[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Senate]
[Pages S14683-S14777]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page S14683]]

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                                 Senate

                           EXECUTIVE SESSION

  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I yield myself such time as I might 
consume.
  Mr. WARNER. Mr. President, parliamentary inquiry: Can the 
distinguished Senator from Iowa--we were told to come here at certain 
times, and if he were to take as much as he wishes, that would preclude 
any other Senator speaking in the time period.
  Mr. GRASSLEY. I yield to the Senator whatever time he needs.
  Mr. WARNER. I withdraw my parliamentary inquiry.
  Mr. GRASSLEY. I yield the Senator whatever time he wants.
  Mr. WARNER. I will sit down. The Senator may go ahead.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I rise today to discuss the Democrats' 
filibuster of President Bush's judicial nominees. The Senate Democrats 
still think it is Halloween and are trying to spook us into believing 
that President Bush has nominated a bunch of extremist individuals that 
cannot be good judges. The Democrats are claiming that these nominees 
are ``outside of the mainstream''. The truth is that these individuals 
will not implement a liberal agenda on the bench. The truth is that 
these individuals will follow the law, rather than bend to the will of 
the political left. But these inside the Beltway, left wing groups have 
gotten the Democrats to do their bidding. They have hijacked the 
judicial confirmation process in an unprecedented filibuster of 
judicial nominees, and they are denying these good men and women an up 
or down vote. Federal judicial seats will remain unfilled, and 
litigants seeking justice from those courts can expect further delays.
  The reality is that the Constitution of the United States gives the 
President the power to appoint individuals to seats on the Federal 
judiciary. The Constitution gives the Senate the responsibility to 
advise the President in this process. And the Constitution requires the 
Senate, by a simple majority
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[[Page S14684]]

vote, to give its consent to the President's choices for Federal 
judgeships, or to withhold that consent. But through an unjust abuse of 
the filibuster, a minority of Senators is preventing the majority of 
the Senate from taking an up or down vote on President Bush's judicial 
nominee. That is not right.
  I have always been of the position that judicial nominees should be 
carefully scrutinized by the Judiciary Committee because they are life-
time appointments. It is my opinion that judicial nominees should have 
intellect, experience, character and integrity. They should also have 
the right judgment and temperament for the job. But most importantly, 
they should understand their role on the bench, which is to interpret 
the law and to follow the law, not to make the law and legislate from 
the bench. That is the most important credential in my book. And I take 
that job of looking at judicial nominees very seriously.
  However, once the Senate Judiciary Committee has had the opportunity 
to review these candidates and to approve them, these individuals 
should get an up or down vote by the full Senate. This is the right 
process. This is a fair process. During my tenure with the United 
States Senate, I haven't always agreed with a sitting President's 
choices for the Federal bench. I have voted against a number of 
judicial nominees because I didn't believe they were qualified to be a 
judge, or because I didn't believe that a seat needed to be filled. But 
I have never filibustered a judicial nominee.
  But that is just what is happening right now. We are seeing the 
unprecedented use of the filibuster rule to stop judicial nominees from 
being confirmed. An exceptional group of men and women are being used 
for political gain by this minority group of Senators. The nominees 
that the Senate is considering right now, Janice Rogers Brown, Carolyn 
Kuhl, and Priscilla Owen, as well as Bill Pryor and Charles Pickering, 
two nominees that have been filibustered, they all are distinguished 
individuals that deserve an up or down vote. They all deserve to be 
confirmed.
  Let me say a few words about the men and woman that are being 
filibustered. These men and women are being characterized as outside of 
the mainstream, extremist people. They are being characterized as ``bad 
judges'' that have to be stopped. Nothing is further than the truth. 
The reality is that some left-wing interest groups are skewering these 
nominees' reputations with baseless allegations because they don't have 
a liberal ideology. And the Senate Democrats are more than happy to do 
the bidding of these racial outside groups. And our nation will suffer 
dearly for it.
  Priscilla Owen is currently a judge on the Texas Supreme Court. She 
was unanimously rated well qualified by the ABA and enjoys a steller 
reputation in her home state. She's been repeatedly reelected to the 
Texas Supreme Court by wide margins and has served that court 
admirably. Judge Owen enjoys the support of her two home state Senators 
and has been endorsed over and over again by elected officials, fellow 
jurists, and attorneys alike.
  Janice Rogers Brown, the daughter of a share cropper who attended 
segregated schools, put herself through California State University and 
eventually law school at UCLA. She did all this while raising two 
children as a single mother. She served her state in a variety of legal 
roles, including Deputy Attorney General and then later as a legal 
affairs secretary to the Governor. Judge Brown has served on the 
California Supreme Court since 1996.
  Carolyn Kuhl has been a judge on the Los Angeles County Superior 
Court since 1995. She served in a variety of positions in the Justice 
Department, and then was a partner at a prominent Los Angeles law firm. 
Judge Kurl received a well qualified rating by the ABA, and enjoys 
bipartisan support.
  Three other highly respectable nominees have already been 
filibustered. Bill Pryor has earned the reputation as one of the most 
experienced states attorneys general in the country. He graduated from 
law school magna cum laude, and clerked for Fifth Circuit Judge Wisdom. 
We have seen that he enforces the law regardless of his personal 
convictions. General Pryor also has overwhelming support from across 
the political spectrum.
  Judge Charles Pickering has been a lawyer and county prosecutor, and 
has served as a distinguished federal district court judge for the past 
11 years. He received the ABA's highest rating, ``well qualified.'' He 
stood up against the Ku Klux Klan, and has been a leader for equal 
rights, integration and inclusion in his community. The people that 
know Judge Pickering best support him without hesitation.
  Finally we have Miguel Estrada, who was nominated to the D.C. Circuit 
Court of Appeals. He become so frustrated with the process that he 
withdrew his nomination after waiting over 2 years for an up of down 
vote. Yet he is the true American inspiration story. Born in Honduras, 
he came to America as a young boy and through determination and hard 
work, elevated to the top echelons of the law profession. He was an 
Assistant Solicitor General of the United States in the Clinton 
Administration, and was a partner in a prominent law firm. Mr. Estrada 
received the highest rating from the American Bar Association, and is 
well respected by colleagues and friends alike.
  It is a real shame that this fine man felt he had to withdraw his 
nomination from consideration because of the guerilla smear tactics of 
the far left and because of the guerilla smear tactics of the far left 
and because of the Democrats' unprecedented filibuster tactic. And it 
is a real shame that these other fine men and women, and their 
families, have to go through this same miserable saga. As I think about 
these nominees with their stellar reputations, outstanding intellects, 
and their compelling life stories, it saddens me to know that the 
Democrats have been so ready and willing to stomp all over their good 
names and to deny the American people quality jurists--all this in the 
name of carrying the sword for special left wing interest groups.
  I have served in this body for many years. And I have seen the 
filibuster used to leverage a better bargaining position on legislative 
matters. But it hasn't been used to block a judicial nominee, and 
especially not where that nominee enjoys majority support by the 
Senate. This is the first time in history that the filibuster has been 
used to prevent a judicial confirmation, even though my colleagues on 
the other aisle say that isn't the case. It is wrong and probably 
unconstitional. It is an abuse of the process. The Senate is supposed 
to provide advice and consent. The Democrats are denying the rest of 
the Senate our responsibility under the Constitution to give our 
consent--or even to withhold our consent. It is a terrible disgrace and 
ought not to continue.
  The Democrats are leading us down a path that is just going to make 
matters worse. The judicial confirmation process is already in an 
unhealthy state of repair--we don't need to destroy it altogether. The 
Democrats need to stop playing politics with the judiciary. They need 
to stop spooking people about the qualifications and ability of these 
nominees to be good federal judges. They need to stop spooking away 
qualified nominees like Miguel Estrada. We need to stop this unjust 
filibuster and give these worthy nominees what they deserve--an up or 
down vote.
  I yield the floor. I yield whatever time the Senator from Virginia 
needs.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank my good friend, my colleague from 
Iowa.
  Mr. President, what is the parliamentary situation, and what time 
remains under the control of my distinguished colleague from Iowa who 
is managing this set of debates at this time?
  The PRESIDING OFFICER. The majority controls 10 minutes, the minority 
has 30 minutes.
  Mr. WARNER. So we have 10 minutes remaining.
  The PRESIDING OFFICER. That is correct.
  Mr. WARNER. I thank the Chair.
  Mr. President, I commend my good friend from Iowa for a very 
statesmanlike coverage of the responsibilities of the Judiciary 
Committee on which he has served these many years.
  I turn to the following. If we look back in history in the summer of 
1787, 55 individuals gathered in Philadelphia to write our 
Constitution. It was a very hot summer, and it was a long and arduous 
debate, many drafts back and forth, but careful consideration was

[[Page S14685]]

given. Finally, in mid September, it was over. It was a monumental 
achievement. But the Framers did not know at that time what a great 
achievement they had made, one that would enable the United States, 
today, these 200-plus years later, to become the oldest continuously 
surviving Republic form of government on Earth today.
  Almost every other government in existence at the time of the 
Constitutional Convention has fallen into the dustbin of history. So we 
must ask ourselves, why? It is very clear to this humble Senator that 
it was due, in part, to the wisdom of the Framers to have three coequal 
branches of the Government. I view this debate as one to determine the 
survivability of the coequal stature of the three branches.
  I am not going to argue about all the things that have taken place 
back and forth, but just go to this magnificent document--the 
Constitution. The Presiding Officer has placed a copy of it on every 
desk in the Senate chamber, and many of us daily carry it in our 
pocket. The Constitution very clearly states that a simple majority 
vote is the regular order of business, with the exception of a few 
instances specifically enumerated in the Constitution that require 
super-majority votes. Had the Framers decided that we should require 60 
votes for the confirmation process of the Senate, they would have 
explicitly written in such a requirement.
  It is quite interesting to note that:
  Two-thirds of the Senate must vote to ratify a treaty; two-thirds of 
the Senate must vote to convict on an article of impeachment; two-
thirds of a House of Congress must vote to expel a Member of that body; 
two-thirds of each House of Congress must vote to override a 
President's veto; and two-thirds of each House must vote to propose an 
amendment to the Constitution. With regard to the advice and consent, 
clearly enunciated in the Constitution, and given to only one body of 
Congress, the Senate, there is no mention of a higher than simple 
majority vote. It is there to protect, again, the checks and balances. 
It is there to protect against an executive branch nominee which, in 
the fair judgment of the Senate, does not meet the high standards to 
become a member of the judicial branch.
  The case here is very simple: Are we going to abide by what the 
Framers laid out, what has kept this great Nation together these 200-
plus years? Or are we going to devise and contrive in our own words 
some system by which to prevent a simple vote up and down on a judicial 
nominee?
  The Constitution does not include that super-majority. If the bar is 
to remain at 60 votes, as my colleagues on the other side have so 
vehemently argued in favor of, I say then the Senate would have far 
more power on questions of judicial nominees than was intended by the 
Framers. The checks and balances concept of our Constitution would be 
changed. And how would that affect our Republic?
  Well, when the Constitutional Convention was over in September 1787, 
Benjamin Franklin emerged and was greeted by a crowd, some were 
reporters. He was questioned, ``what have the Framers wrought?'' He 
replied, ``a Republic, if you can keep it.''
  And that is what we are doing here in this historic debate. We are 
determining the rules by which we keep that Republic.
  Throughout this historic debate, this Chamber has resonated with the 
use of the word ``filibuster.'' I ask: Can any Senator point to use of 
that word in any of the rules of the U.S. Senate? In every desk, every 
Senator has their book on the rules of the Senate and procedures of the 
Senate. You can't find the word ``filibuster'' in that book because it 
is not there. But, should I be wrong, parliamentary inquiry to the 
Presiding Officer, can the Parliamentarian find the word ``filibuster'' 
in the rules of the Senate or any definition in the rules of the 
Senate?

  The PRESIDING OFFICER. The word ``filibuster'' is not contained in 
the standing rules of the Senate.
  Mr. WARNER. I thank the Presiding Officer. It is not in the rules. 
Where do you go to look for it? Webster's Dictionary. This dictionary 
has been in my office these 25 years since I have been privileged to 
serve in this body. And I use it often. I say to my colleagues, this is 
an interesting bit of history. The dictionary defines ``filibuster'' 
as, ``An irregular military adventure especially one in quest of 
plunder, a free-booter, applied to buccaneers infesting the Spanish 
American coast, later an organizer or member of a hostile expedition to 
some country or countries with which his own is at peace in 
contravention of international law.''
  Go all the way down to the last definition, and you will find a 
reference that is most appropriate to this debate. I read:

       A member of a legislative or deliberative body who, in 
     opposition to the proposed action of the majority, obstructs 
     or prevents action by the extreme use of dilatory tactics 
     such as speaking merely to consume time and so forth.

  It is about the fifth definitional use of this word.
  I say, most respectfully, that it is a word that is a slang word. It 
probably has been used to cover many types of procedures that both 
sides have followed under the rules for many years.
  I went back and did some research in this wonderful book. It is 
entitled ``Senate Cloture Rule, Limitation of Debate in the Congress of 
the United States, Legislative History of Paragraph 2 of Rule XXII of 
the Standing Rules of the United States Senate.''
  I do not find in this excellent treatise, put out in 1985 by the 
Library of Congress, printed by the direction of the Rules Committee 
and Administration of the United States Senate, any instance in which 
the situation we are faced with today with these nominees is covered. 
They do refer to the use of the word ``filibuster,'' but loosely.
  Ultimately, with all of the confusion surrounding the word 
``filibuster,'' I think you have to come down to what it was the 
Framers intended, what is in this book--the Constitution, which has 
held this Nation together these 200-plus years, this great Republic of 
our's.
  I say to my colleagues, as Ben Franklin said, we have a Republic, and 
this debate is determining the ground rules by which we can or cannot 
keep it.
  Clearly, the President has the authority to nominate. Clearly, this 
body has the authority of advice and consent. But remember, it is to be 
in a balance of powers between the executive and the legislature. I say 
if we are to set a precedent here that it requires 60 votes to act upon 
a nominee, three nominees--
  The PRESIDING OFFICER. The time of the majority has expired.
  Mr. WARNER. I ask unanimous consent for 1 additional minute.
  Mr. LEAHY. Then I ask for 1 additional minute on our side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. If we were to set a precedent that nominees reported out 
of the Judiciary Committee were subjected to a 60 vote requirement, 
this precedent would disrupt the carefully crafted system of checks and 
balances embedded in our Constitution by giving the Senate far more 
power in the judicial selection process than the Executive Branch, the 
President. These nominees deserve a simple up-or-down vote as provided 
in the Constitution by the absence of any reference to a supermajority 
or a 60 vote requirement.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, I am honored to follow the Senator from 
Virginia. I want to return to the Constitutional Convention that he 
spoke of from 216 years ago. Among the last issues resolved at the 
Constitutional Convention was the question of whose job it is to select 
the members of this third branch of Government that was to be created.
  We have an executive branch, the legislative branch with the House 
and Senate, and a judicial branch. At that time in this country there 
was a great concern on the part of those framing the Constitution and 
trying to craft a framework of our Government. Foremost among the 
concerns they had was the concern that somehow we would unintentionally 
invest too much power, too much authority in one person. Having dealt 
with the King of England and not wanting to have to deal with another 
figure of authority with the kind of powers of a monarch, there was a 
great debate over what would the powers be for this new President and 
how would we constrain those powers.
  Among the last issues resolved at the Constitutional Convention was 
the

[[Page S14686]]

question of who selects the judges, who selects the members of that 
third branch of the judiciary. There were plenty at the Convention who 
thought that in order to make sure we didn't end up with another 
monarch in this country, a king, the power of selecting the judiciary 
should lie with the legislative branch. There were those who thought 
the Senate or the House or some combination thereof should select who 
the judges would be. There was another school of thought that said, no, 
maybe we should give the President, our Chief Executive, the power to 
select who our judges would be. As we all know, the compromise that was 
struck was one that says the President may nominate with the advice and 
the consent of the Senate.
  Yesterday, as our youngest son came home from school, he shared with 
his mom and me some good news. He shared with us that while he won't 
get his report card for another week or so, he had learned the results 
of his scores, his grade in English language arts. He is in the eighth 
grade. He came home and he said: I got a 94 for English language arts 
in this grading period, dad. I get an A. I get an A.
  We were delighted. He has a tough teacher. He has worked real hard, 
and he earned a 94. He is going to get an A. We hope he does as well in 
his other courses.
  On the scorekeeping for how this President is doing with respect to 
getting his nominees confirmed, I think of the 172 we voted on so far; 
168 have been confirmed, 4 have not. That is 98 percent. In my book, in 
my son's book, that is an A. That ain't bad.
  Before I came here to serve in the Senate with my colleagues, I was a 
Governor. I know some people get tired of hearing me talk about that. 
But it was a great privilege to be Governor of my State. In our State, 
Governors nominate people to serve on the bench. The Senate can 
confirm. Whether it was a judge, supreme court, magistrate court, any 
commission, I would like to have had every single nominee confirmed. I 
suspect that most other Governors who similarly make nominations for 
appointments in their States would like to have all their nominations 
confirmed as well. Not all of my nominations were confirmed.
  There is a give and take with the Senate in my State, just as there 
is a give and take with the Senate in this city for our National 
Government. I don't often quote Mick Jagger and Keith Richards, but 
there was an old song from my youth they used to sing: ``You can't 
always get what you want, but if you try sometime, you get what you 
need.''

  We need from this President good nominees. I expect they are going to 
be Republicans. I expect they are going to be conservative. My guess is 
that of the 98 percent who have been confirmed, they were all 
Republicans. For the most part they were all conservative. I don't 
think it is realistic of this President to expect that we are going to 
confirm 100 percent of his nominees.
  It sure wasn't the expectation of his predecessor, Bill Clinton. He 
got a majority of his nominees confirmed but not 100 percent, not 95 
percent, not 90 percent, not 85 percent, but about 80 percent were 
actually nominated, had hearings, and their names actually ended up on 
the floor for a confirmation vote. That is a B-minus. Compared to the 
A-plus that this President is getting with respect to confirmations, I 
am not sure I understand fully the great dissent and the great 
disappointment and the great frustration our friends on the other side 
have shared.
  Here is my frustration. I didn't come here to be about partisan 
politics. I didn't come here to be about gridlock. I didn't come here 
to pursue that agenda. I came here as one who wants to work with people 
on the other side of the aisle. I want to get things done.
  I have voted with this President more than 75 percent of the time. I 
am told that only 7 Democrats have voted with this President more than 
I have in the last 2 years. I have tried to provide leadership on 
issues that both of my colleagues are concerned with, Senator Leahy and 
Senator Hatch: class action, asbestos reform, bankruptcy, welfare, a 
comprehensive energy policy.
  Meanwhile, while we are standing here tonight debating on whether or 
not 98 percent is good enough, we don't have an energy policy. Over 
half the energy we get that we use in America comes from foreign 
sources, a lot of it controlled by people who don't like us. We don't 
have an energy policy. We should be debating an energy policy and 
adopting it.
  Standing here tonight we have a legal system that has lost its sense 
of balance, whether the issue is class action litigation that is being 
heard in small, remote courthouses around the country or whether the 
issue is asbestos and folks sick and dying getting the help they need. 
Meanwhile, the people who will never be sick will get money from those 
who need it. We should be debating those issues here tonight.
  We have too much sulfur dioxide or nitrogen oxide and mercury in our 
air, putting out too much carbon dioxide, causing global warming. We 
should be addressing those issues.
  We had a trade deficit last year that exceeded $400 billion. It is 
getting worse. We have a budget deficit that this year will approach 
$500 billion in 1 year alone. We are paying today on our national debt, 
just today, $800 million--plus just in interest on the debt. We ought 
to be debating how we rein in those budget deficits and trade deficits, 
not deciding is 98 percent enough or is 97 percent high enough in terms 
of success in nominations.
  As former Governor and someone who was once privileged to chair the 
National Governors Association, we looked at the States as laboratories 
of democracy. We looked at the States to provide best practices, 
whether it was moving people off welfare, helping to make sure people 
coming out of prison didn't recidivate and go back to prison, what 
could we do to raise student achievement.
  I want to talk about one model that works real well with respect to 
judicial nominations, and one I know the most about is my State of 
Delaware. Since 1897, the constitution of my State has called for 
balance with respect to our judiciary. We have year after year a legal 
climate and a judiciary that is acknowledged by some of the foremost 
attorneys who practice in this country as the best--the best legal 
climate, the fairest of any State in America. We are proud of our 
judiciary.
  In the 8 years I was Governor, I nominated as many Republicans to the 
bench as I did Democrats. Mike Castle, my predecessor, now a 
Congressman, when he was Governor, he nominated as many Democrats to 
the bench as he did Republicans.
  In our State, there has to be a symmetry. Essentially, for every 
Democrat you nominate, the next one has to be a Republican. We have 
done that for over 100 years and have ended up with a terrific 
judiciary, widely respected at home, across the country, and even 
beyond our borders. There is a saying, ``If it ain't broke, don't fix 
it.'' That is not what we ought to say. We should say if it is not 
perfect, make it better.
  The way we nominate judges in our National Capital for our Federal 
Government is broken and it needs to be fixed. Whether George Bush is 
President or Bill Clinton is President, we waste more and more time on 
judicial nominations. We are bogged down in that. We still haven't 
passed our spending plan for the new fiscal year, which started a month 
and a half ago. We are still wrestling with our appropriations bills. 
This system is broken.
  My friends, the solution may be in Delaware, it may be in Vermont, or 
it may be how they nominate judges in Georgia or in Iowa. There is a 
better way to do it than what we are doing here. We have to find it and 
we have to come to some kind of closure around a better plan. When we 
do, instead of facing the prospect of leaving here without action on 
class action legislation, action on asbestos, or action on an energy 
bill, or without action on transportation policy, or early childhood 
programs, maybe we can do our jobs and even pass appropriations bills 
on time instead of the kind of mindless--oftentimes mindless debate we 
devote to judicial nominations.
  That having been said, I yield to the former chairman of the 
Judiciary Committee, the ranking Democrat, Senator Leahy, with my 
thanks.
  Mr. LEAHY. Mr. President, I thank the Senator from Delaware for what 
he said. He has a distinguished record in the other body, as Governor 
and now here. We listened to him in this Chamber. I wish they would 
listen to him on the other end of Pennsylvania Avenue

[[Page S14687]]

because the person who makes the nominations is the President. I have 
been here with six Presidents. I have never known a time when a 
President is less willing to engage the Senate in advise and consent. 
President Ford did, President Carter did, President Reagan did, former 
President Bush did, and President Clinton did. I hope this White House 
would begin to do that also.
  Interestingly enough, today I was given a petition signed by 310,000 
Americans from all over the country. This petition supports a 
filibuster of extreme judicial nominees of the President. In fact, in 
the last 72 hours, 172,000 Americans signed these petitions. I went 
through them, thanks to the ability to search electronically, and 
picked out some from my State of Vermont.
  In Moretown, VT, someone wrote:

       It is a disgrace how this administration is attempting to 
     pack our Federal courts with right-wing extremist judges that 
     seek to undermine the hard-fought pillars of legal precedent 
     that reflect the values of a vast majority of Americans. I 
     wholeheartedly support the efforts of the Senate Judiciary 
     Committee Democrats to oppose this blatant abuse of the 
     majority power. . . . The Senate GOP leadership should be 
     ashamed of wasting precious legislative time to engage in 
     what amounts to a publicity stunt. . . ..
       Shame on them. They don't deserve the seats that the people 
     have entrusted in them.

  Moretown, VT, is a little town a few miles away from where I live. It 
is straight down the valley; you can look straight down the valley from 
the front lawn of my home. We used to go to mass there on Sunday. It is 
where one of my grandmothers was born. So I was pleased to see that.
  I received this petition from West Townshend, VT:

       Thank you very much for all your hard work and valuable 
     work. We appreciate it.

  West Townshend is a very small town in Vermont. People are very 
independent there.
  This one is from South Burlington, VT:

       I support any measure to prevent Bush's extreme judicial 
     appointments. Keep up the good work.

  This is from Barre, VT:

       Please be strong and stand against the Republicans. 
     Ashcroft has already taken away too many of our civil 
     liberties; we cannot have judges doing the same.
       Barre, VT, is considered the granite center of the world, 
     with the largest granite quarries in the world. My 
     grandfather, Patrick J. Leahy, was a stonecutter in Barre, 
     VT. My father was born in Barre, VT. The people of Barre, VT, 
     are as strong and independent as the beautiful granite in 
     their quarry.

  I have one from South Ryegate, VT:

       You must protect the cherished rights of women to control 
     their own bodies. Do not approve judges whose records show 
     that they do not believe in women's rights.

  South Ryegate, VT, is a beautiful little town on the eastern side of 
Vermont. I know it well. When my maternal grandparents immigrated to 
this country from Italy, not speaking a word of English, they came to 
South Ryegate, VT, where my Italian grandfather was also a stonecutter. 
My mother, a first-generation American, was born there, her first 
language was Italian, but she learned English at school. I remember my 
grandfather, so proud of the judicial and constitutional system of this 
country, and so proud of taking the oath of citizenship. My father, in 
Barre, VT, was so proud of the separation of powers in this country--
the legislative branch, an independent branch of Government, equal to 
the other two; the executive branch, independent and equal to the other 
two; and the judicial branch, independent and equal to the other two.
  I remember him sitting in the gallery when I was first sworn in as a 
Senator, knowing I was part of that triumvirate of powers in this 
country, which is why our democracy has lasted this long. But 
throughout it all, it was so important that one branch was outside of 
politics, that one was independent of either of the political parties, 
and that is the judiciary. It should not be a Democratic judiciary or a 
Republican judiciary.
  The battle we are having now is because this White House does not 
want it to be an independent judiciary. They want it to be the most 
extreme possible. They want it to be an arm of the Republican Party.
  One hundred sixty-eight to four. We have confirmed 168 of President 
Bush's nominees. We stopped four of the most extreme. Lordy, the 
crocodile tears that have been shed here, at great cost to the American 
taxpayers, over the last 24 hours--the crocodile tears that have been 
shed for that.
  I do not remember one single Republican standing on the floor and 
saying how terrible it was when the Republicans blocked 63 of President 
Clinton's nominees, but, oh, my, it is like Niagara Falls, the 
crocodile tears, when we blocked four of theirs.
  I received another one from Burlington, VT:

       The courts need to represent all Americans. Keep extremists 
     out. Thank you for fighting for representation of all 
     Americans by blocking the extremist judge nominees. Shame on 
     President Bush.

  I mention Burlington because I was married there 41 years ago. I 
still vote there. My children were raised there. I know the people in 
Burlington, VT. They are independent, good people--people who care for 
an independent, not a political, judiciary.
  Little Hardwick, VT, stands at that junction between Montpelier and 
St. Johns and Barre. They say:

       Stay awake. Stay vigilant. Protect civil rights, a woman's 
     right to choose, public education and worker's rights. We 
     stand with you.

