all of our businesses like that. It means these people will 
have the money they need to keep those businesses going as well.
  Finally, extending benefits will help stimulate our Nation's economy. 
Every dollar invested in these benefits generates another $1.73 for our 
  Laid-off workers deserve a vote on this bill. They deserve a debate 
on this bill. They deserve time in the Senate on this bill. They need 
our help. We should be using 30 hours of time to talk about the 
unemployed workers, the difficulties facing them, and how we in this 
Congress are going to get them back on their feet. That is what we 
should be spending 30 hours on.
  It seems to me at a time when we are spending $1 billion a week in 
Iraq, the very least we can do is give unemployed Americans a few 
hundred dollars a week. Congress cannot leave town without providing a 
life line to laid-off workers. The clock is ticking, time is running 
out, and we should be helping laid-off workers instead of squandering 
our limited time on the judges issues.
  To understand how serious this is, I will read some letters from the 
people I represent.
  How much time remains on my side?
  The PRESIDING OFFICER. The Senator has 21\1/2\ minutes.
  Mrs. MURRAY. I ask the Presiding Officer to notify me when I have 
used 6 minutes.
  The PRESIDING OFFICER. You will be notified.
  Mrs. MURRAY. Let me read a letter from Laura Perry in Battle Ground, 
WA, a small community in southwest Washington. Laura wrote:

       I really need to know what is being done not only in the 
     State of Washington, but in Congress to acknowledge workers 
     who have lost their jobs.
       Millions of us are going to lose our homes!
       Throughout my life, I have done all the right things to 
     stay current with the job market.
       In spite of this fact and having a college degree, I lost 
     my job after 9/11 when my company closed the northwest branch 
     office due to the economic downturn.
       Now, a year and one-half later, I find that I do not fit in 
     all the niches for acquiring employment retraining because I 
     am not on welfare, I haven't been employed by Boeing, I am 
     not a dislocated homemaker, and I am not a veteran.
       Please let me know what is being done to help the 
     unemployed in this country when the unemployment insurance 
     runs out.
       For the first time in my life, I am also without medical 

  I think Laura Perry deserves 30 hours of time on the Senate floor.
  Let me read a letter from Marshall Dunlap of Kent, WA, a suburb out 
of Seattle. He writes to me:

       Please support the upcoming bill to extend unemployment 
     benefits to those who have lost our jobs.
       It doesn't help the economy when millions of us are about 
     to become homeless.
       I would prefer a job but until the economy recovers I am 
     finding this impossible.
       I am a high tech worker and have no other skills.
       I am 53 years old and have very few options.
       For every job I apply for there are hundreds of other 
       Once the economy comes back, I'm sure I'll be able to 
     support myself but without help until that happens I will 
     lose my house.
       I know I am not alone so imagine the problem multiplied by 
       There are over 97,000 people unemployed in the Puget Sound 
     are alone. Please help.
  That is from Mr. Marshall Dunlap, in Kent, WA.
  I think Marshall would prefer we were spending 30 hours talking about 
how we are going to help him get back into the workforce and able to 
provide for his family.
  Here is a letter from Ronnie Harper of Kingston, WA:

       Thank you very much for working to extend UI benefits in 
     the state of Washington.
       I moved here 6 years ago to enter the technology market, 
     which I did immediately upon my arrival.
       Unfortunately, things turned sour at Hasbro last year 
     because people stopped buying toys, and I was laid off after 
     5.5 years of exemplary service.
       I have been working extremely hard over the past year to 
     find another job; a job that is in the IT industry with a 
     competitive compensation package.
       My efforts have been practically fruitless, with most 
     employers even refusing to discuss their reasons for not 
     considering me for their open positions, and many filling 
     posted positions internally.
       At this point, I am on my last week of unemployment 
     insurance, and I have mouths to feed. I hope very much that 
     this bill is successful, please keep us posted!

  That is from Ronnie Harper in Kingston, WA.
  Unfortunately, I need to add that since he wrote this letter to me, 
Mr. Harper has now exhausted his benefits. That is why I think this 
Senate needs to act and why we should be spending 30 hours of debate 
time talking about how we are going to help Mr. Harper.
  Mr. President, how much time do I have left?
  The PRESIDING OFFICER. Seventeen minutes 40 seconds.
  Mrs. MURRAY. Mr. President, let me add one final letter before I turn 
it over to my colleague from South Dakota who has been waiting in the 
  This is a letter from Bill Gilbertson of Sequim, WA. He says to me:

       Dear Senator Murray: Thank you for your support of S.1708, 
     Emergency Unemployment Compensation Act.
       Your comments to the Senate, describing the real life 
     problems of being unemployed will hopefully encourage passage 
     of this important matter.
       Please pass on my comments to your colleagues who don't 
     know what its like to be jobless.
       Life without a job is a demeaning experience; it affects 
     all aspects of your life.
       You have to be very careful with the little money you have, 
     only necessities can be considered.
       Fear, low self image, feeling of lack, and despair of the 
     future are some of the challenges you face when hit by 
       I have been unemployed now for over a year, it's been 
     tough, but I won't give up till I get a job.
       Extension of S. 1708 would really help me thru this.

  That is Bill Gilbertson of Sequim, WA.
  We are talking about real people facing real problems. I think it is 
essential that this Senate deal with this issue now.

                   Unanimous Consent Request--S. 1853

  Because of that, I ask unanimous consent, Mr. President, 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 on the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. CRAIG. Mr. President, reserving the right to object, I appreciate 
the concern of the Senator from Washington. The Senate is in session. 
The Senate is working. It is November 13. The timeline she has outlined 
is December 31.
  Mrs. MURRAY. Is there an objection?
  Mr. CRAIG. I therefore object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. MURRAY. I am deeply disturbed to hear that. The Senate is going 
to be out of session shortly. Everyone wants to finish by Thanksgiving. 
I am sure the letters I have read from a few of the people in my State 
reflect a lot of people's concerns that these people are going to be 
facing Thanksgiving without knowing how they are going to be paying for 
their mortgage, their food, and their basic necessities.
  The PRESIDING OFFICER. The Senator has used 6 minutes.
  Mrs. MURRAY. Mr. President, I yield to my colleague from South Dakota 
who has been waiting.

[[Page S14660]]

  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, I rise today to express not just my 
profound disappointment but, very frankly, my contempt for the 
outrageous political ploy the Senate Republican leadership is foisting 
upon this Senate and upon the American people.
  This is a monumental waste of time, every Member knows that, at a 
time when we have so much work to be done, to be wasting 30 hours--now, 
I understand, perhaps more than that--on a false, fabricated issue.
  On top of that, all of this, I am being told, is costing the 
taxpayers at least $100,000--taxpayer money for this political ploy to 
be brought to the floor. And as the media has said from all around the 
Nation, there is no judicial crisis in America at the Federal level. 
This is a fabricated crisis which, frankly, is a polite way of saying 
that what is being brought to the floor is a fake. It is phony. It is 
fabricated. At stake is not a principle; at stake is--let's face it--
  What is at stake is the far radical right of the Republican coalition 
with their vision of an America with no Social Security and no 
Medicare, no Federal role in the schools, what have you, a radical 
vision that very few Americans share. They have let it be known to the 
Republican leadership of the Senate here that they are going to not be 
as generous with their political contributions if they do not see more 
noise and more combat on behalf of a tiny percentage of judges 
nominated by the President.
  This, what we have here today, and last night, and on into the night 
tonight, is an incredibly cynical political ploy not worthy of the 
Senate, certainly not worthy of the American people, Republican or 
  The American people deserve better. They deserve better of this 
institution than what the Republican leadership has foisted on this 
country; and then, to add insult to injury, putting it on the credit 
card of the American people.
  So far, this President has had 168 Federal judges--virtually all 
conservative, Republican judges--approved by this Senate, and I have 
voted for most of them. So the question is not whether the Senate will 
approve conservative Republican judges--we have over and over and over 
again; 168--but the Constitution requires the Senate to provide advice 
and consent to this President or any President on these appointments, 
which are of a lifetime nature. This is not some Cabinet appointee who 
will come and go with whoever is President. These people will sit on 
the Federal bench for as long as they live, if they so choose. Much 
longer than virtually anyone in this Chamber will live, these nominees 
will still be there.
  If the expectation--which apparently is the logic of the opposition 
here today--is that anything short of 100 percent approval of these 
judges is out of compliance with the obligation of the Senate, then 
what does that say about our Republican friends' notion of what advice 
and consent is all about?
  Now, President Bush, obviously, with 168 successes to 4, could have 
100 percent success if he would send us mainstream, conservative 
Republican judges, which he mostly has done. But obviously he has taken 
the political tactic of rounding up a handful of judges who are 
absolutely beyond the pale and sending them here knowing they would be 
lightning rods, knowing they would energize the radical, political 
right in this country, and it would gin up political contributions. 
That is what this is all about.
  Now, when President Clinton was President, he was told: Do not send 
any liberals to be nominated for the bench. They will not even get 
hearings, much less votes on the Senate floor. And that turned out to 
be true.
  The Senate, because of our parliamentary rules, allows the minority 
party to exercise a 60-vote criterion on issues that are controversial. 
It is one of the reasons the Senate has long been the institution of 
moderation, relatively speaking, in the Congress, because while in the 
other body the majority of one allows them to jam almost anything 
through that body, on the Senate side we have an ability to enforce a 
certain level of bipartisanship because nobody can get anything done 
that is controversial without 60 votes. I would suggest that this is 
one of the geniuses of the Senate, that this is not the House of 
Representatives, that there is a certain level of consensus that is 
required to get things done in the Senate, and I believe that is what 
the American people want to see.
  Now, we respect the right of this President to nominate like-minded 
people to the bench. He has. And they have been approved--168 of them. 
But where those people, those nominees, fall outside of the broad 
consensual understanding of the Senate, and cannot get 60 votes, those 
nominees ought to be rejected.
  They will be easily filled by other no doubt conservative 
Republicans, but at least people who have the respect of the bar 
associations, of the Senators of their States, and who fall clearly 
within the mainstream of contemporary legal and political thinking.
  Mr. President, 98 percent of the administration's judicial nominees 
have been confirmed--98 percent. That is a good success ratio in almost 
any human endeavor, contrary to what you hear from the other side.

  Mr. President, 95 percent of Federal judicial seats are now filled. 
We currently have the lowest judicial vacancy rate in 13 years. If 
anything, this Senate ought to be patted on the back for its 
acceleration of judicial nominees the Judiciary Committee has 
considered and the floor has approved.
  Last year, the Senate, led by my colleague from South Dakota, Senator 
Daschle, confirmed the largest number of judicial nominees in a single 
year since 1994--a remarkable track record. So to stand this on its 
head and suggest there is some sort of an obstruction, some sort of 
interference with the process, it goes beyond outrage, it defies 
  Sometimes we hear: But what about the appellate judges? Well, the 
Senate has confirmed 29 of President Bush's circuit court of appeals 
nominees to date. More Bush circuit court nominees--get this, and this 
is the highest Federal court until you get to the Supreme Court--than 
Clinton, Reagan, or George Herbert Walker Bush had by this point in any 
of their administrations.
  We also hear that this process requiring 60 votes, this process 
requiring bipartisanship on judicial nominees for their lifetime 
appointments, is some unprecedented sort of thing. Well, that is far 
from the truth.
  Our Republican friends required 60 votes on 6 Democratic judicial 
nominees on the floor and filibustered 63 nominees in committee. So 
there is nothing unprecedented that is going on here. What is happening 
is there is an enforced bipartisan, an enforced moderation that I think 
is good for the country, and certainly good for the Federal bench, at a 
time when this country is narrowly divided, at a time when we are 
approving people who will serve on that bench for a lifetime.
  What is sad is that while these hours are being devoted to a 
fabricated fake crisis that has to do with political fundraising, we 
are not getting on with the issues of jobs, of education, of health 
care, and prescription drugs. We have an Energy and Medicare bill in 
conference, but they are both on life support as we speak.
  The budget, which was supposed to have been done by October 1, the 
first day of the Federal fiscal year, has not been done. It is not even 
close to having been done. And yesterday Senator Byrd, our colleague 
from West Virginia, noted that this week, the week of Veterans Day, the 
Republican leadership insisted we shut down the debate on the Veterans 
Administration legislation appropriations bill in order to consume this 
time on this issue. The American people deserve better than that.
  I have to wonder if the other side that concocted this cockamamie 
scheme has any shame at all, to have done this to the American people, 
and to have done this to this institution. We ought to be talking about 
the jobless economy that continues to drag on. The economy would now 
have to create 326,000 jobs every month to keep the Bush administration 
from having the worst job creation record of any administration since 
the Great Depression.
  As of October 2, 2 million people have been unemployed for over 6 
months, more than triple the number at the beginning of the Bush 
administration. That remains the highest level in 10

[[Page S14661]]

years. Almost 5 million people work part time because of the weak 
economy. This is an increase of 44 percent since January of just 2001--
the highest level in almost 10 years.

  Talk about crisis. Talk about the need for attention. What about an 
increase of 44 percent in part-time workers and record high 
unemployment? Mr. President, 24,000 manufacturing jobs were lost last 
month alone. Imagine that, 24,000 manufacturing jobs just last month 
lost. And in too many cases, those jobs are not coming back.
  Talk about crisis. That is what this body ought to be talking about. 
According to job placement firms, planned layoffs of U.S. companies 
shot up to 172,000 jobs in October from 75,000 in September. Announced 
layoffs are at their highest level since October 2002, when 176,000 
jobs were cut.
  Recent studies suggest that jobs lost since 2001 are now gone for 
good. A study by the Federal Reserve Bank of New York has concluded 
that the vast majority of job losses since the beginning of the 2001 
recession were the result of permanent changes in our economy and are 
not coming back.
  The labor market is not going to regain strength until positions are 
created in new economic sectors. The surge in discouraged workers masks 
the true impact of the economic downturn.
  Currently, 1.6 million people are marginally attached to the labor 
force; about 462,000--almost a half million of these workers--have 
stopped looking for work altogether because they do not believe there 
is any work available.
  African Americans and Hispanics bear the brunt of the economic 
downturn. During a month with a net gain in jobs, the unemployment rate 
among African Americans jumped to 11.5 percent in October, about twice 
the national average. The unemployment rate among Hispanics, 7.2 
percent, is far higher than the national average.
  This anemic job creation of the last month provides about 25,000 
fewer jobs than are required to even keep up to the new entrants into 
the labor market. We actually lost ground this last month, meaning 
young people leaving high school and college cannot find work in too 
many cases. In addition, average hourly wages increased by 1 penny last 
  So when we talk about urgency, when we talk about a crisis, we need 
to get past the right-wing politics and get back to political 
moderation, which is what this 60-vote requirement requires of this 
body, and we ought to get back to the real issues the American public 
want the United States to be considering.
  The PRESIDING OFFICER. The time of the minority has expired.
  Mr. JOHNSON. I yield the floor.
  The Senator from Mississippi.
  Mr. LOTT. Parliamentary inquiry, Mr. President: I believe there will 
now be another hour, 30 minutes to the Republican side of the aisle, 
followed by 30 minutes to the Democratic side of the aisle.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LOTT. Under that agreement, I am glad to yield such time as he 
may consume to the distinguished senior Senator from my great State of 
Mississippi, Mr. Cochran.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. I thank the Chair. Mr. President, I appreciate my 
colleague yielding me time.
  Back in 1787, with a great deal of disenchantment around the country 
with the Articles of Confederation, a new Constitution was written to 
bring all the States of the Union into a workable bond. One of the 
fundamental principles reflected in that Constitution, as explained in 
the Federalist Papers, was majority rule. It was a difficult concept 
because the States were not all the same size, and the Senate would 
have two Members from each State.
  There were situations that could develop when a minority of Senators, 
or Senators reflecting a minority of the population, could actually 
cause a decision to be made in behalf of all of the people of the 
country. So there are controversies surrounding that principle. But it 
was a fundamental maxim that is reflected in the Federalist Papers.
  One other complicated factor is Gov. George Clinton of New York was 
strongly opposed to ratification of the Constitution. The Framers 
thought if he prevailed, then it might kill the effort to ratify the 
Constitution and get the country moving forward to fulfill the hopes 
and aspirations of the Framers.
  Alexander Hamilton was also from New York, and he took the lead in 
crafting some essays that were published in newspapers in New York to 
convince the general public and, through them, the legislators who 
would vote on ratification that the Constitution was a good idea for 
the country. He was joined, of course, by James Madison and John Jay. 
They all collaborated, contributed to the essays published under the 
pseudonym Publius, and they were persuasive.
  That majoritarian principle has been carried down through the years 
in our country, in our Government, in our Federal system. Now only in 
exceptional circumstances is more than a majority needed on any 
particular issue. As a matter of fact, the Constitution itself States 
that supermajority voting requirements exist only in certain specific 
circumstances. Confirmation of judges and other high-ranking officials 
in the administration are not among those instances where a 
supermajority is required by the Constitution.
  The Framers were committed to the majority-rule principle, and the 
rules of the Senate carry forward that principle. But this year, the 
Standing Rules of the Senate are being used in an unprecedented way to 
impose a supermajority requirement of 60 votes to obtain confirmation 
by the Senate of Presidential appointments.
  Article II of the Constitution creates a unique relationship between 
the President and the United States Senate in the selection of people 
to serve in the Government. It provides that the President ``by and 
with the Advice and Consent of the Senate, shall appoint'' and then it 
lists those that come under this section.
  Section 2 of article II actually contains the exact language. It is 
instructive to be reminded what the Constitution itself says:

       He shall have Power,--

  The President--

     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, other public 
     Ministers and Consuls, Judges of the supreme Court, and all 
     other Officers of the United States, whose Appointments are 
     not herein otherwise provided for, and which shall be 
     established by law; but the Congress may by Law vest the 
     Appointment of such inferior Officers, as they think proper, 
     in the President alone, in the Courts of Law, or in the Heads 
     of Departments.