  Hardwick, VT, let me tell you, I stand with you, and I will stay 
awake and be vigilant. The people on this side of the aisle will stay 
vigilant and we will protect an independent judiciary. We will not 
allow the judiciary to be an arm of any political party.
  The President said that he wanted to be a uniter and not a divider. 
Oh, how much I wish he were. If there was ever a time that this country 
needs a uniter, not a divider, it is right now. But, instead, in 
deference to groups on the far right, the President has nominated 
judicial activists about whom one cannot help but raise questions 
regarding their ability to act impartially, with justice for all. We 
need an independent judiciary.
  We are fortunate in Vermont because we have the most independent 
Federal judges you can imagine--people with total integrity, who will 
treat whoever comes into their court with impartiality regardless of 
whether they are Republican or Democrat or independent. That is what 
all courts should do.
  Time and time again, Democratic Senators have acted in good faith to 
fill vacancies Republicans kept vacant by blocking a Democratic 
President's judicial nominees. After Republicans blocked 63 of 
President Clinton's nominees, when a Republican President came in, they 
said: Look at all these vacancies. My God, we have to move as fast as 
we can to fill them. This is terrible. This is a crisis in the 
judiciary. How could this possibly have happened? How could this 
possibly have happened; there are 63 vacancies here. My Lord, the sky 
is falling down.
  Where did those vacancies come from? They came from one person, one 
Republican, holding an anonymous filibuster. If one Republican said, I 
don't want this judge of President Clinton's, the nominee went no 
further. Notwithstanding that, some of them had the highest 
qualifications this country has seen. Notwithstanding that, some of 
them were the most brilliant judges. Notwithstanding that, they were 
Hispanics, women, African Americans, people of faith, and people of 
great conscience. They were not allowed to go forward because one 
member of the Republican Party said he or she did not want them to go 
forward. But notwithstanding that the Republicans created all those 
vacancies, notwithstanding that, the Democrats said, we will help you 
fill them.
  Notwithstanding the arrogance and the one-person filibusters on the 
other side, the Democrats started filling those vacancies with 
President Bush's nominees. We have filled 168 vacancies. We stopped 
four of the most extreme nominees. And now, lordy, lordy, lordy, the 
Niagara Falls of tears comes from the other side--crocodile tears, 
hypocritical tears, from those who said not a word, not a word when 
they blocked 63. Not a word. Not a word. They blocked 63. Not a word. 
We stopped four of the most extreme, and you would think the world was 
coming to an end.
  What Democrats have done is that we have stood up for our principles 
and for the independence of the Senate in its constitutional role in 
the judicial confirmation process. The Republican leadership has 
decided to spend, I am

[[Page S14688]]

told, upwards of a quarter of a million dollars of the taxpayers' money 
to have this debate. I apologize for that. I am not the one who wanted 
to do this. I apologize to all the staff--the police officers, who 
should be home with their families, the doorkeepers, those who keep the 
journal of these proceedings--who are some of the finest men and women 
I have worked with in nearly 30 years here.
  But that quarter of a million dollars the Republican leadership is 
spending on this charade of crocodile tears could almost be worth it if 
one thing comes out of it. If the President would realize that this 
whole process begins with him, not with the Senate. The President has 
an absolute right to nominate anybody he wants. The Senate has an 
absolute right to advise and consent, to determine whether nominees are 
confirmed, especially to lifetime jobs.
  I ask him once again, work with the Senate. Every President through 
history has sought the Senate's advice and consent. In those instances 
when they did not, they did not get their way. There was another 
President named George, the greatest President in this Nation's 
history, George Washington. He was the most popular man in America in 
the time he lived and probably the most popular person America has ever 
had. He was a man who brought us together as a country, who set the 
precedent to make this a great democracy. But George Washington 
nominated judges the Senate felt he should not have. The Senate 
exercised its constitutional authority, and not all of George 
Washington's judicial or executive branch nominees were confirmed. 
President Washington knew he had to come back and seek the Senate's 
advice and consent before his nominees would go through.
  A great hero of mine, not just because I am a Democrat but because I 
remember what he meant to people like my parents, who owned a small 
business in Montpelier, VT, was Franklin Delano Roosevelt, also one of 
the greatest Presidents to ever serve this country. He kept this 
country together, kept the world together at the time of naziism and 
fascism, and the Japanese attack on Pearl Harbor. He brought us out of 
a recession, and he did this even though he was physically crippled. He 
worked so hard for this country, it finally killed him. But even 
Franklin Delano Roosevelt, when he tried to pack the court and change 
the independence of our Federal judiciary, a Democratic-controlled 
Senate said he could not do that. In fact, not only did Franklin Delano 
Roosevelt not get every one of his judges confirmed, but his court 
packing plan was filibustered.
  No matter how partisan anybody is here, I don't think anybody is 
going to suggest the problems began here. The Senate said no to 
Washington. The Senate said no to Franklin Roosevelt. The Senate can 
say no to George Bush. Tradition is there. The Constitution is there. 
Our rights are there.
  Basically, we have taken all this time spending a quarter of a 
million dollars of the taxpayers' money to talk about this because we 
don't want to vote on minimum wage, or workman's compensation, child 
programs, or the appropriations bills that, by law, we are required to 
have voted on by September 30. We still haven't. We don't want to vote 
on veterans benefits even though the administration seems hellbent on 
cutting veterans benefits.
  We don't want to do any of those things. We will spend a quarter of a 
million tax dollars on the Republican's charade. I say the same thing 
today that the Senate said to George Washington and said to Franklin 
Roosevelt: We are going to ask for advice and consent. The Senate is 
going to stand up for its rights. I yield the floor.
  The PRESIDING OFFICER. Does the Senator yield back his time? He has 
56 seconds.
  Mr. LEAHY. Mr. President, let me say this. Again, I have been here 
with six Presidents, Republican and Democrat. Presidents have always 
sought advice and consent. They have not always liked what they have 
heard. Five of the six Presidents have been willing to work with us on 
judicial nominations: Presidents Ford, Carter, Reagan, former President 
Bush, and President Clinton. I urge the current President to follow 
their example. Things will go far more smoothly. I do yield the 
remainder of my time.
  The PRESIDING OFFICER. All time has expired. Who yields time? The 
Senator from Alabama.
  Mr. SESSIONS. Mr. President, I appreciate the remarks of the 
distinguished ranking member of the Judiciary Committee. He has been 
around the Senate and the confirmation process for a long time.
  He said he wanted to apologize for people staying here and having to 
work tonight. It is unfortunate that we are here. We are here because 
we have a filibuster organized and sustained by the Democratic 
leadership against six nominees. We have more in the pipeline to be 
blocked, so it is not just four. I want to ask, would the Senator want 
to apologize for his remarks that he made in 1998 when he, Senator 
Leahy, in the Congressional Record, said:

       I cannot recall a judicial nomination being successfully 
     filibustered. I do recall earlier this year the Republican 
     chairman of the Judiciary Committee and I noted how improper 
     it would be to filibuster a nomination.

  That was when President Clinton was in office and Chairman Hatch, a 
Republican, was chairman of the Judiciary Committee. Chairman Hatch 
said on the floor of the Senate and in committee and in private 
Republican conferences that a filibuster was not good. Senator Leahy 
and the Democratic leadership all said filibusters were not good. We 
did not have those filibusters.
  So it is amazing to me, now that within a year or two after making 
statements such as that, and taking that position, we now have those 
very same people leading a filibuster. I would say apologies need to 
come from the other side.
  Let me mention a few basics about confirmations under President 
Clinton: 377 nominees were confirmed, 1 was voted down on this floor in 
an up-or-down vote, not blocked by a filibuster, and no filibusters 
were had against those nominations. That is what happened.
  There were 41 left pending and unconfirmed. Many of those were 
nominated late, after the August recess. Some of them had FBI 
background problems, including drug use or other unresolved issues. So 
there were 41 left pending and unconfirmed; 18 nominees were withdrawn 
by President Clinton before the final term. So I guess that is how they 
get 59, 60 nominees who they say got blocked. But that is what 
happened.

  When former President Bush was President and he left office and the 
Democrats controlled the Senate, they left 54 of his nominations 
hanging. So under Senator Hatch's leadership and under Trent Lott's 
leadership, only 41 were left unconfirmed when President Clinton left 
office.
  They say you blocked them with holds. Holds were put on nominations, 
just as they are today. Senator Levin has a hold against four circuit 
judges for the Sixth Circuit. They say they are only holding up four; 
this is not truth; with the nominees being blocked by Senator Levin 
they are holding at least eight. In fact, there are 13 circuit judges 
who are being held up and blocked by the Democrats right now. It just 
so happens we are only in full-blown filibuster of five, one having 
withdrawn, making six.
  I will say one more thing. My colleagues on the other side of the 
aisle just blithely and consistently and repeatedly say these nominees 
are extreme, extreme, extreme. ``Most extreme,'' I believe is the 
phrase I have heard: Most extreme possible; extreme judicial nominees. 
As if saying this can make it so.
  When we talk about judges, each judge is a human being. Each judge is 
entitled to a fair and decent consideration on the floor of this Senate 
and in committee. If they are not extreme, they ought not be called 
extreme. That is wrong for us to do that.
  I know these attack groups, People for the American Way, the Alliance 
for Justice, the National Abortion Rights League and that crowd are the 
extremists.
  They accuse and call our nominees extreme. That is for sure. These 
groups are not accountable. The problem is when these extreme notions 
are picked up by Senators. This should not happen. Senators are the 
ones who are elected. Senators are the ones who have taken the oath. 
Senators in this body have a responsibility not to call a nominee such 
as Priscilla Owen extreme. She got 84 percent of the vote in Texas and 
was given a unanimously

[[Page S14689]]

well-qualified rating by the ABA to be a judge--she is not extreme.
  Judge Janice Rogers Brown from California, who got 76 percent of the 
vote in the State of California, not a conservative State, for justice 
of the supreme court in that State, is not extreme. And neither is 
Carolyn Kuhl, who rated the highest rating possible by the American Bar 
Association, who has received incredible bipartisan support from the 
hundred or so judges in her area where she practices as a State judge. 
She was editor of the Duke Law Review and clerked for Justice Anthony 
Kennedy and is a brilliant nominee of the highest order. These are 
outstanding nominees. They are not extreme.
  The extremists are the groups and the people calling them extreme. 
These nominees teach Sunday school. They serve on the Altar Guild. They 
are involved in civic groups in their communities. They have held 
important positions in their States. They are the kind of people we 
ought to have on the bench. It is wrong for them to be accused of being 
out of the mainstream.
  President Bush knows what the people want in Federal judges. He has 
nominated that kind of Federal judge. The people will support him on 
that, and it is very disturbing to hear them called extremists when 
they are mainstream and effective judges and nominees.
  I now recognize the Senator from Colorado. I believe he is prepared 
to make some remarks.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. CAMPBELL. Mr. President, this evening I am pleased to join my 
fellow Senators--including my good friend from Utah--Judiciary 
Committee Chairman Hatch--for this ``Justice for Judges'' Marathon. I 
doubt if anyone will change their minds, but the debate is one we need 
to air.
  First of all, I would like to thank Senator Hatch for the excellent 
work he has been doing--just as he consistently does day after day and 
hearing after hearing--as the Chairman of the Judiciary Committee.
  I also thank Chairman Hatch for his support for another bill I am 
sponsoring this year, the Law Enforcement Officer's Safety Act of 2003. 
Every one of our Nation's leading law enforcement organizations--
including the Fraternal Order of Police--consider this bill to be one 
of their top legislative priorities. I am especially pleased that this 
bill now enjoys the strong bipartisan support of 66 cosponsors--
including 41 Republicans and 25 Democrats. I also want to point out 
that Senators Leahy and Hatch are lead original cosponsors of this 
important legislation, and thank them for their support. Unfortunately, 
this bill is a perfect example of how the intent of the U.S. Senate can 
be subverted by the few opposed to a bill.
  I also want to point out that even though this bill enjoys bipartisan 
support, and easily enough to get it passed by the Senate in an up-or-
down vote--or even to invoke cloture--it is still being held hostage by 
a few Senators who have dug in their heels and refuse to let it pass.
  It is not fair nor just in a body where fairness and justice is 
paramount that a minority of a few can hold up the will of 67 Senators.
  I want to let my fellow Senators know that I will be pushing for the 
passage of the Law Enforcement Officers Safety Act early next year.
  The challenges we are now facing in the form of the unprecedented 
filibustering of Circuit Court judicial nominees is in no way the 
result of Senator Hatch's ability as a Chairman or as one of the 
Senate's great gentlemen.

  Unfortunately, we are now facing a situation in which judicial 
nominees that clearly have the bipartisan support they need to be 
confirmed by the Senate in an up-or-down vote simply cannot get the 
vote they deserve.
  Repeated refusals to allow Circuit Court nominee Miguel Estrada the 
straight up-or-down vote he deserved unfortunately led to him 
withdrawing his nomination.
  As a Coloradan, I am not alone in my assessment that an injustice was 
done, and not just to Miguel Estrada, but to our finely balanced system 
of Constitutional government as handed down by our Founding Fathers.
  We all know the history of Miguel Estrada. He is a great American 
success story. He is a man of impeccable credentials dedicated to 
upholding the law. Unfortunately, he has committed the high crime of 
being a conservative. He does not deserve the insult of being called a 
``lemon'' as one Senator has done today. Whether to vote against 
nominees is each Senator's decision, but they do not deserve insults. 
On September 10, 2002, the Pueblo Chieftain editorial stated:

       One would think that Democrats in the Senate, who claim to 
     hold diversity in such high esteem, would be amendable to Mr. 
     Estrada's nomination. But he committed the political sin of 
     being conservative.

  The Pueblo Chieftain went on to say:

       For the first time in the Nation's history, Senate 
     Democrats filibustered the nomination. By doing so they 
     turned the Senate's historic practice of advice and consent 
     into a litmus test for liberal interest groups. The Democrats 
     also have launched filibusters to stall the nominations of a 
     half-dozen other candidates.

  The editorial continues:

       Mr. Estrada asked President Bush to withdraw his 
     nomination, which had languished in the Senate for nearly two 
     years. Mr. Bush did so, with regret.
       Mr. Estrada should have been confirmed. He was just as 
     qualified as a dozen other judicial nominees who were 
     eventually confirmed.
       But Democrats have resorted to the filibuster to stop those 
     judicial candidates feared to be opposed to abortion. But 
     when asked about the Roe v. Wade abortion ruling during 
     confirmation hearings, Mr. Estrada said, ``It's the law. I 
     will follow it.''
       In the long run, Democrats may have hurt themselves and 
     their outreach to Hispanic moderates and independents by 
     denying all Hispanics a historic moment--the first and 
     highest-ranking Hispanic on the Federal bench who also had 
     strong backing from a wide range of Hispanic groups.

  Mr. President, let me speak about a towering figure in Colorado 
history. Byron White, a football star and then a conservative U.S. 
Supreme Court Justice who retired in 1993 after 31 years on the Federal 
bench. After having lived a long and fruitful life, Justice White 
passed away on April 15, 2002. I met Justice White. His many 
achievements made most but not all Coloradans proud.
  Justice White was appointed to the Nation's highest court by 
President John F. Kennedy in 1962. I knew Justice White--he had a 
handshake that would make you wince, even in his 80's.
  Byron White combined physical prowess--as a nationally acclaimed 
football star in the 1930's who went on to become a Rhodes scholar and, 
eventually, a leading jurist.
  In 1937, Byron ``Whizzer'' White was an All-American football player 
with the University of Colorado Buffaloes. He led the nation in both 
scoring and rushing yards while leading an unbeaten team. He never 
liked his nickname ``Whizzer''. But sports writers did so he was stuck 
with it.
  He also was an outstanding football player in the earliest days of 
professional football, playing running back for both the Pittsburgh 
Steelers and the Detroit Lions.
  He used his professional football signing bonus to pay his way 
through Yale Law School. He graduated first in his class.
  During World War II he served as an intelligence officer with the 
U.S. Navy. It was Byron White who wrote the official report on the 
sinking of John F. Kennedy's patrol boat, the PT-109.
  White ``had excelled in everything he had attempted'' President 
Kennedy said admiringly when he appointed his long-time friend and the 
Deputy Attorney General as our Nation's 98th Supreme Court Justice in 
history.
  However, despite the outstanding strengths and qualifications, as 
articulated by President Kennedy, Justice White had some views that 
most likely would have led to filibuster by today's Senate. In fact, if 
it had been a Republican President who nominated Byron White in 1965 
instead of a Democrat, he probably would not have been confirmed even 
then.
  For instance, he dissented from the historic 1973 ruling that 
declared that women have a constitutional right to an abortion.
  In 1986, he stirred a storm of controversy by writing the Supreme 
Court's opinion that constitutional protections of privacy do not 
extend to homosexual conduct.
  Justice White consistently opposed restrictions on law enforcement 
officers, which led him to dissent from the famous 1966 Miranda ruling 
that police

[[Page S14690]]

officers inform a criminal suspect being arrested of their rights.
  Justice White also dissented from rulings that outlawed voluntary 
prayer for children in public schools.
  By the late 1980's, Justice White had joined conservatives in 
opposing ``affirmative action'' programs on the grounds that they 
amounted to reverse discrimination.
  The point is that he was appointed by President John F. Kennedy--but 
even so--under today's atmosphere, including political correctness and 
in-your-face special interests--with litmus test approaches to public 
policy--Justice White would have almost certainly been relentlessly 
filibustered and would probably not be confirmed.
  I am not sure that I would have voted for his confirmation had I been 
here, because I disagree with some of his decisions, but I would have 
been given the chance.
  The way that today's Senate is treating judicial nominees stands in 
even starker contrast when it is pointed out that Justice White was 
confirmed by the Senate by a voice-vote, and without objection. Not one 
Senator objected--``D'' or ``R.'' That was on April 11, 1962.
  A lot has changed since then. Some for the better and some not. One 
thing that has certainly not gotten better is the way judicial nominees 
are being treated. Questioning has given way to badgering. Civility has 
given way to discovery. Playing ``Got Ya'' is a poor substitute for an 
impartial hearing.
  The question is not whether the President's nominees should or 
shouldn't be confirmed. That is a smokescreen. The question is should 
we, as duly elected Senators be accorded our constitutional 
responsibilities of advise and consent by voting on each nominee. The 
minority is denying me the right to an up-or-down vote through their 
filibusters--and thereby are denying the people of Colorado the right 
to be represented through my vote. I have heard time and again from our 
colleagues on the other side of the aisle that 168 nominees have been 
confirmed and only four have not. What are they talking about? I 
haven't been given the chance to even vote on those four. Not a 
question of numbers. It is a question of fairness.
  We need to do what we can do to reverse and correct the emerging 
practice of filibustering judicial nominees.
  There is no question in my mind that many deserving and well-
qualified people will refuse the call of public service after watching 
the kangaroo court they might now face in getting confirmed. It doesn't 
make any difference who is in the majority. No nominee should have to 
be verbally flailed in the confirmation process.
  Mr. President, it is not too late to turn back, reverse course, and 
give all judicial nominees the up-or-down votes they deserve.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I thank the Senator from Colorado for his remarks. It 
is true, we need to treat these nominees with civility. That is the 
least we can do in this body.
  I believe we have one more Senator to speak, the Senator from 
Wyoming, and we have about 14 minutes.
  Mr. ENZI. Mr. President, first, I wish to concentrate a little bit on 
some of the comments I heard during the 3\1/2\ hours I chaired last 
night.
  A lot has been made of this number, 168 to 4. But you cannot compare 
district court judges with circuit court nominations. Instead, you 
should look at the situation for what it is, an attempt to obstruct the 
confirmation of circuit court judges.
  Since January 2003, President Bush has nominated a total of 29 
circuit court judges. Of those judges, only 12, or 41 percent, have 
been confirmed. Of the remaining 17, my colleagues across the aisle 
have obstructed or threatened to obstruct 11 qualified and talented 
judges. In other words, almost 50 percent of the circuit judges ready 
to come to the floor for confirmation have been held up by the 
Democratic side for political purposes.
  Last night I heard this 98-percent factor, and I heard it said that 
if my child came home with a test and he got 98 percent, I should 
congratulate him and work hard to get the other 2 percent.
  I will tell you what ought to happen if your kid comes home with only 
50 percent, and that is what we are talking about when we are talking 
about circuit court judges, we are talking about failure of the system, 
a total breakdown of the system.
  You have to look at the concentration that there is on the circuit 
court. That is because those circuit court folks could become Supreme 
Court Justices. And Lordy, we don't want to pass any who might make it 
to that.
  Every day the Senate is in session we begin with a prayer and the 
Pledge of Allegiance. I know my colleagues on both sides of the aisle 
are firmly committed to this country, and that as we say the words of 
the pledge, like me, they mean every word of it and they honestly 
pledge their alliance to the flag and to this Nation. But I have to 
wonder if they haven't forgotten the meaning of all of the words in the 
pledge, especially when I hear them put forward the argument that we do 
not need to vote on all the judicial nominees because we have already 
voted on most of them.
  The last six words in the Pledge of Allegiance, ``with liberty and 
justice for all,'' mean we do not preserve justice or liberty for just 
a few people or for most of the people and leave a few or even an 
individual behind. It means we have justice for all, for everyone. That 
is 100 percent. We pledge that and we don't make exceptions because we 
have a high percentage of success.
  In fact, this is one of the situations that the courts were created 
to protect: the rights of the individual. I think it is a little ironic 
that there are those in the Senate who would be willing to withhold 
justice and rights from some, in this case four highly qualified 
individuals, and the cases they could be hearing, if they were 
confirmed.
  That is justice being denied as well. That is justice only for a few, 
or maybe most, but not all--just because the individuals don't have the 
same political philosophy as those across the aisle.
  While it may be true--the percentage of judges we have voted on--when 
you are the one who is left out and are not allowed justice, that is 
100 percent of your life--the one who is being affected, and 100 
percent of justice that is being denied as an individual.
  I think this is wrong. I sincerely hope we move off this 
obstructionism and have an up-or-down vote on the highly qualified 
individuals with talent, experience, and integrity, and who could be 
considered as the ideal we want in all judges.
  I think everybody knows about the qualifications.
  The comments made last night are what we are seeing here for the 
first time--a change in the way we do judges. The problem with it is it 
probably will continue and at some point there will be a reversal of 
roles. We will spiral down and down until we are not approving judges. 
It won't be 2 percent counting all of the district judges and not doing 
the true statistics on just the circuit court judges. It will not be 
approving a majority of them.
  I have to tell you, I have been through that spiral once before. When 
I first got here, there was a judge nominated. She would only sentence 
a person to 90 days in jail who had raped a minor because she didn't 
like the rehabilitation system of the prisons in her State. I was 
appalled by it. In our State, there are a lot of people who would think 
that maybe he should have been shot. He raped a minor.
  I put a hold on that person so we could have a debate instead of a 
unanimous consent. I eventually got the debate.
  I had an unrelated piece of property that some people had been paying 
taxes on for 70 years which they had bought from the BLM but the title 
had never changed. It took an act of Congress to change the title. 
Because I put that hold on, it took me 3 years to get that piece of 
property transferred to the people. Do you know what those people said? 
They appreciated what I had done on that judge.
  But I have to tell you that unless an up-or-down vote happens on that 
judge, that is the way it is supposed to be.
  It was exactly 200 years ago, in 1803, that the Supreme Court and our 
Nation's judicial system went through its first and most dramatic 
change since it was established by the Judiciary Act of 1789. This 
change occurred when then Chief Justice John Marshall issued his 
decision in the landmark case, Marbury vs. Madison. In that decision

[[Page S14691]]

Marshall established the responsibility of the Federal court to review 
the constitutionality of congressional actions. His action brought the 
courts out of almost obscurity, seen as the weakest and most timid of 
the three branches of government, and gave it a prominence and power 
that is not equaled by any other court system in the history of the 
world.
  Before Justice Marshall was appointed to the court in 1801 the court 
seemed to lack direction. There was no clear idea of purpose or vision 
about whether or not the court could consider itself to be an important 
entity. The very first Supreme Court Session was held in New York City 
in 1790. It was almost postponed when only three of the original six 
justices arrived for the court's opening session. The court had to wait 
and put off doing business until a fourth justice arrived and they had 
enough judges to constitute a quorum.
  Justice Marshall himself did not initially consider the court to be a 
prominent institution. At the time of his appointment to the court, he 
was also serving as Secretary of State for President John Adams and he 
had turned down an earlier appointment to the court in order to run for 
a seat in the U.S. House of Representatives. After President Adams 
finally talked him into serving as Chief Justice of the court, Justice 
Marshall served as both Chief Justice and Secretary of State for 2 
months because he felt it wasn't worth giving up the position of 
Secretary of State to serve on the Supreme Court.
  Over the next 34 years Justice Marshall reinvented the court and 
provided the leadership it needed to assume the prominent role it plays 
in our court system today.
  One has to wonder what Justice Marshall would think about what is 
going on in the Senate today. Would he agree with my colleagues across 
the aisle that it is all right to put partisan politics and partisan 
bickering ahead of the rights of judicial nominees if those impacted 
are just a small fraction of society. Would he agree with them that 
justice denied for a few was acceptable? Or would he hold true to the 
basic tenets of the Constitution that all men are created equal and 
that everyone has the right to their day in court?
  A lot has been made about the numbers 168 to 4. You really can't 
compare district court judges with circuit court nominations. Instead 
we should look at this situation for what it really is, an attempt to 
obstruct the confirmation of circuit court judges. Since January 2003 
President Bush has nominated a total of 29 circuit court judges. Of 
those judges only 12 or 41 percent have been confirmed. Of the 
remaining 17, my colleagues across the aisle have obstructed or 
threatened to obstruct 11 qualified and talented judges, or in other 
words, almost 50 percent of the circuit court judges ready to come to 
the floor for confirmation have been held up by the Democrats for 
political purposes.
  Every day that the Senate is in session we begin with a word of 
prayer and with the Pledge of Allegiance. I know that my colleagues, on 
both sides of the aisle, are firmly committed to this country and that, 
as they say the words of the Pledge, like me, they mean every word of 
it and that they honestly pledge their allegiance to the flag and to 
this Nation. But I have to wonder if they haven't forgotten the meaning 
of all the words in the pledge, especially when I hear them put forward 
the argument that we do not need to vote on all of our judicial 
nominees because we have already voted on some or most of them. The 
last six words in the Pledge of Allegiance, ``with liberty and justice 
for all,'' mean that we do not preserve justice or liberty for a few 
people, or for most of the people, and leave a few, or even an 
individual, behind. It means we have justice for all, for everyone, 100 
percent and that we don't make exceptions because we have a high 
percentage of success.
  In fact, this is one of the situations that the courts were created 
to protect, the rights of the individual. I think it is a little ironic 
that there are those here in the Senate that would be willing to 
withhold justice and rights from some, in this case four highly 
qualified individuals, and would not extend justice to all, just 
because those individuals don't have the same political philosophy.
  While it may be true that the percentages of judges that have been 
voted on is high, when you are the one that is left out and are not 
allowed justice, that is 100 percent of your life that is being 
affected and 100 percent of justice that is being denied you as an 
individual.
  I think this is wrong, and I sincerely hope we move off this 
obstructionism and have an up or down vote on these highly qualified 
individuals, whose talents, experience and integrity can easily be 
considered the ideal for what we want in judges.
  We often talk about the ideal in our debates in the Senate. We hold 
up a picture of what things should look like and how things should be 
done in the hopes that someday, we can move our Nation forward to the 
point where the ideal is, more often than not, reality. One of those 
ideals that has been presented is a world where our judges and our 
courts are more representative of America. Our courts have often been 
accused of being elitist. The Bush Administration has been working hard 
to change that image by making sure our judges are more diverse. By 
nominating people like Miguel Estrada, Carolyn Kuhl, Janice Rogers 
Brown, Priscilla Owen, William Pryor, and Charles Pickering, President 
Bush has set an example of the ideal by selecting people from different 
backgrounds, with different styles, who share the same passion and 
enthusiasm for the law.
  The list of judges that is before the Senate represents a group of 
candidates who are well educated, fully talented, and well qualified 
for the posts for which they have been nominated. Unfortunately, for 
some, this list also represents the unfairness of the system--a system 
which, in theory, guarantees each nominee a vote--but--in practice, can 
be used to deny a nominee a vote.
  So here we are, well down the road, holding a list of candidates that 
still haven't received a vote. In spite of all their qualifications and 
the personal integrity they have shown throughout the process, these 
judges have been forced to wait as the Senate decides whether or not we 
can simply hold an up or down vote on them. Why? It's pretty clear to 
just about everyone. Because these are good nominees and in a fair and 
just world, they'd win the vote hands down. Therefore, the only way to 
avoid having these candidates confirmed is to deny them their 
constitutional right to an up or down vote.

  What is most tragic about this situation is that these delays have 
not come without cost. These nominees aren't the only ones who are 
being denied their rights. Let's not forget the other victims in this 
situation who have been denied their right to a fair and impartial 
judicial process because there are not enough judges to hear all their 
cases. The real victims of these delays are not the nominees, or the 
Bush administration, or even the Republican Party. No, the real victims 
are the people whose rights have been denied to accommodate some 
increased partisan bickering.
  There is a saying ``Justice delayed is justice denied.'' We make 
people with very real needs and very real issues wait while we try to 
score a few points in the game of politics. We drag out their court 
costs, their attorney's fees, and delay their restitution and damage 
payments all because we want to get one up on the other party.
  We have a crisis in our courts that we can solve today. I urge my 
colleagues to step up to the plate and become a part of the solution. I 
urge them not to accept the belief that justice for some is sufficient. 
I urge them to allow the Senate to conduct its constitutional duty and 
hold an up or down vote on these judges. If you don't agree with them, 
or feel they are not qualified, then vote against them. That is your 
prerogative and duty as a Senator. But do not continue to deny justice 
for the nominees or the courts any longer.
  Mr. SESSIONS. Mr. President, the Senator from Montana is here and I 
know he would like to finish up.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BURNS. Mr. President, a lot of questions are being asked about 
this debate as we roll along. We went late last night and there are 
probably some folks who have been short of sleep.
  Let there be no doubt about it, as we close this half hour, this is 
obstruction.