  It is very clear, in my mind, that this majority principle is 
supposed to apply and obtain in the votes for confirmation as described 
in section 2 of article II of the Constitution.
  The filibustering of nominations is a new development. Prior to this 
year, the number of cloture votes taken on any executive nominee was 
three, and on any judicial nominee, it was two.
  The cloture rule was adopted by the Senate in 1917. This was the 
first time Senators were guided by a procedure for bringing a debate to 
a close on any measure, motion, or other matter pending before the 
  Over the next 51 years, no judicial nomination was filibustered, and 
not one cloture vote was required to end debate on a judicial nominee.
  The minority has begun a process that only history will be able to 
judge, but I fear--I genuinely fear--that nominations in the future by 
any President will be denied confirmation unless they can muster 60 
votes to win approval by the Senate. That is not what the Constitution 
requires. That is not what the rules of the Senate require. A 60-vote 
requirement for the confirmation of Federal judges is not consistent 
with the history and the practices of the Senate. It must be rejected.
  If we are unable to prohibit this practice by a change in the Senate 
rules, we will find it harder than ever before to attract talented and 
well-qualified candidates to serve in the Federal judiciary.
  The PRESIDING OFFICER (Mr. Smith). The Senator from Mississippi.
  Mr. LOTT. Mr. President, I thank my distinguished colleague from 
Mississippi for his comments. He has

[[Page S14662]]

shown, once again, he is a student of the Constitution and of the law. 
I hope our colleagues found his speech to be informative, and I keep 
hoping and praying that there will be a change of heart and mind in how 
we deal with this issue.
  Mr. President, the debate that has been taking place for nearly 24 
hours is the culmination of 9 months of obstructionism by a minority of 
Senators who have subverted the Constitution's advice and consent 
provisions and undermined the very fundamental tenets of democracy.
  It is an elementary principle of democratic government that the 
majority determines the outcome of political questions. Certainly the 
minority has a right to state it's case and have input into the issues. 
But at the end of the day, when the final decision is at hand, a 
majority decides the outcome.
  Yet in the 108th Congress we have seen an unprecedented attack on 
this core principle of democracy. Instead of majority rule as our 
governing principle, we have the rule of the minority. Four nominees to 
the Courts of Appeal are supported by a clear majority of Senators. Yet 
a minority of Senators refuses to allow the Senate to vote on these 
  The Founding Fathers well recognized the dangers inherent in granting 
a minority a veto over the will of the majority. James Madison, in 
Federalist 58 pointed out that the Constitutional Convention explicitly 
rejected the idea that Congress be required to adopt a supermajority 
quorum to transact business. He warned that the ``fundamental principle 
of free government would be reversed,'' if we allowed a minority to 
overrule the majority.
  Why is majority rule the ``fundamental principle of free 
government?'' Simply stated, Mr. President, if the will of the majority 
is not the prevailing principle, then it is legitimate for one person, 
whether a king, or autocrat, to determine the fate of political 
society. Our Founding Fathers rejected that idea and all of American 
society has rejected that concept since 1776.
  Unfortunately, what we have witnessed over the past 9 months in 
connection with the nominations of Miguel Estrada, Priscilla Owen, 
William Pryor, and Charles Pickering is a hijacking of the Senate's 
constitutional responsibility to advise and consent on the President's 
nomination and to accept the idea of majority rule.
  A minority of Senators have literally rewritten the Constitution to 
engraft a supermajority rule into the confirmation process, a 
requirement that completely contradicts the intent, spirit and language 
of the Constitution.
  The Founding Fathers believed there were a few extraordinary 
instances where supermajorities are necessary and they spelled them out 
in the Constitution: Ratification of a Treaty; override of a 
presidential veto; conviction in a case of impeachment; passage of a 
constitution amendment; and expulsion of a Member.
  Amendments to the Constitution have added two other supermajority 
requirements--one, a post-Civil War disqualification rule for serving 
in Congress; and another regarding a determination of whether a 
President is disabled.
  But now a minority in the Senate has effectively rewritten the 
Constitution to demand a supermajority vote on some Presidential 
nominations. That completely contravenes the Constitution.
  When the members of the Constitutional Convention considered the 
appointment power, they first debated placing the appointment power in 
the Senate. However, that idea was rejected because the members of the 
Convention believed the Senate was ``too numerous and too little//
personally responsible, to ensure a good choice,'' according to 
  The convention also considered giving the President the sole 
authority of appointment. In an effort at compromise, Madison suggested 
that the power of appointment be given to the President with the Senate 
able to veto the choice only if two-thirds of Senators opposed the 
nomination. Ultimately, the Convention allowed for a simple majority 
vote on the President's nominations.
  The Founders were so confident that the power of judicial appointment 
is primarily an executive function that they wrote into the 
Constitution a provision that allowed Congress to pass a law giving the 
President exclusive authority to appoint all judges below the Supreme 
Court. In addition, the President was granted the power to make 
temporary appointments when the Senate is in recess.
  You can search the historical record and not find a single shred of 
evidence to suggest that the Framers of the Constitution ever 
envisioned a scenario where a minority of the Senate could cause the 
rejection of a Presidential nominee. But that is exactly the situation 
we face today.
  On 7 different occasions, as many as 55 of 100 Senators voted in 
favor of ending debate on the nomination of Miguel Estrada. But the 
minority obstructing his nomination refused to allow an up or down vote 
and ultimately Mr. Estrada withdrew his nomination.
  Fifty three Senators voted to end debate on the nomination of 
Priscilla Owen. But the minority refused to allow an up or down vote.
  Fifty three Senators voted to end debate on the nomination of William 
Pryor. Again, the minority refused to allow an up or down vote.
  And just 2 weeks ago, a majority of 54 Senators voted to end debate 
on the nomination of Charles Pickering. And once again, the minority 
prevented us from bringing this vote to a conclusion.
  This undemocratic obstructionism threatens to destroy the integrity 
of this institution.
  I have heard it said by some who are blocking the President's 
nominations, that there is nothing wrong with the confirmation process. 
They say we've confirmed 168 of the President's nominees; why is there 
a problem just because we block four nominees? 168-4 is a pretty good 
record, they say.
  I would like to bring to the Senate's attention another statistic: 
The number of President Clinton's judges that were blocked by Senate 
filibusters. 0. No a single Clinton nominee who was brought to the 
floor was blocked by a filibuster.
  Cloture petitions were filed on 5 of President Clinton's nominees. 
But every single one of those nominees was given a straight up or down 
vote. Every one of them. So if we are comparing records, here is the 
record that matters: Four of President Bush's nominations blocked by 
filibuster and none of President Clinton's nominees blocked by 
  This is not baseball or basketball; this is the responsibility of the 
Senate to live up to its Constitutional responsibilities. And what a 
minority of Senators have done is to create a double standard for 
judicial nominations. They say for some judges, we accept the 
constitutional mandate of a majority vote. But for other nominees, we 
have created an extra-constitutional higher standard.
  For nominees Miguel Estrada, Priscilla Owen, William Pryor, and 
Charles Pickering, a constitutional majority is not good enough. You 
have to garner a supermajority.
  That's a standard that is not fair, yet that is precisely what a 
group of Senators in the minority have demanded. And as a result, they 
are failing to fulfill their constitutional responsibility to provide 
advice and consent.
  For those who say there is nothing wrong with the confirmation 
process, I say look at this chart.
  Up until 1968 there was never a filibuster of a judicial nominee. In 
some instances, cloture was filed twice and even when cloture was not 
invoked, every single nominee whose name had not been withdrawn was 
given an up or down vote.
  We have had an unprecedented 7 cloture votes on Miguel Estrada and 3 
on Priscilla Owen. In both cases, a majority of the Senate voted in 
support of the nominees. But a minority of Senators refuse to give 
these nominees straight up or down votes as required by the 
  I believe that establishing a rule that if a nominee cannot garner a 
supermajority of 60, the nominee will not be entitled to a vote is a 
very dangerous precedent that will haunt this chamber for decades to 
  We have never in 214 years established such a rule. Even in the case 
of the most controversial nominees in recent memory--Robert Bork and 
Clarence Thomas--the Senate carried out its constitutional 
responsibility by giving each of them an up or down vote.

[[Page S14663]]

  In June, I chaired a Rules Committee hearing on judicial nominations 
where one of the witnesses claimed that in the 19th Century, there were 
several instances where a minority of Senators prevented the Senate 
from considering judicial nominees. I would like to take a few moments 
to clarify the record on this issue.
  In December, 1828, lame duck President John Quincy Adams nominated 
John Crittenden to the Supreme Court. In February 1829, a month before 
Andrew Jackson was to be sworn is as President, the Senate voted 23-17 
to postpone the nomination until Jackson came into office. Clearly, in 
this instance a minority was not blocking the will of the majority.

  In June, 1844, President John Tyler nominated Ruben Walworth and 
Edward King to fill Supreme Court vacancies. The Senate, by votes of 
27-20 and 29-18, voted to postpone the nominations. After Tyler was 
defeated in the 1844 election, he resubmitted the Walworth and King 
nominations. The Senate refused to vote on the nominations submitted by 
the lame duck.
  John Meredith Read was also nominated by lame duck President Tyler. A 
month before Tyler's successor was to be sworn into office, the Senate 
voted to adjourn rather than consider the Read nomination. Obviously, 
the will of the majority was not thwarted by the minority when the 
Senate voted to adjourn.
  In the summer of 1852, President Millard Fillmore nominated Edward 
Bradford to the Supreme Court. The nomination was made just before the 
Senate was already planning to adjourn. It adjourned before considering 
Bradford's nomination. When the Senate reconvened, Franklin Pierce had 
won the 1852 Presidential election. And Fillmore did not renominate 
  Instead, in early 1853, lame duck Fillmore nominated George Badger to 
the Supreme Court. The Senate voted 26-25 to postpone consideration of 
Badger's nomination. Fillmore then nominated William Micou, but the 
Senate refused to act on the lame duck nomination. There is no evidence 
that a majority supported Micou.
  Finally, Mr. President, in January 1881, the lame duck President, 
Rutherford B. Hayes, nominated Stanley Matthews to fill a vacancy on 
the Supreme Court. The nomination never was reported from the Judiciary 
Committee. When President Garfield took office in March, he renominated 
Matthews. After 2 months of debate, Matthews was confirmed by a vote of 
  I have taken the Senate's time to provide details of these 19th 
century nominations to make the point that there is no evidence that 
any of the controversial justices nominated in those years was blocked 
by a minority of Senators.
  In every instance, a majority voted to delay or defer consideration. 
And in most of these instances, they involved nominations made after a 
sitting President was defeated for re-election. They have absolutely no 
relationship to the situation that has confronted President Bush 
throughout this year.
  As my colleagues are well aware, historically, the Senate has 
demonstrated a great reluctance to tamper with the Rules that govern 
this body, especially the rules that govern debate. However, when a 
minority of Senators have repeatedly abused the filibuster, the Senate 
has acted to change its rules.
  After a minority of Senators blocked efforts to have an up or down 
vote on a proposal to arm merchant ships during World War I, the Senate 
adopted its first cloture rule. The cloture rule was larger changed in 
5 separate occasions, most recently in 1986.
  The last attempt to change the cloture rule occurred in 1995 when 
Senators Harkin and Lieberman proposed a cloture rule nearly identical 
to the majority leader's proposal, but broader in scope because it 
applied to legislation as well as nominations. On a motion to table, 
that effort failed by a vote of 76-15.
  I voted against that proposal because I agreed with Senator Byrd that 
the biggest abuse of the filibuster had occurred in connection with 
Motions to Proceed and that the Rules of the Senate, in particular 
Paragraph 2 of rule VIII, provided an adequate remedy to address this 
  However, it has become apparent that there is no remedy in the 
current Senate rules to address the obstructive practices of a minority 
of Senators to block Presidential nominations. And that is why I 
cosponsored the majority leader's resolution, S. Res. 138. This 
resolution was reported favorably from the Committee on Rules on June 
26, of this year.
  The majority leader's resolution that will return the advice and 
consent responsibility to what the founding fathers intended. Our 
resolution would give the opponents of a nomination more than a fair 
opportunity to express their reasons for opposing a nominee. But it 
would not allow a minority of members to avoid their constitutional 
responsibility to have a final yes or no vote on a nomination.
  Under our approach, cloture on a nomination could not be filed until 
the Senate has considered the nomination for at least 12 hours. On the 
first cloture vote, 60 votes would be necessary to invoke cloture. On a 
second vote, cloture could be invoked by 57 votes. If a third vote was 
necessary, 54 votes could bring cloture. And if a fourth cloture vote 
was necessary, then, and only then, a majority of Senators voting and 
present would be all that is needed to invoke cloture.
  What our proposal does is give the opponents of a nomination 12 hours 
to first express their opposition. And then they will have as many as 8 
days to speak against a nomination. And then, if cloture is invoked on 
the fourth cloture vote, the opponents will still have 30 hours in 
which to speak.
  In other words, Senators would have as many as 234 hours to speak for 
or against any Presidential nomination. I think that is more than 
enough time for the Senate to fully consider a President's nominations.
  The Republican cosponsors of this resolution are making a very simple 
statement--no matter whether the occupant of the White House is a 
Republican or a Democrat, we believe that a nominee reported from 
committee is entitled to a confirmation vote on the Senate floor.
  We believe it is unconscionable and constitutionally infirm for a 
minority of Senators to have the capacity to prevent the Senate from 
carrying out it's advice and consent functions.
  Filibusters by a minority of members to prevent a vote on a 
nomination should have no place in the Senate. Whether a cabinet 
choice, a district court judge or a Supreme Court Justice, Presidential 
nominees are entitled to a vote. That is what the founding fathers 
anticipated and that is what our resolution would achieve.
  I would prefer that we could break this impasse without changing 
Senate Rules. But if this action stands, if a minority of Senators can 
obstruct the will of the majority and prevent the President's nominees 
from having a vote, the Rules of the Senate must be changed.
  I wish to talk about how I feel personally touched and involved in 
what we are dealing with here.
  In my 15 years in the Senate in a variety of positions as a new 
Member, as a member of the leadership, both as secretary of the 
conference and as whip and leader, I have experienced a lot of what has 
gone on with confirmations personally and firsthand. I have been 
involved in a lot of them.
  I must say, without it being aimed at just one party or the other, 
this process has been on a slippery slope down that whole time. I 
believe it goes back to the nomination of Judge Bork before I actually 
got to the Senate. The pattern continued with John Tower who was 
nominated to be Secretary of Defense in my first year in the Senate, 
and it continued to slide down with the nomination of Justice Clarence 
Thomas. And throughout the Clinton years, we had difficulty in this 
  I just wonder how much further downward can it go. I think we have 
reached the bottom. We are trying now to abuse the rules of the Senate, 
to ignore the Constitution, and set in place a new precedent to block 
good, qualified men, women, and minorities to the Federal judiciary. We 
have to stop it. We should stop it here and begin to go back up into a 
more positive approach in how we deal with Presidential nominees.
  I was involved with President Clinton's first Cabinet. I was selected 
by then-minority leader Bob Dole to work through the nominations and 
see if there were problems. As a matter of fact, I want the record to 
show that we

[[Page S14664]]

confirmed every one of his nominees by the day he was inaugurated. It 
was not easy. Some nominees had some problems. We got the job done. He 
was the President. These were his Cabinet selectees. They deserved to 
be confirmed.
  During my years as majority leader, we had a lot of discussions back 
and forth over how the process worked, how judicial nominees were 
treated when they got to committee, and when they got to the floor. I 
remember a lot of those debates. I remember the Senator from Maryland 
was involved in those debates in March and in December of 1997. I 
didn't always like the process. I wasn't always proud of how we treated 
these nominees. But I will tell you this: On my watch, not one Clinton 
nominee was filibustered. Zero. None.
  If you want to use the numbers game--this is not baseball or 
basketball, but that is an important statistic--during the Clinton 
years, from 1993 to 2001, no judge was defeated by a filibuster. By the 
way, it was attempted a few times. I had to file cloture several times, 
but usually we were able to set it aside and, in every instance, we 
confirmed the nominee.
  On one occasion, I remember late in the afternoon--actually the 
Senate voted not to invoke cloture, not to cut off the filibuster on a 
judge--I took this spot in the Senate and said we cannot let that 
stand. Senator Orrin Hatch, chairman of the Judiciary Committee, said 
the same thing. And before the night was over, we backed away from that 
position. Zero in the Clinton years; 4 already in the Bush years.
  It has been just this year that this new abuse of procedure has 
started--the American people understand that. The American people 
understand there is something innately unfair about dragging out an up-
or-down vote on these men, women, and minorities. So four already, and 
at least two more are threatened.
  I don't know where it is going to end, but I do think that it is 
important the people understand this is not insignificant. This is very 
important. We are about to set this precedent, something the Senate did 
not do before this year. We did not do it in the 214-year history of 
this country, and now we are about to set this new precedent.
  What do my colleagues on the other side of the aisle think is going 
to happen if the tables are reversed? What if there should be in some 
far off, distant future time a Democratic President and a Republican 
majority? Do they think if this precedent has been set that the tables 
won't be turned and there won't be filibusters of liberal judges on the 
other side? I will be opposed to that if I am here, as I have been in 
the past.
  That is another number we ought to look at: 214 years, and no judges 
were defeated by a filibuster. I feel very personal about this point. I 
have gone back, in addition to looking at the number of years, and 
looked at occasions when there were attempted filibusters, when 
Presidents late in their terms made nominations and there were 
subsequent votes. I want to show you the list of what has happened over 
the years where there have been attempted filibusters.
  This shows what happened in 1968, 1971, through the eighties and 
nineties. We can see there were some attempted filibusters, and cloture 
motions to cut off this extended debate were filed. But in every case 
but one, they were all confirmed. Justice Fortas, in 1969, had his 
nomination withdrawn by President Johnson when it was revealed that he 
did have some serious ethical problems.
  Over all these years, even though there were filibusters and cloture 
motions, they were all confirmed. There are a couple of nominations on 
this chart about which I feel very strongly.
  There was an attempt to hold up in a variety of ways two nominees to 
the Ninth Circuit Court of Appeals--Richard Paez and Marsha Berzon. 
Their filibusters were offered. I had great concerns about these 
judges, but I voted against the filibusters. I voted to invoke cloture, 
and they went to a straight up-or-down vote. I voted against them, but 
they were confirmed.
  I was under intense pressure to not let that happen, but I refused to 
let that precedent be set on my watch because I didn't think it was 
fair at all.
  I also feel personally and, I admit, emotionally involved because of 
the very unfair treatment that Judge Charles Pickering of Mississippi 
received over the last 2\1/2\ years. This is a good man, a good judge. 
He has had his reputation besmirched. This is a man who was confirmed 
unanimously by the Senate 13 years ago. Now he is being filibustered by 
the Senate. It is so unfair.
  I hear a lot of talk about the human aspects of unemployment. What 
about the human aspects that these men, women, and minorities have had 
to go through? Their career is in limbo. They don't know whether they 
should stay with their law firm, stay on a State supreme court; are 
they going to be confirmed; how do they explain, how do they answer 
questions from the press? They have a very personal problem, too.
  In the limited time we have, I don't want to just complain about what 
is going on here, I want to talk about the solution, how we get out of 
this situation, how we get off this limb onto which we have worked 
ourselves. We know this is wrong. Both sides of the aisle know this is 
wrong, and there has to be some concern about what the long-term impact 
will be. It has contributed to the overall atmosphere we are now 
dealing with in the Senate.
  Here is what we can do. First of all, we can bring up the nominations 
of these good people. Justice Owen from Texas is a brilliant, 
impressive woman on the Texas Supreme Court. She is being filibustered. 
Why? Is she not qualified? Does she not have the proper education? Does 
she not have impressive credentials in her experience? Is she not 
sitting on the highest court in Texas? What is the problem?
  The answer is that she is a conservative woman, that is all, a 
mainstream conservative woman. They try to let on there is something 
wrong with her philosophy and how she has ruled. I looked at a lot of 
these rulings. This is an eminently qualified woman. Yet she is being 
blocked by a filibuster. How do we get out of this situation? First of 
all, we try to give our colleagues on the other side of the aisle an 
opportunity to stop doing this filibustering. We bring up nominations 
of the judges. Apparently, they are not going to stop. At the end of 
this week, we will probably have three men and three women, including 
minorities, all blocked by filibusters--Hispanic, African American, 
women, men, it doesn't make any difference. I don't understand what is 
happening here.
  What do we do next? We have a debate like we are doing now. Some 
people say: Why are you doing this? The Federal judiciary has a huge 
influence in what happens in this country. So these lifetime 
appointments are very important. We are trying to put the American 
people on notice as to how dangerous this is and what is going on, and 
it is getting some additional coverage. People are now calling in and 
saying: I didn't know that was going on. Why are you doing this?

  Give us an opportunity to highlight the unfairness and the precedent 
we are setting and allow the people to weigh in a little bit. That is 
step 2.
  Step 3: As chairman of the Rules Committee, I worked with the 
majority leader, Bill Frist, and Senator Zell Miller of Georgia, and we 
came up with a process that could stop these filibusters. It is an 
elongated process, but one to which surely nobody could object.
  After 12 hours of debate, we would have a cloture vote. It would 
require 60 votes. Then after a period of time, there would be a second 
vote. Fifty-seven votes would be required. A third vote would then 
occur with 54 votes required, and finally, only on the fourth cloture 
vote, would we get down to 51. We would have the 12 hours initially. 
Then we would have 30 hours after the fourth cloture vote to speak. All 
total, it could take as long as 234 hours. It is not a perfect process, 
but at least it is a process.
  A similar proposal was made a few years ago by two current Senators 
on the Democratic side of the aisle. We should perhaps have a vote on 
that proposal.
  Last but not least, at some point I feel very strongly we are going 
to have to make it clear through some process--and I won't go through 
it now--that says judges will be confirmed with 51 votes--only 51 
votes. That is what the Founding Fathers intended. Senator Cochran made 
the historical point, and so have I. That is what it should be.