[[Page S14692]]

A week ago tomorrow, we argued about definitions. Now we are worried 
about ideologies and how we appoint our judges. Here is one way you can 
have an issue and you can be on both sides of it and never worry about 
the consequences. That is healthy for us. We passed that through this 
Senate with strong bipartisan support and only 14 folks voting against 
it. Now we can't name conferees. ``Well, I voted for it.'' But we do 
not want it to get to conference.
  I am fighting for two judges, Janice Rogers Brown and Carolyn Kuhl. 
Both of them are nominated to the Ninth Circuit. Why am I fighting so 
hard for them? Let me tell you why.
  I am sponsoring legislation to split up the Ninth. It is too big. It 
covers California, Arizona, Nevada, Idaho, Washington, Oregon, Alaska, 
Hawaii, and my home State of Montana. It covers 14 million square 
miles--that is a fairly good sized pasture--with 45 million people. The 
second highest population is the Sixth Circuit with 29 million. It has 
the highest number of active judges with 28. The average number per 
judges per circuit, including the Ninth, is 12.
  Let me tell you another reason why. The decisions that have been 
handed down by the Ninth lately--from 1996 through 1979--the Supreme 
Court heard 228 cases from the Ninth Circuit, and 27 of those decisions 
were overturned, 17 of them by unanimous decision.
  From 2001 through 2002, 12 of the 17 Ninth Circuit decisions were 
reversed, and 7 of those were unanimous.
  How would you like to have that track record? And we live in that 
circuit. Then you wonder why we get excited about the appointment of 
judges to that Ninth Circuit.
  It is absolutely unbelievable.
  I am an original cosponsor of S. 562. We must get it done.
  What we are talking about here is people in a circuit who can't 
handle the work and come up with decisions that can't stand the test in 
the Supreme Court. That is pretty bad--1 in 27. That is almost as bad 
as 0 and 1 in a gunfight in judicial terms.
  I am not an attorney. I don't think I will ever be one. But I will 
tell you that you can read and you know where the American people are, 
and those people are denied representation on the Ninth Circuit.
  Definitions: We have heard it. If we cooperate, things would really 
get along good here. If we cooperate--we did--that is healthy for us. 
Now we can't name conferees to finish the job that is in front of us.
  This is not my first rodeo. I know what is going on here. They should 
be ashamed--ashamed to contradict their own conscience.
  Obstructionism: Give these judges a vote up or down. That is the way 
you got here. They deserve the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama has 3 minutes 30 
seconds remaining.
  Mr. SESSIONS. The Senator from Virginia.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Mr. President, I wish to speak about some statements that 
have been made in the past and the inconsistency of these statements 
with the ones we are hearing today.
  Let me quote for my colleagues some sentiments with which I very much 
agree, and I then I will ask you all to guess who said it: ``I find it 
simply baffling that a Senator would vote against even voting on a 
judicial nomination. Let the Senate vote on every nomination.''
  Here is another quote. See if you can figure out who said this: ``I 
don't know how Members tell the Hispanic community we are being equally 
as fair with them as we are with all non-Hispanic judges when that 
simply is not true. Hispanic or non-Hispanic, African-American or non-
African-American, woman or man, it is wrong not to have a vote on the 
Senate floor. What are they afraid of? What are they afraid of? What is 
wrong with a vote?''
  Another quote from one of our colleagues who quoted Chief Justice 
Rehnquist: ``As Chief Justice Rehnquist has recognized, the Senate is 
surely under no obligation to confirm any particular nominee but after 
the necessary time for inquiry it should vote them up or vote them 
down. An up-or-down vote that is all we ask.''
  Have you guessed the speaker yet? No, that is not Orrin Hatch; it is 
not Senator Sessions; it is not Senator Enzi and it is not me. That is 
Senator Tom Daschle, the Democratic Minority Leader. These quotes are 
from October 5, 1999 and October 28, 1999.
  Senator Kennedy said nominees deserve a vote. He said: ``If our 
Republican colleagues don't like them, vote against them. But give them 
a vote. Don't just sit on them. That is obstruction of justice.''
  My goodness. Senator Daschle and Senator Kennedy certainly had the 
right idea 3 years ago.
  Senator Daschle also said that Senators ``have a constitutional 
outlet for antipathy against a judicial nominee. Vote against that 
nominee.''
  Senator Daschle, the Democrat leader in all of this obstruction and 
delay, said in 1998: ``All we are asking of our Republican colleagues 
is to give these nominees a vote and hopefully the fair consideration 
they deserve. We will press this issue every day and at every 
opportunity until they get the vote.''
  Doesn't that sound familiar as to what we have been trying to do for 
the last several years?
  Senator Daschle is also on record complaining about how long it took 
for some cases and decisions that had been pending for months. He said 
for ``anyone to be held that long is just an extraordinary unfairness 
not only to the nominees but to the system itself.''
  The PRESIDING OFFICER. The time has expired.
  Mr. ALLEN. If I may, with consent, have 2 minutes that is attributed 
to our time at 9 o'clock.
  The PRESIDING OFFICER. Is there objection?
  Ms. STABENOW. Reserving my right to object, my colleague, I 
appreciate the time, but in order for us to stay on schedule and given 
the fact I have been waiting here at this point, I would appreciate his 
wrapping it up. If he would like to take 1 minute to wrap up, I would 
not object to that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLEN. I would like to close with a final quote from Senator 
Daschle that he made in September 1999: ``It is so incredibly unfair to 
me that they would continue to persist in the determination not to 
allow these very qualified people to even have a vote.''
  Mr. President, that is what all of this is about. Tomorrow morning we 
will have a chance to end debate on these nominees and allow for fair 
up or down votes. In addition we will be able to determine the 
veracity, truth, and sincerity of our colleagues that I have previously 
quoted. If they were willing to tell the truth 3 or 4 years ago, they 
will have an opportunity to stop this spiral of unfair actions and 
delays which only bring more retaliation and more delays.
  Senators will then be upholding the Constitution and will be 
accounting to their constituents, as well as giving fairness to the 
nominees.
  I thank the President and I thank my colleagues.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Mr. President, as I said before on the floor, all the 
statements that are being made, and all the time we spend in relation 
to our values and our priorities, I also believe we get things done 
when we work together, when we work in a bipartisan way. That is what 
our constituents expect us to do.
  I see the esteemed chairman of the Judiciary Committee on the floor. 
I thank him publicly for working with the senior Senator from Michigan 
as we work through difficult issues that relate to Michigan. I 
appreciate his willingness to do that. That is how we get things done--
when we work together.
  When we look first at the record of legislation taken up on this 
floor, I think it shows we work together. I think when we have worked 
together to confirm 168 judges, most of those I have voted for 
overwhelmingly, and when we see that we have only had a disagreement on 
4, I think that shows bipartisan cooperation. I think that shows what 
the people of this country, and certainly the people of Michigan, want 
to see done. There is no question in my mind that this demonstrates our 
willingness to roll up our sleeves, to be fairminded, to look at the 
facts, to look at the nominees, and to work together.

[[Page S14693]]

  It also shows, though, that we are willing to make a critique, that 
we are not a rubberstamp for this administration, nor should we be for 
any administration of either party. It shows we are willing to make a 
judgment. When the nominees go too far, we say no. That is what 
happened four times.
  What I am most concerned about now, though, in this 30 hours--which 
now, instead of ending at midnight, is going to go until 9 in the 
morning--is that we are saying our values and priorities are spending 
time talking about four people who already have jobs and want to get a 
promotion that will last a lifetime. These are lifetime appointments.
  My concern is that we need to be spending time on this floor not only 
talking but doing something about the 3 million people who have lost 
their jobs in the last 2\1/2\ years--3 million people. They do not have 
a lifetime job. They would just like to know they have a job tomorrow 
for their families. They would like to know that the job probably 
carries health care with it and will be there so they can put food on 
the table and they can pay the mortgage, the car payment, send their 
kids to college, and know they can have a good life in America that 
they assume if they work hard they will be able to achieve.
  That is the debate I have said a number of times that we need to be 
having. One-hundred and sixty-thousand-plus of these 3 million are 
people who have lost their jobs in Michigan; people who have lost good-
paying jobs, good-paying jobs with health care and pensions. They find 
themselves in very difficult circumstances and they are asking us to 
help them.
  I am very proud of the fact that Michigan is the first in the 
production of automobiles. Thirty-one percent of all the automobiles in 
this country are produced in the State of Michigan.
  My dad and my grandfather owned a Cadillac dealership in Claire, MI. 
We have been proud to be a part of supporting the Michigan automakers.

  We also are first in the production of trucks, producing l7 percent 
of trucks. We have the three leading office furniture manufacturers in 
Michigan and produce nearly half of the office furniture.
  Why do I say this? Because we have a crisis in manufacturing in this 
country that we need to be addressing in this Senate. Jobs can't all be 
in the service industry. We need to make things and we need to grow 
things. That is what we do in Michigan. We make things and we do it 
well. We will compete with anybody any time. Just give us a level 
playing field. We also grow things. We are willing to compete with 
anybody any time. Just give us a level playing field. We don't have 
that right now. We don't have that level playing field. We are not 
addressing that.
  We are not addressing what is happening with the fact that China is 
violating the WTO or that China and Japan basically have put a tax on 
American goods and services sold in this country by manipulating their 
currency. We are not doing anything about that.
  As a member of the Banking Committee, I sit and listen to the 
Treasury Secretary basically acknowledging that something is not right 
but not wanting to step up and take the tough action on behalf of 
American manufacturers and American workers.
  We need to be talking on this floor and taking action on behalf of 
the men and women who have been the backbone of this country in 
manufacturing and have created the middle class that separates us from 
other countries around the world.
  Why aren't we having that debate? Not a debate about 4 people who 
already have jobs, who want to get promoted. Three million people do 
not have a job and are now struggling with their families.
  I want to share a few comments that I have heard. Earlier today I 
shared some headlines from newspapers in Michigan about what is going 
on. I want to share one of those this evening with my colleagues. It is 
from the Ludington Daily News, in northwest Michigan. It says: ``Tough 
Loss, Straits Steel closing sad news for plant's 180 employees.'' Then 
it starts out by saying:

       Despite the looming possibility over the past few months 
     that their plant might close, workers at Straits Steel & Wire 
     Co. kept their production quality high and their attitudes 
     positive, said General Manager Tyndall.
       But on Friday, Tyndall was forced to tell his co-workers 
     and friends that corporate officials decided to close the 
     Ludington plant, 56 years after it began operations in 1947.
       Making the announcement twice--to the first shift in the 
     morning, then the second shift in the afternoon--was not easy 
     for Tyndall, who joined workers on the floor of the 
     production plant as he shared the bad news with the group.
       ``People are down,'' he said Friday afternoon. But he 
     stressed the plant's closing is not related to performance. 
     ``When we walk out, we can hold our heads high and go chest 
     to chest with anyone on the street and say we did our jobs 
     well.''

  They did their jobs well. But because of what is happening and the 
unfair competition around the world and the stress and struggle as it 
relates to cost, the plant closed.
  Why aren't we dealing with issues that will help this Straits Steel 
and Wire Company in Ludington, MI? Those are the jobs I want to be 
talking about. Those are the jobs people in my State want us to be 
trying to fill.
  Let me mention a few letters I have been receiving from people in 
Michigan that say it better than I can. First from a gentleman who 
says: I am writing you regarding the health of my business. I have a 
high tech business servicing industrial lasers, much like the ones that 
are no doubt cutting metal subassemblies for our armed services use as 
well as civilian businesses. My business has the flu. It is feverish 
and sluggish almost to the point of no business at all. Our country was 
initially built on small businesses providing services and employment. 
Our government encourages small business growth yet at the same time 
small businesses are being destroyed one by one because our economy is 
in such dire straits that business orders are essentially flat, which 
in turn is causing my business to fail. Occasionally I call the few 
customers I have left and ask questions about how they feel about the 
economy and what they think will happen in the near future. They say 
they are very concerned about the future. Some are laying off 
personnel. Others take pay cuts to keep their jobs. Still others feel 
they are sinking with no relief in sight. My business is now on the 
verge of collapsing and the only reason is the economy. I find it 
extremely difficult to believe that because of a few positive economic 
reports showing up here and there that our economy is getting better. 
The only real indicator of an improving, recovering economy, in my 
opinion, are reports coming in of companies rehiring people and putting 
them back to work. No other indicators, in my opinion, mean a thing 
until people start going back to work.
  I agree with that. It is about putting people to work and having 
businesses recover from the flu.
  Also from a Michigan resident: I am a tool die maker for over 40 
years. I now find myself out of a job and unable to find one in my 
field. I have no health insurance. Why has America farmed most of our 
manufacturing jobs out to other countries? I think America has got to 
be not only the greatest thinking country in the world but we have to 
also regain our status as the greatest producing country in the world, 
as we did in World War II. That is, as you remember, the reason we won.
  From Bridgman, MI: I would like to say I have worked in manufacturing 
for 20 years. This is the first time in my career that my hours have 
been reduced. I have a house payment, utility bills, children to feed 
and clothe, doctor bills, car payment, insurance, school lunches and 
preschool. This is just a few of my expenses. We are hanging on by a 
thread, day by day living. This is not the way Americans should have to 
live, especially in this day and age.

  I agree. If people work hard, they get up in the morning and they go 
to work and they work all day, they ought to be able to know they are 
going to be paid a good wage, that they can count on that job being 
there, that we want them to be able to have health care. We want them 
to be able to put money aside for a pension, and we want them to know 
they will have the security of being able to take care of their 
families and plan for the future as part of the great middle class of 
America.
  Our manufacturing economy has given us that. We are losing that. We

[[Page S14694]]

are losing that. We need to pay attention. We need to talk for 30 hours 
on the floor about jobs and how to help our manufacturing sector. We 
need to talk for 60 hours or 90 hours. More importantly, we need to act 
to do something so we can level the playing field. As I have said 
before, I will put our workers and our businesses up against anybody, 
if it is a level playing field. Just make it fair and we will compete. 
We need to address issues of health care. We know one of the biggest 
challenges right now for our manufacturers is the explosion in the 
prices of health care. I also know from talking to our automakers about 
half of that is because of prescription drug prices, the lack of 
competition, and the explosion in prices. We ought to be doing 
something about that.
  We have bills in front of us right now in the Medicare conference 
where we could do something, if we wanted to, about that to lower 
prices. I would love to have a 30-hour debate on that because there is 
nothing right now more challenging to businesses and workers than the 
issues of health care. Workers are finding they are being asked to pay 
more in premiums and deductibles or their salary is capped in order to 
pay for health care increases or, worse yet, they are losing their jobs 
because of the increases. That is a debate worth having. That is a 
debate that would result in our focusing on something that means 
something very important to the people of this country. I would look 
forward to that debate.
  Let me read a couple more letters: I've worked in manufacturing for 
23 years, and this is the first time in my career I have had my hours 
reduced. I am worried about losing my job. My family is suffering 
because of my reduced income and planning for the future of my trade. I 
am a mold maker, and this has always been a solid trade. My trade is 
faltering, not only because of the economy but also because of foreign 
competition. How can we compete with countries that pay drastically 
reduced wages with no benefits?
  We have to address that, not by saying you have to work for less, 
Michigan workers. You have to work for less and you have to take no 
health care and no benefits. We have to be fighting for our middle 
class and creating a way to raise the standards of living around the 
world instead of lowering ours, which is exactly what is happening 
right now. It is probably the most serious threat to our future in 
terms of maintaining our economy and our middle class. That is worthy 
of a 30-hour debate.
  There are many more letters I could read that are the same. So where 
are we, when we are talking about 3 million jobs lost and counting just 
in the last 2\1/2\ years, a little less than 3 years. What is the 
response from the administration to this number? Are we pulling 
everybody together to figure out what we can do to lower health care 
costs? Are we figuring out what we can do to level the playing field 
and stop China and Japan from using advantages and manipulating their 
currency and creating a situation that is unfair to us? Are we looking 
for ways to stop the small manufacturers from going and moving their 
plants overseas? No.

  What is the response from the administration? The first thing is to 
propose to cut people's overtime pay, people who already are working. 
We are going to cut their overtime pay. That is one of the major points 
the administration is fighting for right now in the appropriations 
process. They fight every effort to extend unemployment for the people 
who are currently unemployed. In the past, on a bipartisan basis, every 
President from Nixon and Carter and Reagan and Clinton, every President 
we have during times of recession, we have extended unemployment 
compensation for those who are unemployed. We have to fight now at 
every turn on behalf of the unemployed. I have mentioned earlier the 
administration has not been willing to get tough with China, has not 
been willing to deal with what is happening in Japan as well, that has 
so affected our automobile industry and our manufacturing economy.
  We need leadership to step up and do more than just words to get 
tough on them, to create a level playing field. We have seen the 
administration not be willing to address the high cost of health 
insurance and do those things that will bring prices down. Earlier 
today I offered a unanimous consent request to increase the minimum 
wage $1.50 an hour so 7 million people, a large share of them women 
with children who are working for the minimum wage and trying to make 
it and don't have health insurance, paying their child care every day, 
trying to make it, trying to do what we are asking them to do in this 
country, could get a raise. It was objected to by colleagues. So we are 
seeing the people who earn the least can't get a raise. The 
administration won't support 7 million folks getting a raise. They want 
to take overtime away from the folks who are already working, not 
wanting to deal with those who are out of work with unemployment, not 
wanting to level the playing field so we can keep our manufacturers 
here and keep those good-paying jobs.
  Over and over again, we see efforts that block what we need to turn 
this number around of 3 million jobs lost and counting.
  That is the reality of what is happening. Frankly, I am disappointed 
we are not willing to spend time. If we are going to ask people to stay 
up all night and the staff to be here and so on, let's address 
something that affects them and their families and everyone who is 
listening and watching, and that is how we move this economy forward, 
how we protect manufacturing, how we support our businesses large and 
small, and our workers working harder and harder every day just to make 
ends meet, so we can make sure the quality of life and standard of 
living we want for our families is maintained in this country.
  We are the greatest country in the world. But we are truly in crisis, 
I believe, as it relates to what is happening in our economy and with 
our manufacturing sector.

  Let me take an opportunity to read a few more of the letters I get 
every day, unfortunately, from the people of Michigan. A letter that 
says: I have never written to a Michigan Senator before, but for me, 
now is the time. You see, I am one of the discouraged unemployed in 
Michigan. After over a year of fruitless searching for a nonexistent 
job in my field as a CAD designer, I have given up. It breaks my heart 
to leave the field I love. I must just ask you this: Where are all the 
automotive engineering jobs? Is it true that we in Michigan have lost 
much of our employment base as it relates to engineering through 
outsourcing? I know many colleagues who are also out of work and many 
who have left the field altogether, as I am contemplating. I just want 
you to know how one of your constituents is feeling about the 
employment situation here in Michigan.
  Of the 3 million jobs that have been lost, over 2.5 million of them 
are in manufacturing. These are jobs that pay well, that bring health 
care with them, that bring a pension, that create middle-class America, 
those folks who can buy the houses and the cars--we want them to all 
buy them American made--who buy the boats and the snowmobiles and the 
cottage up north, who send the kids to college and believe in the 
American dream: that if you work hard, you can be successful in this 
country and you will have the opportunity to have the dignity of work.
  From Union City, MI: I am writing this letter because there seems to 
be some confusion about our economy. Our government seems to think that 
a tax cut will help but I don't think so. Since the year 2000, there 
has been over 3 million manufacturing jobs that have been lost, gone to 
China. My wife and I own a small machine shop in Union City, Michigan. 
At one time we had 7 employees. Now my wife, my son and myself are all 
that is left. Most of the time we don't even have enough work for 
ourselves. I have watched as many of my friends and competitors have 
gone out of business and just closed their doors or filed bankruptcy. 
While we fight the war on terrorism, if we are not careful, we will 
lose a much bigger war to the rest of the world without a shot being 
fired.
  From Clyde, MI: My husband, a 25-year mechanical engineer, designer 
of automotive special machines, has been laid off for seven months. The 
company he worked for was bought by Fiat and within two years, began 
outsourcing the engineering to countries such as Bosnia where engineers 
will work for $6 an hour. Our workers can't compete with that 
obviously. The engineering department is now closed completely,

[[Page S14695]]

everything is outsourced. He is 55, laid off, 2\1/2\ weeks short of his 
retirement, vesting at 100 percent, can't draw Social Security, and has 
been unable to find work. The market is flooded with engineers because 
outsourcing is happening all over. I work two jobs and a third when I 
can get the work. If we want to maintain the quality of our environment 
and keep our families fed, we need legislation to address the 
inequities in manufacturing standards globally, balancing tariffs, 
something. Our workers can't compete with the salaries outsourcing 
provides from other countries but for which foreign workers can 
maintain their own standard of living.
  Again, I have received letter after letter after letter saying the 
same kinds of things. I also receive letters from furniture makers. I 
have had the opportunity to be in Grand Rapids, MI, and talk with 
furniture makers who have lost their contracts to Chinese contractors 
or subcontracting has moved over to China. They say: Well, it is 
because they can't compete. It is just the way the economy works.
  Well, no, it is not. China manipulates their currency and it amounts 
to about a 40 percent tax on goods and services we send to China. They 
are not playing by the rules. They don't play by the rules. Why aren't 
we standing up for us? My constituents are saying: What about us? What 
about our jobs? We appreciate the fact that four people who wanted to 
be promoted as judges have not had the opportunity to do that. One 
hundred sixty-eight, yes; four, no.
  But I hear from people representing this 3 million people saying: 
What about us? What about a marathon for us? What about spending time 
on the floor debating solutions that will create jobs for the people in 
this country that represent the majority who believe in this country, 
who work hard every day, who want to work hard, who want the dignity 
and respect of work? They don't want a handout. They want to work. They 
are finding their jobs are leaving, and they need our help.
  Our manufacturers, large and small, and the people who work for them, 
need our help. They are asking us to work on a bipartisan basis. These 
folks are not Democrats or Republicans. They are Americans. They are 
Michigan citizens. They are asking us to turn our focus to those 
families, those people in our country who need our help. What we do is 
always about values and priorities--always. It is always about values 
and priorities.
  I believe this debate is about misplaced priorities and we need to 
return to what is most important in the precious hours we have here and 
the time we have to get something done for the American people, because 
there is a lot at stake, including the quality of our way of life as a 
country. We cannot afford to lose our manufacturing base. We cannot 
afford to lose the middle class of this country, which has made us 
strong. If we are not careful, that is exactly what is going to happen.
  I call on my colleagues to spend this time on how we move forward and 
take this number of 3 million jobs down to 2 million and to 1 million 
and get it down to zero, because that is the number that truly counts 
for all of us.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. I inquire of the time. Where are we?
  The PRESIDING OFFICER. The minority still has 41 seconds remaining.
  Mr. REID. We are happy to yield 41 seconds to the majority.
  The PRESIDING OFFICER. Does the Senator from Idaho seek time?
  Mr. CRAIG. The chairman of the Judiciary Committee is on the floor. I 
will yield to him.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I apologize to those listening in and to my 
colleagues for having laryngitis.
  Mr. REID. I want my 41 seconds back with that voice.
  Mr. HATCH. Your voice is not much better than mine, from what I can 
hear.
  Whenever you are losing an argument, you try to bring up something 
that might help you to win. This argument about jobs is very important, 
but I remember all last Monday being wasted by our colleagues on the 
other side. I can list all of the obstructions that have occurred this 
year, time after time, when we tried to do something that might be good 
in that area. This phony chart of 168 to 4, it doesn't take any brains 
to realize that is totally false.
  Tomorrow, we are going to have two cloture votes on two more, so 
there are at least six. If you go through all those they really do plan 
to filibuster, you get up around 15, 16, or 17. This is the first time 
in history this has happened.
  I rise to speak about the judicial nominees being filibustered by a 
minority of Senators. I have served in the Senate for 27 years, and I 
can honestly say President Bush's nominees are among the best I have 
ever seen. They are experienced, intelligent, ethical, hard working, 
respected in their communities, and they have given their lives to 
public service. We honor these great men and women for volunteering to 
serve their country. They have put forward their good names for 
evaluation by the Senate and they deserve a simple up-or-down vote--
just the dignity of the vote. Our priority is to vote on these 
nominees. We owe them no less.

  By June of this year, we had two well-qualified nominees blocked by 
filibusters. These filibusters were the first two in the history of 
this body. By the end of July, we again made history, adding a third 
filibustered nominee. By October, we had four nominees filibustered, 
another record. Shortly, we will have two more filibustered nominees, 
yet another record. The number continues to rise.
  Those who are watching this, don't believe this phony chart. That has 
never happened before. Like you say, it is one thing to say we gave the 
168 a trial. Most of them are district court judges now. So we gave 168 
a trial, but we only lynched 4 of them--6 of them now, or 8 probably 
next week. It will be up to 17 before long.
  I promise not to talk about the color of somebody's tie or my 
favorite fast food. I want to talk more about numbers tonight. I want 
to talk about President Bush's nominees to the Federal court. Ambrose 
Bierce defined nominee as a ``modest gentleman [or gentlewoman] 
shrinking from the distinction of private life and diligently seeking 
the honorable obscurity of public office.'' That may or may not be the 
case, but I want to highlight several of the distinguished and 
respected judicial nominees who are currently being filibustered by the 
Democratic Party members, Justice Janice Rogers Brown, Justice 
Priscilla Owen, and Judge Carolyn Kuhl. We can talk in terms of 
numbers, but I prefer to talk about why these three distinguished 
judges deserve a simple up-or-down vote on the Senate floor, and why 
they deserve to be confirmed as Federal judges.
  We started hearing from the other side that, according to my 
colleagues, these nominees have despicable views, or are wildly out of 
the mainstream, or from the hard right, are mean people, have 
embarrassing records, are far out and off the charts, are unqualified, 
are activist, are extremists, or rightwingers who would like to take 
the country back to the 1890s, are deeply hostile to and actively 
seeking to undermine civil rights, women's rights, and workers rights--
gee--seek to turn back the clock on constitutional rights, have records 
of not really helping women, seem to have little regard for the rights 
of women, and represent the ``worst of the worst,'' as one colleague on 
the other side put it the other day. Those were the nice things they 
have said.
  Actually, Judiciary Committee hearings often remind me of an old Far 
Side cartoon showing three cowboys on Main Street in the Old West. One 
cowboy lies sprawled on the dusty street, with a revolver lying next to 
his arm. The cowboy on the left stands with a smoking gun, staring at 
the fallen man, and saying: ``OK, stranger . . . What's the 
circumference of the Earth? . . . Who wrote the `Odyssey' and the 
`Iliad'? . . . What's the average rainfall of the Amazon Basin?'' The 
cowboy on the right stands stunned, with his hands to his face, saying, 
``Bart, you fool! You can't shoot first and ask questions later!'' In a 
similar vein, Ambrose Bierce wrote that to nominate someone was to 
``designate for the heaviest political assessment. To put forward a 
suitable person to incur the mudglobbing and deadcatting of the 
opposition.'' I often fear we do not give

[[Page S14696]]

our judicial nominees a fair chance before shooting them down.
  The other side, before they heard one word out of Janice Rogers 
Brown's mouth, was already shooting her down; they didn't give her a 
chance.
  I hope we can move past applying labels to the fine men and women who 
have volunteered to serve their country through judicial service. Our 
duty under the Constitution is to determine whether judicial nominees 
possess the experience, intelligence, and temperament needed for 
judicial service. Our constitutional responsibility is to judge whether 
judicial nominees are willing and able to place the rule of law above 
all other concerns in rendering justice. The Senate cannot fulfill its 
constitutional duty when a minority of Senators refuses to allow an up-
or-down vote for the President's nominees. As it stands, a bipartisan 
majority of U.S. Senators stand ready to vote on and confirm each of 
these excellent nominees.
  Mr. COLEMAN. Will the Senator yield for a question?
  Mr. HATCH. Yes, I am happy to.
  Mr. COLEMAN. A concern we have with nominees is they are competent 
and able to do justice and do the right thing. There are ways to 
measure that. I ask the chairman, is it true the three nominees we are 
debating have been rated qualified or well qualified by the American 
Bar Association? Is that an objective standard by which nominees can be 
rated?
  Mr. HATCH. That is true. Remember, all throughout the Clinton 
administration, on all their nominees, our friends on the other side 
were saying if the ABA approves them with a qualified rating, then they 
deserve to have an up-or-down vote. When they have a well-qualified 
rating, the highest rating you can possibly have, then there is no 
question they deserve an up-or-down vote. Like the three cowboys in the 
street I talked about, they shoot them down before they even get a 
chance to have that vote up or down.
  Mr. COLEMAN. Sometimes the people can rate judges, when judges are up 
for election. I ask, is it true Justice Owen was elected to the Texas 
Supreme Court by 83 percent of the vote in Texas?
  Mr. HATCH. Absolutely true.
  Mr. COLEMAN. Is it true Janice Rogers Brown was retained to serve by 
76 percent of California voters?
  Mr. HATCH. Yes. I might add Justice Owen, to get back to her, had 84 
percent of the vote in the year 2000. That is the highest support of 
any State supreme court justice that year. Most every major newspaper 
in Texas endorsed her. Our colleagues on the other side say she is out 
of the mainstream. Give me a break.
  In the case of Justice Brown, she won 76 percent of the vote. I think 
there were four, if I recall correctly, supreme court justices up for 
election. She won the highest vote of all of them in a State not known 
for conservative politics. Yet they have tried to paint her like she is 
some sort of a rightwing nut. Well, just look at NBC News. They made it 
pretty clear she is no rightwing nut. She is a very good person.
  Mr. COLEMAN. I ask the chairman, sometimes judges can be graded by 
peers, folks who served with them, who know firsthand the quality of 
the work they do. Is it true Judge Kuhl has the support of over 100 
California judges across the political spectrum?
  Mr. HATCH. Yes, of both Democrats and Republicans. She is one of the 
most highly rated judges in California. She is outstanding. Frankly, 
these are Democrats saying she made one of the best judges on the Ninth 
Circuit Court of Appeals.
  Mr. COLEMAN. I ask one last question. How is it the opponents of 
these nominees can claim these nominees are extreme or out of the 
mainstream, or not qualified?
  Mr. HATCH. Well, I suppose the overwhelming majority in the most 
populated State, in the case of California, is out of the mainstream. I 
guess the overwhelming majority in one of the largest States in the 
Union, Texas, is out of the mainstream. You know, I suppose having the 
support of her fellow judges, in the case of Carolyn Kuhl, across the 
board, Democrats and Republicans, is out of the mainstream. According 
to these people over here--I will tell you who is out of the 
mainstream, it is these people over here who are filibustering judges 
for the first time in history and really endangering this process. It 
is ridiculous. It is wrong. I think the American people have to rise up 
and let them know it is wrong.

  Mr. COLEMAN. I thank the Senator.
  Mr. ALLARD. Will the Senator yield for a question?
  Mr. HATCH. I am happy to.
  Mr. ALLARD. I am a veterinarian by profession, and we have a code of 
ethics in our profession. I understand we are expected to abide by the 
code of ethics, and I understand the American Bar Association has a 
code of ethics for judges. My understanding is the code of ethics says 
you will not take a position, when you are in the process of seeking a 
position on the bench, that might prejudice your ability to decide a 
case. Every one of these individuals up for consideration is highly 
respected by their peers. I suspect it is because they are honorable 
and they live by the code of ethics.
  I am disturbed by the specific questions that come from members of 
the committee when, in my view, it makes it difficult for the nominee 
to answer those questions because it would make it difficult for them 
to be objective in the way they look at a case that comes before them. 
I wonder if you would share with me about the code of ethics and the 
question on how is that practical, and do you have any reason to 
believe these are horrible individuals who would not measure up to the 
highest standards of the court, based on their peers who recommended 
them as highly well qualified?
  Mr. HATCH. I have been on the Judiciary Committee for 27 years. I 
have to say I have not seen any better nominees in that whole time. As 
far as ethics, the only one the Democrats demanded an answer to every 
question--questions about future cases that will come before them--not 
the only one, but the main one, was Bill Pryor. The other one was 
Miguel Estrada. To make a long story short, it has been a very unfair 
process for these people. We have more than made the case that Miguel 
Estrada was treated completely different from John Roberts. Both of 
them served in the Solicitor General's Office. They asked these stupid 
questions about documents that are the most highly privileged documents 
in the Government today, and seven former Solicitors General said these 
cannot be given, and they used that as a phony excuse to shoot down 
Miguel Estrada, who is well qualified by the American Bar Association. 
When Bill Pryor answered all the questions, they said you answered too 
many questions. You are damned if you do, damned if you don't.
  It is pretty clear, they just wanted to shoot these people down right 
from the beginning. To come out here and make such a fuss about jobs 
when they have been obstructive all year long is so phony that I have 
to admit, it almost brings tears to my eyes. Maybe it does bring some 
tears to my eyes because phony things tend to do that.
  Mr. ALLARD. I thank the Senator for responding to my question. I have 
one other followup question. You mentioned jobs and it seems to me we 
have an efficiently operating judiciary. We don't have a lot of 
lawsuits that help the economy. That means we need to move out of 
filibuster and get these nominees voted up or down and get them on the 
bench, particularly in the circuit courts where we have a lot of 
pending cases. One of the best things I think we can do is to get these 
nominees on the bench and fulfilling their duties. Do you agree?
  Mr. HATCH. I do. Sometimes the district courts are involved and that 
is why we need the circuit court of appeals. Yet this President is 
treated different than prior Presidents, including President Clinton. 
About two-thirds of the circuit court nominees haven't even had a vote. 
Usually by this time in a President's career about 90 percent have had 
a vote.
  Ms. COLLINS. Will the distinguished Senator yield for a question?
  Mr. HATCH. I am delighted to.
  Ms. COLLINS. The Senator from Utah is an extraordinary lawyer, and he 
also has a distinguished history in the Senate and has served so ably 
as the chairman of the Senate Judiciary Committee. I wonder, given the 
Senator's breadth of experience, if he happens to know the origin of 
the word filibuster and could he enlighten the Members of this body and 
those who

[[Page S14697]]

are watching tonight as to its origin and meaning.
  Mr. HATCH. I was hoping somebody would ask that. We have a chart 
prepared. They put it up. Filibuster comes from a Spanish word 
``filibustero,'' meaning a pirating or hijacking, one word for 
obstruction. That is what it is. Look, I have no problem with 
filibusters on the legislative calendar because the Senate can set its 
own rules. But when it comes to the Executive Calendar, that calendar 
depends on your exercising restraint by advising and consenting, which 
means a simple majority vote up and down.
  In the Clinton years, every Clinton nominee who came to the floor got 
a vote up or down. We did have a few who wanted to filibuster Clinton 
nominees. I personally stopped that because I recognized it would be 
disastrous for the Senate if we went down that road. As you can see, it 
is disastrous. We are in the middle of going down that road. We have 
already gone down it because our colleagues on the other side just 
don't seem to understand how important it is for them not to filibuster 
Federal judicial nominees. But I thank my colleague for bringing it up.
  Ms. COLLINS. I thank the Senator for his clarification. That is 
indeed fascinating and we have learned a great deal here this evening.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. HATCH. I will be happy to.
  Mr. SESSIONS. Addressing the distinguished chairman of the Judiciary 
Committee, who has served so ably for so many years on these matters, I 
would like to follow up on that question that was just asked.
  During your tenure as chairman of the Judiciary Committee when 
President Clinton was President, and he was nominating judges that 
sometimes would not have been our choice, or your choice for a judge, 
did you have occasion to express your opinion as to whether a 
filibuster was appropriate or not?
  Mr. HATCH. As the Senator will recall, right in the middle of a 
couple of very controversial nominees, Judge Paez, now Judge Berzon, 
there were some on our side who legitimately felt they should 
filibuster both of those----
  Mr. SESSIONS. I hate to interpret the Senator, but his microphone is 
distorting pretty badly. Maybe the cord is broken?
  Mr. HATCH. Maybe I can bring it down here. Maybe it will work better 
here. I have it too close to my mouth. I am glad the Senator corrected 
that.
  Judge Paez had been an activist judge in the eyes of many of our 
colleagues on the district courts out there in California. Marsha 
Berzon was one of the leading labor lawyers in the country. We had some 
who wanted to filibuster them. I stood up in caucus and said that is 
not going to happen. To his credit, the then majority leader Trent Lott 
stood up and said that is not going to happen.
  We are both leading conservatives, but we knew that was a disastrous 
thing to do in this body because it would lead to animosities you could 
never quite--that would remain. It would lead to partisanship. It would 
violate the Constitution, it would violate the very advice and consent 
clause, the great power we have been given by the Founding Fathers.
  Frankly, as the distinguished Senator has pointed out, I stood up and 
said that is not going to happen and it did not.
  Did we have some cloture votes? Yes. But the cloture votes were to 
get to the nominee so we could vote. Every Clinton nominee who came to 
the floor, who was brought to the floor, got a vote up or down. Only 
one was defeated and that was Ronnie White, on a straight vote up or 
down. But every other one, all 377 of them, the second highest total in 
history, passed.
  Did I agree with all those judges? You bet your life I didn't. But 
they were qualified. The fact I didn't agree with them ideologically 
was irrelevant. What is relevant is, Are they qualified? I certainly 
would not take away the opportunity of serving in the Federal 
Government for an otherwise qualified person just because I disagreed 
with that person on abortion or on any other issue, for that matter.

  Mr. SESSIONS. Will the Senator yield for a further question?
  Mr. HATCH. Yes, I yield.
  Mr. SESSIONS. I remember that very well. I remember you speaking 
clearly that the filibuster was inappropriate. You both said it 
publicly and in the Republican conference when the issue was raised by 
people who did not have your experience in this matter. Trent Lott, the 
Republican leader in debate--I voted to end debate, Trent Lott voted to 
end debate, you voted to end debate and allow an up-or-down vote, and 
when that occurred I voted against the nominee. But I agree with your 
argument that a filibuster was not sound.
  Let me ask you this. At that time, when Senator Daschle was the 
Democratic leader and Senator Leahy was ranking member on the Judiciary 
Committee, did they take a public position that a filibuster of Clinton 
judges was not appropriate?
  Mr. HATCH. Virtually every Democrat said it, took the position a 
filibuster should never take place. All they asked for was an up-or-
down vote. That is all they wanted, if we would just be decent enough 
to give them an up-or-down vote. We did. We were decent enough.
  What does that imply about what is going on on the other side? I will 
let the public draw their own conclusions. But we were decent. We did 
what was right. We gave them up-or-down votes. Frankly, what is going 
on here is just appalling.
  Mr. SESSIONS. Let me follow up. Now that President Bush is in the 
White House and he is sending judges over, has your position on whether 
a filibuster is appropriate or not changed in any way?
  Mr. HATCH. No, it has not, because a filibuster is inappropriate when 
it comes to judicial or even executive nominees, especially judicial 
nominees. Our ability to give advice and consent means if you don't 
like the nominee, vote against him or her. If you do, vote for them. 
But, above all, don't obstruct, which is exactly what they are doing 
here, obstruction, from the Spanish word, ``filibustero,'' meaning a 
pirating or hijacking. Just one more objection. Now we have six more 
objections, as of tomorrow--actually they require cloture votes to be 
filed on Janice Brown, and of course Carolyn Kuhl, so we now have six. 
I could name up to 17 they have threatened to filibuster and probably 
will.
  To keep bringing that phony chart up here is an insult to everybody 
on this floor. It is an insult to everybody watching. It just shows 
they are void of any real arguments. To now try to change the nature of 
the debate to jobs, when they have obstructed all year long, is an 
insult.
  Mr. SESSIONS. Will the Senator yield for one following question?
  Mr. HATCH. I will be happy to.
  Mr. SESSIONS. Senator Hatch, so it is clear to me, it is your 
position, the position of Trent Lott, has not changed as to whether a 
filibuster was appropriate, and neither has that of our majority 
leader, Bill Frist?
  Mr. HATCH. It has not changed. But their positions have changed.
  Mr. SESSIONS. Let me ask you with regard to Tom Daschle, the 
Democratic leader, and Senator Leahy, the ranking member on the 
Judiciary Committee, who argued so aggressively against filibusters 
just 2 or 3 years ago, has their position changed today? Are they, in 
fact, participating in an unprecedented procedure, an unprecedented 
filibuster of judicial nominees?

  Mr. HATCH. No question. They were very forthright and very strong 
that there should never be filibusters of judicial nominees. Now all of 
a sudden when it is to their advantage, they think--I think it is to 
their great disadvantage. They lost the 2000 election in part because 
of the way they are treating judgeship nominees. I think they are going 
to lose a lot of standing in this country. The way they are treating 
southern nominees is abysmal, like Bill Pryor. Like Charles Pickering.
  It doesn't take any brains at all to realize they just don't think 
these two able people are worthy of being on the bench when in fact 
they are more worthy than many of the nominees we approved for them in 
the 8 years of the Clinton administration.
  Mr. SESSIONS. I thank the Senator for his leadership. I asked those 
questions because it was suggested last night in debate that somehow 
those on this side had changed our view. I think it is quite crystal 
clear the only views that have changed and only positions

[[Page S14698]]

that have been changed are those on the other side. Unfortunately, it 
has changed the historical principles of this Senate with regard to 
filibusters of nominees.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, will the chairman of the Judiciary 
Committee yield for a question?
  Mr. HATCH. I will be happy to.
  Mr. CRAIG. The chairman in earlier questioning by the Senator from 
Minnesota alluded to the fact that NBC News tonight featured as their 
lead story Janice Rogers Brown, Supreme Court justice from California. 
I am a freshman on the Judiciary Committee so I have not had the 
experience you have had, going through numerous years of confirmation 
hearings. But I must tell you I was so impressed with this woman's 
talent and her clarity in answering questions.
  What is her background? What was her beginning, if you will? I think 
it is the great American story, I am told.
  Mr. HATCH. She was born a sharecropper's daughter. This woman had it 
rough all the days of her life. She put herself through college and law 
school as a single mother. She has worked in State government now for I 
think it is 26 years. And they are trying to say she is against 
government? My gosh, she has worked there and been supportive for I 
think 26 years. She is one of the best nominees I have ever seen.
  If we had done to three woman nominees what they are doing to these 
three--Priscilla Owen, who broke through the glass ceiling, getting 
women a right to be partners in law firms; Carolyn Kuhl has the support 
of 100 of her fellow judges out there, Democrats and Republicans; 
Janice Rogers Brown, sharecropper's daughter, has risen to the top of 
the heap, who has fought her way all her life--if we had done this to 
any of their nominees they would be screaming about it right up to 
today. It is unbelievable they are trying to do this on these three 
women nominees. They want a regimented liberal approach to everything, 
and if it is not there, then they are out of the mainstream, according 
to them.
  I think most people in this country are in the middle and, I think, 
the middle or moderate conservative. But, be that as it may, these are 
competent, qualified, well-qualified women, and they are treating them 
like dirt. I don't understand it, myself.

  Mr. CRAIG. Will the Senator yield for another question?
  Mr. HATCH. I will be delighted to.
  Mr. CRAIG. It was also mentioned in that questioning by the Senator 
from Minnesota that Justice Brown had received--I think your response 
was--74 or 76 percent of the vote of the State of California in a 
reconfirmation of her position. We have heard a great deal about judges 
who dissent too much. She was criticized by the Democrats for some of 
her speeches, that she was ``out of the mainstream,'' even though she 
received this phenomenal vote in California. Didn't Justice Brown write 
more majority opinions than any other justice in the Supreme Court of 
California--in the last term, I believe is what they are saying?
  Mr. HATCH. Yes, the distinguished Senator makes a good point. She was 
elected by 76 percent of the vote. I would have to say, she wrote a 
majority of the majority opinions, and joined in some 73, if I recall 
correctly, unanimous opinions. In other words, she is not only in the 
mainstream, she is one of the best justices, State justices in the 
country. They are treating her like dirt. I don't understand that kind 
of treatment.
  The PRESIDING OFFICER. The majority's time has expired.
  Mr. CRAIG. I thank the Senator for his answers to my questions.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I rise this evening to express 
what might be best described as my disappointment in what has occurred 
during the past 24 hours, now I understand perhaps another 12 hours. I 
ask we move the process forward.
  Mr. HATCH. Will the Senator yield for a unanimous consent request? It 
will only take a few seconds.


                      Unanimous Consent Agreement

  I ask unanimous consent at 8:30 a.m. on Friday the Senate begin an 
hour of debate equally divided prior to the first cloture vote; 
further, that the last 20 minutes be equally divided, the first 10 
minutes under the control of the Democratic leader or his designee and 
the last 10 minutes under the control of the majority leader or his 
designee.
  Mr. REID. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I thank my colleague.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I rise tonight to express 
disappointment over what has happened over these past nearly 24 hours, 
or past 24 hours-plus, and perhaps another 12 hours. I just ask we move 
the process forward.
  I would like to make very clear a few statistics I think are 
appropriate tonight. We have seen many statistics or many different 
versions of the same statistics over these past many hours. Tonight I 
would like to make very clear a few statistics with respect to my 
voting record on confirmation of judicial nominees, which is really 
based on the principles I hold as a Member of the Senate.
  I voted to invoke cloture 13 times. That is a 100 percent voting 
record on judicial nominees. To date, I have never voted against 
invoking cloture on a judicial nominee, not one.
  I have voted in favor of confirming all nominees except one, and I 
voted for cloture to move the process forward, even on a nominee I 
cannot support.
  I have done all these things because I believe in moving the process 
forward. As Governor of Nebraska, I had the great privilege of 
appointing judges to the bench. I appointed the entire Nebraska Supreme 
Court and the entire Court of Appeals over my 8 years, and nearly 50 
percent of the judges in Nebraska. I may not be good at it, but I have 
had a lot of experience.
  I would hope we could move forward this process. If we cannot agree, 
then at least we ought to move on. What is happening right now during 
these hours of debate is not about moving the process forward. In fact, 
what is being accomplished seems to me to be just the opposite, setting 
us back. This debate has served only to further frustrate the work of 
this body, delayed action on critical legislation that must be 
addressed, and has further polarized the competing sides on these very 
controversial appointments.
  The question I ask tonight is, Does using a tactic of delay to 
criticize and attack another tactic of delay cause you to make the 
point or lose the point?
  To add further frustration to this matter, this delay occurred only 
after we were forced to choose between missing votes on Tuesday, 
Veterans Day, or cancelling the many obligations most of us made to our 
constituents to participate in events to honor veterans back home. The 
leadership basically decided having these hours of debate seemed to be 
more important than honoring those who fought and died while protecting 
the freedoms that under ordinary and normal circumstances are debated 
and defended in this very Chamber every day. By having votes on 
Veterans Day, I could not participate in that exercise, and I didn't 
appreciate having to choose between Nebraska veterans and votes on 
legislation before this body. Like others, I chose to be with my 
veterans. I missed two votes. I would do it again in a heartbeat.
  But it is not only our veterans who were not given the consideration 
they deserve. It is also our seniors, who are anxiously awaiting a 
prescription drug benefit. What do I say to George and Lee back home 
when they ask me, ``Why haven't you been able to get a prescription 
drug benefit but the Senate could debate on other issues for 30-plus 
hours''?
  It is those who suffer from mesothelioma who desperately await an 
asbestos reform bill. What do I say to a widow of a recently deceased 
judge in Nebraska who was waiting to collect money because of the 
bankruptcy of a particular company? She is unable to collect it, but 
would have the opportunity, under an asbestos reform proposal, to 
collect on behalf not only of herself, but on behalf of her young 
children.
  I am just one of 100 in this great legislative body, and I am very 
honored to be here. Even though I am relatively new to the scene, I 
think it is very

[[Page S14699]]

clear each of us is entitled to his or her own opinion. I have to say 
some of us are moving the process forward. I find it difficult to 
explain to others why we cannot be independent in our thinking about 
judges. Someone might say there is not too much of a difference about 
this judge or that judge. That is what this process is all about. But 
when we can't come to an agreement about a particular judge and we 
can't move forward, we cannot delay in this situation, but we must in 
fact move on.
  I oftentimes try to impress upon myself and my family and my friends 
and others that reasonable people can and will disagree. But when they 
are unable to agree, it is unreasonable to expect the process to come 
to a halt regardless of the rules, but it is important to go ahead and 
move on. I embrace that philosophy because I too would always like to 
have everything go my way. I would like to see every bill read exactly 
as I wish and every nominee be the one I choose. Instead, I do embrace 
that philosophy because I believe we can have those differences of 
opinion, hold different views on the issues, serve different 
constituencies from diverse regions of this great Nation, and we can, 
in spite of all that, and in many instances because of that, achieve 
progress in addressing the critical issues of our entire Nation.
  I don't believe these hours of debate have helped us move closer to 
resolving our differences on these 4 nominees. In fact, I am afraid it 
has achieved just the opposite. I fear this exercise may have poisoned 
the well, leaving this body with such stark disagreements, and any 
progress on the issues that matter to my constituents--a prescription 
drug benefit, an energy policy, asbestos reform, welfare reform--and 
the bills that run the Government may not be now attainable.
  Many Americans question the motives of both sides as this spectacle 
continues. I am not going to suggest a motive for all of this, but I 
can surmise a conclusion: These hours have been needlessly carved out 
while the critical issues remain unresolved. My constituents sent me 
here to get things done--not to pander, not to be a partisan, not to 
disrupt, delay, object, or deny, not to waste 30 minutes or 30 hours.
  In the interest of moving forward, making progress, and doing good 
work for the American people, I urge my colleagues, not in any partisan 
way, to think long and hard about what is being orchestrated here for 
these hours and what the American public expects of us during the final 
days of the session--so we can deal with the prescription drug benefit, 
so we can deal with the energy needs, so those folks who are today 
worried about the cost of natural gas and the high cost of energy 
sources in the future know there is a solution in sight.
  Drought relief: I can go back to Nebraska and say, Well, we couldn't 
get a drought bill. I guess it was OK that we debated 30 hours on other 
issues, but in fact when you are losing your family farm as a result of 
the continuing drought, that isn't probably going to sell.
  Highway reauthorization: Many States today are waiting for the 
highway reauthorization so they can continue to build and improve their 
infrastructure, because that relates to jobs--jobs in construction, but 
also jobs because of the improved infrastructure.

  Many States are worried today about FAA reauthorization. I have 
airports in smaller communities in Nebraska that are worried about 
being able to build and expand and improve their airports due to part 
of the reauthorization.
  What do I say to them if that doesn't get accomplished? What do I say 
to those who are waiting for asbestos legislation? What do I say about 
class action? When are we going to get that accomplished?
  When are we going to say enough is enough? If these 30 hours-plus 
that are now going into more hours had been used to debate health 
insurance, the full funding of special education, dealing with the 
Federal unfunded mandates, or some of us had worked previously on State 
fiscal relief, or in finding more ways to create jobs and improve the 
jobs and the markets we have today, looking for ways to make trade not 
only free but fair so we don't export jobs but we do import and export 
our products at the same time--if we had spent the time on that, then 
this time could have been productive.
  In many ways perhaps there can be a catharsis as we move forward on 
finding new ways to deal with the judiciary. I have looked back and 
forth over the years looking at the role of the judiciary to see if 
there is anything anywhere that ever gives the judge the right to 
legislate or to make law. The one thing I made clear with every 
judicial candidate was: Are you going to be in the position of a judge 
or do you want to be a legislator? Are you going to legislate or are 
you going to adjudicate? The position of a judge is not to legislate. 
It is to interpret law, to apply law, and to adjudicate.
  To win constituency groups in Presidential elections, the unfortunate 
thing for some time has been to say I am going to appoint judges to do 
certain things, to rule certain ways on the Supreme Court bench, to 
rule in certain ways on certain issues that will appeal to a 
constituency or to win constituency groups.
  Sometimes I think we politicize the judiciary, and that is why we are 
where we are today. We need to move away from worrying about ideology, 
political philosophy, and to make sure judicial activism is not a part 
of what we do. If Presidential candidates say they are going to appoint 
Supreme Court judges not to be conservative or liberal, but those who 
will fairly apply the law and those who will do what they think is 
right under the law, not to make the law, then I think it is important. 
Politicians do keep promises. In the view of many, maybe not many 
promises. But politicians do keep promises when they say they will 
appoint judges of a certain kind. Then they are obligated to 
constituency groups to do that.
  That is the root cause of our problem--moving away from ideology and 
political philosophy so we only deal with judges who come to the bench 
with the idea they are there to apply, to interpret the law, not to 
legislate, not to make the law. Until we do that, we are going to be 
hopelessly bogged down from time to time. But I am here to move the 
process forward. If the rest of us can't get together to move the 
process forward as a body, then we at least ought to move on.
  Thank you, Mr. President. I yield the floor to my colleague from West 
Virginia.
  The PRESIDING OFFICER. The Senator from West Virginia.


                   Unanimous Consent Request--S. 1853

  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the 
Senate proceed to legislative session and that the Finance Committee be 
discharged from further consideration of S. 1853, a bill to extend 
unemployment insurance benefits for displaced workers, the Senate 
proceed to its immediate consideration, the bill be read a third time 
and passed, and the motion to reconsider be laid upon the table.
  Mr. CRAIG. Mr. President, reserving the right to object, 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.
  Mr. ROCKEFELLER. The Senator from West Virginia will not do that.
  Mr. CRAIG. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. ROCKEFELLER. Mr. President, I am extremely frustrated that the 
Senate continues this debate, or whatever it is. It is already more 
than a day. We are dealing with the nominations of a handful of judges. 
That is not trivial. I understand that. As a Senate, we have a 
responsibility to address the most urgent issues facing our Nation. 
Unemployment insurance for those who are unemployed, I think, happens 
to be one of them. Today we are, embarrassingly, failing to live up to 
that responsibility.
  This morning I talked at some length about the crisis facing our 
Nation's manufacturing sector. I will not relent on that subject. As 
factories close down, people across this country are losing jobs, 
losing health care benefits and retirement benefits. As a country, we 
are losing the industrial base that is responsible for the greatness of 
this Nation.
  Some of the statistics I mentioned this morning I am going to repeat.
  Manufacturing employment is at a 41-year low, and more than 2\1/2\ 
million

[[Page S14700]]

manufacturing jobs have been lost in the last couple of years.
  This morning I described legislation I introduced to address this 
manufacturing crisis. I happen to feel very strongly about that 
legislation. As I explained, the bill I crafted would offer relief to 
American manufacturers in three ways:
  First, by lowering the effective corporate income tax rate by about 3 
percent; second, by providing employers tax credit up to 75 percent to 
help cover the cost of health care coverage for retirees who had worked 
for that company; and, third, by strengthening our trade protection 
laws. There is a plan I laid out to help stem the terrible flow of 
manufacturing jobs from the United States overseas. I recognize other 
Senators have different ideas about the best way to help our Nation's 
manufacturing companies compete. I welcome the vigorous debate. I 
believe we ought to leave no stone unturned when looking for a solution 
to this crisis which is so vital to so many of our people. That is why, 
frankly, I am so frustrated and disappointed we are going through this 
30-hour charade.

  On the 1st of October, the Senate Finance Committee, on which I am 
proud to serve, approved legislation known as the JOBS Act. That stands 
for ``Jumpstart Our Business Strengths.'' The legislation enjoyed broad 
bipartisan support in the Senate Finance Committee and passed out of 
it. But 6 weeks later it is still awaiting action by the full Senate.
  I do not necessarily agree with every provision of that bill, but 
that did not happen to be important to me because it represents a 
serious effort to help America's factories and the people who work in 
those factories. I care about those people. I represent those people 
and I will fight for those people.
  The more important provision of the bill reduces the corporate tax 
rate, much the same as my own legislation would do. Unfortunately no 
debate has been scheduled for this important legislation. Some seem to 
believe we will not have time to consider the legislation before 
adjourning this year. That is tragic for the people who are not 
working. This Presiding Officer faces that in his own State, the State 
of Illinois.
  I cannot understand that thinking. How can we possibly have 30 hours 
to air our grievances about judicial nominees when we all know exactly 
what the result is going to be? There is no time to debate a way to 
protect American factory jobs. I could pick on many other subjects and 
would be happy to do so, but I pick one subject tonight.
  I believe if the Senate took up the JOBS Act, we could have a 
thoughtful, constructive debate and we could pass it. In fact, as I 
look about the Senate floor, I see the Senator from Nebraska, the 
Senator from Maine, and the Senator from West Virginia, and the last 
time we were on the floor together, we passed a bill which spread out 
to the States $16 billion of Medicaid assistance which they desperately 
needed--two Democrats and a Republican. It could have been two 
Republicans and one Democrat. It makes no difference. We got the job 
done. The bill passed, and the States benefited from it.
  But what are we doing now? We are talking. We could pass legislation 
on all kinds of things. I would ask all of my colleagues to think for a 
minute about the Americans who right now as we speak are hard at work 
on the evening shift in factories around the country. They are making 
everything from cars to contact lenses. Many of these factory jobs are 
exhausting. They require concentration and heavy lifting. They cause 
injuries. They require concentration. When Americans are toiling away 
in our factories right now, we cannot help but be inspired ourselves to 
concentrate and to do some heavy lifting of our own. We must work hard 
and do our jobs. It is our job as Senators to look at the serious 
policies that make our country work or work less well. People having a 
job and putting food on the table is a very major part of that.
  Much to my dismay, we are not engaged today in serious debate about 
ways to create and maintain jobs in America. That is the subject of 
discussion in my State. We are not a wealthy State. We are a good 
State. Our people are as good or better than anybody in any other 
State. I fight for then. But they need work. Instead, our factories 
continue to struggle and are forced to shut down. Millions of Americans 
are out of work. Because so many of our factories are leaving the 
country, it is more and more difficult for Americans to find new jobs.