[[Page S14665]]

  We can go back and vote on these nominees. They might not be 
confirmed, but I think the American people understand the fairness of 
voting them up or voting them down. Justice for judges. Do whatever the 
Senate's will is, but don't use a procedural technique requiring 60 
votes to defeat these good men, women, and minorities.
  This is an important issue. It is worth taking time to debate. I am 
very pleased we are debating this issue. I see Senator Sarbanes on the 
floor of the Senate. He has been on the House Judiciary Committee. I 
was on the Judiciary Committee with him way back in the seventies. He 
is a lawyer. He has looked at these issues. I know he has been involved 
in them. We have had some discussion back and forth over the years.
  In March 1997, he rose on the floor of the Senate and spoke in 
support of the nomination of Merrick Garland to be on the district 
court. He said:

       It is not whether you let the President have his nominees 
     confirmed. You will not even let them be considered by the 
     Senate for an up-or-down vote. That is the problem today. In 
     other words, the other side--

  The Republicans--

     will not let the process work so these nominees can come 
     before the Senate for judgment. Some may come before the 
     Senate for judgment and be rejected. That is OK. But at least 
     let the process work so the nominees have an opportunity and 
     the judiciary has an opportunity to have these vacant 
     positions filled so the court system does not break down 
     because of the failure to confirm new judges. . . .

  These judges along the way were being slow-walked or they had 
problems or they got to the floor and we had other legislation we 
wanted to consider. We did not always get them up, but here is an 
important point: During that time I was the majority leader, we 
confirmed Merrick Garland. It happened. He got confirmed. He is on the 
bench today.
  Senator Sarbanes was right, give them an up-or-down vote, and that is 
what we are calling for today.
  I see Senator Graham of South Carolina is in the Chamber and prepared 
to speak. I may want to have a final statement later on today, but 
before I yield to Senator Graham, let me wrap it up this way: I plead 
with my colleagues in the Senate. This is not a good thing for us. It 
is not good for the institution. It is not good for our country. It is 
not good for our relationships. It is not good in terms of getting our 
work done and making sure we have a judiciary that is occupied by good 
men and women.
  We should stop rejecting these judges just on the basis of their 
philosophy. I voted for Justice Ruth Bader Ginsburg. I knew I would not 
agree with her decisions. I did not agree with her philosophically 
across the board, but by education, demeanor, qualifications, and 
experience, she should have been confirmed. I voted for her. I ask no 
less of my colleagues on the Democratic side of the aisle.
  Let's stop this, and then let's get back to making sure we pass 
energy legislation, pass aviation legislation, get a prescription drug 
plan for our elderly people. This discussion is not delaying that. Work 
is being done on it right now. We can get this process corrected and 
then we can pass these substantive bills.
  I yield the remainder of my time to the Senator from South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. I thank the Senator from Mississippi 
for yielding.
  How much time remains?
  The PRESIDING OFFICER. Eight minutes.
  Mr. GRAHAM of South Carolina. I think it would be appropriate now to 
compliment Senator Lott. During his time as majority leader, he ran 
into a very dicey situation with judges. There was a lot of emotion on 
both sides. He was able to manage the system so that the people would 
get the vote the Constitution requires.
  After having witnessed this debate for the last day or so, I can 
understand how hard that must have been. It must have taken a lot of 
effort, a lot of courage. He had to tell people no who did not want to 
hear no. The country is better off by Senator Lott allowing these 
people to have a vote up or down. If we do not fix this situation 
before the Senate, and it becomes part of the institutional way of 
doing business, then the consequences to the public are very dire.
  The first thing that is going to happen, in my opinion, is we are 
going to get good men and women who are watching this, maybe one day 
aspiring to be judges, to say: Why in the world would I put myself 
through this? You are called all kinds of bad names. They take 
everything you have written or said or thought about saying, and they 
cut and paste it and try to create mental images of who you are that 
are totally contradictory to your life's work, are contradictory to 
what the ABA says about you as a professional, are contradictory to 
what your friends and the people who have practiced with you say about 
you. So it is not a very pleasant thing.
  The Senator from New York, Mrs. Clinton, with whom I have very much 
enjoyed working on other matters, had a chart talking about 168 to 4. 
The 168 were apples; the 4 were lemons. Now we are down to calling 
people lemons. These are real people and they have one thing in common. 
It is not four that are going to be filibustered, it is well over a 
dozen before it is over with. The one thing these four have in common 
right now--and that is not including Justice Brown and Judge Kuhl, who 
will be filibustered; they cannot get a vote either--is that they are 
the first in the history of the country.

  We could literally put everybody in a phone booth who has been voted 
out of the Judiciary Committee by a majority vote but has never 
received a vote on the Senate floor. This 168 to 4 is a joke. The four 
people in question are the only ones in the history of the country to 
come out of the Judiciary Committee and never get to be voted upon. 
That is very dangerous because if that is the way we react to people 
who come out of the Judiciary Committee, if we start letting 40, 41 
Senators dictate the advise and consent role, then we have really taken 
a turn for the worst because the Constitution says the Senate will 
advise and consent to the Presidential nominations.
  Who does the advising and consenting? A majority of us or a minority 
of us? For 200-plus years, we have done it one way. But on the watch of 
Senator Daschle, with whom I have also enjoyed working, we have taken a 
very big turn for the worst.
  We are in political and constitutional quicksand. The harder we try 
to get out of it, the deeper we go. If my colleagues do not believe it 
will be answered in kind down the road if there is ever a Democratic 
President, as Senator Lott talked about, then I think we are all naive.
  What I hate the most is I have been in the Senate for a year, and the 
abuses of the past I am sure are real. I have never put a hold on any 
judge for any reason. I am worried about the future. I think my job as 
a new Member of the Senate is to talk about the consequences of this 
action for the future.
  I do not want to serve in the Senate in its darkest days. Right now, 
we are writing every day we speak one of the darkest chapters in the 
history of the Senate. Good people are being put through the wringer 
unnecessarily. If my colleagues do not think they are good people and 
they really think they are lemons, the Constitution gives my colleagues 
a way to object to them, and that is vote.
  My colleagues can be on record forever saying, this is a lemon, this 
person should never be able to be on the bench; but they do not have 
the right to take the Constitution and turn it upside down for their 
own political gain and their own political desires. That, my colleagues 
do not have the right to do.
  Money was mentioned. They were talking about the phones ringing over 
at the Republican Senatorial Committee because our base is excited we 
are fighting back and this is a fundraising opportunity. Well, people 
are raising money off this event and it pretty much stinks, on both 
sides, but that is the moment in which we find ourselves.
  Let me read an e-mail that was sent out on November 3 by Senator 
Corzine, the chairman of the Democratic Senatorial Campaign Committee. 
His job is to fire up his donors to give money so the Democratic Party 
can recapture the Senate. There was a great deal of lambasting the 
Republican Party about writing fundraising letters about this event, 
and that we are doing this to

[[Page S14666]]

fire up our base, and that we are doing this to raise money.

  Let me read what Senator Corzine told his Democratic contributors:

       Senate Democrats have launched an unprecedented effort. . . 

  We are well into the 30 hours and we cannot get an agreement as to 
whether or not this is unprecedented. I can assure my colleagues that 
he is not lying in the e-mail, that this is not false advertising. If 
it is false advertising, people ought to get their money back.
  It is unprecedented, and the word ``unprecedented'' is underlined for 
a reason. No one has ever done this before. He was not lying when he 
put it in an e-mail to open up people's wallets. Unprecedented by doing 

       By mounting filibusters against the Bush administration's 
     most radical nominees.

  Let's break that statement down. It is unprecedented, but my 
colleagues on the other side will not admit it is. Filibustering, 
exactly what my colleagues on the other side are doing, against the 
Bush administration's radical nominees because of their ideology. That 
is something that is very dangerous, too.
  One of the nominees was asked the question why he and his wife chose 
not to take their two daughters to Disney World during Gay Pride Day. 
Nobody should be asked about that. They are trying to ask that question 
to have a mental construction that this person somehow is not going to 
be fair to people based on sexual orientation.
  The Mississippi situation is the worst of them all, in my opinion, of 
trying to change an image of who somebody really is. In 1967, Judge 
Pickering, who has been a Federal judge for a dozen years, well 
qualified by the ABA, well respected in the State of Mississippi, was a 
young prosecutor--an elected position--who chose to testify against the 
Imperial Wizard of the Ku Klux Klan in Mississippi, not the fast track 
to get ahead in 1967. It was radical in the right way.
  In 1967, they integrated public schools in Mississippi, as they did 
in South Carolina. I was in the sixth grade. I could remember going 
back to school and seeing five Black kids come to my class for the 
first time in my life. As an adult, a 48-year-old man, I now realize 
how their parents must have felt, to send their kids into a very 
uncertain, unchanging situation, but they sent their kids to public 
schools to make it better. I respect those parents because a lot of 
people quit, on both sides.
  In 1967, Judge Pickering chose to send his children to public schools 
when White flight was the phenomenon of that county. We will see a 
photograph of a lot of Black kids with very few White kids in 1967 
Mississippi public schools, and those White kids are Judge Pickering's 
kids. That was the right thing to do.
  These people are not lemons, but if my colleagues do not like them, 
vote against them. My colleagues do not have the right to change the 
Constitution for the political moment.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Minnesota.
  Mr. DAYTON. May I inquire, does this side have 30 minutes?
  The PRESIDING OFFICER. There are now 30 minutes for the Democratic 
  Mr. DAYTON. May the time be equally divided between the Senator from 
Maryland and myself?
  The PRESIDING OFFICER. It may if the Senator wishes.
  Mr. DAYTON. I thank the Chair.
  Mr. President, it is now 4:30. At 4:15, the Central Intelligence 
Agency began a classified briefing of all Senators on a just completed 
report on the worsening conditions in Iraq, a report that, according to 
the news accounts that were published yesterday and today about it, was 
reportedly leaked by a very high level Bush administration official so 
that it could not be hidden from the American people and from us in 
  When I became aware of this--and we were only informed of this 
briefing this morning--I asked Senator Daschle and Senator Reid to see 
if we could suspend our talking and talking and talking about all of 
this for 1 hour to go listen to what is happening to the 130,000 
courageous Americans whose lives are on the line in Iraq and to learn 
what we might be able to do, or must do, to support and aid them.
  Senator Daschle and Senator Reid inquired, could our colleagues 
across the aisle either give up 1 of the 30 hours that we are talking 
and talking about the jobs of four Americans and devote that time to 
protecting the lives and protecting the safety of 130,000 Americans and 
to preserving their heroic success that they achieved last spring in 
Iraq, which was for some of them their heroic sacrifice on our behalf, 
and which the CIA assessment reportedly has concluded is now in real 
jeopardy. Or even if that was not satisfactory, could that hour be 
added on to the scheduled conclusion for this blame-athon, keep the 30 
hours as planned even though it is clear to this Senator, having 
participated between 12 and 1 this morning and listened to others 
throughout the early hours and now up until this time, that 30 hours 
for this topic is excessive and that our speeches are becoming 
increasingly repetitive, but just pause for 1 hour so that all of the 
Senators could attend that briefing on behalf of their constituents who 
are over in that precarious situation.
  The answer was no. I thought that when this blame-athon began, it 
showed fellow caucus members on the other side of the aisle with 
mistaken priorities, but this has convinced me that it is much more 
serious than that. Winston Churchill once described a fanatic as 
somebody who cannot change his mind and will not change the subject. 
This fixation today fits that description.
  We had a Senate Armed Services Committee hearing scheduled this 
morning, the committee on which I serve, with the Acting Secretary of 
the Army and other high-level Army officials testifying. We just 
received a briefing from them, reports of the timetables they have for 
deployments in and out of Iraq. We have seen reports of other news 
sources that within a few months the intention is to increase 
significantly in Iraq the number of reservists and National Guard men 
and women, which has a lot more importance to a lot more people who 
live in my State of Minnesota, whose loved ones are either over there 
now or are training to go over there soon or will be called up to go 
over later, than any judicial appointment. That hearing was cancelled.

  The House of Representatives is taking this whole week off. They are 
waiting for us to catch up on passed appropriations bills for a fiscal 
year that started on October 1. Yesterday, we suspended action on the 
VA-HUD appropriations measure, set it aside for this period of time to 
talk and talk on the same well-beaten, thoroughly debated, and 
genuinely disagreed-upon difference of our respective opinions, which 
is somehow so important to some of us that everything and everyone else 
must simply wait.
  The House Members are being paid by the American taxpayers to not 
even be in town this week because they are waiting for us to catch up. 
We are spending our time and American taxpayers' dollars to say the 
same things over and over and over and over again.

                       Unanimous Consent Request

  I ask unanimous consent that the Secretary of the Senate be 
instructed to deduct the pay of all Senators for 15 hours, which is 
half the time that we are engaged in this excessive pursuit, and that 
should be our time, and for indulging in our priorities and playing to 
our audiences and doing whatever else this is supposed to be about but 
it is not serving the interests of the people of America any longer and 
I believe we should face up to that and recognize that.
  The PRESIDING OFFICER. Is there objection?
  Mr. LOTT. I object.
  The PRESIDING OFFICER. The objection is heard.
  Mr. DAYTON. I would point out we are not going to vote until 
tomorrow. We are going to vote tomorrow on a couple of these matters, 
on a couple of these nominees. According to our own Senate rules and 
procedures, we are not able to vote until then. Contrary to what some 
people watching this show might deduce from comments that have been 
made in the last few minutes, and before me and in the hours preceding, 
we actually do follow our rules and procedures in this body. We have 
216 years' established rules and procedures, and if any 1 of the 100 
Senators who doubts that those rules and procedures are being properly 
followed or disagrees with the action, we have a remedy for that. We 
have a referee, we

[[Page S14667]]

have a head umpire and impartial ruler on our rules, who is the Senate 
Parliamentarian. He or she, as the case may be, at the moment can be 
asked by any one of us to rule on any action, any tactic, any maneuver 
being employed by any Member of the Senate or any group of the Senate.
  Yet for all the accusations for the last number of hours that we are 
violating somehow the rules, the procedures, the traditions, the 
Constitution, the intent of the Founding Fathers and just about 
everything else anybody has conjured up to justify their own point of 
view, we could ask. No one has asked. I am told that as of yesterday no 
one had asked the Parliamentarian, and I believe the reason is likely 
that the colleagues on the other side know that the answer would be 
clearly and unequivocally that we are following the practices and the 
traditions long established over 216 years by which this body conducts 
its matters, its business on behalf of the people of the United States 
of America.
  We can have legitimate differences of opinion about whether that is a 
good set of rules, one that serves us and serves us in one situation or 
does not serve us, but they are there. I have learned this in my 3 
years here, to my own proper humility, that there is a real collective 
wisdom that has been established with almost 1,900 men and women 
serving over the course of those 216 years and that while I may still 
not agree with some of the particulars, there is a way in which this 
country has been better served in the eyes of many people more learned 
than I about government and legislative procedure, has been better 
served by this body than any other legislative body in the history of 
the world anywhere on this planet.
  Two generations ago, Gladstone called the Senate of the United States 
``that remarkable body, the most remarkable of all the inventions of 
modern politics.''
  James Madison, one of the authors of the document which we swear to 
uphold when we take this oath of office, the Constitution of the United 
States, said at the time:

       In order to judge of the form to be given to this 
     institution [the Senate], it will be proper to take a view of 
     the ends to be served by it. These were,--first, to protect 
     the people against their rulers, secondly to protect the 
     people against the transient impressions into which they 
     themselves might be led.

  I appreciated the words of the distinguished Senator from Mississippi 
just now because he was kind and gracious enough, and correct enough, 
to disagree with the application of these rules and procedures. But not 
as some have done, casting aspersions on following the rules and 
procedures, but beyond that, following our responsibilities and 
proscriptions under the Constitution of the United States, which I 
consider to be about the most serious accusation that any Member could 
direct toward anyone else.

  As I said earlier, we have taken an oath of office to uphold the 
Constitution of the United States. That is the most solemn oath I have 
ever taken in my life. I expect every other Member of this body who has 
taken that oath is as sincerely and dedicated to that oath as I. To 
different people it may mean different things. But I never imagined 
questioning any Member's commitment. If there were reason to doubt or 
question, the proper way to direct that is through courts of this 
country, because it is a constitutional matter of the gravest import.
  I urge everyone who has engaged in this constitutional practice these 
many hours to weigh those words far more carefully than some are doing. 
As I am on the Senate Rules Committee, I appreciate the approach the 
chairman of that committee suggested or implied in looking at these 
matters and, through a proper forum, if it be the desire, to consider 
them in a learned way, to bring in constitutional scholars who can give 
us a variety of opinions, impartial, nonpartial opinions about the 
Constitution and case law.
  Then we can have an opportunity to consider whether what is 
established as a long-standing tradition and practice, whereby 41 
Members of this body can prevent the other 59 from proceeding on 
something that would be passed by majority vote. I could argue the 
merits or demerits of that position over a particular matter, but I 
certainly would not question any Member's proper use of that just 
because I did not happen to like its application.
  There were 69 of those measures taken in the last two years when we 
were in the majority; 69 times Senator Daschle had to move to proceed 
and file cloture when he was majority leader to consider bills and 
amendments, to go to final passage of legislation that affected health 
care for senior citizens, veterans benefits, environmental protection, 
matters that had far more consequence to many more Americans than any 
single judicial appointment to a Federal court.
  I respect and appreciate the chairman of the Rules Committee and his 
thought on that matter. I welcome the chance to participate in that. I 
believe that is the responsible forum to review these matters and, if 
deemed necessary or desired on the part of those to consider it, to 
recognize we have the right and responsibility.
  We have been elected independently by the men and women of our own 
States to do this job as each of us sees best, and I am willing to give 
anyone the benefit of the doubt who is doing so. That is our 
responsibility. That is our right.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Would the Chair state the parliamentary situation, 
  The PRESIDING OFFICER. The Senator from Maryland has 15\1/2\ minutes 
remaining on the Democratic side.
  Mr. SARBANES. I will address the various issues concerning the long-
term unemployed in this country. Before that, I will make a couple of 
comments about the judges.
  Sixty-three of President Clinton's nominees were blocked from 
consideration. Four of President Bush's nominees have been blocked. 
Twenty percent of the Clinton nominees in the period of 1995 to 2000, 
the period when the other side controlled the Senate, the committees 
and the floor, were blocked and not given any opportunity to move 
forward. Many of those blocked were extraordinarily able people. Only 
four of President Bush's nominees have been blocked. Many of us feel 
very strongly that they represent extreme points of view outside of the 
legal mainstream in this country.
  In a sense, the period over the last 6 years of the last century when 
an incredible number of the President's nominees were blocked is the 
genesis of the situation that people are talking about. Of course, the 
other side was able to do it in committee. They did not have to do it 
on the floor, they did it in the committee since they had a majority in 
the committee and they simply brought the curtain down at that point.
  Yesterday, the New York Times ran an editorial entitled ``Chatter in 
the Cave of the Winds.'' I ask unanimous consent the full text of that 
editorial be printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit No. 1)
  Mr. SARBANES. I will quote part of it and then I will elaborate on 
this issue.

       Senate majority Republicans might take a moment--or even a 
     vote--to extend reassurance to the nation's millions of 
     unemployed tonight during the 30-hour ersatz ``filibuster'' 
     they plan to protest the Democrats' blocking of President 
     Bush's more extremist judicial appointees. The filibusters 
     will talk through the night, performing from a political 
     script in a time-wasting tableau designed to produce campaign 
     fodder for next year. But out there in real life, federal 
     emergency unemployment benefits are scheduled to expire on 
     Dec. 31 with no sign of notice from the Republicans in 
     Congress. A year ago, they blithely quit the Capitol and let 
     the unemployed stew through the holidays before retroactively 
     approving a benefit extension that was far too modest.