  People always think when you lose a job, you can get another job. 
There was a day when that was true. That is no longer true. Indeed, 
economic experts have concluded the vast majority of job losses 
suffered in the last few years are permanent, are not replaceable. 
Factories are closed and will not reopen.
  Let me take a moment to discuss the economic situation in my own 
State of West Virginia. Our steel industry has been struggling to 
recover from years of unfair and illegal competition against steel that 
was dumped on our markets and sold in America at below the cost that it 
cost to produce it in the country it came from--dumped steel, illegal 
steel, breaking our national law.
  What was once our State's largest employer, Weirton Steel, recently 
announced it will cut an additional 800 jobs. I can remember when 
13,000 people worked at that company. If President Bush backs down on 
the steel tariffs, of course, it will hurt the industry just as it is 
poised to recover. Ending the tariffs early will cost many more 
Americans jobs and at a time we know that new factories are not being 
opened in steel. We have to protect those steel jobs we have. I mean 
``protect'' in the best sense of the word by using the American law and 
by being faithful to our own conscience.
  Employment in the coal fields is also affected. The coal industry has 
long supplied our steel industry with the finest quality coal in the 
world. That has continued to decline. There are not many coal miners 
left anymore in West Virginia. Indeed, the manufacturing base all over 
my State continues to shrink drastically, and, as it diminishes, so do 
jobs with good wages and good benefits. That is the American dream.
  In the southern coal fields, two other established prominent 
manufacturers--EIMCO, a Norwegian company that manufacturers mining 
equipment, and the Dean Company, with which I spent most of my life, a 
maker of wood veneers--are closed; they went overseas.
  The past year has brought the closing of two long-time manufacturers 
in north-central West Virginia, the Clarksburg Casket and Glassworks 
Company. In the Mid-Ohio Valley in Parkersburg, two long-time 
manufacturers, Johns Manvillle and Ames True Temper, closed plants. 
Just 3 weeks ago, it was announced another 50-year-old plant was 
scheduled to close in Parkersburg, putting almost 200 workers at Schott 
Scientific Glass out of work. Their jobs went overseas.
  In the Kanawha Valley where this Senator lives, two well-established 
chemical companies are closing, Flexys in Nitro and FMC in South 
Charleston. These closings mean hundreds of jobs lost.
  Where are these workers supposed to turn? Their average age may be 45 
to 55. What are they meant to do? Take up computer sciences? 
Biochemistry, physics? They can't do that. There is no place for them 
to go. There are no replacement jobs. Some of them take temporary jobs 
where they don't get benefits and try as best as they can to work with 
their families.

  I was extremely pleased at the recent news of the strong economic 
growth in the third quarter of this year in this country. This does not 
translate into new jobs in West Virginia. New jobs is what we look at. 
People do not feed their families and do not pay their mortgages with 
news of strong economic growth. They need paychecks. It comes from 
jobs.
  This Congress has not done enough to protect the paychecks of hard-
working Americans. We have failed to stem the flow of jobs overseas, a 
subject about which I could speak for 6 hours. We have not done enough 
to provide temporary assistance to workers who have lost their jobs. 
Currently, 9 million Americans are unemployed and almost 2 million 
Americans have been unemployed for more than 6 months. In West 
Virginia, almost 42,000 workers are facing the holidays without a job.
  Today, the Senate ought to be addressing the needs of these workers. 
Therefore, I am pleased to be a cosponsor of legislation introduced by 
Senator Kennedy that would extend the

[[Page S14701]]

unemployment compensation for those Americans of which I speak who are 
still struggling to find work in our so-called jobless economic 
recovery.
  As factory after factory closes its doors, or freezes hiring, workers 
are unable to find new jobs. They are running out of unemployment 
benefits at an alarming rate. As many as 80,000 workers per week are 
expected to exhaust their unemployment compensation in December itself. 
Senator Kennedy's bill would continue Federal unemployment benefits for 
an additional 6 months. The legislation would also provide 33 weeks of 
additional Federal benefits in States with especially high unemployment 
rates.
  This bill provides crucial assistance for long-term unemployed 
workers. There are more than 1 million workers who have already 
exhausted their extended benefits but have not been able to find a new 
job.
  Let me be clear. Men and women in West Virginia and across the 
country would rather have a paycheck than an unemployment check. We all 
know that. However, the jobs are not available. The choice is not 
theirs. They have families to feed. The Federal Unemployment Insurance 
Program was specifically created to help workers when the economy 
suffers prolonged downturns. Workers have paid into the unemployment 
compensation fund and they deserve to collect benefits from the fund 
during such a weak jobless recovery.
  Currently, the unemployment insurance trust funds have $20 billion 
sitting in a bank. The benefits outlined in Senator Kennedy's bill 
would cost $16 billion. To me it is unconscionable to leave the funds 
in the bank when they are needed by workers during hard times. 
Moreover, by making additional unemployment benefits available, 
Congress will also obviously be helping our economy.
  I am afraid that the charade we are engaged in at the moment is a 
lose-lose proposition for the American people. I do not diminish the 
importance of judges, but I do not diminish the importance of 
unemployed workers whose self-esteem is destroyed and whose skills are 
ready to be put to work. It does nothing to help 9 million Americans 
who have already lost their jobs to have this debate. It does nothing 
to protect the jobs and factories that are currently struggling to 
compete to have this debate. I would also suggest that it hampers the 
ability of Senators to come together to address the urgent business of 
the Nation because of the nature of this debate.
  There is certainly no shortage of important business before the 
Senate. We need to pass a prescription drug bill, and there are many 
other issues I could discuss.
  I will end with simply this thought: I love America. I love my State 
of West Virginia. I love its people. I know they need to be well 
represented by judges. But I also know they have to work or else it 
probably doesn't make much difference to them.
  What I am talking about tonight, what I talked about this morning is 
the ability for Americans to have jobs, to hold jobs and, if they lose 
them, to get unemployment insurance.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Enzi). Who yields time for the majority?
  Mr. HATCH. Mr. President, I appreciate our colleague's comments about 
the necessity of jobs. I agree with him. We are debating the third 
branch of Government, without which there wouldn't be any jobs for 
anybody, without which the Constitution wouldn't be alive today, 
without which we wouldn't have the freedoms we have.
  In all this talk about jobs, I haven't heard any real ideas as to how 
we get more jobs. It is as though they think Republicans aren't 
concerned about jobs. Of course, we are. We are debating something that 
is equally important; in fact, over the long run, much more important 
than almost anything else we can debate. That is, are we going to have 
an honest, decent judiciary to uphold the Constitution?
  I have seen this body and the other body pass unconstitutional 
legislation many times in my 27 years. I have seen Presidents act 
unconstitutionally a number of times in my 27 years, and before that. 
It has been the judiciary that has saved the Constitution. It has been 
the judiciary that has corrected matters. It has been the judiciary 
that has helped small business, where the jobs are. It has been the 
judiciary that has given justice to this country, that has protected 
Americans from criminals, that has done so much good for this country. 
That doesn't mean all judges are perfect or right. But by and large, it 
has worked very well. That is why we make these positions lifetime 
appointments, so they don't owe anything to anybody but the law.
  Here we have a distortion for the first time in history, 
filibustering judges and phony, untrue charts of 168 to 4. Let me tell 
you, they wouldn't have allowed the 168 to go through had we not been 
fighting as hard as we could and forcing them to allow those judgeships 
to be brought up. We would have nowhere near 168.

  With regard to the four, we are already up to six. We were there last 
night. We were there months ago when they indicated they were going to 
filibuster Janice Rogers Brown and Kuhl, in addition to the other four 
who have been mentioned. Then there are probably at least 13 others who 
I can name. There will be more, because there is an arrogance here, it 
seems to me, that goes beyond doing what is right for this country.
  Very few things rise to the dignity of the importance of judges and 
getting a good Federal judiciary. I am for jobs like everybody else, 
but because they don't have any other arguments, that is why they are 
doing that.
  I would be happy to listen to my colleagues on any suggestions they 
have with regard to jobs. Usually it is another big Federal program 
that literally doesn't create any jobs. It just creates another burden 
for taxpayers. That is what they think creates jobs.
  I am happy to yield to the distinguished Senator from Virginia.
  Mr. WARNER. I listened carefully as our distinguished chairman was 
referring to other nominees who have been acted upon by the 
distinguished members of the Senate Judiciary Committee. I have been 
studying extensively the very impressive record of achievement of a 
number of these individuals who are awaiting action on the floor.
  You mentioned Justice Janice Rogers Brown, a distinguished jurist of 
25 years on the California Supreme Court. The record shows that she was 
born to very proud parents but ones of modest means. Sharecropping was 
their profession.
  This distinguished, hard-working young person worked her way through 
college, worked her way through law school, and has now served the 
people of California for a quarter of a century, including the last 7 
years as a California Supreme Court justice. That is remarkable.
  Further, we heard that she was elected or reelected to the California 
Supreme Court. I think the chairman should explain the distinction 
between our Supreme Court, which is subject to the process we have been 
discussing these several days. But in a number of States, they do have 
a State election. All of us in this Chamber are here by virtue of the 
support of people in elections. But how many of us have been elected to 
the Senate with 76 percent? I don't think my distinguished junior 
colleague from the State of Virginia got that.
  Mr. ALLEN. Far from it.
  Mr. WARNER. Well, I was pretty close to it, I mention to the Senator. 
But I don't claim 76 percent. That is quite a record. We have heard 
that she has ruled for the plaintiffs in many civil rights and consumer 
protection cases. She is supported by her colleagues in California, 
those who know her best.
  But could the distinguished chairman advise the Senate with regard to 
his opinion with respect to the nomination as it is hopefully brought 
before the whole Senate?
  Mr. HATCH. Well, of course, she is subject to the same advice-and-
consent rule of article II, section 2 of the Constitution, as are all 
of these Federal judges. But she deserves the dignity of an up-or-down 
vote.
  The senior Senator has brought out she is an African-American woman 
who has come from nowhere, in a sense, a sharecropper's daughter, to 
being a justice on the California Supreme Court.
  Mr. WARNER. That is a dream of millions of students all across this 
country, to have that opportunity to

[[Page S14702]]

come up through our system, to gain their degrees, to take their place 
in society, to stand for the cause of freedom in this great country, 
and some few do manage to get on the judiciary of the States. I know 
that Presidents look to the jurists in States, because they have a 
proven record, to select them for the Federal judiciary.
  Mr. HATCH. That is right.
  Mr. WARNER. I do hope this distinguished nominee will fare well and 
be treated with fairness when that name is brought before the Senate.
  Mr. HATCH. I appreciate my dear colleague. But we will find out 
tomorrow that the other side is going to vote against cloture. They are 
filibustering this terrific African-American woman justice who has made 
it on her own throughout life, who wrote most of the majority opinions 
in the California State Supreme Court while joining unanimously with 
others in over seven cases just last year.
  They have tried to paint her as though she is out of the mainstream. 
I would like to suggest who is out of the mainstream. It is a high 
percentage of those on the other side of the aisle who think that only 
the left has any ideas in this country. Because she is a conservative 
black woman and she is not monolithically in step with what they think 
black people ought to be, they are against her. If we did that to one 
of their nominees, the whole world would come down on us.
  Mr. WARNER. She is proud of her African-American heritage. I hope the 
Senate gives her fair treatment.
  Mr. HATCH. I do, too. I hope the Senator is right. But from what I 
have seen here, she is going to be filibustered right along with the 
rest of them.
  I recognize the distinguished Senator from Virginia, and then I will 
come to the distinguished Senator from North Carolina.
  Mr. ALLEN. Mr. President, following up on my esteemed colleague from 
Virginia's comments and observations on Justice Janice Rogers Brown, 
she is the first African-American woman to serve on the California 
Supreme Court, having come from segregated schools in the South, worked 
her way up.
  I find it very interesting that the following quote was made a few 
years ago: Whether it is Hispanic or non-Hispanic, African American or 
non-African American, woman or man, it is wrong not to have a vote on 
the Senate floor. What are they afraid of? What are they afraid of? 
What is wrong with a vote?
  Tomorrow the person who made that statement on October 28, 1999, 
Senator Tom Daschle, Democratic leader, is going to lead a filibuster 
against Justice Janice Rogers Brown.
  Mr. HATCH. That is my understanding.
  Mr. ALLEN. Clearly, a prior inconsistent statement showing duplicity. 
I would ask, when you referred to some of their arguments that she is 
out of the mainstream, I was looking at the record from the hearings. I 
understand Justice Brown was criticized for a single ruling she made on 
a parental consent case. We have parental consent laws in Virginia. The 
vast majority of people, even some who consider themselves pro-choice, 
recognize that if an unwed minor daughter is going through the trauma 
of an abortion, that at least the mother or father ought to be 
notified, ought to be involved, because it is a medical procedure that 
even for ear piercing or tonsils being taken out, you need consent. So 
for something as traumatic as the surgery of abortion, which is 
physical obviously, but also something that is emotional, parents 
should know when their 17, 16, 15-year-old daughter is going through 
such a procedure.
  She is being criticized for that. I don't find that, at least from 
Virginia standards, or if the Senator could share with us, do you 
consider that out of the mainstream? From what I can see from surveys, 
80 percent-plus of all Americans, regardless of the color of their skin 
or their ethnicity or gender, think parents ought to be involved when 
their unwed minor daughter is contemplating such a procedure.
  Mr. HATCH. Well, the Senator raises a good point. But not according 
to that side. It is out of the mainstream. Just think about it. The 
Senator is correct. Eighty-two percent of the people are for parental 
notification laws. Challenging the reasonableness of parental 
notification statutes lies somewhere between hard and impossible. That 
is why an overwhelming majority of Americans support those laws, 
including the parents of Holly Patterson. Holly was a young girl who 
died 7 days after taking RU-486, the abortion drug.
  Her father learned about her abortion just hours before her tragic 
death. If there was a parental notification statute, Holly might still 
be alive today.
  Parents do have some rights here. Most people acknowledge that. But 
that is one of the big reasons why our friends on the other side are 
against all three of these women nominees, I suppose. If there had been 
a parental notification statute, young Holly would be alive today.
  It is ridiculous to criticize these two fine nominees for their 
opinions upholding parental notification statutes. Justice Brown's 
opinion on the parental consent statute is well within the legal 
mainstream. The U.S. Supreme Court has routinely found notification 
statutes constitutional.
  So the Senator has raised a very important point. But that is 
considered out of the mainstream by our colleagues. Again, we know who 
is out of the mainstream. It certainly isn't Janice Rogers Brown.

  I will just point to the side that is out of the mainstream. Yet they 
are trying to make everybody march in unison, in accordance with their 
liberal plan for America. That is not right. I turn to the 
distinguished Senator from North Carolina.
  Mrs. DOLE. Mr. President, will the distinguished Senator yield for a 
question?
  Mr. HATCH. I would be delighted.
  Mrs. DOLE. I have heard that the Senate minority leader called 
Priscilla Owen unqualified. Yet I understand Justice Owen attended 
Baylor University and Baylor University Law School, graduating cum 
laude from both institutions. I understand that she finished third in 
her law school class and earned the highest score on the Texas bar 
exam. And she accomplished these remarkable achievements at a time when 
women were a distinct minority in the legal profession.
  Isn't it true that 15 past presidents of the Texas State bar, both 
Democrats and Republicans who hold a variety of views on important 
legal and social issues, agree that Justice Owen is an outstanding 
nominee and should be confirmed as a Federal judge?
  Mr. HATCH. Absolutely true. By the way, one of the arguments that the 
side across the aisle from us is out of the mainstream again is over 
parental consent, a dissent that she had written, upholding the finder 
of fact in the lower court. The majority just ignored those facts and 
overruled the right of parents to consult with their daughter before 
the daughter had an abortion.
  She is not out of the mainstream. Guess who is out of the mainstream? 
I thank the Senator.
  Mrs. DOLE. Senator, is it not the case that former Texas Supreme 
Court Justices John Hill, Jack Hightower, and Raul Gonzalez, all 
Democrats, say Justice Owen is unbiased and restrained in her 
decisionmaking?
  Mr. HATCH. That is correct. These are people who know her or who have 
worked with Justice Owen on the Texas Supreme Court. They are all 
Democrats. They are all partisan Democrats, by the way. They think she 
would make a fine judge on the circuit court of appeals.
  Mrs. DOLE. As I understand it, some of our Democratic colleagues 
oppose Justice Owen because she is too pro-business, her opinions are 
results-oriented. Didn't the leading tort law professor, Victor 
Schwartz, look at Justice Owen's opinions and find those opinions, 
those characterizations of the opinions to be untrue?
  Mr. HATCH. Victor Schwartz is one of the law professors who wrote the 
book on torts. He is one of the most distinguished legal thinkers in 
the country. In fact, Professor Schwartz wrote:

       Any characterization of Justice Owens as pro-plaintiff or 
     pro-defendant is untrue.

  But we are getting used to that. The reason they are all talking 
about jobs, it is a political reason, of course. They are trying to get 
people to not pay attention to this debate. But the reason they are 
talking about jobs is because they don't have a good argument against 
Priscilla Owen, nor do they have one against Janice Rogers Brown, nor 
do they have a good argument

[[Page S14703]]

against Carolyn Kuhl. And three outstanding women who, if we treated 
three of their women justices like that or nominees like that, all hell 
would break loose.

  In all honesty, Professor Schwartz said that just isn't true.
  Ms. LANDRIEU. Parliamentary inquiry.
  The PRESIDING OFFICER. Does the Senator from Utah yield?
  Mr. HATCH. Not yet, I yield to the distinguished Senator from Texas.
  Mrs. HUTCHISON. To follow along with what the distinguished Senator 
from North Carolina was saying, Justice Priscilla Owen, a personal 
friend of mine who I have known for years, isn't it true that she was 
endorsed by every newspaper in Texas when she ran for reelection to the 
Supreme Court of Texas, every single one?
  Mr. HATCH. The distinguished Senator from Texas knows that is true. 
That is not easy in the State of Texas. There are some very liberal 
newspapers down there that scrutinized every aspect of her life.
  Mrs. HUTCHISON. It was really phenomenal. In fact, isn't it true that 
she got the highest number of votes of any person running for the 
supreme court that year?
  Mr. HATCH. No question about it. She is a terrific person.
  Mrs. HUTCHISON. I heard one of my colleagues on the other side of the 
aisle say: There are not enough hours in the universe that would be 
sufficient for debating Justice Owen's nomination. I thought that was 
very interesting because, the fact is, if we had 1 more minute of 
debate, it wouldn't matter, because she already has a majority vote in 
the Senate. Isn't that true?
  Mr. HATCH. That is true. In fact, all three of them do.
  Mrs. HUTCHISON. If she has the majority vote on the floor of the 
Senate, and the Constitution says that advise and consent is not a 
supermajority, that is what it implies because it didn't ask for a 
supermajority, then why isn't she sitting on the Fifth Circuit bench 
right now?
  Mr. HATCH. Well, I think it is because she is not a liberal. That 
seems to be the only mainstream the other side is interested in. I 
cannot say she is all that conservative either. But the fact of the 
matter is, she is not a liberal Democrat. Here is a woman who has every 
credential in the world, as the Senator from Texas pointed out, who 
broke through the glass ceiling for women so women can now become 
partners in law firms, when that was tough to do. Here is a woman who 
has fought every day of her life to excel, who has excelled. Yet look 
how she is being treated, like she is ``outside of the mainstream.''
  Since they don't have any real legal arguments, any real 
philosophical arguments--they don't have any real arguments, and that 
is why we are getting a filibuster on one of the best nominees I have 
seen. By the way, she got the highest rating from the not-conservative 
American Bar Association, which during the Clinton years was called the 
gold standard. If you got a ``qualified'' from the ABA and you were a 
Clinton nominee, that meant you were OK, you were in the mainstream.
  Here is a woman with a ``well qualified,'' the highest rating from 
the ABA, and they are trying to say she is outside of the mainstream. 
That is just another misuse of terms because they don't have a real 
argument against her.
  Mrs. HUTCHISON. You know, the distinguished Senator from North 
Carolina is a graduate of Harvard Law School. She went through when it 
was very tough. I am a graduate of the University of Texas Law School, 
and there were five women in my class of 500. So we know what it is 
like to go through those hard times and graduate from law school. 
Frankly, we would have a hard time finding a job.
  Priscilla Owen went through that. She has known the tough times. She 
has known herself to be superior. That is why I appreciate the Senator 
from North Carolina talking about my friend, Justice Owen, and why I am 
standing up for her today, because I know what she has been through. 
She has come out on top. She has come out on top in everything she has 
done, and she would have gotten a majority vote on the floor of the 
Senate. She deserves to be sitting on the Fifth Circuit today.
  I will ask this final question. Why in the world would the Senate put 
a blemish on the record of a woman who has high moral standards, who 
has faced the electorate and won overwhelmingly, who has been endorsed 
by every newspaper in Texas, and got the highest number of votes the 
year she ran? Why would the Senate keep her from getting the 
appointment she is so qualified for?
  Mr. HATCH. I cannot see a good reason. It is a mystery to me why our 
Democratic colleagues refuse an up-or-down vote. Like the distinguished 
Senator from Texas said--and I really admire the Senator from Texas, 
who is a lawyer, from the University of Texas, and the Senator from 
North Carolina, Senator Dole, who is a lawyer, who graduated from 
Harvard Law School. I think the other side ought to be listening to the 
two of you, especially with regard to an eminent woman jurist named 
Priscilla Owen, and another jurist named Janice Rogers Brown, and 
another one named Carolyn Kuhl.
  To make a long story short, if they don't like these nominees, then 
vote them down. The reason they are stopping them is because all three 
of them have a majority of the Senate willing to vote for them. They 
are flying in the face of the advise and consent clause, refusing to 
give them the dignity of an up-or-down vote. I think women across this 
country ought to be outraged by it--liberal women, moderate women, and 
conservative women. It is a slap in the face to every one of them, the 
way these three women are being treated by the other side. I have heard 
for 27 years how much greater they are for women. Don't believe it. If 
they were, they would not be arguing against these wonderful women 
nominees. Don't believe that for one second. It is all politics.

  The only reason they are talking about jobs, in all honesty, is 
because they don't have the arguments against these eminent women 
lawyers and judges. It is pathetic.
  Mrs. HUTCHISON. I thank the Senator from Utah.
  Mr. HATCH. How much time is left?
  The PRESIDING OFFICER. There are 6 minutes 15 seconds.
  Mr. CRAPO. Will the Senator respond to a question?
  Mr. HATCH. I surely will.
  Mr. CRAPO. The Senator from Utah spent time responding to questions 
about the nominees we are going to vote on tomorrow. I note those who 
oppose this vote often bring up a chart that says 168 to 4, noting they 
have only filibustered 4 judges in this Congress. I think it is 
important to point out, though, that number 4 is the first time in the 
history of this country, in the history of the Senate, a filibuster has 
been sustained against a judicial nominee of the President of the 
United States.
  I think it should be clarified to the American people that the fact 
we are now seeing a filibuster sustained against nominees of the 
President turns the Constitution on its head and begins a very 
dangerous precedent with regard to how the nominees for the judicial 
branch are treated by this Senate.
  Mr. HATCH. No question about it. That 168 to 4 doesn't even begin to 
tell the story, because if it had been up to our colleagues on the 
other side, there would not be 168. We had to fight for every one of 
those people, and we had to fight hard fights. We had to force them to 
vote. They cannot vote against everybody. So there is not just four. We 
have already got six. We had to file cloture on Carolyn Kuhl and Janice 
Rogers Brown, which will be up tomorrow. I can name probably another 11 
they are going to filibuster. So that is a blatant, outright lie.
  Mr. CRAPO. Would the Senator from Utah tell us how many of the 
nominees of President Clinton to the bench were filibustered during his 
Presidency?
  Mr. HATCH. Not one. Our side would not permit that because of the 
detriment to the Senate, the detriment to the Federal judiciary, the 
detriment to the Constitution, the detriment to just good reasoning. We 
didn't filibuster one.
  Mr. CRAPO. Isn't it also true that out of the last 11 Presidents--and 
I think we used 11 Presidents because it was 1949 when the filibuster 
became possible--not one of their nominees, until today, until this 
Congress, not one of the President's nominees has

[[Page S14704]]

been successfully filibustered in the Senate of the United States 
because of the understanding of the fact that the Constitution gives 
the President the right to a vote?
  Mr. HATCH. That is right. Once they hit the floor, they have had a 
vote up or down. And 377 Clinton judges are serving in the Federal 
judiciary today because we had the decency to give them the dignity of 
votes up or down--something not being accorded our nominees.
  Mr. CRAPO. It is my understanding that 2,300 nominations have come to 
the floor since the filibuster was possible.
  Mr. HATCH. It is 2,372.
  Mr. CRAPO. Zero were filibustered this year, and this year four have 
been successfully filibustered, and what is it, five, six, or seven 
more are scheduled to be filibustered?
  Mr. HATCH. That is right. Actually, it is more than that. We have two 
more tomorrow. That gets us up to six. Then probably there are another 
11 I can name. I won't take the time to do that now. There hasn't been 
one filibuster by us. There have been cloture votes, but they were used 
for time management purposes to get us to a vote. In every case, the 
Clinton nominee got voted up, except for one.
  Mr. CRAPO. I thank the chairman. I think it is important to look at 
this and understand what this debate is about and why we are giving it 
this time, to focus on the threat to the Constitution that is being 
posed by the treatment of judicial nominations in this Congress. I 
thank the Senator.
  Mr. HATCH. I thank my colleague. The real number, for the past 11 
Presidents of judicial nominees confirmed versus the filibustering they 
are doing, is 2,372 that were confirmed. None were filibustered, until 
President Bush became President. He is being treated wrongfully. It is 
unfair to him, unfair to these nominees. I like what the Senator said 
earlier. I think he said we gave a fair trial to 2,372--actually 168. 
We gave a fair trial to them and with regard to the four, we just hung 
them. That kind of shows in that one sense it is great to give a fair 
trial, but we are not giving a fair trial to these four. They are 
arguing it is all right for four because it is only four. Well, it is 
not all right if people are hung without a fair trial. They are 
certainly not getting a fair trial.
  Mrs. HUTCHISON. Mr. President, will the Senator yield for a question?
  Mr. HATCH. I surely will.
  Mrs. HUTCHISON. I think in hearing the debate, the most egregious 
misrepresentation I have heard is about Judge Carolyn Kuhl and a case 
she had, where there was a woman who was being examined who had breast 
cancer, and there was someone in the room who was not a doctor, a 
person from a pharmaceutical company. It was said she callously let the 
pharmaceutical company be dropped from the case. Isn't it true, though, 
there was also an action against the doctor who was negligent, and she 
kept the lawsuit alive so that woman could have a recovery?
  The PRESIDING OFFICER. The time of the Senator is expired.
  Mr. HATCH. I ask unanimous consent for 30 more seconds.
  Ms. LANDRIEU. I object.
  Mr. HATCH. Let me just say that it is true.
  Ms. LANDRIEU. I object. I know the distinguished chairman has been on 
the floor for a while making some truly offensive statements to 
colleagues on this side of the aisle that, in my opinion, are beneath 
the dignity of the committee on which he serves as chair. I ask the 
chairman if he recognizes the number on this chart. Could he state for 
the record what it is.
  Mr. HATCH. I don't recognize the number. However, I do recognize the 
argument.
  Ms. LANDRIEU. The Senator from Utah----
  Mr. HATCH. Let me answer the question, if I may.
  Ms. LANDRIEU. The distinguished Senator from Utah has answered the 
question.
  Mr. HATCH. May I please finish?
  Ms. LANDRIEU. He has answered my question. He said he didn't know 
what the number was. I would like to explain to him and to the other 
Members.
  Mr. HATCH. Will the Senator yield?
  Ms. LANDRIEU. No, I will not. The number is 98 percent----
  The PRESIDING OFFICER. Senators will address other Senators through 
the Chair.
  Ms. LANDRIEU. The number the distinguished Senator from Utah did not 
recognize--I don't know why he would not recognize it since he is 
chairman of the committee, but he says he doesn't recognize it. The 
number is 98. Ninety-eight percent of the judges that were sent to this 
Senate by President Bush we have approved--98 percent. There are not 
many people in America, not white people, or black people, or Spanish 
people, or women, or men, who think the Senate should approve 100 
percent of any President's nominees. It is beyond the realm of reason, 
particularly a President who did not win the popular vote.
  Earlier in the debate, the chairman, who also doesn't recognize this 
number, this 98 percent, also fails to recognize the numbers in the 
last election. The numbers of the last election were Bush 50,456,169; 
Gore 50,996,116. So 500,000 more people voted for Vice President Gore 
in the popular vote than President Bush. He won by a handful of 
electoral votes in Florida, and we know that. The Court decided it. I 
am not complaining about it, but numbers are important. Let me tell you 
another number----
  Mr. SESSIONS. Will the Senator yield for a question?
  Ms. LANDRIEU. I will not.
  Mr. REID. Regular order.
  Ms. LANDRIEU. I will not yield for a question.
  Another number is 63. I want the public who is watching this--and I 
think a lot of people are watching this, and I am glad because this is 
what the next election is going to be about, and I am very excited to 
help lead this fight. Sixty-three nominees were blocked. It wasn't an 
open filibuster. It wasn't debated in the open, like tonight where 
there are no secrets and we can all speak about what we believe. This 
was done in secret, and not by many Senators who represent millions of 
people, but maybe by one Senator who just decided he or she didn't like 
the nominee, and so they would not sign the slip.
  The chairman of the committee reigns over this. He understands this 
number 63. They didn't even have the decency of getting a vote or a 
hearing in committee because the chairman from Utah had a system in 
place that blocked them.
  Mr. HATCH. Will the Senator yield?
  Ms. LANDRIEU. No, I will not yield.
  Mr. HATCH. I have a question.
  Mr. REID. Regular order, Mr. President.
  Mr. HATCH. I object to that, Mr. President.
  Mr. REID. How rude that is.
  The PRESIDING OFFICER. The Senator from Louisiana has the floor.
  Ms. LANDRIEU. Thank you, Mr. President. I will not yield the floor, 
and we are not going to yield this point.
  Technically, the majority is correct that there has not been a 
technical filibuster successfully completed. But there have been 
filibusters on this floor that have been tried, but they weren't strong 
enough to stand up to them because their arguments weren't strong 
enough. The only way a filibuster can survive is if the arguments and 
the truth is strong enough to stand up to lies. That is the only way a 
filibuster survives. That is why this filibuster survives, because the 
truth is always stronger than a lie.
  This 63 people never could come out of committee. I am not even going 
to go into that. I am going to talk about something else.
  How much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 24\1/2\ minutes.
  Ms. LANDRIEU. Good. I am going to take every one of them.
  I want to tell the Republican majority something quite simple. This 
country, no matter your best efforts, will not be divided. No matter 
your vicious rhetoric about Protestants and Catholics and blacks and 
whites and Hispanics and women, we refuse to be divided. In a time of 
war, which we are in, when the country is under assault and we have men 
and women dying in Iraq, it is the height of disrespect and un-
Americanism to come to this great floor and talk about the pettiness 
and say this woman Senator, who has spent 25 years in public office, 
and every woman who has ever served, that there is something wrong if I 
don't want a woman as a judge or I don't want African Americans to be 
here.

[[Page S14705]]

  The Senator from Utah must forget where I am from. I would like to 
remind him where I am from. I am going to fight for Louisiana. In the 
63 years before Rosa Parks decided to sit down in her seat because her 
feet were so tired she could not move, a man named Homer Plessy decided 
he would get on a rail car that was entitled ``whites only.'' He got on 
it in New Orleans, my hometown. He rode on the train and he knew he 
would be arrested. But a group of lawyers, African-American free men of 
color, had decided that he would be the right one. Why? Because he was 
white enough to pass, to get on the train, and black enough to be 
arrested. And that is exactly what happened.

  Forty years before the Civil Rights Act, Plessy rode that train and 
the great movement began to free people who had been slaves for 300 
years.
  I have to sit in the Senate Chamber and listen to the Republican 
majority argue that, in the whole country, they can't find a better 
African-American woman than this Janice Rogers Brown to serve on the 
bench, to hold up Rosa Parks, to honor the work of Louis Martinet, and 
to honor the memory of Plessy. The only person they can find to serve 
on the bench is a woman who says--and I want to read what she says so 
the people in this country can just decide for themselves. Don't listen 
to all the technical parts. I am just going to read to you what the 
woman said and you decide for yourself if you think this is mainstream 
or not:

       Some things are apparent. When government moves in, 
     community retreats, civil society disintegrates, and our 
     ability to control our own destiny atrophies. The result is 
     families under siege, war in the streets, the precipitous 
     decline of the rule of law, the rapid rise of corruption, the 
     loss of civility and the triumph of deceit. The result is a 
     debased, debauched culture which finds moral depravity 
     entertaining and virtue contemptible.

  What do you think Rosa Parks thought when the Federal judge came down 
to Alabama and government intruded and said: Lady, you don't have to 
suffer anymore. You think that Rosa Parks thought that government was 
bad?
  Let me go on to say what this mainstream woman thinks of all the 
grandparents in the United States.

       My grandparents' generation thought being on the Government 
     dole was disgraceful, a blight on the family honor. Today's 
     senior citizens blithely cannibalize their grandchildren, 
     because they have a right to get as much ``free stuff'' as 
     the political system will permit them to extract.

  Excuse me, but on behalf of all the grandparents I represent, this is 
an insult to every single one of them who raised their children, and 
then when some of their children got into trouble, raise the 
grandchildren and the great-grandchildren on their Social Security 
paychecks of $672 a month, which the Republican side refuses to raise, 
and a minimum wage which is $5.50, which they won't raise, and you are 
asking me to put a woman on the court that insults the grandparents of 
Louisiana? Take your dossier and go somewhere else.
  Now, if these people are in the mainstream, then I don't know what 
mainstream we are talking about, because it is not mainstream in 
Louisiana. That is what this debate is about.
  The Senate Democrats didn't want to have this filibuster. We are made 
to have this filibuster because the Republicans on that side think they 
can divide the country and split us up and cause trouble. I will tell 
you what people at home want. We are in a war. They want us to be 
united and fight together. But they have us fighting against Catholic, 
Protestant, rich, poor, young and old. It is a disgrace, and it is not 
the Democrats fault. It is the Republican majority.
  I will just say this. I know the men and women who serve over there 
and individually they are fine. But, boy, collectively they can sure 
get themselves up into a lather. The country deserves better. The 
people want better.
  We have an Energy bill to pass; we have appropriations bills to pass; 
I have 400,000 veterans in my State who are looking for help, and they 
turn on the television to see the chairman from Utah saying something 
about the women in the Senate don't want women on the bench, and we 
don't want Hispanics on the bench, and we don't want African Americans 
on the bench? Whoever heard of such ridiculousness?
  I beg this body, let's stay on the facts. The facts are that we have 
approved 98 percent of President Bush's nominees. We have rejected 
people such as Janice Rogers Brown, and no matter how many times they 
bring her up, she will be rejected because she makes statements like 
this that are an insult. She is not going anywhere. We will vote on her 
100 times. She will never get on the bench. Whether or not we have a 
vote on her, she is not going to get on the bench.
  Let me say I just made a call--how much more time do I have?
  The PRESIDING OFFICER. The Senator has 16\1/2\ minutes.
  Ms. LANDRIEU. Good.
  I just made a call to the National Bar Association, which is the most 
distinguished group of African-American lawyers in the country. I am 
sure maybe there are smaller groups that other people might think are, 
but this is the most well thought of group of lawyers. This group of 
lawyers, more than almost any other group, would surely know the 
history of the civil rights movement. They would surely understand the 
characters and people I have talked about, and all the stories and all 
the drama. You would think that President Bush, who ran on 
compassionate conservatism, and the Republicans who keep saying we are 
reaching out to African Americans--we want to reach out to African 
Americans, we want to go and put African Americans on the bench--you 
would think that sometime in the last 3 years they would have called 
the National Bar Association, or the President would have called the 
National Bar Association and said: Look, I'm a conservative. You all 
probably are more liberal as a group, although there are probably some 
conservative members. Why don't you give me a recommendation, knowing 
that I can't support a real liberal judge. But if you work with me we 
could get some really good African Americans on the bench that are 
highly qualified, that the Democratic majority would like. I would feel 
happy about that. We are in a war. It would be really important for us 
to unite our country.
  Do you think he ever consulted with them? No. The President, this 
White House, or the Republican leadership never called the National Bar 
Association, which is the most prestigious group of African-American 
lawyers, to just ask them. Is there any conservative judge, moderate 
conservative judge you all would think would be good that I could 
appoint?
  This is not about doing what is right. This is about winning 
elections and ginning up the far right in the wings. I understand that. 
It has been done before. But not during a war. Not when people are 
dying. It is just not right.
  So we could stay on the floor all night, all tomorrow, all next week, 
but I tell you the people in this country are going to have enough of 
it pretty soon because they don't believe this is right. They can tell 
when something is not moving in the right direction.
  I will end with this. No matter how hard the Republican majority 
tries to divide us, we will not be divided. We are going to stand 
united. We are going to speak the truth. We will debate in the open why 
these nominees do not deserve to sit on the bench and why we will 
filibuster these nominees.
  We will continue to do that until the people decide in the next 
election what kind of America they want. In my heart I believe they 
want an America that is united, not divided.
  I see my colleague from New Jersey is here. We have a few moments 
left. I thank him for his patience.
  Mr. CORZINE. I thank the Senator from Louisiana. I think you have 
spoken brilliantly tonight, about the idea of trying to divide us over 
something that is basically a disingenuous issue to start with.
  You talk about the 98 percent. Over the last 24 hours, we have seen 
this 168 to 4 over and over. No one could speak more eloquently about 
the facts; 98 percent is a hell of a number.
  Ninety-five percent of judicial positions in this country are filled. 
When President Clinton left office and President Bush took office, it 
was at 75 percent. The reason was because those 63 that the Senator 
from Louisiana was talking about never got a hearing, never got a 
chance to get a vote in committee, never got reported to the Senate to 
get voted on. Sixty-three

[[Page S14706]]

judges were blocked. It is a different technique under the rules of 
committees as opposed to here on the floor, no committees, no votes, no 
reports--63 qualified judges, at least in the opinion of the then-
President, never had a chance to fill that void, and 25 percent of 
seats went unfilled. Now 95 percent are filled.
  When there is cooperation--I can tell you there has been cooperation 
in New Jersey. We have had five district court judges and a circuit 
court judge, we worked with the White House and the Judiciary 
Committee, and it has worked very smoothly. It can work if we reach out 
and work with each other, which we have to do in this society if we are 
going to get good things done--not by dividing us.
  You know, it strikes me that we spent a lot of time talking about 
four judges or six judges. One of those 63 judges--by the way, who 
couldn't get a hearing, it went on for a year and a half--is now the 
dean of the Harvard Law School. It is hard to understand how he wasn't 
qualified to be considered for the bench but is qualified to be the 
dean of the Harvard Law School.
  By the way, this shows it in a pictorial sense. This is the list of 
63. This is the 4. It is very clear.
  I want to dwell on something else. The real issue is not 4 people who 
are not being approved on this Senate floor. The real issue are the 3 
million people who have lost jobs since 2000, the 9 million Americans 
who do not have a job, the 2\1/2\ million Americans who have lost 
manufacturing jobs, and the real agony we have in the country because 
we are not creating jobs fast enough in this country.
  We have gone fast enough to get 98 percent of the judicial positions 
filled, but we have not gone fast enough to take care of the 3 million 
Americans and the 9 million unemployed and the 2.5 million 
manufacturing jobs lost.
  I think we have our priorities wrong. We have been debating 4 people 
while there are 9 million Americans out of work. We have been doing 
that now going on 24, 26 hours. We are going to go on some more.
  Americans know what impacts their lives: their ability to take care 
of their kids, their families, their grandparents, their future. They 
are interested in having a job. Jobs count. We are talking about 4 
while 9 million are missing in action in our debates on the floor of 
the Senate.
  I think it is disingenuous. I think it is clearly staged. I think we 
are off on the wrong target.
  I point out today I went through some of the press reports that came 
out over the AP wire today. The U.S. trade deficit grew to $41.3 
billion in September--$41.3 billion. We are going to have a $500 
billion current account deficit in this country, and what we are going 
to have, more importantly, is a deficit in manufacturing jobs because 
they are all going overseas. We ought to have a debate here about 
economic policy that puts Americans to work--a $41.3 billion trade 
deficit this month. It is going to be $500 billion for the year.

  We have had discussions in committee--which, by the way, we had to 
cancel all our committee meetings--about whether we have the proper 
trade policies, the proper positioning with China where we are losing 
jobs right and left across the manufacturing sector. We had the biggest 
trade deficit with China we have ever had in the month of September.
  Why are we talking about 4 jobs when we are losing millions of jobs, 
2\1/2\ million jobs, because we have an economic policy that is out of 
kilter with the needs of the American people?
  If that is not enough, the poverty rate has grown 1 percent in this 
country in the last 3 years. That is about 1.7 million people. We have 
seen the uninsured in America, those without health insurance, go up a 
little over 2 million. We are having no discussion on issues that 
impact people's lives who are watching this debate. We want to have 
real debates that make a real difference in people's lives. We ought to 
be talking about these jobs. We ought to be talking about health 
insurance. We ought to be talking about that trade deficit, ripping out 
the heart of middle-class America's jobs.
  I don't understand why we have our priorities on 4 people when we 
have a 98-percent positive ratio of confirming judges. It doesn't make 
sense, particularly when we can argue about whether they are mainstream 
or they have made the kinds of statements the Senator from Louisiana 
quoted from one of those individuals who is going to be considered 
tomorrow for confirmation. It doesn't make sense.
  There are all kinds of things we could be doing right now. We could 
be raising the minimum wage. That would improve the lives of about 4 
million Americans. We could pass a transportation bill that would 
create, by almost every estimate about 1 million jobs. It is lingering 
in committee. We don't want to talk about it on the floor, but it is a 
million jobs. It builds America; it invests in our future.
  We could talk about increasing investment in higher education or 
maybe do something about making sure we don't take 8 million Americans 
away from having the opportunity to make overtime pay so they can 
operate and live in this community of America in a more secure way.
  Then, the greatest tragedy, in the last 13 days we have had 42 
Americans killed in Iraq. We have changing policies. We have generals 
in Iraq saying we are not living in the real world. We are not talking 
about it as if it is a war. General Sanchez today said we are not 
walking away from using the word; we are going to win this battle--no, 
we are going to win this war because the people back in Washington need 
a dose of realism in their debates about this issue.
  Then we have a meeting to discuss the intelligence report that was 
leaked by someone with regard to what is happening on the ground in 
Iraq, and nobody shows up because we are debating 4 judges.

  It strikes me we have our priorities wrong in this country when we 
are talking about 4 judges when we have 9 million people unemployed, 
when we have lost 2.5 million manufacturing jobs, when we have 2 
million people losing their health insurance. We have a tie-up on the 
prescription drug benefit bill and the Energy bill and we can't get 
these bills out. We have generals in Iraq saying we don't have a 
realistic view of what is going on in the debates we have here in 
Washington. There are real issues that matter to real people across 
this country, in the millions--in the millions, not 4--not when 168 are 
approved and 4 are not.
  I don't know where our priorities are when we turn our attention to 
such an issue when there are real debates about whether they fit into 
the mainstream or not, whether we ought to have a real debate. By the 
way, other people used other techniques at another time when it was 
convenient to do it. It is disingenuous to say, use the rules of the 
Senate which are authorized under the Constitution. I hear all this 
``unconstitutional'' view. That is not unconstitutional. We should 
change the rules if we don't like the rules of the Senate, just the 
same way that we can change the rules in committees.
  It is not sensible that we are not putting our priorities on the loss 
of jobs and taking care of the American people in the way they expect 
us to--to debate and put in the time and effort.
  This whole debate, which has now gone on for 26 or 27 hours, should 
be about jobs--not 4 but 9 million. It should be about the important 
issues that impact people's lives, the people who are uninsured, the 
people who haven't had an increase in the minimum wage in 7 years--7 
years. We can't get a vote on that. We can't get a vote on the 
Transportation bill that would create a million jobs. There are all 
kinds of things we can't get votes on around here because people don't 
want to have them. They use the rules for those purposes.
  Four out of 172, 98 percent have gotten votes. It is very hard to see 
how we have our priorities straight in this area tonight and have had 
properly placed priorities for the last 26 or 27 hours.
  I hope we can get focused on something other than 4 jobs. We should 
get focused on the 3 million people who have lost them, the 9 million 
people who don't have jobs. We ought to be talking about extending 
unemployment benefits to the 80,000 people a day who are going to lose 
those in another 30 days when we are not in session.
  It is incredible--our priorities. It is incredible. I believe as much 
as anyone else that we ought to cooperate. We have in many, many 
places. That is how we got 168 judges approved. That is how we got to a 
95-percent fill ratio on the number of judges' slots that have

[[Page S14707]]

been filled. But we have major problems with employment and the 
economics of this country. It is time we get our priorities straight.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Utah.
  Mr. HATCH. Mr. President, it has been a good debate. But I have 
noticed the folks on the other side of the aisle want to shut down the 
debate on judges because they don't have an argument. Jobs is where it 
seems their only argument is, and more Federal Government programs. In 
fact, they don't even have very good arguments there. It is ``increase 
the minimum wage.'' I am not sure it will create jobs. And ``re-up 
insurance,'' which certainly doesn't create more jobs.
  On the other hand, I am not saying they are not compassionate. They 
are decent people wanting to do those things. But when you do not have 
any arguments against the judges we are talking about, then you change 
the subject. That is exactly what they have done.
  If the distinguished Senator from Louisiana were here, I would ask 
her why she took the number 129 because, of course, that is a number of 
confirmed judges that were left off her chart. We have had distortions 
of the facts. We have had distortions of the statistics. You can prove 
anything with statistics if you want to manipulate them. There are 129 
judges left off that chart she was showing. We confirmed 377 Clinton 
judges--not 248. If you want to be factual, be factual. Don't distort 
the facts.
  I was a little surprised that now at the 29th hour of debate an awful 
lot of Democrats come on the floor without any arguments that are 
really valid against these nominees we are talking about. They are 
changing the subject because their arguments don't hold water.
  As for Democrat claims that they have been blocking only the most 
extreme Bush judicial nominees, let us look at the facts.
  Priscilla Owen won 84 percent of the vote in her last election for 
the Texas Supreme Court. Bill Pryor won 58 percent in his last election 
for the Alabama attorney general's position. Janice Rogers Brown won 76 
percent in her last election for the California Supreme Court. And 
Charles Pickering was confirmed to the Federal district court in 1998 
by this body by unanimous vote. Yet he has been treated like dirt. You 
wonder why people in the South are getting sick of it.
  By the way, the unanimous consent vote included the support of 24 of 
the Democrats currently in the Senate, 23 of whom now refuse to give 
him the dignity of an up-or-down vote. Why? Because they know he would 
be confirmed.
  These nominees are hardly extremists as painted by the other side who 
claim that is what they are talking about. Give me a break.
  Let us look at this a little differently. What is more extreme? 
Receiving 84 percent of the votes in Texas, the second most populous 
State in the Nation, as Judge Priscilla Owen did in her last election? 
They are filibustering a qualified nominee for the Fifth Circuit for 
the first time in American history. That is what they are doing, 
without any real arguments against her. They don't have any. They do 
not have the facts on their side so they change the subject.
  I think jobs are important. I will tell you, there will not be any 
jobs in this country if we lose our freedoms because we don't have the 
Federal courts staffed by competent and decent judges.
  Mr. COLEMAN. Mr. President, will the Senator yield for a question?
  Mr. HATCH. I would be happy to yield.
  Mr. COLEMAN. I listened to the Senator from Louisiana. She was 
talking about filibusters. I was glad to hear her say unequivocally 
that it was a filibuster. We will filibuster these nominees. There is 
no question.
  Mr. HATCH. We are not going to let these people through.
  Mr. COLEMAN. She also said, I believe the only way filibusters 
survive is the truth--truth. I have only been in this body for less 
than a year. I know there is history in this body. The history is not 
always the greatest history when it comes to filibusters. There were 
attempts on the floor of this Senate to make sure that minorities 
didn't have certain rights; that minorities had poll taxes; that anti-
lynching laws were filibustered. I have a chart here that talks about 
filibusters.
  I ask the distinguished chairman whether under F.D.R. civil rights 
was filibustered; under Truman, civil rights was filibustered; under 
L.B.J. civil rights was filibustered.
  Again, would it be the Senator's belief that necessary laws that were 
filibustered is something to be ashamed of and they were not the truth; 
filibusters were not the truth; the attempts to provide civil rights 
and opportunities for Americans for good things and they were 
filibustered, and filibustered was not the truth?
  Mr. HATCH. Absolutely right. In every case it was Democrats who led 
the filibuster. In every case, including this one. It is not the truth.
  Janice Rogers Brown, 76 percent of the vote, State of California 
Supreme Court; Priscilla Owen, 84 percent; William Pryor, 59 percent of 
the vote.
  What is more extreme, receiving 76 percent of the vote in California, 
the most populous State in the Nation, as Janice Rogers Brown did in 
her last election to the California Supreme Court--filibustering a 
brilliant nominee to the DC Circuit, the Nation's second highest court? 
If Justice Brown is so extreme and leftwing, California voters 
certainly would have recalled her, but they didn't. Three-quarters of 
them voted to keep her on the bench.
  By the way, the late Justice Stanley Mosk on the California Supreme 
Court was the California Supreme Court's well-known liberal voice for 
decades. In that same election, she got 76 percent. He only got 68 
percent of the vote in the last retention election.
  Does anyone want to guess whether the Senate Democrats would call him 
more extreme than Justice Brown in left-leaning California if he were 
up for the District of Columbia Court? Of course not. He would be in 
the mainstream.
  Once more, extreme--receiving 59 percent of the votes in Alabama, as 
Bill Pryor did in his 2002 election to the office of attorney general 
of that State. They are filibustering a nominee with broad bipartisan 
support across the Eleventh Circuit for a judicial emergency vacancy on 
that appellate court. In each of these cases, these unprecedented 
filibusters of qualified nominees to the appellate courts are 
undoubtedly extreme.
  There is extreme action by our colleagues on the other side. There is 
nothing else you could call it. It is demeaning to this body. I don't 
care how excited someone gets on the other side. Sooner or later they 
run out of arguments and start talking about jobs because they have to 
change the subject and hopefully get the American people off of the 
importance of putting people on the Federal bench.

  The Senator brings up a very important point. Every one of those 
unjust filibusters was conducted by Democrats. It was the Republicans 
who basically pushed through the civil rights law, along with some good 
Democrats as well. I want to make sure credit is given on both sides.
  The fact is, the leaders of those filibusters were Democrats. But in 
this case, 168 to 4, virtually all Democrats--not all. I know one or 
two who do not believe filibustering should be done to the judges. But 
all the rest of them are leading this unjust filibuster.
  Mr. BROWNBACK. Will the distinguished chairman yield for a question?
  Mr. HATCH. Yes, I would.
  Mr. BROWNBACK. I want to follow up on a question by my colleague from 
Minnesota. I think this is the point. He points out that you have a 
couple of filibusters on major issues to change the country. The issues 
that were filibustered ultimately got through, and I believe these 
judges will ultimately get through when the public gets the Record and 
has a chance to read it. These issues were things that were changing 
the country--when you talk about the law, civil rights laws, things 
that were being brought forth. Isn't that what is really being 
addressed here today? We are not talking about 4 judges or 29 who are 
being blocked on circuit courts. This is really about a group trying to 
block a certain set of individuals who may, as some say, have deeply 
held beliefs being on the Federal bench and trying to purge that set of 
philosophies or thoughts from the Federal bench. Isn't this a much 
bigger

[[Page S14708]]

issue than the appointees? Those law changes were bigger than 
filibustering one law. This is about the impact on all of society, on a 
whole culture.
  Mr. HATCH. That is right. Frankly, yes. It is as important as these 
four and tomorrow's six. Next week, who knows how many nominees are 
being filibustered. It is demeaning to the Senate. It is detrimental to 
the country. It is detrimental to the judiciary. It is unfair to the 
President. It is unfair to these qualified nominees who have been rated 
so highly by the ABA--their gold standard, by the way, during the 
Clinton years. If you got a qualified rating from the ABA, that is all 
you needed, you should be confirmed. We did confirm 377 of them, the 
second highest total number of confirmations in the history of this 
country--Bill Clinton's judges. We did it because we were fair. We 
didn't filibuster those judges. Every one of them got a vote. It was 
377 to 0. We didn't filibuster them.
  For all I have heard from the other side--I heard some of the 
emotional remarks--I was the one, along with Senator Lott, who made 
sure we didn't filibuster their nominees. I don't think they are in a 
position to criticize me.
  By the way, in the past, there were 11 Presidents' judicial nominees 
confirmed versus those who were filibustered, the past 11 is when the 
filibuster rule came into being in the current filibuster rule. We can 
go all the way back to the beginning of this country 214 years ago. We 
have never had a filibuster before these folks on the other side have 
been doing it this year, 2,372 judges have been confirmed to zero 
filibustered.
  The history of the successful Senate filibuster, from July 4, 1789, 
to March 6, 2003, there is no question about the successful or 
unsuccessful because there were not any until March 6, 2003. March 2, 
to the present, we have had four so far as successful filibusters. We 
are apparently going to have two more tomorrow even though all six of 
these folks would win an up-or-down vote in the Senate.

  One of the Senators said we are going to vote on these judges 
tomorrow. No, we are not going to vote on the judges. We will be voting 
granting the right to vote on these judges. Since only 41 Senators are 
necessary on this side to stop us from granting that right for these 
judges to have an up-or-down vote, there will be six of them tomorrow. 
I suppose when we go down the line there will be as many at 17.
  Let me make a couple of other points that I think are important. Look 
at three of the President's nominees who have been accused by the 
Democrats of being out of the mainstream. They don't look to me like 
outside the mainstream. They have received overwhelming support in each 
of their home States. Apparently, these are not only a majority of the 
Members of the Senate outside the mainstream who support them but a 
vast majority of the citizens of California, Texas, and Alabama are all 
outside the mainstream, too, I guess.
  Democrats seem very fond of their 268-to-4 chart and believe this 
number 168 of President Bush's judges who have been confirmed since he 
took office will distract people from the important fact that the 
Democrats have filibustered four appellate nominees, Miguel Estrada, 
Priscilla Owen, William Pryor, Charles Pickering, and now Janice Rogers 
Brown and Carolyn Kuhl for the first time in American history.
  The point is that no raw number of confirmations means anything in 
and of itself while these unprecedented filibusters continue. While the 
number of filibusters as of today stands at four, Senate Democrats are 
virtually certain to add others to the list, including Janice Rogers 
Brown nominated to the District of Columbia Circuit and Judge Carolyn 
Kuhl nominated to the Ninth Circuit. That makes a total of six.
  There are other filibuster targets on the horizon, a Fourth Circuit 
nominee Claude Allen and Terrence Boyle, North Carolina District Court 
nominee, James Dever and Bob Conrad. They are also potential for 
filibuster. These are just some of them who we have already been told 
will be filibustered.
  That figure is extremely misleading, all the while more vacancies in 
our Federal courts continue to be classified as judicial emergencies.
  Mr. SESSIONS. Mr. President, will the Senator yield for a question?
  Mr. HATCH. I would be happy to yield.
  Mr. SESSIONS. I notice the Senator, when this 98-percent chart was 
put up the Senator didn't recognize it and neither did I. Isn't it true 
that the President has nominated some 200 judges and 160 or so have 
been--and the idea that the 98 percent of his nominations have been 
confirmed is certainly not accurate; is it?
  Mr. HATCH. The President has nominated 209 judges; 168 have been 
approved. So 20 percent of his nominations have not made it.
  Mr. SESSIONS. I do not know where the eight came from.
  Mr. HATCH. I don't know. I knew what the distinguished Senator from 
Louisiana was driving at. Again, a distortion of the facts.
  Mr. SESSIONS. I ask another question: They show a chart that says 168 
to 4. Is that the 4 they were filibustering last week or is that the 4 
who have been held hostage? What 4 are they talking about? There are 
well over 10 nominees who are being actively filibustered or obstructed 
at this point.