  I recall that very well because I was involved in the effort last 
year to try to extend these unemployment insurance benefits and the 
Congress left. It went home. The unemployment benefits ran out. People 
found themselves in absolutely dire circumstances. When the Congress 
finally returned, they extended the benefits retroactively. But 
meanwhile, people had passed through an extraordinarily difficult time 
for themselves and their family.
  Nearly 9 million workers are unemployed today. There are another 4.8 
million, just under 5 million Americans, who want full-time jobs but 
can only find part-time work. Some people

[[Page S14668]]

choose to work part-time. These are people who want to work full time 
but cannot find full-time jobs so they have part-time jobs. That is 
almost 14 million Americans, those that are unemployed and those that 
are underemployed. In addition to that we have about 1.5 million 
Americans who were in the labor force but dropped out because they are 
so discouraged about the prospects of finding work.
  This is the worst jobless recovery since the Great Depression. During 
this administration we have lost 2.9 million private-sector jobs, as 
measured by employees on private nonfarm payrolls. This chart shows 
where we were in January of 2001 and this is where we are in October of 
2003. That is a loss of just under 3 million jobs.
  Even the Secretary of the Treasury is not predicting that all of 
those jobs, will be recovered by the end of this term. He has made a 
prediction which a lot of people think cannot be achieved, but even the 
administration is not predicting that they are going to recover all of 
the lost jobs.
  Now, if they do not recover these lost jobs, and I see no way that 
they can possibly do that, this will be the first presidential 
administration since Herbert Hoover under which the economy has lost 
private-sector jobs.
  This chart shows presidents and private-sector jobs gained or lost 
during an administration, in millions. We start with President Harding 
and then we go to President Coolidge. The green on the chart shows 
there was job gain during those administrations. Then we plunge down 
with President Hoover and we come back for job gains, all positive, net 
job gains during these administrations, President Roosevelt, President 
Truman, President Eisenhower, President Kennedy, President Johnson, 
President Nixon, President Ford, President Carter, President Reagan, 
President Bush the first, President Clinton; and, now, the current 
President Bush, with a negative, net job loss.
  In the past, it has been a long-standing bipartisan policy to extend 
unemployment insurance during periods of labor market weakness. 
Unemployment insurance benefits were actually extended four times 
during the Reagan administration and three times during the first Bush 
Administration. The month we are in is the 31st month since the 
recession began. At this point during the 1990s recession, every worker 
was eligible for a minimum of 20 weeks of additional benefit. The basic 
benefit is 26 weeks. We then seek to extend it if the labor market is 
not improving, so people can support their families. Actually, the 
benefit they get is less than 50 percent of what they were earning and 
in order to draw an unemployment insurance benefit you must have built 
up an employment record. So by definition, you were working and you had 
a job, you lost your job, and only then do you get the unemployment 
insurance benefit. The benefit is designed to help carry you and your 
family through difficult circumstances.
  Now we have 13 weeks of extended benefits but that pales in 
comparison with what was done in previous times. It certainly is 
inadequate in the face of a labor market in which we are not recovering 
jobs. What are these people to do who lose their jobs, they start 
drawing unemployment benefits, the benefits run out, they have been 
looking for work, they cannot find work, and then they no longer 
receive benefits. How do they support their family at a minimum level? 
They cannot do it.
  As the New York Times said in this article:

       After the tax-cutting binges President Bush and Congress 
     engineered for the affluent, failure to renew the nation's 
     helping hand to the jobless would present a scandalous 
     holiday scenario worthy of Dickens. More than talk, action is 

  They are absolutely right. Mr. President, 1.4 million American 
workers have exhausted their benefits and are unable to find work. They 
are out in the cold with no support. We now have over 2 million long-
term unemployed. That is people who have been out of work for 26 weeks 
or more.
  When President Bush came into office in January of 2001, the number 
of long-term unemployed, people unemployed for more than 26 weeks, was 
660,000. The number of long-term unemployed in October of 2003, is just 
over two million. The number of long-term unemployed has tripled in the 
course of this administration. It now constitutes 23 percent of the 
entire unemployed population.
  The last time such a large percentage of the unemployed were the 
long-term employed--in other words, people out of work for more than 26 
weeks--was 20 years ago. This is the worst performance in 20 years, in 
two decades. Obviously, we need to extend these unemployment benefits 
and repeated efforts to do so have been blocked. The leadership is 
talking about leaving at the end of next week until next year. Of 
course, what that means is millions more will run out of their benefits 
and be unable to sustain their families.
  There is money in the unemployment insurance trust fund for this 
purpose. That money is paid in, in good times, in order to address the 
situation in bad times. But that money is not being used. It was 
specifically set aside for this purpose. The extension of unemployment 
insurance benefits is a policy we have followed in the past. It has 
support from both sides.
  These benefits are for people without jobs. I am hearing lamentations 
about four people who did not get their Federal judgeships. They have 
other jobs. These people have no jobs.
  We made repeated efforts to bring the legislation up. I will make 
such an effort right now, once again. There is legislation pending to 
address this issue in the Finance Committee. It would help these 
workers. It would help our economy. It would ensure that we did not go 
through the travail and the turmoil which occurred at the end of last 
year, as well. It would provide an additional 13 weeks of benefits to 
those who have already exhausted their benefits.

                [From the New York Times, Nov. 12, 2003]

                    Chatter in the Cave of the Winds

       Senate majority Republicans might take a moment--or even a 
     vote--to extend reassurance to the nation's millions of 
     unemployed tonight during the 30-hour ersatz ``filibuster'' 
     they plan to protest the Democrats' blocking of President 
     Bush's more extremist judicial appointees. The filibusterers 
     will talk through the night, performing from a political 
     script in a time-wasting tableau designed to produce campaign 
     fodder for next year. But out there in real life, federal 
     emergency unemployment benefits are scheduled to expire on 
     Dec. 31, with no sign of notice from the Republicans in 
     Congress. A year ago, they blithely quit the Capitol and let 
     the unemployed stew through the holidays before retroactively 
     approving a benefit extension that was far too modest.
       This filibuster has no practical purpose. In the older 
     days, a single lawmaker had to talk nonstop to block a hated 
     bill; nowadays, the leadership merely counts heads to see if 
     enough senators want to block a bill and then it is silently 
     hung up. So if the retro-orators just want to make rhetorical 
     points today and run short of topics, we beg them to ponder 
     their jobless constituents instead of resorting to 
     boilerplate sound bites and creaky filibuster stunts (in sad 
     memory there was Alfonse D'Amato's singing an ``Old 
     McDonald'' parody).
       Serious help is needed for the 2.4 million more recent 
     jobless facing the end of their state benefits, not to 
     mention the 2.1 million long-term unemployed who have slipped 
     off the job-hunting scope. The promising uptick in the deep 
     hiring slump--126,000 new jobs in October--is less than half 
     the rate needed to even begin to dent the backup of 
     joblessness. To deal realistically with the problem, Congress 
     needs to double--to 26 weeks from 13 weeks--the federal 
     emergency benefits that are available when state benefits run 
     out. This would be similar to the help offered during the 
     recession of a decade ago when long-term joblessness, 
     especially in manufacturing, was hardly the problem it is 
       After the tax-cutting binges President Bush and Congress 
     engineered for the affluent, failure to renew the nation's 
     helping hand to the jobless would present a scandalous 
     holiday scenario worthy of Dickens. More than talk, action is 

                   Unanimous Consent Request--S. 1853

  Mr. SARBANES. Therefore, Mr. President, I ask unanimous consent that 
the Senate proceed to legislative session, that 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; that the bill be read the third 
time and passed and the motion to reconsider be laid upon the table.
  Mr. LOTT. Reserving the right to object, I ask consent that the 
Senator modify his request so that just prior to proceeding the 
requested 3 cloture votes be vitiated and the Senate immediately 
proceed to three consecutive votes on the confirmation of the 
nominations, with no intervening action or debate.

[[Page S14669]]

  Mr. SARBANES. Mr. President I made a unanimous consent request, which 
is pending.
  The PRESIDING OFFICER. Is there objection?
  Mr. LOTT. Does the Senator object to the modification?
  Mr. SARBANES. The Senator does not modify the unanimous consent 
  The PRESIDING OFFICER (Mr. Cornyn). Objection to the request is made.
  Is there objection to the request as made?
  Mr. LOTT. In view of that, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator's time has expired.
  The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I do not have a New York Times to quote, 
but I think I am a lot more fortunate because I have two New Mexico 
papers, important papers in my State, to quote. I do not have to use 
them to change the subject. I will quote from a couple of our New 
Mexico papers on the issue of the nominations, the nominating process, 
and what has happened to that process in the last couple of years.
  Let me first quote from our largest newspaper, the Albuquerque 
Journal. It says in its headline: ``End Filibuster, Put Court Nominee 
to Vote.'' And then it says:

       What the Colt revolver was on the dusty streets of the Old 
     West, the filibuster is on the floor of the U.S. Senate: The 
     great equalizer gives 41 senators the ability to bring the 
     chamber's business to a halt.
       The tactic should be unholstered only on issues of high 
     principle or grave importance. Considering the issues 
     currently confronting Washington, the judicial nomination--

  In this paper it is referring to Miguel Estrada when it says:

       The judicial nomination of Miguel Estrada does not rise 
     above partisan wrangling. To block a vote on his appointment 
     to the U.S. Court of Appeals for the District of Columbia 
     Circuit is an abuse of the filibuster.

  I ask unanimous consent that this editorial from that distinguished 
newspaper be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           [From the Albuquerque Journal (NM), Feb. 23, 2003

               End Filibuster, Put Court Nominee to Vote

       What the Colt revolver was on the dusty streets of the Old 
     West, the filibuster is on the floor of the U.S. Senate: The 
     great equalizer gives 41 senators the ability to bring the 
     chamber's business to a halt.
       The tactic should be unholstered only on issues of high 
     principle or grave importance. Considering their issues 
     currently confronting Washington, the judicial nomination of 
     Miguel Estrada does not rise above partisan wrangling. To 
     block a vote on his appointment to the U.S. Court of Appeals 
     for the District of Columbia Circuit is an abuse of the 
       Democrats say the filibuster is justified because too 
     little is known about Estrada and he has not been forthcoming 
     about his judicial philosophy.
       New Mexico Sen. Jeff Bingaman said Friday he has not made 
     up his mind about backing continuation of the delay tactic, 
     and echoed the Democratic indictment of the Honduran 
     immigrant as a stealth conservative.
       ``Obviously, you become suspicious of a person's point of 
     view if he won't answer questions,'' Bingaman said.
       Let's get on past mere suspicions of Democrats and declare 
     guilt by association. Estrada is the choice of President 
     Bush. His views doubtlessly come closer to mirroring Bush's 
     than those of left-learning Democrats or those of Clinton's 
     judicial nominees.
       Femisinst Majority president Eleanor Smeal, for one, 
     doesn't need any more information about Estrada to know that 
     in blocking him, ``the Democratic leadership is giving voice 
     to its massive base of labor, civil right, women's rights, 
     disability rights, environmental, gay and lesbian rights 
       Oh, then this is about constituent politics.
       There's another constituent-oriented facet: Miguel Estrada 
     is a successful immigrant, current front-runner to become the 
     first Hispanic Supreme Court justice and an obvious role 
     model in short, a poster boy for Republican recruitment of 
     minorities away from the one, true political faith.
       This isn't about suspicions; Estrada is the Democrats' 
     worst nightmare from a partisan perspective.
       From a personal perspective, Democrats who have worked with 
     him in the Clinton administration have high praise. Seth 
     Waxman, Clinton's solicitor general, called Estrada a ``model 
     of professionalism.'' Former Vice President Al Gore's top 
     legal adviser, Ron Klain, said Estrada is ``genuinely 
     compassionate. Miguel is a person of outstanding character 
     (and) tremendous intellect.''
       During Judiciary Committee hearings in September, Estrada 
     said: ``Although we all have views on a number of subjects 
     from A to Z, the first duty of a judge is to a put all that 
       That's good advice for a judge, and it's good advice for 
     senators sitting in judgment of a nominee. Put aside pure 
     partisan considerations; weigh Estrada's qualifications, 
     character and intellect; end the filibuster and put this 
     nomination to a vote.

  Mr. DOMENICI. This editorial continues:

       Feminist Majority President Eleanor Smeal, for one, doesn't 
     need any more information about Estrada to know that in 
     blocking him, ``the Democratic leadership is giving voice to 
     its massive base of labor, civil rights, women's rights, 
     disability rights, environmental, gay and lesbian rights 
       Oh, then this is about constituent politics.

  Then there was another editorial in a New Mexico paper, the paper is 
a rather liberal newspaper, the Santa Fe New Mexican. The Santa Fe New 
Mexican editorial is entitled: ``Estrada Tosses Towel; Pyrrhic Win For 

       So Senate Democrats got what they wanted--or avoided what 
     they didn't want: Miguel Estrada has asked President Bush to 
     withdraw his nomination to the U.S. Court of Appeals. . . .
       The 41-year-old Honduran immigrant, who led his law class 
     at Harvard, was a vastly better choice for the judiciary than 
     any number of Democrats who slid onto the federal bench 
     during the early Clinton presidency.
       Now, with a GOP president and a bare Republican majority in 
     the Senate, the Dems still are able to stymie the appointment 
     of conservative judges reflecting the apparent wishes of the 
     American electorate: There are too few Republican senators--
     or principled Democrat ones--to apply cloture to threatened 
     filibusters over the confirmation of Estrada and other 
     qualified appointees.

  And it goes on to talk about various Senators and how they conducted 
themselves on this nomination. I ask unanimous consent that the 
editorial from the Santa Fe New Mexican be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Santa Fe New Mexican, Sept. 5, 2003]

               Estrada Tosses Towel; Pyrrhic Win for Dems

       So Senate Democrats got what they wanted--or avoided what 
     they didn't want: Miguel Estrada has asked President Bush to 
     withdraw his nomination to the U.S. Court of Appeals, for the 
     District of Columbia Circuit.
       The 41-year-old Honduran immigrant, who led his law class 
     at Harvard, was a vastly better choice for the judiciary than 
     any number of Democrats who slid onto the federal bench 
     during the early Clinton presidency.
       Now, with a GOP president and a bare Republican majority in 
     the Senate, the Dems still are able to stymie the appointment 
     of conservative judges reflecting the apparent wishes of the 
     American electorate: There are too few Republican Senators--
     or principled Democratic ones--to apply cloture to threatened 
     filibusters over confirmation of Estrada and other qualified 
       Estrada was appointed to the appellate court in the spring 
     of 2001. He's been in a kind of limbo ever since. Yesterday, 
     he threw in the towel, saying it's time to devote full 
     attention to his law practice and his young family.
       We can almost hear the echo of hurrahs from Capitol Hill, 
     where only four Democrats sided with 51 Republican colleagues 
     who quite properly saw him as an excellent appointment. New 
     Mexico's Jeff Bingaman wasn't one of the four. The Senator 
     has offered excuses about a lack of information on Estrada, 
     who has been in a figurative fishbowl since long before his 
     nomination--but Bingaman knows darn well this is party 
     politics at its lowest. Republicans have pulled similar 
     stunts on Democratic nominees during years past. This is 
     payback time--or repayback time; playing schoolyard games 
     with our nation's system of justice.
       For the Dems, this could prove to be a Pyrrhic victory: The 
     day will come when a Democratic president's nominees might 
     face treatment as shoddy as Estrada got. We can only hope the 
     Republican Senators of that day will prove more gracious than 
     their GOP predecessors--and today's Democrats.

  Mr. DOMENICI. Mr. President, I just want to move, for a moment, to 
compare how certain other judges have been treated in terms of how long 
they had to wait while the Senate did nothing because we were in a 
filibuster mode in the Senate. I want to take two or three of our 
nominees and just go through with those who are listening the various 
qualifications and the like for various nominees. I will start with 
Miguel Estrada, and I will take three other nominees and talk about 
them versus Miguel Estrada.
  Douglas H. Ginsburg: nominated by President Ronald Reagan; college, 
Cornell University; law school, University

[[Page S14670]]

of Chicago Law School; circuit court clerkship, Carl McGowan of the 
D.C. Circuit Court of Appeals; Supreme Court clerkship, Thurgood 
Marshall; Federal Government service, Deputy Assistant AG.
  A. Raymond Randolph: nominated by President George Bush; college, 
Drexel University; law school, Pennsylvania Law School; circuit court 
clerkship, Henry J. Friendly, Second Circuit Court of Appeals, Federal 
Government service, Assistant to the Solicitor General.
  Merrick B. Garland: nominated by President Bill Clinton; college, 
Harvard, summa cum laude; law school, Harvard Law School; circuit court 
clerkship, Henry J. Friendly, Second Circuit Court of appeals; Supreme 
Court clerkship, William J. Brennan, Jr.; Federal Government service, 
Special Assistant to the AG.
  Now, for each of these: it took 15 days for one of them, 66 days for 
one of them, and 71 days for the third.
  Then we come to Miguel Estrada: nominated President George W. Bush; 
college, Columbia, magna cum laude; law school, Harvard Law School, 
magna cum laude; circuit court clerkship, Amalya Kearse, Second Circuit 
Court of Appeals; Supreme Court clerkship, Anthony Kennedy; Federal 
Government service, Assistant U.S. Attorney and Assistant Solicitor 
General. Mr. President, he waited 848 days.
  Obviously, Mr. President, there is no validity to the conversations 
coming from the other side that they have not taken qualified 
appointees and decided that they would apply this rule of 60 instead of 
  Out there in America, when people look at the Senate they say when 
you have 51 votes, that is the way you win. With 51 votes you win; with 
49 you lose--but not when it comes to judges they do not like, just 
plain do not like--not that they are not qualified, they just do not 
want them.
  For some reason they have decided they are not going to let that 
person on, and no longer is the majoritarian rule the rule of the day. 
It is a supermajority. Then the time begins to run.
  Miguel Estrada had to wait more than 800 days before he gave up. I 
have just gone through the names of three. I am not going to say the 
others were not qualified; they were. But certainly Miguel Estrada is 
as qualified as any of them are, if you look at just the paper 
background and the previous service and achievements prior to them 
coming to the floor and languishing or getting confirmed.
  For none of those three are better nominees than Miguel Estrada, and 
everybody looking at his record and seeing what he has done and what he 
has not done knows that.
  Now I would like to close with a last editorial, an editorial also 
from New Mexico. This one is from the Albuquerque Journal. This 
editorial speaks about the current situation when so many candidates 
and other Democrats in high positions are coming to our State, the 
State of New Mexico, to talk to the Hispanic people where we have large 
numbers, and to talk politics to them.
  I am quoting from a September 11, 2003, editorial from the 
Albuquerque Journal. It says:

       Democratic presidential hopefuls mouthed and sometimes 
     mangled Spanish words in Albuquerque last week, searching for 
     Hispanic votes.
       Earlier that day, a Hispanic judicial nominee who wanted a 
     simple up-or-down vote on the Senate floor withdrew after two 
     years of Democratic mangling of the confirmation process.
       Democrats could not argue that Miguel Estrada was 
     unqualified to serve on the appeals court for the District of 
     Columbia, a stepping stone to the U.S. Supreme Court.
  Playing catch-up after emigrating from Honduras at 17 with little 
English, Estrada graduated from Columbia with honors, earned a Harvard 
law degree and clerked for Supreme Court Justice Anthony Kennedy.
  Estrada's credentials were good enough for the Clinton 
administration, where he worked for five years in the U.S. Solicitor 
General's Office.
  Though he has no paper trail of decisions as a judge, his reputation 
as one of the nation's finest appellate lawyers led to a unanimous 
American Bar Association rating of ``well qualified'' for the Supreme 
  But ``well qualified,'' in terms of legal intellect, is not 
qualification enough in the U.S. Senate. There's blame enough to spread 
around both sides of the aisle. . . .
  But Democrats have escalated the partisan warfare to the filibuster 
level. Estrada would have been confirmed by a simple majority, but 
Democrats raised the bar for this Hispanic from the wrong side of the 
political tracks. Estrada had to have a super majority of a Senate 
where Democrats toed the party line against him.
  Though accustomed to adversity, Estrada finally withdrew after two 
years of this absurdity. His experience should not be in vain.
  Democrats who take Hispanic support for granted but can't bring 
themselves to vote for a qualified Hispanic should learn a new word 
from the lips of voters: !Basta!--Enough of this purely partisan 
jockeying on judicial nominations.
  I think, while many came to the floor and quoted the New York Times 
and other major newspapers, I think my two New Mexico papers have hit 
it on the head, the last one right where it belongs during a political 
campaign--come and mingle and mangle our language and our last names, 
and then when one is nominated, make them have the supermajority, all 
the time asking for their vote--paraphrasing the last editorial that I 
just read from the Albuquerque Journal.
  I think what has happened to these nominees--in particular, the four 
we are speaking of, led by Miguel Estrada, and the three women--it is 
clear they have been politicized. They are qualified. If they would 
have had a chance under other Presidents at other times with their kind 
of qualifications, they would be serving on a higher bench in the 
United States without question.
  They have just found themselves at a point in time when the 
filibuster rule is applied with such assurance that there is no harm to 
come to those politically or otherwise who use the instrument of 
filibuster against the extremely qualified.
  That is exactly what has happened here. I am pleased to speak for 
just a few moments. I compliment all of those who have taken much time 
over the last day and a half to speak to the issue, specifically as to 
these people, and generally as to how this process used this way is 
ruining the political process and making good candidates--let's make it 
superior candidates--subject to the whim of the 60-vote rule.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. TALENT. How much time do we have remaining on our side?
  The PRESIDING OFFICER. There are 15 minutes 20 seconds.
  Mr. TALENT. I am going to be brief, Mr. President. I had an 
opportunity to speak last night and I want to have a chance to hear my 
friend from Ohio and I want to give him a full opportunity to speak.
  We are here--I am here again; others have been here more often than 
I--because we are trying to put a stop to filibusters that are 
unprecedented in their nature. For the first time in the history of 
this institution, court of appeals nominees of the President of the 
United States have been filibustered to death on the floor of this 
Senate by a determined minority.
  It is a usurpation of the Constitution. It is hurting the courts, and 
it is unfair to these nominees who are not only qualified, who not only 
should be confirmed, but who would, just a few years ago, have flown 
through this body because of their extraordinary qualifications.
  I just want to address a couple points. One that has been made very 
often by some Senators who have been participating in these filibusters 
is that, in fact, they are really not doing anything that unprecedented 
or that bad because they have approved, they have allowed all but four 
of the nominees to go through. Well, that is just not the right way of 
looking at it.
  They set out to hunt, if you will, the big game, the court of appeals 
judges. So it is true, they have not been taking any shots at the 
rabbits, at the squirrels, at the district court judges. Those they 
have let through. But they have taken down or they are threatening to 
take down, through the filibuster, a quarter of President Bush's 
nominees to the court of appeals.
  This graph shows it. None of the previous four Presidents, or any of 
the Presidents, had ever lost a court of appeals nominee by a 
filibuster of the minority on the floor of the Senate.

[[Page S14671]]

  President Bush has had 29 court of appeals nominees confirmed. Twelve 
of them have either been filibustered or they are going to be 
filibustered tomorrow or there are threats to filibuster them.
  He sent 46 down in total. Twelve have been filibustered or threatened 
to be filibustered, which is a quarter of his nominees. That is not a 
passing percentage in anybody's book, and it is unprecedented to have 
even one filibustered.
  Second, Senators have said: Well, look, the filibuster has been used 
in the past, and that is because motions for cloture have been offered 
and passed sometimes in the past. There have been small groups of 
Senators who have tried to filibuster nominees in the past, and the 
rest of the Senate has said: No, we do not do that. We may not like the 
nominee, but we do not filibuster them. In every case, the leaders of 
both parties have supported motions for cloture, and cloture has been 
  They are using instances when the filibuster has been stopped by the 
Senate in the name of the Constitution, and in the name of the 
traditions of the Senate to support their efforts where the filibuster 
has succeeded. They are turning the past on its head to support a 
present and a future which is completely inconsistent with the 
Constitution and the traditions of the Senate. It is wrong, and it is 
wrong to people involved.

  I wish I had time today. Perhaps I will have time later to go through 
the qualifications of these nominees. On top of everything else, they 
just deserve this. Many of these people have overcome tremendous 
obstacles, personal obstacles in their youth, to achieve tremendous 
success in the field of law. They would be great judges. We need those 
judges on the courts.
  Finally, Mr. President, and before I yield to my friend from Ohio, I 
just want to say that repeatedly it has been suggested by that group of 
Senators who have been filibustering that: Well, we ought to go on to 
other business. In fact, they are upset that the process of the Senate 
is being obstructed.
  Well, I would sure like to go on to other business, too. You can 
filibuster or not filibuster. There is no question under the rules of 
the Senate, Members have the raw power to do this. What you cannot do 
is filibuster and then complain about obstruction. You cannot do that. 
That is called having your cake and eating it, too. The minute that 
Members of this Senate decide they want to go on to other business, we 
can go on to other business. Just allow us a time agreement to vote. 
Allow us to vote on these people. Five minutes after you do that, we 
are off to other business of the Senate, which all of us want to go on 
  In the meantime, please, if you are going to filibuster these 
nominees, at least do not complain about obstruction of the processes 
of the Senate.
  With that, Mr. President, I yield the floor to my friend from Ohio.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, the nominees who President Bush have 
nominated are outstanding attorneys, people who would make fine judges 
and, frankly, the sooner we have an up-or-down vote on these nominees 
the better.
  The nomination of these judges affects the citizens living in their 
judicial circuits and the nominees themselves. So this is not just a 
theoretical debate, this is a real world debate with real consequences.
  Let me turn to one of those nominees, and that is Judge Charles 
Pickering. I want to talk about the merits because that is what we 
should be talking about, what we should be debating on the Senate 
floor, the merits of all these nominees. If we had an up-or-down vote, 
I say to the Members of the Senate, that is what we would be able to 
do. That is what this whole discussion for these 30 hours is about: our 
request to be able to vote on the merits.
  Let me talk about the merits and what we would be able to talk about 
if we had that opportunity.
  Judge Pickering, a man who graduated from the University of 
Mississippi with honors. This is a man who graduated from law school 
the first in his class; a man who has had a distinguished career as a 
lawyer; a prosecuting attorney; a judge who was confirmed unanimously 
by the Senate to a district court position 13 years ago.
  What about the ABA? We always hear about the ABA. We don't think that 
should be the be-all and end-all, but the ABA should be a part of what 
we look to. Here is a letter ABA sent to me and other members of the 
Judiciary Committee:

       Senator DeWine, We are transmitting to you for your 
     consideration, this committee's evaluation pertaining to the 
     nomination of the Honorable Charles Pickering, Sr., as judge 
     of the United States Court of Appeals for the Fifth Circuit. 
     I am pleased to report, as a result of our investigation, a 
     substantial majority of the committee is of the opinion that 
     the Honorable Charles W. Pickering, Sr., is well qualified 
     for appointment as judge to the United States Court of 
     Appeals for the Fifth Circuit.

  That is what they had to say about him.
  People who know Judge Pickering best in his home State of Mississippi 
also agree that he should be on the bench. People who have known him 
for years have written to this Congress and have talked with us and 
have said this man is qualified. This is a man of great character; he 
should be on the bench.
  There have been attacks about Judge Pickering. Let me talk about 
these for a moment. Again, this is the type of discussion we should be 
having on the Senate floor. We shouldn't have to be down here making 
the argument that all we want is an up-or-down vote. This substantive 
argument is what we really should be able to have.
  Let me talk about some of the attacks on Judge Pickering. At the time 
of our hearing on Judge Pickering, he had decided roughly 4,500 cases 
as a district court judge. Out of those 4,500 cases, he has been 
appealed 328 times and ultimately he was reversed or had the case 
remanded for additional work or some clarification in 26 cases.
  Without getting too much into the numbers, I can tell you he has a 
good reversal rate--about 8 percent. That is better than the national 
average, and it is even better than the average in the Fifth Circuit.
  Some of Judge Pickering's critics would argue the problem is not the 
number of cases on which he has been reversed. They say the problem is 
what you find in those reversals. Let's take a moment and look at that.
  I looked at the 26 cases where he was reversed or where the case was 
sent back for further clarification. The statement was made in one of 
Judge Pickering's hearings several times that his cases boiled down to 
civil rights, voting rights, employment, and that is what was 
troubling. I think we need to look at each of these areas, and I will 
try to do that in the brief time I have.
  There are a few ways to categorize a case and what type of case it is 
remains, certainly, in the eyes of the beholder, but I have looked at 
the reversals and the areas mentioned during the hearings, and this is 
how I break them down.
  On my count, 2 of the 26 cases involve employee rights, 1 case 
involved voting rights, and 4 were civil rights cases. I believe as we 
look at these cases, there is no merit to the charges in regard to 
Judge Pickering.

  Let's look first at the accusation of voting rights. Judge Pickering 
was reversed on one voting rights case, and that was Watkins v. 
Fordice. Judge Pickering was part of the three-judge panel that decided 
that case. Here is the key. We should be very clear about this. The 
voting rights issues in this case had already been resolved. The issue 
that went up for appeal was, guess what--Listen to this: attorneys 
fees. That is what the issue was. That is what went up on appeal.
  So to categorize that as a voting rights case, that the judge was 
appealed on a voting rights case and overturned on a voting rights case 
is simply not fair. It is not fair by any good judgment.
  When the case went up on appeal, the court of appeals said: We need 
more information. And they sent it back to Judge Pickering's three-
judge panel. Judge Pickering and the other two judges gave them more 
information. It went back up, the court of appeals looked at it, and 
said: It's OK, you were right. We are not going to reverse you. And 
that ended it. That is the voting rights case about which everyone is 
  I should also note for the record there were three other voting 
rights cases that Judge Pickering decided. Not one of these cases--not 
a single one--was reversed. In fact, nobody ever

[[Page S14672]]

appealed the cases, which again tells us something. When a voting 
rights case is not appealed or when a major case is not appealed, it 
certainly tells us something.
  So we end up on the voting rights issue with only one case where he 
was appealed, in that particular case it was about attorney's fees and, 
in the end, Judge Pickering was held to be correct anyway, and three 
other cases were not appealed at all.
  Let me talk briefly about Judge Pickering and the civil rights cases. 
Every one of the civil rights cases--of the 26 cases we are talking 
about--every single one of them involved claims made by prisoners. I 
point that out not to say prisoners rights cases are unimportant; they 
certainly are important. We all know they are important. They can 
involve basic rights. But these are not the type of cases that we would 
normally associate, or at least the public would normally associate, as 
civil rights cases. Lawyers know them as civil rights cases, but I 
believe the general public would not think of them as typical civil 
rights cases. They were often procedural requests, sometimes requests 
for very specific relief.
  For example, in one case, the whole issue was whether or not a 
prisoner had a right to use a certain type of typewriter. This prisoner 
wanted to use a memory typewriter instead of a regular typewriter, and 
that is what the substance of the case was about.
  There were procedural issues there, and the court of appeals took a 
look at them. They were reversed, and we certainly understand that.
  Again, I am not minimizing that, but I think we just need to put this 
whole case in its proper perspective.
  Let me also note for the record that Judge Pickering was reversed, as 
we have said, in a total of 11 of the so-called prisoner cases out of 
an estimated 1,100 prisoner cases with which he dealt.
  Let's now talk about Judge Pickering's employment cases. I will be 
very brief because I see my time is almost up. We need to look at both 
the employment cases, the Marshall case, and the Fairley case. In the 
Marshall case, Judge Pickering upheld an arbitrator's decision 
reinstating an employee who had been fired from her job. In the other 
case, the judge found on behalf of the worker suing his employer's 
disability plan for damages. In both cases, Judge Pickering ruled in 
favor of the employee.
  The court said he was wrong about how he did it, wrong in the 
decision, and the court overturned him. But no one should use the 
employment case where he was overturned--these two cases--as in any way 
indicating that he is not sensitive to employees. He did, after all, in 
these two cases, rule in favor of the employees.
   Judge Pickering is well-qualified. There is no doubt about it. His 
overall record as a judge is excellent. The specific cases cited as a 
concern do not show anything at all except that he is a human being who 
sometimes made some mistakes. I submit that virtually every district 
court judge that we look at and look at as carefully as we have looked 
at Judge Pickering, we would find similar reversals.
   When we look at these specific cases, I believe there is no 
indication that Judge Pickering is hostile to civil rights, to voting 
rights, to employment rights, or any other type of rights. I believe 
there is no evidence at all that Judge Pickering substitutes his 
personal opinions for the law. In fact, the evidence shows that he 
clearly does follow the law.
   Judge Pickering has testified under oath to the Judiciary Committee 
twice that he will follow the law and abide by the law, and Mr. 
President, his record shows that he will.
   This is just an example of the debate that I think we ought to be 
having. If our colleagues across the aisle would allow us to have an up 
or down vote on these nominees, we could talk about the qualifications 
and criticisms of these nominees. We could talk about allegations and 
they could be supported or dispelled. There are many, allegations 
against these nominees that would be dispelled--just like the ones I've 
just discussed about Judge Pickering.
   I encourage our colleagues to let us have the debate on the merits 
of the nominees. Then Senators can hear all the facts--both sides of 
the debate. And then they can make up their minds and vote--yes or no, 
just vote.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, as I understand under the agreed 
procedure, the Senator from Hawaii and myself will have a half hour; is 
that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. KENNEDY. I yield myself 15 minutes.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. KENNEDY. Mr. President, I have listened with interest over the 
last 24 hours to those who have taken exception to the action that has 
not taken place in the Senate with regard to judges. I listened very 
carefully. Many of our colleagues have been extremely eloquent in their 
  As we are reaching the 24-hour point, it is important to understand 
exactly what our responsibility is in the Senate with regard to the 
appointment power, what our Founding Fathers expect of the Senate, and 
whether we are measuring up to the test which they established at the 
Constitutional Convention.
  I draw the attention of our colleagues once more to the raw 
statistic, which I think effectively rebuts so many of the allegations 
and the presentation that has been made, where we have actually 
confirmed 168 of the nominees, and only 4 have not been affirmatively 
approved. That is 98 percent. We ought to think about what has been 
said on the other side about the abuse of those who have expressed 
opposition to these nominees, whether there has been an abuse of the 
system itself, when we find out they have gotten 98 percent of their 
way over this Congress. My good friend from Vermont has gone through 
the statistics in great detail.
  I listened a little earlier to one of my colleagues on that side of 
the aisle say there never has been an instance where a circuit court 
judge was filibustered by the other side. I am a member of the 
Judiciary Committee, and I would be glad to sit down with my colleague 
and go over the 23 well-qualified nominees who never emerged from the 
Judiciary Committee to be considered on the floor of the Senate.
  Nonetheless there are those who are listening tonight who may say, 
``My goodness, we have these nominees and they are not being 
considered. Isn't this a one-way street, where now Democrats, perhaps a 
few Republicans, are not permitting the vote on particular nominees?''
  I can remember very well the other side using the same rules to their 
own advantage with regard to judicial nominees, and history 
demonstrates that, as has been pointed out by our colleagues.
  Rather than dwelling on that, I think it is instructive once more to 
think about what our Founding Fathers expected of this body with regard 
to the appointment process. When we look at that, we will see that they 
expected us to exercise our own good, independent judgment. There are 
those on the other side who say, if the President sends someone up to 
the Senate, you better find a good reason not to vote for him or 
otherwise the President is entitled to that individual. That is not the 
case. That has been repeated time and time again.
  To the contrary, if you look at the debates in the Constitutional 
Convention, our Founding Fathers weighed their debates and discussions 
believing that we in the Senate should have the heavy hand in terms of 
the final judgment with regard to nominees. I will take a few moments 
to review that because it is instructive.
  The Constitutional Convention met in Philadelphia from late May until 
mid-September of 1787. On May 29, 1787, the Convention began its work 
on the Constitution, and when the Virginia Plan was introduced by 
Governor Randolph, it provided that a National Judiciary be established 
to be chosen by the National Legislature.
  Under this plan, the President had no role--no role--in the selection 
of Federal judges. When this provision came before the Convention on 
June 5, several Members were concerned that having the Congress as a 
whole select judges was too unwieldy.

[[Page S14673]]

  James Wilson of Pennsylvania suggested an alternative: that the 
President be given the sole power to appoint judges. The idea had no 
support. John Rutledge of South Carolina said he ``was by no means 
disposed to grant too great a power to a single person.'' James Madison 
agreed that the legislature was too large a body, and stated that he 
was ``rather inclined to give the appointment power to the Senatorial 
branch.'' This is the debate of our Founding Fathers, a group 
sufficiently stable and independent, as James Madison pointed out, to 
provide ``deliberate judgments'' on judges.