  Mr. HATCH. That is right.
  Mr. SESSIONS. I do not know how that chart comes about, either.
  Mr. HATCH. This chart is just the beginning of what they intend to do 
to the Federal judiciary. Democrats have also implied that it is just 
fine to prevent an up-or-down vote on at least these four nominees 
because we blocked 60 or so of President Clinton's nominees. That is 
extremely misleading. I think their number is 63.
  Let me briefly break that down. First, 18 of those nominees were 
withdrawn by Clinton himself--18 of them. Second, 25 of these nominees 
were either nominated after the August 2000 recess, do not have home-
State support because the Clinton administration did not consult at all 
with the relevant Senators, or there were confidential investigative 
reasons that prevented the nominations from moving forward. At most, 
there were about two Clinton nominees who the Republican Senate did not 
confirm.
  The numbers are even more stark. If you look at the difference 
between 168 and 209, you can see that it is about the same. The numbers 
are even more stark when you compare the number of nominees left 
hanging at the end of the first Bush administration by Senate Democrats 
with the number of Clinton nominees awaiting confirmation at the end of 
the Clinton administration.
  Let me refer to this chart. There were 54 judicial nominations not 
confirmed at the end of Bush 1. That is when the Democrats controlled 
the Senate. Fifty-four of the first President Bush's nominees were 
unconfirmed at the end of 1992.
  In contrast, at the end of the Clinton administration, only 41 
nominees remained unconfirmed. But 9 of those were put up so late there 
was no way we could have confirmed them. There were really only 32.
  At almost the end of the Presidencies you have that or more who just 
can't get through the system. Looking at that, according to the Senate 
Democrats, they don't even deserve the dignity of an up-or-down vote. 
Contrast this with the prior 3 Presidents' confirmations for their 
first 11 circuit nominees.
  In every case, less than 100 days, Senate Democrats in the 107th and 
108th Congress have been the most obstructionist of the President's 
judicial nominees in recent U.S. history. It is that simple. 
Confirmation times for the first 11 circuit nominees, Reagan-Bush, it 
was one. George Bush, look at how much that has gone up, and it is 
growing. This President is not being treated fairly. Neither are his 
nominees.
  Furthermore, there are more Federal appellate vacancies today, 18, 
during President Bush's third year in office, than there were at the 
end of former President Clinton's second year in office, where there 
were 15. Over half of President Bush's appeals court nominees in this 
Congress have not been confirmed. There are 41 total vacancies on the 
Federal district and appellate benches, 22 of which are classified as 
judicial emergencies by the nonpartisan Administrative Office of U.S. 
Courts. A staggering 67 percent of the vacant appeals court slots are 
judicial emergencies.
  There is a different scorecard that I find more significant. That is 
the 377 to

[[Page S14709]]

zero. President Clinton, with 6 years of a Republican Senate after 
1994, had 377 of his judicial nominees confirmed without a single 
filibuster by Republicans, even though Republicans had to swallow hard 
on a lot of them. Only President Reagan, with 382, had more of his 
judges confirmed, 5 more than President Clinton. But Reagan had 6 years 
of a Republican Senate to help him. Clinton only had 2 years of a 
Democrat Senate. Yet he came out with almost the same number as Ronald 
Reagan. He was treated fairly. Clinton is No. 2 in U.S. history, even 
though his opposition controlled the Senate for 75 percent of his term.
  Just to give you a sense of how unprecedented Democrat current 
filibusters are, here is another scorecard we have talked about: 2,372 
judges have been confirmed in the last 11 Presidents and zero were 
filibustered. The 11 Presidents that precede the current President 
Bush, back to President Franklin Delano Roosevelt, never had a judicial 
nominee filibustered and had 2,372 nominees confirmed. So these 
filibusters are empirically unprecedented.
  How about this scorecard? Years since the Judiciary Act in 1789 that 
we have gone without filibustering judges until this President. Since 
the beginning of the year, beginning with Miguel Estrada, there have 
been four, and there will no doubt be two more tomorrow. How many more? 
Up 10 percent, 15, 17? Up to 10 percent as Senator Schumer suggested 
last week in the Judiciary Committee? If there is some filibuster 
percentage the Democrats have in mind, what is it? The majority of the 
Senate and President Bush would really like to know. I think the 
American people would really like to know, too.
  One final word on the Democrat scorecard. Even one filibuster of a 
judicial nominee is too many, because every judicial nominee who 
reaches the Senate floor should be afforded the dignity of an up-or-
down vote. We owe our third branch of government no less. By way of 
analogy, would it be acceptable to enforce all but four of our criminal 
laws? Would it be acceptable to defend all but four of the 
constitutional amendments that comprise the Bill of Rights? Of course 
not. It is no more acceptable to allow up-or-down votes on all but four 
and counting of the President's judicial nominees. Vote them up or vote 
them down. But just vote. That is all we are asking.
  The Democrats have a right to consent. They have a right to advise. 
If they don't want to give their consent, then they have a right to 
vote against any of these nominees. That I will find no fault with. I 
might disagree, but they have a right to do that. What they don't have 
a right to do is to subvert the Constitution for the first time in 
history and allow 41 Senators to prevent an up-or-down vote of these 
judicial nominees.

  The distinguished Senator from Minnesota, with his chart on the 
terribly wrong filibusters, brought out a very good point. I don't want 
to compare rankings or anything, but this one is just as important as 
the others because without a good Federal judiciary, our civil rights 
would not be enforced. Explain the chart one more time, because I think 
people need to hear it. But in all four of those, those filibusters 
were conducted by Democrats, and every one of them was wrong, 
especially this 168 to 4 we are going through right now, but especially 
the other three as well.
  Mr. COLEMAN. Will the Senator yield for a question?
  Mr. HATCH. I am happy to yield.
  Mr. COLEMAN. Again, I listened to the words of my friend from 
Louisiana, where she made the comment that the only way a filibuster 
survives is if it is the truth.
  I was reflecting on the history of filibusters. I read about it when 
I was a young man. Certainly preceding my youth, going back to the 
times of Harry Truman and FDR, unfortunately, there is a terrible 
history in this body of opposing efforts to provide civil rights 
opportunities, opposing efforts to ensure that there were antilynching 
statutes, opposing efforts to get rid of things like the poll tax. This 
is a sad part of the history of this body. I ask the distinguished 
chairman, who has a much better sense of history than I, is it true the 
tool that was used to oppose those efforts, oppose good things, the 
tool was the filibuster, and the filibuster did not represent the 
truth? Would that be a fair statement?
  Mr. HATCH. The Senator is absolutely correct. Here we have a 
situation where we have a terrific African-American justice on the 
California Supreme Court who won 76 percent of the vote, who came from 
nowhere to somewhere, who fought her way throughout life to be what she 
is, who has ruled in favor of plaintiffs, civil rights claimants, the 
poor, the disadvantaged throughout her career, who is being treated in 
this shabby fashion with a filibuster.
  Mr. COLEMAN. Would it be the truth in regard to these nominees, in 
regard to Owens and Kuhl and Pickering and Estrada, who we haven't 
talked about, that in each and every case the measures of their 
competence, be it the bar association, the gold standard my colleagues 
across the aisle have talked about for so long, be it the 
recommendations of their colleagues, other judges with whom they have 
worked, be it the recommendations of the voters when they put 
themselves up for a vote--in each and every case, they received the 
highest recommendation; that is the truth, is it not?
  Mr. HATCH. That is right. And let me just say this: Filibusters are 
not the only means the Democrats are using to obstruct. During the 3 
years of the Bush administration, the Senate has taken 108 rollcall 
votes on judicial nominees at Democrats' insistence. Eighty-seven 
percent of these votes have been unanimous, 87 percent, calling into 
question why we needed these rollcall votes at all. Contrast that to 8 
years of the Clinton administration during which the Senate took only 
46 rollcall votes out of 377 judges, only 39 percent of which were 
unanimous. Couldn't we have been passing appropriations bills or 
creating jobs instead of wasting the time on unanimous votes?

  Look at this chart. Clinton, 18 votes, 2.25 average votes per year, 
486 minutes were consumed, 8.1 hours, 61 average minutes per year; 
Bush, 104 votes, 34.7 average votes, these are unanimous rollcall 
votes, 34.7 average votes per year, 2,808 minutes were consumed, 46.8 
hours, 939 average minutes per year. In this body that is delay, 
obstruction, complete shutdown of the body while we have these votes 
everybody knows will be unanimous. It is just another illustration of 
how far they have gone to obstruct on these judges.
  Finally, who is wasting time? Unanimous rollcall votes on judges, 
compare Clinton; we didn't require rollcall votes on unanimously to-be-
approved judges. Look what they have done to the Bush administration. 
This President is being treated very unfairly.
  When you hear them talking about jobs, look, I am as interested in 
jobs, and so is every other Republican, as they are. The only reason 
jobs is coming up is because they know they can't handle the criticisms 
that are coming their way for the way they are treating these judicial 
nominees. They just can't. They can distort the facts. They can distort 
the statistics. They can distort the record. But they really can't 
justify what they are doing.
  Again, go back to your chart, the distinguished Senator from 
Minnesota. Every one of those unjust filibusters that took away rights 
from people and kept people enslaved to a large degree, every one was 
led by Democrats.
  The PRESIDING OFFICER. The time of the majority has expired.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I yield myself 15 minutes and the 
remaining 15 minutes to my colleague from New Jersey.
  I have enjoyed these debates. I said at the very beginning these 
debates would be good for our side. They have proven to be. One little 
chart here, this chart seems to be under all of my colleagues' skin 
because they are debating it and coming with up with their own numbers, 
et cetera. But let me tell you, this one chart has won this debate. You 
can come up with as many others as you want, and tonight what have we 
debated, why 168 to 4 is not true? That is what the other side has 
said.
  I said at the beginning of this debate this would help us. Because 
this one chart was equal to 30 hours of palaver. To my good friend from 
Utah, he is a good man. He is my friend. But do you know what he just 
said? Rollcall votes are a form of obstructionism. I would just like my 
colleagues to have recalled the words of my good friend

[[Page S14710]]

from Utah: Rollcall votes are obstructionist.
  My goodness. What are we called on to do here if not vote. And 
letting people know how you voted, isn't that the whole mark of 
democracy?
  I realize my colleagues on the other side of the aisle are 
frustrated, and so they have had to come up with all kinds of sophistic 
arguments. But this one tops the cake. The fact Democrats have asked 
for rollcall votes on judges is a means of obstructing. Maybe we should 
just, when the President nominates somebody, not have a hearing and not 
have asked questions and not have any votes and just let the President 
appoint all the judges. Next we will be hearing from my colleagues on 
the other side of the aisle that is what the Founding Fathers really 
wanted.
  Again, to all of those who are listening, I hope there are a few 
left, 168 to 4. That fact is immutable, unchangeable, irrefutable. The 
reason it has such resonance is because the other side fails to mention 
it. Whether it be our colleagues when they speak, whether it be the 
rightwing radio shows when they say we are obstructing all of the 
President's judges or most of the President's judges, whether it be the 
editorial pages that try to kneecap us, 168 to 4, 168 to 4, 168 to 4. 
Don't forget it. There is no judiciary in crisis. There is no 
obstructionism.
  There are some judges--whether they be Black, Hispanic, women, 
Catholic, Jewish, Muslim, Baptist, southern, northern, eastern, 
western--who are so far out of the mainstream that they should not be 
on the bench, and we are upholding the Constitution by doing that.
  Now the arguments of my good friend from Minnesota, these charts, are 
getting to the point of ridiculous. They are what logicians and lawyers 
would call ``outcome determinative.'' We want an outcome so we put 
together numbers. Successful filibusters. I ask my colleagues, if a 
filibuster is against the Constitution, why is an unsuccessful anymore 
unconstitutional than a successful filibuster? Why is a filibuster of 
an executive branch nominee any different than a filibuster of a 
judicial nominee?
  Do you know what the other side is saying? We are just going to take 
judges in green shoes and give you the numbers on those and not judges 
in pink shoes or purple shoes.
  They are differences that don't make a difference. What we are 
talking about here, again very simply, is how many judges have come 
before this Chamber and how many have been approved. One hundred sixty-
eight to four. No denying it. No refuting it. No getting around it. The 
truth hurts because the American people know--30 hours, I guess now it 
is 39 hours, you can debate this for 390 hours, 3,900 hours, 39,000 
hours, and all your words are not equal to 168 to 4.

  For those who watched this debate, this has been elucidating, because 
what the hard right and their allies tried to spread throughout America 
is, we were holding up all the judges, most of the judges, a judiciary 
in crisis, a huge number of vacancies. My colleagues, do you know what 
answers all of that hyperbolic falsity? One hundred sixty-eight to 
four.
  We are going to keep that chart up. I realized when I first put the 
chart up, one of my colleagues objected. I understand it gets under 
your skin. I understand it pulls the rug out from the argument.
  Now, do you want to talk about judges rejected? Do you want to talk 
about judges who didn't get a majority vote? Then talk about them. Here 
we have two charts. Sixty-three of President Clinton's judges didn't 
get a majority vote. It doesn't matter whether they didn't get it by 
filibuster or by not bringing them up for any vote. Again, that is like 
green shoes versus pink shoes. They are all judges.
  Here are some names. Did every one of these people twist in the wind? 
You bet. Some longer, some shorter. Were some withdrawn by the 
President? Of course. Some withdrew their names themselves. My good 
friend from Utah, who I dearly love said: Well, some of the names were 
withdrawn by President Clinton. Does that mean we can erase the name of 
Miguel Estrada from this debate? He was withdrawn. That is not going to 
work. He was blocked. So were the others.
  One final thing I would say, because I do want to spend about half my 
time now, or less than half, talking about one of the nominees. The 
Senator from Louisiana was correct. We are opposing judges because of 
their views, not their ratings by the bar association, which talks 
about their education and legal training, and not their sex, ethnicity, 
or religion.
  The other side seems to think that should be a determination of who 
becomes a judge. Shame on the women because they won't just rubberstamp 
any woman. Shame on the Blacks or on the rest of us because we won't 
rubberstamp every Black, shame on everybody, me. They called me because 
I didn't agree with Miguel Estrada, but should I have let him go 
because he was Hispanic? That is un-American. It is not right. It is 
un-American. It is below the belt.
  My good friend from Louisiana--I have never heard her more eloquent--
had every right to be angry and upset. To say the women should be 
ashamed of themselves because they are not voting for another woman. 
What do you think the American people would think if they thought that 
ought to be our norm? Every Baptist should vote for every Baptist and 
every Catholic should vote for every Catholic and every Jew should vote 
for every Jew. What kind of logic is that?
  Let's get back to the reality here. The reality is a handful of these 
judges are way out of the mainstream, at least in the opinion of a good 
number of us. Enough to block them. The one that I would like to talk 
about for the little bit of time I have left is Justice Brown.
  I don't agree with her views on affirmative action, but that is not 
dispositive to me in this case. What is dispositive to me is that we 
have not seen--I have not seen, in the 18 years I have been here, a 
judge further out of the mainstream than Justice Brown. I want to read 
to you what she said in a case called San Remo Hotel v. City and County 
of San Francisco:

       Turning a democracy into a kleptocracy does not enhance the 
     stature of the thieves, it only diminishes the legitimacy of 
     government.

  What does she mean by that? She was against zoning laws. Do most 
people think zoning laws are a kleptocracy in 2003? Maybe that went on 
in 1900, when we could have factories built next to homes and when 
workers' lungs would be polluted. But no more.
  Here is what else she said in a speech to the Federalist Society:

       Where government moves in community retreats, civil society 
     disintegrates, and our ability to control our own destiny 
     atrophies. The result is [this is when government is around] 
     families under siege, war in the streets, unapologetic 
     expropriation of property, the precipitous decline of rule of 
     law, the rapid rise of corruption, the loss of civility, and 
     the triumph of deceit. The result [this is what government 
     brings] is a debased, debauched culture which finds moral 
     depravity entertaining and virtue contemptible.

  Many colleagues on the other side of the aisle believe in limited 
government. That is legitimate. I, for one, feel in certain areas 
Government goes too far. But this view? That is kind of disturbing, 
particularly for a judge on the DC Court of Appeals, which has more to 
do with Government than any other court in the land, with the exception 
of the Supreme Court. Please, you can find conservatives, you can find 
people who are against affirmative action who don't express these 
views; but these views are circa 1850, and even then would not be 
supported by most Americans. We are supposed to support a judge like 
that? Do you know what. I would guess if you asked my 51 colleagues on 
the other side of the aisle to nominate someone for the DC Court of 
Appeals and the record of Justice Brown were brought before them, they 
never would have nominated her.
  Why is she here today? That is the question we ask. Is this to be 
deliberately provocative? Is it that the President doesn't believe he 
should nominate African Americans who are within the mainstream? I 
don't think so. He has nominated a few. I don't get it. The views of 
Justice Brown go so beyond what there is in a consensus in America, 
liberals and conservatives, that it is appalling to me she would be 
nominated for the DC Court of Appeals. There is only one reason: The 
extremists on the hard right are demanding something of the President. 
He is doing a prescription drug bill. He is talking

[[Page S14711]]

to the United Nations. He is not demanding Roe v. Wade be repealed at 
this very moment. By nominating somebody like Justice Brown, maybe he 
appeases them, even though he may know she will not be approved. I 
don't know. That is just a theory.
  But I will tell you this. If Justice Brown were White, or Asian, or 
Hispanic, a man, or if she were Protestant, Catholic, or Jewish, or 
Muslim, or Hindu, I would oppose her nomination. If Justice Brown got 
100 percent of the vote in California, I would oppose Justice Brown. 
Justice Brown does not belong on the DC Court of Appeals where over 
decades, over centuries, beliefs among Democrats, Republicans, 
liberals, conservatives, 99 percent of Americans about what Government 
should and could do would be totally rejected. Justice Brown will be 
defeated tomorrow, I hope and I believe. It will not be because of 
outside groups and it will not be because of any of the women not 
standing up for women. It will simply be because her views are so 
ideologically out of the mainstream that she does not belong on the DC 
Court of Appeals. It is that simple.

  When we knock out Justice Brown, I believe the Founding Fathers will 
be smiling upon us. One of them might say to the other: That is why we 
gave the Senate some power to block the President's nominees. This is 
the kind of nominee who should be knocked out. This is the kind of role 
the Senate, as the cooling saucer, should play, and whether it be by 
filibuster or by not bringing her up for a vote, or by defeating her in 
committee, which are the various ways the Senate has to be the cooling 
saucer, none of them--51-49, none of them simple majority, the Senate 
will be fulfilling its hallowed, ancient, and continuing role as a 
check on abuse of power of the President.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. CORZINE. Mr. President, I thank the senior Senator from New York 
for making sure the fundamental issue is understood by the American 
public. The fact is, 172 nominations have come to the floor; 168 have 
been approved. Four have not been sustained under the rules of cloture. 
And 98 percent--you can talk about it any way you want. The numbers fit 
the commonsense judgment of the American people that something positive 
is going on here with regard to how we are dealing with the 
confirmation of judges. I go back to the practical reality that 95 
percent of the judicial positions in the Federal courts, district and 
circuit and Supreme Court, are filled; 95 percent of them are filled. 
In 2000, at the end of the Clinton administration, only 75 percent of 
those positions were filled.
  This is the lowest vacancy rate in 13 years. The reason is very 
simple--168 to 4. It is not a complicated issue. It is not a 
complicated issue. Then you have to look at the four. The Senator from 
New York read this statement about the judge we will be looking at 
tomorrow, talking about ``when government advances, freedom is 
imperiled.'' I don't think that is what the American people would 
think--those people who believe in Social Security, those people who 
might think we ought to have a prescription drug benefit for all 
Americans, people who believe we ought to pull together an army to 
protect the American people from terrorism, the folks who think we 
ought to build highways, bridges, schools, and other things, which are 
generally done by the public. When the government advances--what is 
this? I want to say this right. ``When the government advances, freedom 
is imperiled.'' There is one out of the four. One wonders whether that 
is the mainstream of American thought.
  A couple of judges in this four have serious issues some people think 
approach or have gone over the line of ethical violations. I have heard 
almost everybody say at some level they believe integrity is an issue. 
There are serious concerns about actions of several of the people who 
are involved--aside from their views. I will not even mention the 
judge. One judge said, in talking about the role of Congress:

  Congress, for example, should not be in the business of public 
education, nor in the control of street crime.
  That may be a view that is mainstream for some in this body, but I 
have a hard time understanding where many of us believe the role of 
Congress would prohibit us from being involved in the business of 
public education or the control of street crime. It doesn't sound to me 
like a mainstream thought. That is one of the judges.
  Then another judge we will be considering tomorrow talked about 
privacy rights, threw out a case where someone was performing an 
operation on a patient, and it happened to be a female. The doctor had 
a male drug salesman attend without asking for that right of the 
individual. Then the judge said that wasn't a violation of privacy 
rights. That kind of thing--I am not a lawyer and I don't know all the 
details of this precedent, but it is kind of like 168 to 4. You would 
think if somebody is undergoing surgery and somebody asks you a 
question about who the person was who was observing you going through 
surgery, if you had a drug salesman overseeing that, you might think 
that was an invasion of privacy. That is sort of common sense to me.
  I think there are reasons to debate these four and maybe the two, if 
we are going to get people who are not necessarily following precedent, 
settled law--I hear a lot of arguments about activism on the court. It 
sounds to me like there is an active view that is different than 
settled law with regard to privacy. There is a view that is outside 
settled law and precedent with regard to the role of Government, with 
regard to schools and crime in our streets.
  I think there is a reason to question some of these four. Therefore, 
it is not inappropriate, when you think people are going to be out of 
the mainstream and may have ethical issues that are legitimate 
questions that people raise, that somebody ought to exercise that 
judgment here on the floor of the Senate when we are asked to vote on 
it. From my perspective, that is what guides my vote and one of the 
reasons I have helped make this 168 to 4 happen.
  By the way, I am proud of the 168 and while we now have the highest 
percentage of occupancy of judicial positions in the last 13 years--
that looks to me like a pretty good track record. In most walks of 
life, it would be a pretty reasonable statement of cooperation and 
effort to make things happen. That is certainly, again, the perspective 
I want to start with, 168 to 4, filling up the judiciary.
  Then we heard the argument raised that somehow we are trying to 
change the subject. This is changing the subject. We are talking about 
four folks, while we have 9 million people unemployed, 2.5 million 
manufacturing jobs lost in America, and we have the rampaging trade 
deficit, budget deficit, a rise in the poverty rate, declining insured 
and health insurance coverage in America, no prescription drug benefit 
for seniors, no passage of the Transportation bill, no consideration of 
a minimum wage increase for 7 years. We cannot get it to the floor.
  We don't want to talk about four judges when we have a war going on 
and all these economic issues before the country. They say we are 
changing the subject? I think we ought to change the subject. I would 
imagine the people watching this debate are changing the channel 
because they want to know what the heck is going on in the fundamental 
parts of their lives, their jobs, what their kids are doing in Iraq, 
what is going on with regard to jobs that are going to be created for 
the rest of their families. They want to know what is happening to 
their health insurance. They would like to know whether school class 
size is going to be 18 or 26. Those are things that matter, and we are 
debating four judges who, as I read some of the most extreme comments 
here--again, we are debating whether it is appropriate to have a 
filibuster about somebody who says ``where government advances''--it 
says ``advances relentlessly''--``freedom is imperiled.''

  We are debating that, as opposed to worrying about whether 9 million 
people can get extended unemployment benefits, whether we can get a 
jobs bill to build highways and bridges and other things in this 
country, whether we can have an honest debate over intelligence 
operations in this country. It strikes me we have our priorities out of 
place. It just makes no sense in the world we are living in that we are 
debating 4 judges out of 172 and they have views like ``where 
government advances, freedom is imperiled.'' I don't think the American 
people--anyone you sat down around the kitchen table

[[Page S14712]]

with and you talked about this issue, with this language, and this 
perspective on judicial philosophy--would say I would rather you be 
focusing your time on the floor of the Senate at 5 minutes to 12, 29 
hours and 55 minutes into a debate, saying it is more important that we 
are talking about that judge than we are talking about what is 
happening with our men and women in Iraq, or whether we have 
appropriate investment in our intelligence operations that protect 
them, or the 9 million people are getting the proper attention on their 
unemployment benefits. I don't get it. There is no comparison of the 
importance. It is not changing the subject. It is getting to the 
subject the American people want us to do. At least that is the way it 
is in New Jersey. I have not had one single person ask me about a 
judge, until today when we got a call-athon calling in--the first time 
we got a call with regard to whether the filibuster was holding up 
these rights. I had my people read back this: ``When government 
advances, freedom is imperiled.'' About half of the people said I don't 
know whether that is somebody I want to stand with because I don't know 
that that is a position that really fits with the American 
Constitution, in my view, of what the American democracy is about. It 
is very hard for me to understand where we have our priorities.
  Lastly, I want to bring up a point that filibusters weren't only used 
to stand in the way of civil rights acts by Democrats back in the 1930s 
or 1940s. On February 3, 1991, a filibuster was executed on this floor 
on the Family and Medical Leave Act. There were no Democrats who voted 
for that cloture. Let's see. Handgun violence prevention on November 
19, 1993. I think that is the Brady bill. Let's see. Goals 2000, to 
educate America on March 24. I have a list of about--something that 
approaches about 50--maybe a little more than that--60 filibusters that 
were executed, including a couple with regard to judges, where judges 
withdrew their nominations that were executed by the other side of the 
aisle.
  Filibusters have been used. No one was calling them unconstitutional 
when you were trying to deal with family and medical leave, or nobody 
was calling them unconstitutional when we were talking about the Hatch 
Act. Funny how that comes up. No one was calling them unconstitutional 
when we were dealing with judges at an earlier time when they withdrew 
their names. I want to make sure we keep the right perspective here 
because we are making all kinds of statements. Frankly, I think all of 
it is irrelevant. It makes no sense when we should be talking about the 
9 million Americans who don't have jobs and we are talking about the 2 
million people who have lost health insurance in the last 2\1/2\ years, 
when we are talking about the 1.7 million people who slipped into 
poverty in the last 2\1/2\ years, when we have gone from a $250 billion 
budget surplus to a $375 billion budget deficit, a $550 billion 
negative cashflow swing in this country because we are not handling our 
finances right, and we have a war going on and the generals are saying 
we are having unrealistic views about it back here.
  I don't know, maybe we should not change the subject. We should just 
talk about these four judges. I wonder if the Senator thinks that is 
the right prioritization. It strikes me it is out of touch with 
America, and we are now 29 hours and 59 minutes talking about 4 judges.
  The Senator from New York is right; 168 to 4 actually expresses what 
the debate about judges is all about. But one could think we ought to 
be talking about the 9 million Americans or, by the way, the 130,000 
troops we have on the ground who are in harm's way. It strikes me, the 
discussion we have had for these 30 hours is missing a very major point 
to the American people.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Brownback). Is there further debate? The 
Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, we got to the bewitching 
hour. It is midnight. I am going to enjoy the evening the best I can 
because I have a chance to engage with two of my colleagues. I don't 
know how long it will last, but I really enjoy the give and take of 
dealing with Senator Schumer. It may come to surprise people, we 
actually have been working on a couple of things. We had some successes 
in the past and we will have some in the future. I believe with a great 
deal of certainty, if the shoe were on the other foot, if my party were 
engaged in filibustering nominees of a Democratic President, that 
Senator Schumer would be right out here fighting for his cause. Senator 
Corzine and I are getting to know each other. We will have all night to 
get to know each other. I have enjoyed working with him, also.
  This is unusual for the Senate. I don't know if this has ever been 
done before. I hope it is not necessary to do again. But here we are. 
We are here at midnight. We are talking about whether or not there is a 
filibuster. Has there ever been one in the past? Who shot John? Who has 
been the meanest and the baddest in the past?
  I guess what I am trying to focus on for the next few minutes is, 
What about the future? I guess that is my biggest concern. We have had 
all kinds of charts about how nominees were treated in the past. I have 
been here a year. Since I have been here, it has been like pulling 
teeth to get certain people on the floor for a vote. But that is OK. 
The process is what it is. The Constitution says what it says and we 
will all have our chance to express what we think is right versus what 
we think is wrong.
  This is a big deal. It is a big deal for the Senate. There are a lot 
of other issues that need to be talked about. Sure, Iraq is certainly 
one of them, people out there in harm's way. We have 9 million people 
unemployed. I am the first to admit there are a lot of issues in this 
country that need to be talked about and addressed.
  But this is one of them. One of the reasons Senator Corzine has not 
had too many calls is Americans are able to walk around with a pretty 
secure feeling that the system works. I think it is a blessing we are 
not nervous every day about whether or not you can go to court because 
we expect, if we have a problem, a legal problem, there will be a place 
to go to get it resolved. That is just part of our mindset. We don't 
worry a whole lot about that and I think that is great.
  But, really, that is a luxury. There are a lot of countries in this 
world where there is no venue to go to settle disputes. You have to go 
by force or violence, or you have nobody to help you out when you are 
down.
  We have a pretty good legal system. God knows it needs to be fixed in 
some respects, but the idea of a rule of law nation caring about how 
you appoint judges is a big deal. Imagine if you had a system where it 
would be almost impossible to confirm somebody who had an actual belief 
or opinion. What you would find is there would be a lot of vacancies 
and there would be a backlog of cases. The things we assumed were 
always there for us would no longer be there. So this really is a big 
deal.
  If you believe in a system where the weak can hold the strong 
accountable, then you ought to be listening to this debate because only 
in a rule of law nation, a courtroom, is that possible, because in a 
political environment the strong always win over the weak. In a 
confrontation of resources, the strong always win over the weak.