  A week later, Madison offered a formal motion to give the Senate--the 
U.S. Senate--the sole power to appoint judges, and this motion was 
adopted without a single objection.
  On June 19, the Convention formally adopted a working draft of the 
Constitution, and it gave the Senate the exclusive power to appoint 
judges. This was the thinking of our Founding Fathers.
  We learn in that debate on the floor of the Senate, the Founding 
Fathers intended the Senate of the United States to be a principal 
partner, obviously, in the consideration of these judges.
  On July 18, the Convention reaffirmed its decision to grant the 
Senate the exclusive power. Wilson again proposed ``that judges be 
appointed by the executive,'' and again his motion was defeated. The 
issue was considered again on July 21 and in the Convention for the 
fourth time and again agreed to the exclusive Senate appointment of 
judges. In a debate on the provision, George Mason of Virginia called 
the idea of executive appointment of Federal judges a ``dangerous 
  Not until the final days of the Convention was a compromise 
suggested. On September 4, 2 weeks before the Convention work was 
completed, the committee proposed that the President should have a role 
in selecting judges. It stated: ``The President shall nominate and, by 
and with the Advice and Consent of the Senate, shall appoint judges of 
the Supreme Court.''
  The debate made clear, Mr. President, however, that while the 
President had the power to nominate the judges, the Senate still had a 
central role. Gouverneur Morris of Pennsylvania actually described the 
provision of giving the Senate the power ``to appoint judges nominated 
to them by the President.''
  It's clear that the Constitutional Convention, which had repeatedly 
rejected the proposal to let the President alone select the judges, did 
not intend the Senate to be a rubberstamp for the President. And it is 
equally clear that, especially when the Senate is controlled by the 
President's own party, the Founders did not intend the Senate to roll 
over and play dead whenever the President tells them to.
  We have approved 168. And only 4 have been rejected. That is a pretty 
good record for this President.
  On the contrary, it is clear what the Founders would say to us today. 
They would say, ``We gave you this power to use it whenever you think 
the President proposes judges who will not be beneficial to the Nation. 
We did not tell you what rules to use to exercise that power. We gave 
you the right to set your own rules.''
  And they did. And the Founders did not say, and did not mean that 
``the President can appoint whomever he wants to the Federal courts, as 
long as he gets a bare Senate majority to consent.'' If we did adopt a 
rule that allowed the President to do so, the Founding Fathers would 
look down on us and say, ``Shame!''
  ``You are the Senate. If we wanted the President alone to be able to 
pick the judges, we would not have given you the power that we did in 
the Constitutional Convention. For 214 years, you have used that power 
wisely, and under the power we gave you, you have the authority to set 
your own rules.'' That is what the Founding Fathers said.
  As Senators, we have the obligation to say no to the President when 
we think he is wrong. We should not abdicate the powers the Founding 
Fathers gave us. If we are true to our oath of office as Members of the 
Senate, we cannot abdicate the powers the Founders gave us.
  We should not erase the rules which give us the ability to be the 
Senate and protect the independence of the Federal courts.
  We exercise different judgments on Presidential nominees. The 
independence of the Senate and the courts is the essence of our 
Constitutional system of checks and balances that has served us so well 
throughout our history.
  The Senate has never hesitated to exercise its advice and consent 
power. During the first 100 years after ratification of the 
Constitution, 21 of 81 Supreme Court nominations one out of four were 
rejected, withdrawn or not acted on. During these confirmation debates, 
ideology often mattered. John Rutledge, nominated by George Washington, 
failed to win Senate confirmation as Chief Justice in 1795. Alexander 
Hamilton and other Federalists strongly opposed him because of his 
position on the controversial Jay Treaty with Great Britain. A nominees 
of President James Polk was rejected because of his anti-immigration 
position. A nominee of President Herbert Hoover was rejected because of 
his anti-labor view.
  When a President makes the request for a member of the Cabinet, it is 
time limited to the 4 years that President is going to be there. The 
President has the heavy presumption that he is entitled to his own 
advisers, and that is why the overwhelming majority of nominees by the 
Presidents for their Cabinet are approved. We have some for the 
regulatory agencies that may be a little bit longer, or go past a 
particular administration, and perhaps we apply a somewhat tighter and 
more stringent test, but we are talking about lifetime tenure on 
important courts of this land.
  The DC Circuit Court has really been called another supreme court 
because they have the appellate jurisdiction on so many of the 
regulatory agencies. These appeals that come before that DC Circuit 
involve the rights of working men and women. They make the decision in 
terms of whether the workplace is going to be safe for all of those who 
go in and work in their plants and factories. They are going to 
interpret whether the various legislation dealing with the environment 
is adequately enforced, along with a whole range of different issues 
that affect the health and safety and well-being of the people of this 
  Our friends on the other side say, ``If the President nominates 
someone, why are you not rubberstamping it?'' That is not what our 
Founding Fathers said or agreed to or instructed us to do. They said we 
should make our own independent judgment and decision, and the fair 
judgment and decision, I believe, is whether these individuals who are 
nominated demonstrate a core commitment to the fundamental teachings of 
the Constitution of the United States. That is what this Senator looks 
for with a nominee.
  When they will not answer the questions--but the administration knows 
what those answers are--or they have demonstrated over a lifetime by 
statements and deeds that they will not abide by the fundamental 
teachings of the Constitution, why in the world should we take a 
chance, in representing the people we do, to think they deserve a 
promotion to serve in these high courts? It should not be that way. The 
Founding Fathers never expected us to be that way, and we will not have 
it that way.
  Recently, we had a very distinguished historian who wrote a 
magnificent book. It is called ``Master of the Senate'' by Robert Caro. 
In that book, he did an enormous amount of reading and studying of the 
views of our Founding Fathers and also of the early years of the Senate 
in order to put his historical figure, President Johnson, then-Majority 
Leader Johnson, into some perspective. I will just mention these lines 
which I think are very insightful about the Founding Fathers and what 
they believed this institution was really all about:

  ``The writings of the framers of the Constitution make clear that 
Senators, whether acting alone or in concert with like-minded 
colleagues, are entitled to use whatever means the Senate rules provide 
to vigorously contest a President's assertion of authority with which 
they strongly disagree.
  One could say, in fact, that under the fundamental concept of the 
Senate as envisioned by the Founding Fathers, it is not merely the 
right, but the duty of the Senators to do that, no matter how popular 
the President or how strongly the public opinion polls of the moment

[[Page S14674]]

support the President's stand on the issues involved.''
  Then he continues:
  `` . . . in creating the new nation, its Founding Fathers, the 
Framers of the Constitution, gave its legislature . . . not only its 
own powers, specified and sweeping . . . but also powers designed to 
make the Congress independent of the President to restrain and act as a 
check on his authority, (including) power to approve his appointments, 
even the appointments made within his own administration . . . ''
  And the most potent of these restraining powers the Framers gave to 
the Senate is:
  `` . . . the power to approve Presidential appointments was given to 
the Senate alone; a President could nominate and appoint ambassadors, 
Supreme Court Justices, and other officers of the United States, but 
only 'with the Advice and Consent of the Senate.'''
  `` . . . the Founders, in their wisdom, also gave the Senate the 
power to establish for itself the rules governing exercise of its 
powers. Unlike the unwieldy House, which had to adopt rules that 
inhibited debate, the Senate became the true deliberative body that the 
framers had envisioned by maintaining the ability of its members to 
debate as long as necessary to reach a just result. For more than a 
century, the Senate required unanimous agreement to close off debate. 
The adoption fo Rule XXII in 1917 allowed a two-thirds cloture vote on 
'measures,' but nominations were not brought under the rule until 
  In short, two centuries of history rebut any suggestion that either 
the language or the intent of the Constitution prohibits or counsels 
against the use of extended debate to resist Presidential authority. To 
the contrary, the nations's Founders depended on the Senate's Members 
to stand up to a popular and powerful President. In the case of 
judicial appointments, the Founders specifically mandated the Senate to 
play an active role, providing both advice and consent to the 
President. That shared authority was basic to the balance of powers 
among the branches.
  Surrendering such authority is not something which should be done 
just because of a Senator's point of view on the particular issues of 
the moment--because much more than the particular issue is involved.
  Republican Senators are wrong when they say, ``The President is 
entitled to have his own people on the courts.'' We know that history 
tells us the opposite. The Senate usually chooses to give the President 
broad leeway in appointing members of his cabinet and filling other 
positions in the Executive Branch. Je is politically responsible for 
these appointees. They generally serve at his pleasure, and their 
appointments end at the end of his term in office. But appointments to 
the federal courts are lifetime appointments. Federal judges are able 
to fulfill their own constitutional responsibility because they are 
independent of both Congress and the White House.
  The Founding Fathers wanted the checks and balances, the independent 
government agencies: The Presidential and the executive, the Congress 
with the House and the Senate, and an independent judiciary. It does 
not belong to the President. It does not belong to the Congress. It 
belongs to the American people, and both the President and the Senate 
have an important responsibility to make sure it remains independent.
  I yield the remaining time to the Senator from Hawaii.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. AKAKA. Mr. President, I have spent the past 23 hours listening to 
the debate which was billed as a debate on judicial nominations and has 
turned into a semantics fest over who is responsible for the delayed 
enactment of legislation important to both sides of the aisle. One 
thing is clear to me, this is not getting us any closer to enacting the 
legislation we have identified as important.
  We are devoting 30 hours to debate the fact that the Senate has 
passed only 98 percent of President Bush's nominees, not 100 percent. I 
take my responsibilities as a United States Senator very seriously. My 
understanding is that I am to provide the President with my advice and 
consent regarding the individuals he nominates for a lifetime position 
to the Federal judiciary. It troubles me that we are spending 30 hours 
to discuss the fact that we have not acted on 2 percent of the 
President's nominees to the Federal judiciary.
  We are talking about 4 individuals, 4 individuals who have jobs, 
while 3 million people have lost jobs since President Bush took office. 
We should be talking about jobs. We should be debating and voting on 
legislation to increase the minimum wage. We should be finishing our 
appropriations bills. We should be talking about ways to strengthen our 
manufacturing base. We should be discussing extended unemployment 
benefits for the long-term unemployed, the 3 million Americans who have 
lost their jobs during the Bush presidency.
  If we want to start talking about legislation that is important to us 
as individual Senators, we could be talking about Federal recognition 
for Hawaii's indigenous peoples, Native Hawaiians, an issue of extreme 
importance to my constituents in Hawaii. We could be talking about 
ending mutual fund abuses for investors or promoting financial literacy 
for our students. We could be talking about how to fund the promises we 
extended when we passed the No Child Left Behind Act which has been 
severely underfunded since its enactment.
  Instead, we have spent 23 hours talking about 4 judicial nominations, 
4 nominations out of 172, which have not been approved by this body. We 
have spent the past day blaming each other for the lack of progress on 
the issues that we have identified as priorities. It is sad that we 
have come to this point. During my tenure in the Senate, we have been 
able to work in a bipartisan manner to achieve our goals.
  I take particular offense, to the claims that have been made about 
Democratic Senators being anti-woman, anti-Catholic, anti-Hispanic, and 
anti-African-American, merely because we refuse to approve 4 of the 
President's judicial nominees. Since when do we cast aspersions simply 
because we are unable to get our own way? As a former principal and 
teacher, this is not behavior that I would condone in the classroom, 
much less on the floor of the Senate.
  My colleagues from the other side of the aisle argue that this is the 
first time a filibuster has been used for a judicial nominee. 
Republicans have openly filibustered 6 judicial nominees on the floor 
of the Senate, 5 of which were circuit court nominees.
  There seems to be a theme that my colleagues on the other side of the 
aisle have not engaged in efforts to block a judicial nomination. I 
want to share with my colleagues a situation I encountered during the 
104th and 105th Congress. An individual from Hawaii was nominated to 
serve on the U.S. District Court, District of Hawaii. This was a 
nominee strongly supported by both Senators from Hawaii. This nominee 
had a hearing before the Senate Judiciary Committee and was reported 
favorably. However, this is where the process stopped for a period of 
two-and-a-half years.
  A colleague from another state placed a hold on this nominee for over 
30 months before allowing us to confirm this nomination. In effect, a 
Senator from a State thousands of miles from Hawaii blocked a district 
court nominee that the senior Senator from Hawaii and I supported. This 
colleague is now the attorney general of the United States, and happens 
to be a good friend of mine. I found this situation to be so unusual, 
that a colleague from another state would place a hold on a district 
court nominee from my State when both Hawaii Senators strongly 
supported the nomination. I also find it highly ironic that the person 
who placed that hold is now in a position of great importance in this 
administration. I raise this issue to dispute the notion that this is 
the first time a nomination has been blocked, after the Senate 
Judiciary Committee favorably reported the nomination to the Senate for 
  I could also speak about the nomination of Justice James Duffy to the 
United States Court of Appeals for the Ninth Circuit. A fine nominee, 
described by his peers as the ``best of the best,'' he had strong 
support from Senator Inouye and me to fill Hawaii's slot on the Ninth 
Circuit. Yet, Justice

[[Page S14675]]

Duffy never received a hearing in the Senate. Seven hundred and ninety-
one days without a hearing. Justice Duffy is one of the well-qualified 
and talented men and women nominated during the Clinton administration, 
individuals with bipartisan and home-State support, whose nominations 
were never acted on by the Senate. In back of me are pictures of those, 
and Mr. Duffy's picture is on the chart.
  The last person I will mention is Richard Clifton, who is now serving 
on the U.S. Court of Appeals for the 9th Circuit. Richard Clifton was 
nominated after President Bush withdrew Justice Duffy's nomination. 
Richard Clifton served as the Hawaii State Republican party counsel. 
While I don't necessarily agree with all of his views, I supported his 
nomination, and he was confirmed within a year of his nomination.
  Ninety-five percent of Federal judicial seats are now filled, 
creating the lowest vacancy rate in 13 years. So let's get back to the 
things we should be talking about--jobs, education, Medicare, minimum 
wage, unemployment insurance, and helping the poor.
  We are squandering valuable time that the Senate could and should be 
using to address matters of great importance to thousands of Americans. 
I am honored to cosponsor legislation offered by the senior Senator 
from Massachusetts, Mr. Kennedy, to raise the minimum wage. He has 
spoken with tremendous passion of the urgent need for an increase in 
the minimum wage.
  I remind my colleagues that since establishing the minimum wage 
requirement in 1938, we have had only 19 increases in the minimum wage, 
the latest occurring in September 1997. The minimum wage would need to 
reach $8.38 an hour to equal the purchasing power of the statutory 
minimum wage in 1968. A full-time worker paid the minimum wage earns 
about $4,000 below the poverty line for a family of three. This is not 
  We should not only be raising the minimum wage so that employees 
working full time are not struggling to stay above the poverty line. We 
should also extend the Temporary Extended Unemployment Compensation 
program. This program, which was enacted on March 9, 2002, provided up 
to 13 weeks of federally-funded benefits for unemployed workers in all 
states who exhausted their regular unemployment compensation benefits. 
In addition, up to an additional 13 weeks for certain high unemployment 
states that have an insured unemployed rate of 4 percent or higher. The 
program has been extended several times, with the latest extension 
enacted into law on May 28, 2003. While this program will be phased-out 
through March 31, 2004, the program actually ends on December 31, 2003. 
Although employment has risen, the national unemployment rate has 
remained unchanged at 6 percent. In October 2003, the Department of 
Labor has indicated that 2 million unemployed persons were looking for 
work for 27 weeks or longer. This is greater than the 13 weeks of 
regular unemployment and greater than the additional extended 
unemployment benefits. We should be doing more not just for our men and 
women who are fighting our war on terrorism, but for those who are 
fighting the war on poverty.
  My time is almost up, so I will end here. In a Senate where the 
divide between the majority and minority is held by a mere vote, and 
that division reflects the viewpoint of the American body politic at-
large, it is imperative that we work together to resolve so many of the 
issues that are important to our constituents. When it comes to 
judicial nominations, the confirmation rate of 98 percent clearly shows 
that we, in the minority, are doing what we can to work with the 
majority in upholding our constitutional obligation to provide advice 
and consent to the President on judicial nominations. I can only hope 
we achieve a 98 percent rate in enacting the laws addressing funding 
for education, healthcare reform, Medicare reform, increasing the 
minimum wage, extending unemployment insurance, and providing Americans 
with the financial tools to be successful.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from 
  Mr. KENNEDY. How much time do we have remaining?
  The PRESIDING OFFICER. The minority has 1 minute remaining.
  Mr. KENNEDY. I thank my colleague and friend. He mentioned the 
increase in the minimum wage. It has been 7 years since we have 
increased the minimum wage. In that time, we have also increased the 
pay for Members of the Senate five times, but we are denied the 
opportunity to increase the minimum wage for working families in this 
country. I think it would not take us very long. If the Senator would 
agree with me, it would take us about half an hour before we are 
prepared to go ahead and vote on a minimum wage, and here we have just 
used 30 hours or are going to be using 30 hours of discussion that is 
not related to that or to education, overtime, unemployment 
compensation, jobs, or education funding.
  I thank the Senator for an excellent presentation. I believe our time 
is just about up.
  The PRESIDING OFFICER. The Senator's time has expired.
  Who yields time for the majority?
  The Senator from Georgia.
  Mr. CHAMBLISS. Madam President, I say to my colleagues that if they 
will give us an up-or-down vote on all of these nominees, as they have 
done in every other instance and as the Senate has done for every other 
President of the United States, there is a lot of work we need to do 
and we look forward to moving on to that. What we have been doing over 
the past 24 hours almost now, what we are going to do for the next 
several hours, is some of the most important business this Senate can 
ever take up, and that is the confirmation of our judicial nominees.
  I am pleased to yield such time as he may consume to the Senator from 
Missouri, Mr. Talent.
  Mr. TALENT. Madam President, I thank my friend for yielding. It has 
been a pleasure, in a sense, to be here. I will not take very much 
  I have enjoyed hearing the remarks of my friends, the Senator from 
Hawaii and the senior Senator from Massachusetts. I have the pleasure 
of serving with them on the Armed Services Committee. They have often 
been eloquent on the floor of the Senate.
  My friend from Massachusetts has been eloquent on the subject of 
judicial nominations before. I am going to quote something he said 
about 5 years ago. I do it with respect and for a reason. He said on 
January 28, 1998:

       Nominees deserve a vote. If our Republican colleagues don't 
     like them, vote against them. But don't just sit on them--
     that is obstruction of justice. Free and full debate over 
     judicial nominations is healthy. The Constitution is clear 
     that only individuals acceptable to both the President and 
     the Senate should be confirmed. The President and the Senate 
     do not always agree. But we should resolve these 
     disagreements by voting on these nominees--yes or no.

  We should resolve these disagreements by voting on these nominees--
yes or no. I have quoted this for a reason. The divisiveness over 
nominations, holding them up in one way or another, is not new to this 
Senate. This tactic of abusing the filibuster rule for a minority to 
stop court of appeals judges from even getting a vote, that is new; 
that is unprecedented. They have been blocking now or threatening to 
block a quarter of President Bush's court of appeals nominees. That is 
unprecedented, and the Senators doing it are responsible for doing it. 
They have to stand up for that. But the divisiveness and some elements 
of obstruction are not new.
  We have an opportunity with this debate, and we are all exhausting 
ourselves talking, trying to come up with a real bipartisan resolution. 
I hope we can end the debate by stepping back and coming up with a set 
of rules that will be fair to whoever is the President and whichever 
party controls the White House. If we could do that, then we could 
clear these nominees for a vote.
  We are coming to the end of President Bush's term. We don't know who 
is going to be President a year from now. But we know that President 
deserves a better procedure than we have given this President. Now is 
the opportunity to do that, and then we can get on to the other 
business of the Senate.
  I encourage both sides to do that, and I thank my friend from Georgia 
for yielding.
  Mr. CHAMBLISS. I thank my friend for his very insightful comments, as 

[[Page S14676]]

  I yield such time as she may consume to the Senator from North 
Carolina, Mrs. Dole.
  Mrs. DOLE. Madam President, when the Constitution was drafted so many 
years ago, it outlined a process by which the President of the United 
States would nominate judges with the ``advice and consent'' of the 
U.S. Senate. The filibuster expands the Senate's advice and consent 
role in nominations well beyond what the Constitution envisioned.
  And for too long, politics has prevented the Senate from doing its 
constitutional duty.
  The judicial process is obviously gridlocked. Qualified candidates 
have been nominated only to find that they are unable to get proper 
consideration on the Senate floor. In the meantime, burgeoning court 
dockets, delayed trials and overworked judges have become the norm for 
far too many of our courts, especially in North Carolina.
  This simply isn't right. Every President, Republican or Democrat, 
deserves to have his nominees voted on. Every Senator has a 
responsibility to exercise his or her constitutional duty to vote on 
the President's nominees, and every nominee deserves a hearing, a 
committee vote, and an up-or-down vote on the Senate floor. Americans 
deserve courts that are staffed with qualified judges, and the process 
should be absolutely free of politics.
  I was sworn in as a U.S. Senator to represent 8 million North 
Carolinians. In doing so, I took an oath to fulfill the duties of this 
office, including one of a Senator's most important responsibilities--
voting on judicial nominees submitted by the President. Unfortunately, 
politics has undermined this process. Americans have the right to know 
where their Senators stand, and no one, no one should be able to hide 
behind parliamentary loopholes to avoid accountability to his or her 
constituents. The Constitution calls on all 100 Senators to give their 
advice and consent--not one Senator with a blue slip, not a group of 
Senators on the Judiciary Committee, but all 100 Senators.
  President Bush has said that each judicial nominee deserves a vote 
within 180 days of his or her nomination. Unfortunately, that is not 
the case for several of our excellent North Carolina nominees. Right 
now, we have three candidates whose nominations have been languishing 
in the Senate.
  Terry Boyle was first nominated to the 4th Circuit Court of Appeals 
in 1991--and then again in May 2001--this means he has been denied the 
courtesy of a vote in the Senate for more than a decade. Let me make 
that clear--More than a decade. The 4th Circuit hears federal appeals 
from North Carolina, South Carolina, Virginia, West Virginia, and 
Maryland. North Carolina is the largest State in the 4th Circuit, and 
historically the number of judges roughly corresponds with population. 
By this measure, we should have four to five judges on the court. We 
have only one. This seat has been vacant so long it has been declared a 
judicial emergency, so it is imperative that we act now.

  And Terry Boyle is extremely well qualified for the job. He is Chief 
Judge for the U.S. District Court in the Eastern District of North 
Carolina, having served on that court for 17 years. He was designated 
to sit with the court of appeals 12 times, and he has authored over 20 
appellate opinions. Everett Thompson, an Elizabeth City lawyer and a 
Democrat, said this of Terry Boyle: ``I think he is really one of the 
best trial judges I've every appeared before. He's a student of the 
law, he works hard, he's bright, he's fair. And I never saw him be 
political about anything at all.''
  And then there is Jim Dever, former Editor-in-Chief of the Duke 
University Law Journal, nominated to serve on the U.S. District Court 
for Eastern North Carolina. How long should a nominee have to wait for 
a hearing? Three weeks? Six week? Six months? This distinguished 
attorney has waited 18 months just to get a hearing. The seat has been 
vacant for almost 6 years--currently, the longest district court 
vacancy in the country. And the Eastern District is an area where his 
skills and expertise are desperately needed--this vacancy has been a 
judicial emergency since 1999--and, until the recent confirmation of 
Louise Flanagan, there were only two full-time judges there. The 
caseload got so heavy last year that U.S. District Judge Malcolm Howard 
had to continue seven civil cases because of the pressing criminal 
docket, which takes precedent by law. In an order announcing his 
decision, Judge Howard wrote, ``For more than two years, this four-
judge authorized court has functioned with two active judges. The 
result over time is that the caseload, civil and criminal, has become 
almost insurmountable.'' Mr. President, there hasn't been one single 
objection raised about Jim Dever's qualifications. He has broad 
bipartisan support. Robinson Everett, a Duke Law professor and former 
chief judge of the Court of Appeals for the Armed Forces, describes Jim 
Dever as having ``all the requisite qualities''--``he will be a superb 
  And, Bob Conrad is a well-respected U.S. Attorney nominated in April 
to be U.S. District Judge for the Western District of North Carolina. 
He is sorely needed. This is a district that had one of the highest 
caseloads in the country for the sixth year in a row. Bob Conrad is 
held in high esteem by his colleagues--Republicans and Democrats. He is 
known for his prosecution of a cigarette smuggling ring funding the 
terrorist group Hezbollah. In 1999, he was appointed by then-Attorney 
General Janet Reno--Janet Reno, as the point man for a Justice 
Department Task Force looking into illegal fundraising on the campaign 
trail. Roy Cooper, the Democrat Attorney General for North Carolina, 
said of him, ``Bob is a straight shooter. We are from different 
political parties, but I believe he is a student of the law and his 
decisions are not affected by partisan politics.''
  All three North Carolina nominees come with superb credentials, yet 
none has ever been considered by the Senate Judiciary Committee or, of 
course, the full Senate. This is a fairness issue. It isn't fair to 
these nominees and certainly isn't fair to our judicial system, which 
must not be subjected to political maneuverings.
  If a Senator believes a nominee is not qualified, then have the 
confidence to convince fellow Senators to vote against him. But at 
least take a vote. I trust my colleagues will vote based on a nominee's 
qualifications, like integrity, fairness, intelligence, work ethic, 
adherence to the rule of law and judicial temperament. We owe it to 
their constituents to take a stand on each and every judge. And that 
simply isn't happening in the U.S. Senate.
  There are a variety of ways that nominees have been held up in the 
Senate over many years. But we have reached an unparalleled level with 
the filibuster of judges. Instead of continuing a trend of retaliation, 
we have the ability to stop this downward spiral in its tracks. If we 
don't, the loser will be justice, the hundreds of thousands of crime 
victims in the United States and the judges who are overworked and 
unable to meet the demands on their courtrooms. And common sense tells 
us that many of America's highest courtrooms don't have judges to run 
them, and as a result, the legal system simply can't function. Yes, 
justice delayed is justice denied.
  Mr. CHAMBLISS. I thank the Senator from North Carolina for her very 
insightful comments, as always, about what has been happening in North 
Carolina with respect to the delay of judicial appointments once again.
  Now I yield such time as he may consume to the Senator from Indiana, 
one of the most respected men in the Senate, Mr. Lugar.
  Mr. LUGAR. Madam President, I thank the distinguished Senator from 
Georgia. I thank him for his leadership throughout this debate and his 
extraordinary contribution to our understanding. I likewise appreciate 
very much the testimony of the distinguished Senator from North 
Carolina with specific references to remarkable nominees, and the 
distinguished Senator from Missouri, who preceded the Senator from 
North Carolina, with his insightful comments.
  I would like to take a slightly different approach in my speech. I 
believe this debate is about the thought that we ought to have a vote 
up or down on each nominee. That is very important to the Senate, to 
our country, for fairness to the nominees and to the strength of the 
  It has been my privilege to serve almost 27 years, 15 of these years 
with a

[[Page S14677]]

Republican President. The custom I knew as a young Senator and now in 
whatever age I am at is that you have a responsibility: If you are 
going to make recommendations to the President of the United States, do 
so with care.
  In the first 25 years of my career, I appointed a nominating 
committee in Indiana made up principally of very distinguished 
attorneys and judicial figures for whom I had respect and from all over 
my State. I knew these people commanded respect, and they were very 
helpful in identifying, each time a judicial vacancy occurred, several 
  Without fail, I presented all of these nominees to the President, and 
his staff sifted through them and in each case came up with one of the 
nominees, frequently the one recommended first by the panel I had 
suggested. And thank goodness, each one of these nominees had an up-or-
down vote, usually a very fine consideration by the Judiciary 
Committee. I did not ever take that for granted, but I saw coming along 
the horizon a very different story in the current workings of the 
Judiciary Committee.
  I have great respect for that committee and its members and for those 
who have served as chair and ranking member of the committee. I think 
there is a crisis in that committee which is very important for us to 
be thinking about. I believe that privately a good number of members in 
the committee on both sides of the aisle deeply regret what has been 
occurring in the committee.
  Nevertheless, once again, on May 15, 2002, I was confronted with the 
news that Judge William Lee and Judge James Moody would both be 
retiring. I appreciated that those vacancies, two of them, were going 
to come in to the particular milieu about which we are now talking.
  So on this occasion, I took the responsibility personally to write to 
the press throughout our State that we had a very substantial 
opportunity ahead of us. I outlined all the qualifications I could see 
of a Federal judge and, with great cooperation of the press, invited 
every well-qualified person to apply. The applications the candidates 
filled out consumed tens of pages, including substantial writings and 
often the statements they had made in their professional work.
  Over the course of 4 months, ultimately 15 serious candidates 
emerged. I personally read all of their statements carefully. Those 15 
candidates included 6 State judges, 4 U.S. magistrate judges, 2 
attorneys in private practice, 1 Federal prosecutor, 1 Indiana 
prosecutor, and a legal professor. Their ages ranged from 35 to 61 and 
they represented 11 counties across our State.
  After taking a hard look at all of these applications, I interviewed, 
over the course of an hour or 2, 5 of the nominees I thought were the 
most promising. In those interviews, I was interested principally in 
their professional skills, but likewise I had read the opinions of 
these nominees. I did not ask them questions on social issues in 
America today, on political issues, on foreign policy issues. I did ask 
them about their work, the characterization of how they would fulfill 
their responsibilities.
  Following all of that, I submitted three names to the White House, 
and two of those persons were in fact nominated. They were Philip 
Simon, an assistant U.S. attorney and chief of the criminal division in 
Hammond, IN, and Theresa Springmann, a U.S. magistrate judge from 
Hammond, IN, this being the northern half of that State, that 
particular district that was involved.
  In fact, I have nominated a third, whom I shall not indicate in this 
address. But President Bush, in fact, did send those two nominees I 
have cited, Mr. Simon and Ms. Springmann, to the Senate.
  Philip Simon, I had found and the Senate Judiciary Committee 
discovered, had a remarkable record as a U.S. attorney. He was chief of 
the criminal division and responsible for all criminal prosecution in 
the Northern District of Indiana. He supervised and participated in 
prosecutions involving large-scale drug distribution rings, illegal 
firearms trafficking, white-collar fraud cases, environmental crime, 
and mob-related racketeering cases. He was in charge of a public 
corruption task force in Lake County, IN, which was very vigorous. He 
has been the recipient of a number of awards and commendations. The 
mutual insurance companies of Indiana presented an award to Judge Simon 
for his work to combat insurance fraud. He was given the Directors 
Award by former Attorney General Janet Reno, the highest award given to 
a U.S. attorney by the Justice Department in the last administration.
  Judge Springmann was the first woman to be made partner at Sprangler, 
Jennings & Doherty, the largest law firm in northwest Indiana. She 
followed this up by becoming the first woman judicial official in the 
Northern District of Indiana, presided over 30 civil jury trials, 10 
civil and criminal bench trials, and conducted 300 settlement 
conferences for the district court. She received a number of 
commendations and the highest rating from the Lake County Bar 
  At this point, I decided to write to Senator Hatch and Senator Leahy, 
chairman and ranking member of the committee. Beyond that, I went to 
both of them for personal conversation about these nominees, to explain 
the procedure and my own criteria, at least, in making these 
suggestions to the President.
  In fact, on March 12 of this year, Judge Springman and Judge Simon 
were given hearings; but prior to that time, I approached Senator Evan 
Bayh of Indiana, and I gave to Senator Bayh the total records of these 
nominees, so that he might see exactly the same applications I had 
examined, the same opinions. I asked him for his support of these 
nominees, and in fact he gave that. He appeared with me before the 
Judiciary Committee on behalf of these two nominees.
  Perhaps we had an unusual situation in Indiana, but I point out that 
I was pleased the Judiciary Committee acted promptly on the nominees 
and the Senate did likewise. Thus, what could have been a gaping hole 
in the Northern District of Indiana judiciary lineup, in fact, was 
promptly filled, even after the departure of these two distinguished 
judges. Now, that will not work for every situation, and there may be 
occasions, as a matter of fact, when the President of the United States 
has nominees in mind, as he takes a look at a particular State, that 
the Senator from that State may not have in mind. I can conceive that 
my three nominees might have led to the President or his people saying: 
Go back and try again and see if there are not other persons among 
these distinguished people you have nominated who more fit the idea of 
what I believe ought to be on the bench in America today. I recognize 
  But it was very important to my constituents in Indiana that we have 
the service of these judges--continuity in that regard. It was very 
important that they knew the criteria, the character, the whole 
process, that it was totally transparent and played out over several 
months with an enormous amount of publicity.
  Sadly enough, the Northern District of Indiana has an extraordinary 
number of political corruption trials going, with problems of gang-
related crime from Chicago and the Illinois border, and sometimes from 
Michigan and through that area, which brings a total Federal emphasis 
quite apart from the local situations that might have been involved. 
These were controversial areas of turmoil, not the placid situations 
that more characterize my State.
  This is why the selection of people in this particular business--
where there was enormous fraud, abuse, and corruption--was especially 
important and the civic trust in these judges is especially important. 
They have been serving for several months with distinction, as I 
anticipated they would. There was in fact a recognition at the time 
they were sworn in by the total community, in a very large celebration, 
celebrating the judiciary and the rule of law in that part of our 
  I recite all of this and have asked Senators to indulge in what 
amounts to maybe a parochial recitation about Indiana simply to say I 
believe that somehow in the workings of the Judiciary Committee and the 
relation of that committee with the White House and with us, there 
really has to be a working out of a better feel. What I suspect is 
occurring here is that, unfortunately, there may be individual members 
of the committee who have decided a way to carve out a different

[[Page S14678]]

function for themselves or maybe suggest a different function for the 
  We are all judges of the Constitution and what is proper and so 
forth. There are some who say, after all, a Presidential nominee for a 
Cabinet position is going to be bound by the term of the President. But 
these are lifetime officials, and we recognize that. But as the 
distinguished Senators who preceded me have pointed out, new Presidents 
come and go. The fact is that Republicans and Democrats are somehow 
going to have to work together year after year in an ongoing body for 
the continuity of our country.

  What is occurring now doesn't work. Without arguing the wisdom or 
justice of someone holding up a nomination through a filibuster, I 
submit that this is not in the best interest of the Senate or our 
judiciary. The public doesn't like it. There may be partisan persons or 
people with special interests in America who do like it. Whose entire 
being resonates with a particular cause and they attempt to prevail 
upon people to stop somebody at all costs before they do harm. I 
understand that. We all have to deal with that.
  What we are talking about today is, I hope, the continuity for the 
very broad number of Americans who want to have confidence in justice 
and confidence in us, even in a closely divided Senate, maybe in a 
closely divided country, and to be able to work in their interests. 
That is why this debate is so important--to elevate this idea not only 
of comity but of justice, doing the right thing to a much higher level, 
as opposed to the tactical advantage of filibuster, of a misuse, in my 
judgment, of a separation of power situation to cause harm.
  Madam President, I appreciate the opportunity to participate in this 
debate with my distinguished colleagues.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Madam President, I thank the Senator from Indiana. As 
always, he has provided great insight into the way in which judicial 
nominees are best handled. He does it in a way in which all of us 
function. It does work. Particular instances we have had on the floor 
under consideration have also gone through a similar process, where the 
President has picked nominees he knows are great jurists and great men 
and women.
  Unfortunately, we are having to go through the exercise that we are 
having to go through to hopefully seek the cloture and to vote to 
ensure that these men and women get an up-or-down vote.
  I want to talk quickly, in the remaining time we have, about two of 
the nominees.
  I had the opportunity to visit this afternoon with the Honorable 
Janice Rogers Brown, who is a justice on the Supreme Court of 
California, whom the President has nominated for a position on the DC 
Court of Appeals. Justice Brown has a very distinguished 26-year legal 
career, all but 2 of which she served in public service. She has a 
great Horacio Alger story to tell. She was born in a tiny community 
called Greenville, AL, outside Montgomery. She grew up in the rural 
South just, as I did and Senator Alexander did, at a time that was very 
difficult. She made the best of the conditions under which she grew up 
and she survived in a situation which a lot of people didn't survive.
  I was so impressed not only with her legal background and her 
educational background but just with Janice Rogers Brown as a person. 
She is just a great lady. For her to go through what she is going 
through now, for one simple reason--that reason being nothing to do 
with any particular decision she has rendered in the Supreme Court of 
California. The only reason she is going through what she is going 
through now is that she gave a speech to about 50 people in which she 
challenged the young people in that audience and, as a result of that, 
she is now being filibustered or is in the process of coming to be 
filibustered by the Democrats.
  I urge my colleagues to consider very thoughtfully voting positively 
on the cloture motions we are going to have tomorrow.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Madam President, here I am in the Chamber again exactly 
24 hours 30 minutes from when I was gaveled down from trying to 
complete the VA-HUD bill. I was on the floor 24 hours 30 minutes ago, 
standing up for veterans, trying to protect the environment, and 
working very closely and enthusiastically on a bipartisan basis with 
the chairman of the subcommittee on appropriations for veterans, 
housing, the environment, and other independent agencies.
  We were only 2 hours and about five or six amendments from being 
gaveled to come to cloture on the bill. As I was gaveled down, I was 
just heartsick that we could not take 2 more hours to finish the bill. 
Instead, this went on for 30 hours, and I am puzzled what has been 
accomplished by it.
  I know what wasn't accomplished by it. We did not finish the 
appropriations bill yesterday. Because we didn't finish the 
appropriations bill yesterday, we essentially said to millions of 
American veterans that we are going to put you on hold. We said to 
those thousands of faith-based organizations that build housing for the 
elderly--oh, no, we have to worry about a filibuster for judges; oh, 
no, we cannot move the bill. For those people who are trying to bring 
criminal prosecutions on polluters in the environment, we said we 
cannot really fund that, even though you don't have the right computers 
and enough staff. We have to talk about four judges. Millions of 
veterans, housing to be built for the elderly, the environment to be 
protected, getting our astronauts back to space safely, investing in 
science and technology at the National Science Foundation--that is the 
stuff of the VA-HUD subcommittee. That is why I am so passionate about 
it. It is one of the greatest subcommittees in Appropriations because 
it meets compelling human needs and yet gets America ready for the 
  But oh, no, we could not finish it yesterday, we could not take 2 
hours--oh, no, we had to talk about four judges and a process.
  I am very disappointed in that, and I have to express my gratitude 
for the way Senator Byrd pushed for completion of the bill. I also 
express my gratitude to Senator Ted Stevens, who obviously worked out 
something where tomorrow we can come back and attempt to finish the VA-
HUD bill. But this could have been done in the spirit of comity. We had 
momentum yesterday. It is the way the Senate ought to work. We had a 
bipartisan bill. We were forging bipartisan compromises, because when 
it comes to standing up for veterans, we cannot be the Republicans and 
Democrats, we have to be the red, white, and blue party.
  Today, I was at Walter Reed talking to Marylanders who will forever 
bear the permanent wounds of war. We were in wards with young men who 
have put themselves on the line. They didn't lose their lives, but they 
have lost a limb. You see their families. You say hi to a young lady 
who is a wife or to a mother of one of those wonderful soldiers getting 
great treatment at Walter Reed. You have a 22-year-old wife and a 42-
year-old mother trying to be there with her husband and her child, the 
man they love, so he can get well and get back on his feet.
  They are doing a fabulous job at Walter Reed. We are going to do all 
we can to support them. Those men and women look so young, so fragile. 
They are so brave and they cannot wait to get back on their feet. Some 
want to get back to their unit. They are going to come back to the VA. 
We cannot abandon these soldiers, sailors, and marines who are coming 
back from Iraq either bearing permanent wounds of war or the permanent 
impressions of war on them. We have to have a VA. This is why we need 
to move our legislation forward promptly, expeditiously, on a 
bipartisan basis.

  I know, working with the distinguished Senator from Missouri, the 
chairman, we can do this. But oh, no, we could not do it last night. We 
had to put it aside. I didn't tell the guys at Walter Reed that we 
didn't fund veterans health care last night. It would have broken my 
heart to tell them we are going back to the Senate to argue about a 
filibuster, to argue about four people of questionable qualifications 
to sit on the Federal bench.
  I didn't say that to them, but I say this to you. We have to get 
serious about the agenda for the United States of America. We need the 
right priorities. Do we need a good judiciary? You

[[Page S14679]]

bet we do. That is why we passed 168 judges already. With these four, 
with the qualifications that are so thin and troubling and these other 
issues, I don't think so.
  I want to talk about the priorities. Fortunately, again, because of 
the vigor of Senator Byrd and the cooperation of Senator Stevens, we 
are going to be in the Chamber tomorrow. We do have priorities. I spoke 
about veterans health care. You also know we have really significant 
issues in housing. Our communities need help. We are ready to move 
funds such as the community development block grant. This is money that 
goes into local communities, whether it is a big city such as New York 
or the small communities of Alaska, providing help to build childcare 
centers, rehabilitation of dilapidated properties. CDBG, last year, 
created over 100,000 jobs. When we asked for 2 hours, we were standing 
up for that. When we look at housing for the elderly, most of it is 
built and operated by faith-based organizations, such as the Associated 
Jewish Charities, Associated Catholic Charities, the Lutherans. It is 
wonderful because they take small amounts of Federal dollars and 
leverage them with philanthropy. They not only run programs, they run 
them with great compassion.
  These are the things we should be spending hours on the floor 
advocating. That is why we also worked to have funds to protect the 
environment. I wanted to talk about the Chesapeake Bay. Last night, I 
didn't talk about how we needed to protect the bay because we were 
short of time. People wanted to stand up on how they want to protect 
something about these four judges in the filibuster.
  How about the National Science Foundation? That needed attention last 
night, too. This is the one that invests in groups such as 
biotechnology and infotech and nanotech. Nanotechnology is a whole new 
field of inventing subatomic particles. I said to the Senator from 
North Carolina yesterday when she was presiding, our earrings, Madam 
President, this will contain all the books in the Library of Congress 
20 years from now. That is what nanotechnology means. Taking one pill--
you can take everything from your heart rate to your blood sugar, and 
also make new metal that is 10 times lighter than steel and 10 times 
  I just lost thousands of steel jobs--thousands--and they are losing 
their pensions and their health care. Maybe with nanotechnology, we 
will have a new kind of metal mill and we can bring manufacturing back 
to our country. Instead, we are sending our jobs on a fast track to 
Mexico and a slow boat to China while we are slowing the Senate down in 
this 30-hour process and squandering time and not focusing on national 
  I don't want to diminish what we are doing on judges. The judiciary 
is a separate and independent branch of Government. This is why we need 
to have the best of the best.
  Our courts are charged with safeguarding the very principles America 
stands for: justice, equality, individual liberty. That courthouse door 
must always be open, and when someone walks through that door they have 
to find an independent judiciary. I want to be sure when somebody walks 
through that courthouse door they not only get a fair trial and a fair 
hearing, but they know that person providing it is the best of the 
  The Senate does have an important and coequal role in the 
confirmation of judges. There is an advise-and-consent clause. It 
doesn't say sit around and rubberstamp. There is nothing in the 
Constitution that talks about 180 deadlines. It says give advice and 
  We gave advice, but we do not give our consent on four individuals. 
When I look at judges, I have three categories: judicial competence, 
integrity, and commitment to the core constitutional principles.
  My senior colleague and I have just supported three Republican judges 
from Maryland. We did it with enthusiasm. One was Judge Titus, whom the 
Senate confirmed just a few days ago. He is a brilliant man, very 
esteemed, involved in the Maryland bar. He could go on the Fourth 
Circuit Court of Appeals.
  Another we backed in committee and on the floor was Judge William 
Quaries, an African-American jurist who I predict will go far. A 
scholar with a touch of the people. He has a unique touch.
  We also backed someone unique, a man who chaired the Republican Party 
in Maryland. He actually ran against a Democratic attorney general and 
Senator Sarbanes and I signed the blue slips with a flourish and 
appeared before the committee. Why would we do that? Because Judge 
Robert Bennet is a fantastic person and an excellent judge. He was 
fabulous as the U.S. Attorney. He brings legal ability, writings, et 
cetera. Look, we said, let bygones be bygones, he would make a great 
judge, and we are not going to stand on the party. This is the way 
Sarbanes and Mikulski have operated.
  But guess what. Now we get to the court of appeals. What a process 
this has been. First they sent us a gentleman who wasn't even a member 
of the Maryland bar. He lived in Maryland, but we don't think ZIP Codes 
are the only qualification. We think you have to be a member of the 
Maryland bar and participate in the Maryland legal community. So we 
rejected him.
  The next person they sent was on the staff of Judge Gonzalas. We felt 
that was a little--it was an excellent job for him, but a little thin 
for the court of appeals.

  Guess what. Now we have been sent a Virginian. You might say, Is 
there anything wrong with being from Virginia? No, as long as it is the 
Virginia seat. It is by tradition that there are geographic seats on 
the court of appeals and we want ours. My colleague Senator Sarbanes 
and I are going to fight that on the basis of geography. There are many 
other things about Mr. Allen that are troubling about his background, 
but right now our battle will be because this should be a Maryland 
  I have voted for Republican judges and I voted for Republican judges 
on the court of appeals in Maryland. There is Judge Niemeyer, an 
excellent judge. I supported him for the district court and now on the 
court of appeals.
  When Judge Dianna Motts went to the court of appeals I didn't even 
know what party she was. I didn't know. You know what, I didn't care.
  Here we are, arguing over a process. We are squandering our time, 
while pressing national needs are here. I would say, let's move on. 
Let's get back to the business America wants us to focus on. We can't 
have food fights and so on in the Senate. I have worked with so many of 
my colleagues on a bipartisan basis that I would like to get the 
momentum back for that type of action.
  Tomorrow when I get another chance at VA-HUD, I look forward once 
again to returning to work in the Senate that tries to move bipartisan 
legislation. When it comes particularly to national security and the 
people who defend America, we put party aside and we are the red, 
white, and blue party. Maybe we need to start acting like that in the 
Senate on every issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, as I understand the allocation of time, 
we have the remaining time, am I correct?
  The PRESIDING OFFICER. Yes, 15\1/2\ minutes.
  Mr. KENNEDY. We have 15\1/2\ minutes.
  As my friend and colleague from Maryland pointed out, we have been 
listening to our friends on the other side of the aisle for at least 
half of the past 24 hours. After we have listened to that, we still 
come back to the fact that 98 percent of their judges have been 
approved and 4 have not, and the Constitutional Convention never 
expected us to be a rubberstamp. We are faced on the other side by the 
prospect, at least, of changing the rules of the game even though those 
on the other side have used the system and refused to permit 
consideration of a number of judges. They did that in the Judiciary 
Committee of which I have been a member for many years.
  It is interesting to me as we have gone over that ground so many 
times, our friends on the other side would be so interested and 
concerned about four individuals who have lost their jobs when we are 
facing so many other Americans out there who have lost their jobs and 
are really suffering.
  We were talking about numbers. I mentioned the recent figures of the 
Department of Agriculture that say tonight there are 13 million 
children who

[[Page S14680]]

are going hungry. That is Department of Agriculture statistics. Have we 
heard over the period of the last 24 hours ideas or suggestions or 
recommendations about how we are going to deal with the problems of 
hunger in children? That is happening tonight, 13 million.
  The other side is talking about four judges--four individuals who 
make more than $100,000 a year. What about the 13 million hungry 
children? Have we talked about that?
  How much have we talked about the 9 million Americans who are 
unemployed? There are 1.4 million who have already lost their 
unemployment compensation, with all the implications of that. They 
can't buy health insurance, they can't put food on the table, they 
can't pay the mortgage, they can't buy a birthday present for their 
children, they can't celebrate any kind of holiday for any of the 
members of their family. They are hard-put and hard-pressed. Have we 
talked about that for those individuals?
  How about the millions of Americans who do not have health insurance 
tonight? How about the millions of Americans who do not have health 
insurance tonight, the hundreds who lost their health insurance today, 
and all of their concerns for their families? How are they going to be 
able to deal with medical bills? Have we talked about that?
  The escalation of the cost of health care--have we talked about that 
and what that means to families? Have we talked about families who have 
gone into bankruptcy because they can't pay their medical bills? That 
affects 2 million Americans every year. We talk about four judges; we 
don't talk about 2 million Americans who go bankrupt every year because 
of health care costs. We don't talk about that.
  We haven't talked a great deal about the 80,000 workers who have 
contributed to the unemployment compensation fund, and starting the end 
of next month--and we are in the final moments and hours of this 
session--80,000 a week are going to lose their unemployment. This is at 
a time when the unemployment fund has $20 billion in surplus.

  We are in the final hours, as the Senator from Maryland has pointed 
out. Have we talked about what is going to happen to them? Don't you 
think they are concerned about whether the Senate is going to take any 
action in the final hours? Do we demonstrate any anxiety about what is 
going to happen to their families? I haven't heard a great deal about 
it from our friends on the other side. I haven't heard a great deal 
about it.
  We haven't heard a word from the other side about doing anything 
about increasing the minimum wage. It has been 7 years since we have 
increased the minimum wage; 7 years have gone by, and we can't get a 
vote on it in the Senate. The other side brings up a bill like the 
State Department reauthorization and I offer the minimum wage as an 
amendment and the majority Republicans pull the bill to deny us the 
opportunity to vote on it. I mean, if we are going to get indignant 
about the rules of the Senate, come on. Come on. Let's vote on an 
increase in the minimum wage. All of those on the other side who said, 
``Let the majority have a chance, let's have a vote on an issue, let's 
have a vote on this, let's have a vote on that,'' we say, ``Let's have 
a vote on the increase in the minimum wage.'' Oh, no, we can't do that. 
We can't have a vote on the increase in the minimum wage. We couldn't 
even get a vote now on the question of extending unemployment 
compensation. Oh, no, we can't do that. No, no, we are not going to be 
able to do that. We can't get a vote on hate crimes. No, no, we can't. 
We have to study that some more.
  I mean, come on. Twenty-four hours and you are going to continue for 
another 6 hours pontificating about the injustice that is being 
perpetrated when you have all this taking place across this country? 
The anxiety and tremendous frustration and the sense of hopelessness 
that takes place across this country, and you refuse to let us have a 
vote on the increase in the minimum wage?
  This is the chart on the minimum wage. This is what is happening to 
the minimum wage in the United States of America.
  This blue line indicates the purchasing power. It was almost $8.50 
back in 1968. It is now down to, without the increase, $4.95 in 
purchasing power this year, without any increase. It will be just about 
the lowest it has ever been.
  Who are the minimum wage recipients? Here we go. Here is another 
chart that shows the minimum wage no longer lifts a family out of 
poverty--from 1972 through 1982, there were 2 years when it was just at 
the poverty line. We said people who want to work and can work will 
work 40 hours a week, they will be able to get out of poverty. Look 
what has happened in the 1980s, 1990s. We were able to get a little 
blip in early 1992 and again in 1998. It was basically the same 
legislation. Now, since 1998 to 2003, we are unable to get a vote to 
increase it $1.50 over 2 years.
  Can you imagine the amount of money we have seen returned to American 
taxpayers, $2 trillion over the past 2 years, and we can't get an 
increase in the minimum wage for working men and women? And the other 
side is trying to be indignant about the fact four individuals who are 
making over $100,000 are being put upon and we are going to have to 
listen to them for 6 more hours?
  What is the increase in the minimum wage? It is the equivalent of 
$3,000. It might not seem like a lot to people, but it is 7 months of 
rent, 11 months of groceries, 14.5 months of utilities, full tuition 
for a community college degree. That is what that represents. That is 
real money for working families who are at the bottom end of the 
economic ladder.
  Our Republican friends refuse to give us at least the opportunity to 
vote. Understand, vote. We heard that word used a great deal on the 
floor of the Senate. Let's get a vote on this issue.
  Let me review as well about jobs. We talked about four jobs. What we 
are facing here is 3 million Americans who have lost their jobs. Let's 
think, besides the statistics, exactly what it means in terms of 
financial hardships of the unemployed. Look at this. Half the 
unemployed adults have had to postpone medical treatment--that is 57 
percent--or cut back on spending for food. I have just given the 
figures and the statistics of the Department of Agriculture that have 
13 million children hungry tonight. Thirteen million children are 
hungry tonight.
  One out of 4, 26 percent, has had to move to other housing. Imagine 
that. We have 3 million people who have lost their jobs and 1 out of 4 
had to move out--move in with friends or relatives. There is a problem 
that deserves debate, discussion, and ideas and solutions and 
resolution and determination and accountability here. There are 38 
percent who have lost their telephone service, 22 percent are worried 
about losing their phones, more than a third, 36 percent, have trouble 
paying the gas or electric bill--things that are absolutely assumed 
around here.
  People are really hurting. We are not talking about 4 people, we are 
talking about hundreds of thousands of people, and we have occupied the 
time of the Senate to talk about 4 judges who are not qualified, I 
don't believe, to serve on the Supreme Court. We are not expected to be 
rubberstamps. Our Founding Fathers never intended that.
  I want to mention one other item that is now in the conference. It 
would be pretty worthwhile if we had engaged our friends on the other 
side to tell us what is happening in the conference on the issue of 
overtime pay. When people work overtime, something that for some 60 
years has been in our law, it ensures people who work longer than 40 
hours a week are going to be fairly treated. We have the proposal by 
the administration to deny that to 8 million Americans. It was defeated 
here on the floor of the Senate, defeated in the House of 
Representatives, and now it is in a conference.
  Why don't we hear from the other side what has happened to that 
conference? Why don't we hear where they are on the issues of overtime? 
That makes an enormous difference to people. It makes a big difference 
in their lives. It is not 4 people and their livelihood, it is hundreds 
of thousands, tens of thousands, millions of people whose lives are 
going to be affected.
  Right off the top of the list are firefighters, policemen, nurses. 
Does that ring a bell to anyone around here? They are the backbone of 
Homeland security. We are cutting back on their income.

[[Page S14681]]

  We have had a bipartisan determination on that issue here. Do we hear 
anyone on the other side, when they are talking about 4 jobs, talk 
about all these numbers of Americans who are losing out?

  Madam President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 2\1/2\ minutes remaining.
  Mr. KENNEDY. I would have liked to have gone on. Maybe we will have 
time later.

                   Unanimous Consent Request--S. 224

  In the meantime, I ask unanimous consent the Senate return to 
legislative session, proceed to the consideration of Calendar No. 3, S. 
224, the bill to increase the minimum wage, that the bill be read a 
third time and passed, and the motion to reconsider be laid on the 
  The PRESIDING OFFICER. Is there objection?
  Mr. CORNYN. Madam President, I ask unanimous consent that the Senator 
modify his request so that just prior to proceeding as requested, the 
three cloture votes would be vitiated and the Senate would then 
immediately proceed to three consecutive votes on the confirmation of 
the nominations, with no intervening action or debate.
  The PRESIDING OFFICER. Is the Senator from Massachusetts willing to 
modify his request?
  Mr. KENNEDY. Madam President, I withdraw my consent request because 
it is quite clear there is objection by the Republicans to the 
consideration of an increase in the minimum wage.

                   Unanimous Consent Request--S. 1853

  I ask unanimous consent the Senate proceed to legislative session, 
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, passed, and the motion to reconsider be laid 
on the table.
  Mr. CORNYN. I ask consent the Senator modify his request so just 
prior to proceeding as requested, the three cloture votes would be 
vitiated and the Senate would then immediately proceed to three 
consecutive votes on the confirmation of the nominations, with no 
intervening actions or debate.
  The PRESIDING OFFICER. Does the Senator from Massachusetts modify his 
request with those conditions?
  Mr. KENNEDY. I withdraw my request and let the Record indicate the 
Republicans have objected to the extension of the minimum wage and have 
objected to the extension of unemployment compensation for hard-working 
Americans who have paid into that fund.
  Mr. CORNYN. Madam President, once again, we are proceeding with the 
Democrats' filibuster of the circuit court nominees.
  Mr. KENNEDY. Do I have the floor?
  Mr. LEAHY. Regular order, Madam President.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Who yields time?
  Mr. SHELBY. I yield myself as much time as I require.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Madam President, I rise tonight to speak on behalf of the 
President's right to select qualified judges of his choosing and the 
Senate's duty to provide advice and consent on these judicial nominees 
by means of an up-or-down vote on their confirmation.
  The quagmire in which we currently find ourselves I believe threatens 
the constitutionally-vested discretion of this and all future 
Presidents in appointing those judges they see fit. Second, it 
threatens the independence and effectiveness of the federal judiciary, 
and third, it threatens the future function and effectiveness of the 
United States Senate as the deliberative and distinguished institution 
it is today.
  Article 2, Section 2, Clause 2 of the United States Constitution 
vests the President alone with the power of appointing Federal judges 
``with the Advice and Consent of the Senate.'' Nowhere does the 
Constitution grant the Senate any power over selecting judicial 
  A review of over 200 years of the Senate's history and practice makes 
it clear that the Senate's role in Presidential nominations is either 
to confirm or deny their appointment by means of an up-or-down vote on 
the floor--nothing more and nothing less.
  The unprecedented obstruction we are now experiencing is simply 
unjustifiable, I believe.
  Why not allow the President to do his job of selecting judicial 
nominees and let us do our job in confirming or denying them? 
Principles of fairness call for it and the Constitution requires it.
  Those of my colleagues who are currently blocking confirmation of the 
President's circuit court nominees have admitted to doing so on 
ideological grounds. They feel that these nominees are outside of their 
definition of ``mainstream''--whatever that may mean. When Senators 
impose a subjective litmus test on judicial nominees, they are really 
just seeking out candidates that agree with them ideologically. This 
introduces a political element into the constitutional framework of 
judicial appointments that isn't there--and with good reason.
  The Constitution grants Federal judges lifetime tenure and salary 
protection precisely in order to insulate them from political 
  The Senate's standard for confirming a judge should simply be a 
nominee's honesty, competence, temperament, and appreciation for the 
proper constitutional role of an Article III judge.
  Any test beyond this substitutes the judgment of individual Senators 
over that of the President and unduly politicizes a position that is 
intended to exist outside the realm of politics. What is more, as my 
colleagues in the minority continue to use their ideological litmus 
test to justify blocking the President's circuit court nominees--four 
so far, with more promised--these unfilled vacancies impose a heavy 
burden on our judiciary.

  The ability of these appellate courts to manage their caseloads and 
to effectively interpret and apply the law is dependent on a full 
complement of judges available to consider and rule on pending cases.
  We all know the saying ``justice delayed is justice denied,'' and we 
simply can not allow our own political agendas to undermine the fair 
application of the rule of law.
  I would encourage all Senators to take a step back from the current 
debate and envision the future of this Senate if the obstruction of 
these judicial nominees continues. Do we really want to operate in an 
environment where judicial confirmations require 60 votes? That is the 
direction in which we are rapidly headed.
  I can understand that some of my colleagues don't agree with our 
current President's politics. That is politics. I can understand that 
this President's judicial nominees may not be to some of their 
ideological liking. That is politics. However, this does not justify 
denying a judicial nominee a simple up-or-down vote.
  I feel quite certain that my colleagues on the other side of the 
aisle would not be nearly as accepting of these obstructionist tactics 
if they proverbial shoe were on the other foot.
  I am not asking any of my colleagues to vote in favor of confirming a 
nominee that they oppose. I leave that determination to their 
discretion. I am simply asking them to allow the Senate to complete its 
constitutionally-appointed duty in providing the President with advice 
and consent on all of his judicial nominees.
  Now, I would like to take just a few moments to discuss two of the 
President's filibustered circuit court nominees in which I take a 
particular interest: Alabama Attorney General Bill Pryor and California 
Supreme Court Justice Janice Rogers Brown.
  Bill Pryor is the President's nominee for the United States Court of 
Appeals for the Eleventh Circuit. I have known Bill for many years and 
have the highest regard for his intellect and integrity. Whether as a 
prosecutor, a defense attorney, or the Attorney General of the State of 
Alabama, he understands and respects the constitutional role of the 
judiciary and specifically, the role of the federal courts in our legal 
  I am confident that Bill would serve honorably and apply the law with 
impartiality and fairness, if he were confirmed for the Eleventh 
Circuit. Unfortunately, Attorney General Pryor's nomination has been 
filibustered for most of this year.
  Janice Rogers Brown is the President's nominee for the United States

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 Court of Appeals for the D.C. Circuit, which is widely regarded as the 
court second in importance only to the United States Supreme Court.
  I am proud to say that Justice Brown is a native of my own State of 
Alabama, having been born in Greenville and raised in Luverne before 
moving to California.
  The progression of her career to serve on California's highest 
court--the first African American woman ever to do so--is a remarkable 
story of success through hard work and dedication that serves an 
example for us all.
  Justice Brown has enjoyed a distinguished career on the California 
Supreme Court, most recently receiving 76 percent of the vote the last 
time she came before California voters.
  Justice Brown possesses the highest character and ideal temperament 
for this important judgeship. Unfortunately, her nomination is subject 
to filibuster and thus the D.C. Circuit is denied her services.
  It is the role of the Senate to provide the President with advice and 
consent on his judicial nominations. We can only fulfill this duty by 
allowing each of these nominees an up-or-down vote by the full Senate.
  The proper function and balance of the executive, judicial and 
legislative branches depends upon it.
  It is my hope that we can end this impasse tonight and vote on each 
of these nominees. Let the majority vote. Let the majority count. If we 
get the majority vote, they will be confirmed, but they should not be 
obstructed. They should not be filibustered.
  I yield the floor.