  But America is a little bit different. You can hold anybody 
accountable. You can have your day in court. Even the President of the 
United States can be sued by an average, everyday person, if the 
President of the United States is claimed to have violated their 
rights.
  That is a big deal. That is something worth fighting for. Some people 
believe that is worth dying for.
  Now, that is very much at risk. The way we do business with our legal 
system is very much at risk. Because you can put up all the charts you 
want to put up and you can play all the number games you want to play, 
but the truth is, and I challenge someone to prove me wrong, that this 
is the first time in the history of our Nation that nominees have come 
out of the Judiciary Committee with a majority vote and have been 
blocked by a filibuster from being voted up or down. This is 
unprecedented. This is dangerous. We find ourselves in political and 
constitutional quicksand.
  Of all the conflicts we have had in this Nation, of all the fights 
between the Republican and Democratic Parties, of all the likes and 
dislikes that

[[Page S14713]]

have happened politically, no one before has chosen to go down this 
road. The road our friends on the other side have chosen to go down 
really is the road to oblivion, in terms of trying to get good men and 
women to be willing to serve their country as a judge.
  My friend and colleague, Senator Coleman from Minnesota, is new to 
the Senate like myself. The strength of this Nation is people with 
accents have a chance to get ahead in life. I am the first person in my 
family to go to college. My dad was a World War II veteran and came out 
of the war and started his own business and married my mom and neither 
one of them finished high school. But they impressed upon me and my 
sister the value of an education. Because of the good, sound, strong 
public school system of which we partook, I was able to do things I 
never dreamed of doing. Now I find myself in the Senate.
  I am a lawyer. If you can't take a joke, you should not be a lawyer, 
because there is a lot of lawyer jokes out there. But I have always 
enjoyed the role of being an attorney because I like representing 
people and I like representing causes. The law to me was not just a 
job; it was a passion.
  The ultimate ascendancy for somebody in the law is to become a judge. 
You will make less money but you will get authority and respect, and 
you will have a chance to mold the law. To many people that is much 
more important than money.
  To me it is a shame, if you are willing to apply for the job, that 
you have to be treated so poorly as these four people we are talking 
about have been treated. But make no mistake about it, they are not 
four people; there are going to be at least a dozen in the next couple 
of weeks. They are being treated differently than anybody in the 
history of the Nation. They are having some very hard things said about 
them and all they want to do, and all they are willing to do, is to 
serve their country in the Federal judiciary.
  Our friends on the other side have pulled out a chart, 168 to 4, with 
an illustration: 168 apples represented those people who were allowed 
to go forward. The Senator who had the chart said, I like apples, so I 
picked apples to represent the 168. And the four, well they were called 
lemons. I thought that was pretty cute at the time. But the more I 
thought about it, that is really not fair. If you don't like these 
people, if you disagree with their philosophy, if you disagree with 
their view of the world, you have a chance to express it. You have a 
chance to vote them up or vote them down. But I don't think it helps 
anybody to label them as lemons. We are going to have a long talk about 
the people they have labeled as lemons. Between now and 9 o'clock in 
the morning, we are going to have a long talk, eventually, about the 
individual nominees.

  You can decide whether or not you will vote for them. You can kind of 
be a Senator for a day, if you would like. That would be an exercise 
that would be interesting for those who want to watch. If you don't 
like them, you can vote against them in the Senate. But I think you 
have an obligation to vote them up or down.
  As I talk about these individuals I will tell you why I am willing to 
vote yes. I don't expect anyone on the other side, or my side, to vote 
because of my reasoning. I do expect the people at home, in South 
Carolina, to be able to judge me and hold me accountable for my 
reasoning. I will tell you, with a deep sense of pride, that I think 
the four people who have been called lemons are very fine Americans and 
deserve more respect than they have gotten.
  The thing I like most about serving with my colleague, Senator 
Coleman from Minnesota, is that his race was one of the most watched 
and unusual races in the Nation. It was full of triumph and tragedy. 
His opponent, Senator Wellstone, who I knew fairly well and certainly 
respected for his strong beliefs, tragically died right before the 
election. Senator Coleman ran against former Vice President Mondale.
  The thing that impressed me most about his race, as I watched the 
debate, was the sincerity he had when it came time to present the 
reason he wanted to be a Senator for the people of Minnesota, along the 
lines of: I would like to go to Washington and do something. I watch 
you from afar and you seem to be fussing and fighting about everything. 
People are hurting out here and I would like to be a Senator who could 
go to Washington and work across the aisle and actually do something.
  Tonight, at almost quarter after midnight, I would argue to the 
people who may be listening in Minnesota that your Senator is doing 
something. It is not what he envisioned. It is not what he hoped for. 
It is not what I hoped for. I hoped to be home right now. And we passed 
some legislation long overdue. But I argue the Senator from Minnesota 
is doing something that needs to be done; that is, standing up for his 
beliefs and his view of the Constitution.
  I am confident that over time this exercise will be judged well in 
history. When there is an accounting in this period of the Senate, it 
will be one of the darker periods of the Senate and my hope is it will 
be a period that will not have lasted long. Because the future is why I 
am here. The future is why I and Senator Coleman ran. We have a lot of 
problems with Social Security and Medicare and a budget and a war to 
fight and many obstacles facing this country. We are dying to get on 
with it. We really do want to help win this war on terrorism and make 
the economy better and stronger and fix the retirement problem the 
Nation faces.
  We didn't ask for this. But it came our way. It happened on our 
watch. I think this may be one of the most important things we will 
ever do as Senators.
  With that, I will yield to my good friend, Senator Coleman from 
Minnesota, and let him know in my opinion that he is doing something 
that is very important to the country by participating in this debate.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. COLEMAN. Mr. President, first, I thank my friend and colleague, 
the Senator from South Carolina. We came in in the same class. He 
served in the Congress. He is more experienced and understands the ways 
of Washington. But he understands the ways of South Carolina. He is 
about as real as he can be. People think of Washington as a phony town. 
I look at my colleague, my friend from South Carolina, and he is very 
real. That is a good thing.
  In the discussion we have had tonight--now past 30 hours--I 
appreciate his effort to humanize the four individuals whose lives have 
been, in some ways, put on hold, their future put on hold, certainly by 
the actions of this body. No, they are not lemons and they are not 
simply numbers. They are people. They are moms, dads, fathers, 
daughters, sons. They are folks who have the capacity to have an 
incredible influence on our lives.
  I was a former prosecutor. The Senator from South Carolina had that 
experience of doing some prosecution in his time. I can tell you, 
courts have an impact on your lives, on your family's lives in many 
ways. So I appreciate it, if as we move now into the morning hours, 
there will be votes coming up this morning--not tomorrow morning, this 
morning--to put a human touch on what this is about.
  I think there was a mood or a feeling in the country at the time that 
we got elected that really did focus on getting something done. I was 
running for office and disaster assistance bills were being debated in 
the Congress. The House was passing bills but the Senate was not. I can 
tell you my constituents were unhappy. They were concerned.
  Last year there was a debate over a prescription drug benefit. I was 
running for office. There were still seniors forced to make the choice 
between prescription drugs and food. That is a bad thing. That is not a 
good thing. Hopefully, this year we are close and before we get out of 
here, assuming folks come together, we can get something done.
  I think that was the tone. That was the message. By the way, I hope, 
certainly the message I heard--it should not be a partisan thing. There 
are a lot of things I heard in the debate tonight from my colleagues on 
the other side. I don't disagree with all of it. My colleague from 
Louisiana made a comment that we can't be divisive. She is right. I can 
tell you we are not trying to be divisive. Being divisive is when you 
do something that is unprecedented, and that is really what we are 
talking about today.
  The fact is, one of the things we did kind of settle tonight is the 
filibuster.

[[Page S14714]]

There was a discussion all along about whether they are really 
filibustering nominees, a lot of discussion about filibusters.
  First, I say again I was disappointed what I heard tonight. If 
anything, it was the comment of my colleague from Louisiana saying 
filibuster was the successfulness of the truth. No. With filibusters we 
have stopped some very good legislation. We have used the filibuster in 
a very terrible way in this body in its history. We have filibustered 
to try to prevent antilynching laws coming into effect. We have 
filibustered civil rights legislation. We have filibustered against the 
poll tax. We filibustered about a lot of things and not often good. A 
filibuster is often to be ashamed of and this one is to be ashamed of.
  My colleague asked what is the difference between filibustering 
legislation and judges? The difference is this little book. It is 
called the Constitution. That is the difference. The Constitution laid 
out very clearly when the President has certain powers. The President, 
by the way, doesn't get elected unanimously. He gets elected following 
the laws. Not everyone votes for him but he then becomes the President. 
Once you become the President, you have certain powers and the Senate 
has certain powers and responsibilities. So it is a matter of seeing 
there is a difference between what one can do legislatively, using 
filibusters, and what the Constitution provides.
  There is a reason why, in the history of this country of 214 years, 
up until this Congress, this body has never used a filibuster to stop 
circuit court nominees once they got through committee. That is the 
reality.
  You can put all the charts up and all the statistics; that is the 
reality. If folks are listening, they have to be thinking there has to 
be some reason in over 214 years why folks have not done what is being 
done today. In part, it is because of the consequences. If we do that, 
what we do is we let a minority--that is what we have here because in 
each of these cases the judge is being filibustered, a majority of the 
Senators, Democrats joining with Republicans--yes, they are going to 
vote for them. We know that. That is why the minority is filibustering, 
stopping the vote.
  So what you have here is a situation where the minority stands up and 
says: We don't support a person. Maybe it is because of a particular 
issue. Maybe the issue of abortion comes up again and again, which, by 
the way--and we will have plenty of time to talk about this--what is so 
interesting if you look at the record, the nominees who have been 
criticized or attacked because of their position on abortion, to a 
person have said that they would follow the law, that they would put 
personal beliefs aside.
  You choose a judge and what you ask of them over here is can you put 
your personal beliefs aside and make a judgment. That is what these 
folks have all said. Because they have those beliefs, the minority 
comes together and blocks them. What is the outcome?
  This, I know, frustrates my friend from South Carolina and it 
frustrates me. We all look into the future. I campaigned and I wanted 
to be a charter member of the ``Let's Get It Done Coalition.'' Let us 
figure out a way to solve problems.
  The Senator from New Jersey is right. We have to get an energy bill 
through. I hope we get it through. We have to do something about 
prescription drugs. We have to do something about jobs, and something 
about medical malpractice. We should do something about class action. 
Those efforts are not going to be allowed to come to a vote. Those are 
the jobs bills. Let us get it done. Let us put the bickering and 
partisan stuff aside and figure out a way to get it done.
  The problem we have as we look to the future is who is going to get 
confirmed. If anybody with deeply held views is going to be 
filibustered by one side, now the Democrats are in the minority, there 
may come a point in my time where my friend from South Carolina is 
sitting in the minority and a Democrat President may propose a judge, 
and I will say to the body that I intend to use the same standard with 
a Democrat President. Are judges qualified? Will they commit to uphold 
the Constitution? I will not support folks who will use the 
Constitution to create laws of their own beliefs. But if they agree to 
follow the Constitution and are qualified, then you support them. The 
President has that authority.
  If you look at the history of the judiciary, it is kind of a balance. 
There have been Democrat Presidents and Republican Presidents going 
back over the last 12 years--8 years of Bill Clinton, 8 years of 
Reagan, 4 years of Bush, Jimmy Carter. There are about almost equal 
numbers of Democrats and the Republicans on the judiciary. It is 
balanced. What is happening here today is we are changing that balance. 
When we allow minorities to take hold, we change that balance. That is 
what happens.
  In the future, you are going to get folks with strongly held beliefs 
and there may be a Ruth Bader Ginsburg, a liberal who went to my high 
school, James Madison in Brooklyn, NY. I disagree with some of her 
reasoning on decisions. She is a good judge. She is bright. She 
exercises her judgment. I don't think in this environment if the 
Democrats are in charge that Ruth Bader Ginsburg would be confirmed. 
That would be sad for America. The same would be true with Scalia and a 
number of members of the Court.
  What are you going to get? The best and the brightest are going to be 
cast aside because they may have a strongly held belief, which is what 
you see in some of the nominees here because a minority says we don't 
want them to come forward. A minority then filibusters in a way again 
in contradiction to article II of the Constitution. That is why we are 
raising this. That is what we are talking about and doing something 
that has not been done in history.
  It is interesting. In terms of the Constitution, it is very clear. 
The President has certain powers--unlike, by the way, in European 
countries and in contrast to monarchs who would simply make treaties. 
Leaders in Europe could make treaties. Our folks said, no. The 
President's power of making treaties is going to be contingent upon 
two-thirds of the Senate present and concurring. That is in the 
Constitution. We wanted to limit the powers of the President. When it 
came to appointment of judges, it is not two-thirds. Two-thirds is only 
for treaties. Very clearly there is a delineation.

  For some reason to date, 214 years into our country's existence, the 
standard has been changing. That is an important thing. Jobs are 
important. As a former mayor, I have said 1,000 times the best welfare 
program is a job; the best housing program is a job; the best health 
care comes with jobs. Jobs are important. I understand that. What is 
interesting is my colleagues on the other side of the aisle are crying 
economic--by the way, never once mentioning 9/11. If you talk about 
what has happened to this economy, you have to talk about the impact of 
9/11. You have got to talk about the recession that occurred before the 
President came into office. You have to talk about the impact of 
WorldCom and the impact of Enron.
  The reality is now because of the policies, many of which this 
Congress passed, policies which cut taxes, which put money in the 
pockets of moms and dads which give businesses the incentives to 
invest, the economy is starting to move forward. The last numbers 
report 7.2 percent gross domestic product growth, and over 200,000 more 
jobs in the last couple of months. The number is revised upward. 
Business investment is moving forward, in part in large measure because 
of the tax cuts. Yet the other side of the aisle says we want to talk 
about jobs. I am looking forward to that debate. But it is all 
important. The judiciary is important. What we do with judges is 
important. In order for businesses to operate and for families to 
operate, you have to have a judiciary that works.
  What is fascinating here--and I love that chart of 168 to 4. I love 
seeing that chart. When the other side puts up a chart showing 168 to 
4, that is their argument. They keep coming back with the underlying 
supposition of, It is false. Their argument doesn't carry weight. Let 
us talk about 168 to 4. The real discussion here and what is going on 
here is the President of the United States has the power to appoint 
district court judges.
  A little lesson, for those listening, a first impression in the 
Federal system: What happens when the district court

[[Page S14715]]

judge issues an opinion, there is a review process. It is reviewed by 
the circuit courts. The courts of appeal level, by the way, is right 
below the Supreme Court, which is one of the things I think comes into 
play here.
  When you pick judges who may be on the circuit court, what happens is 
they then became a candidate for the Supreme Court. That is the real 
deal. They are all the real deal. Being a judge on the court of appeals 
is an incredible honor. It is a higher court than the district court. 
What is happening is the President has had 29 circuit court judges 
confirmed. We as of tomorrow will have six who have been filibustered. 
There are more in the hopper. That is very clear from my colleagues on 
the other side of the aisle. They will be filibustered. Out of the 
circuit court, the other side is saying 168 to 4, and some judge like 
wearing pink shoes and green shoes--no. The difference between circuit 
and district court judges is not the color of their shoes. The 
difference between circuit court and district court judges is these 
judges are on a higher court. These are the judges who are right below 
the Supreme Court.
  District court judges sit in a particular district. Circuit courts 
sit in a multistate area. They have a broader range and geographic 
jurisdiction. It is the higher court.
  What has happened here is it is not 98 percent. Even 98 percent of 
the time, adherence to the Constitution is wrong. When we took our 
oath, when the distinguished Senator from Kansas took his oath, and the 
Senator from South Carolina took his oath on that floor, we swore to 
uphold the Constitution of the United States 100 percent. It wasn't 
qualifying.
  I find it absolutely startling that folks take pride in upholding the 
Constitution 98 percent of the time. The first amendment, freedom of 
the press: If there are 172 newspapers in the country and 168 of them 
are going to have freedom of the press and not the other 4, they 
wouldn't be very happy and very American.
  The reality here is we have 29 circuit court judges who have been 
approved and we have 12 who are being filibustered. I think we are 
talking around 30 percent, 25 or 30 percent. That is a big number. I 
believe that is the largest number certainly since World War II. I have 
to go back in the history books. That is wrong. That is the number 
here.
  The other side keeps coming back saying 168 to 4; therefore, no 
problem. The problem is you can put up all the numbers you want, but 
the difference is not the difference, whether it is green shoes or pink 
shoes; these are courts of highest jurisdiction.
  What has happened here and what is happening is unprecedented in 214 
years of the history of this country. This hasn't happened.
  All we are asking is for these 12 judges to simply have a vote. We 
are talking about a vote. A cloture vote tomorrow is not a vote on the 
judges. We are simply saying give--Miguel Estrada, by the way, 
withdrew.
  My time may be coming to an end. I want to get back to talking about 
him--an immigrant, incredible record, education record, incredible 
performance record, a brilliant man, and withdraws.
  Priscilla Owen, give her a vote. William Pryor and Pickering, give 
them a vote. If you do not support them, you vote them down. Your voice 
is heard. It is not about a rubberstamp. I am not asking my colleague, 
the Senator from New York, to vote for these folks. Vote them down. If 
you do not like Judge Brown, vote her down; Judge Kuhl, vote her down. 
Vote these folks down. But give them a vote. That is what the 
Constitution requires.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Searchlight, NV.
  Mr. REID. Thank you, Mr. President.
  First of all, I want to extend my appreciation--and I speak for the 
Senate, both Democrats and Republicans--to the staff which has been 
supporting us the last few days. People are working very long hours. 
The Capitol Police are working a 16-hour shift. Their shifts are very 
important. There are some people from all over the world who target the 
Capitol of the United States where we now stand. These men and women 
who guard us, protect us, make us secure, have to be vigilant. They are 
among the best trained police officers in the entire world. I extend 
appreciation from all Senators to them for the work they do, not only 
during the time in the past few days but all of the time--having been a 
Capitol policeman in the day when things were much more calm and 
deliberate than they are now.
  I also extend the appreciation of all Senators to all the staff, 
Parliamentarians, clerks, the enrolling clerks, the court reporters--I 
don't think I have done that--and the pages. We have juniors in high 
school who are here tonight. I haven't mentioned everyone. But my 
compliments go to everyone who supports this great institution. I am 
sorry they have had to work another night, but that is the way it is.
  The reason you have seen all the charts on the other side of the 
aisle change is because this number Mr. Schumer talked about bothers 
them a lot. Now they have come up with judges who haven't even come 
before the Senate. They know only four have been turned down. But now 
they have the other thing, that there is going to be 12. Well, we might 
wait and see what is going to happen. Why don't we wait?
  I say this: The 30 hours we have spent so far has been totally 
wasted. There isn't going to be a single vote changed. Nothing is going 
to change. This has been an effort to toss meat to the rightwing 
extremists. Many Senators--and I say many--certainly at least a dozen 
Republican Senators approached me and made different excuses and 
apologies for what is going on on the other side. They know this is 
very nonsenatorial. But we are involved in this and we are going to 
proceed in the best and most dignified way we can.
  There is something else I would like to spend some time talking about 
tonight, and that is jobs.
  Let us talk about what is happening in the last 30 hours. What has 
happened? We can start at a number of different places. During the last 
30 hours, 2,833 Americans--men women, teenagers, old people, married, 
unmarried, grandparents--have been laid off. They have lost their jobs.
  In America today, things are so difficult dealing with jobs. For the 
2,833 Americans who have lost their jobs during the last 30 hours, the 
average time for them to find a good job will be 5 months. Five months, 
2,833 Americans will wait an average of 5 months to find another job.
  It seems to me it would be good for us rather than spending 30 hours 
plus on 4 people and not a single vote has been changed--4 people who 
have jobs, good jobs--that we would spend some time talking about how 
to create more jobs, thirty hours of debate here in the Senate about 
programs.
  For example, I think what we should have is an infrastructure 
development program where the Federal Government is involved in putting 
out money so the contracts can be let in the private sector so 
companies can build roads, they can build dams, they can build bridges, 
they can do water systems, sewer plants. We could spend some time here 
debating where it should go and how much we should spend. We know for 
every $1 billion spent, we would create 47,000 jobs as compared to 
2,833 Americans who have lost jobs in the last 30 hours--47,000 high-
paying jobs. Of course, the spinoff from these jobs would be 
significant and magnificent.

  As I indicated, 2,833 people have lost their jobs in the last 30 
hours. The four people who have been dwelled on by the majority have 
jobs--good jobs. Who are the people who have lost their jobs? I have 
already talked about parents, single parents, families. It is really 
sad to understand that 2,833 people are going to have to wait on 
average 5 months to find another job.
  During the last 30 hours, 8,698 people have lost their health 
insurance.
  A man flew in from Arizona to meet with me today. He graduated from 
Utah State University where I did. He was a star football player at 
Utah State University. He is a big man physically and a big man 
emotionally. He flew back here because he is now a physician. He is 
terribly concerned about the 8,698 people who have lost their health 
insurance. He understands what it means for people to come to him and 
have no health insurance. He talked to me and my staff about what we 
can do about it. He felt so strongly about it that he came back and 
talked to me.

[[Page S14716]]

  How does a mother feel, how does a father feel, who have children or 
no children, how do they feel going to bed at night recognizing if 
something happens to them or their family, they have no health 
insurance. What do they do? They do not get the treatment and care they 
need. They only go when something desperate has happened to them. An 
automobile accident, they go to the emergency room. Preventive care, 
forget about it. During the last 30 hours, 8,698 people have lost their 
health insurance. I think we should talk about that. We need to do 
something about that. There are 44 million Americans who have no health 
insurance.
  In addition to 44 million people who have no health insurance, there 
are millions of people who are underinsured, meaning they have 
insurance but it isn't very good. That is what I talked about today 
among other things with my friend from Utah State University, a 
wonderful man, who is a young physician who cares about his community 
and his country.
  We have 44 million Americans with no health insurance, and we are 
here, and we have been here for the last many hours talking about four 
people who not only have jobs but they have health insurance. Every one 
of the four have health insurance. And they have jobs.
  What does it mean not to have a job? Does it take away someone's 
dignity? Does it cause divorce, dissension? Does it cause kids not to 
be able to go to school, to college? Of course it does. Does it cause 
crime? Of course it does. Does it cause our welfare rolls to go up? Of 
course it does.
  But the 4, the 168 to 4, those 4 have jobs. They have health 
insurance. Why are we not here talking for 30 hours of constructive 
debate about doing something in this Nation about health insurance so 
people when they get sick can go to a doctor, people when they need 
preventive care can get it. In the long run it would save the country 
lots of money.
  In the last 30 hours, the trade deficit of this country has gone up 
$300 million. In 30 hours, the trade deficit has gone up $300 million. 
What does that mean? It means we have bought more into this country and 
sold less outside our country to the tune of $300 million. That is not 
good.
  I have heard my friend from North Dakota, Senator Byron Dorgan, give 
lectures in this Senate about the need to do something about our trade 
policies because the trade deficit continues to rise, causing this 
country lots of problems. We are doing nothing about it. We have a 
trade deficit with China. They jiggle their money, and it is 
continuing. We are afraid to take that issue up here.
  My friend, the distinguished Senator from New York, Mr. Schumer, has 
attempted on several occasions to bring forth an amendment to stop the 
Chinese from playing with the numbers so that the trade deficit 
continues. But we have been unable to do that. Why? Because we are 
talking about four people who have jobs, who have health insurance, and 
could care less about the trade deficit.
  In the last 30 hours, focusing away from some problems that to some 
may not seem important--the trade deficit--we could talk about 
something that is real important. During the last 30 hours when we have 
been here talking about four people who have jobs, who have health 
insurance, and who have nothing to do directly with the trade deficit 
but are keeping us from talking about it, during that 30 hours the food 
stamp rolls in this country have gone up by 6,237. During the last 30 
hours, 6,237 desperate people have signed up for food stamps saying, in 
effect: We are hungry. Government, will you help us buy food for our 
families? We have never done it before. But these are new people 
signing up for food stamps.
  I could say without any qualms or reservations, the four people I 
have talked about here tonight and the majority has talked about here 
for a long time, they have not lost their jobs. They have not lost 
health insurance. They don't even have to consider food stamps. But 
wouldn't it be good for us as a nation to spend some time talking about 
food stamps?
  I can remember when I was a new Senator, the great Senator Pat 
Moynihan--his chair was right back there. There was a vote going on 
about the homeless. Senator Moynihan said to me: We have helped create 
the homeless by Federal policies where we have, in effect, emptied out 
our mental institutions, but we have done nothing to have community 
health centers. A lot of the people who are homeless are people who 
need medical attention.
  Well, food stamps, we need to do something about that.
  About poor people, in America today, as sad as it seems, the rich are 
getting richer. The rich are doing fine. The wealthy are doing fine. 
The elite of America are doing great. The poor are doing real bad. The 
middle class is narrowing all the time. We need as a nation to figure 
something out to do something about that. We don't want to live in 
America like many countries where you have the rich and the poor and no 
middle class. Why don't we spend 30 hours doing that? Not spending 30 
hours talking about four people who are well educated, have jobs, have 
health insurance, are not on food stamps.
  During the last 30 hours, when we have been here in the Senate 
talking about these four people, we have had in America 36 mass 
layoffs. Employers have had 36 experiences where they said: We have to 
lay off more than 50 people. A mass layoff, by Department of Labor 
standards, is more than 50 people. During the last 30 hours, we have 
had 36 of those.
  Why are we having so much trouble in America today keeping people 
working? Why is it taking so long for people who lose a job to find a 
job? I would think this Nation would be better served talking about 
jobs, not about four people who have jobs, who have health insurance, 
who are not on food stamps, who have not been part of a mass layoff in 
the last 30 hours.
  On this Senate floor, during these last 30 hours, there have been 
seven attempts by the minority to extend unemployment benefits for 
people whose unemployment benefits have run out. Is that important? 
During the last 30 hours, while we have been here talking about four 
people who have jobs, who have health insurance, who are not on food 
stamps, who have not been part of mass layoffs, 13,194 people have had 
their unemployment benefits run out. The people who have lost 
unemployment benefits are real. These are not statistics that somebody 
made up.
  Let me read to you a letter I received from a woman in Las Vegas, NV. 
We will just call her Margo. I won't give her full name. She writes, 
October 10, 2003:

       Dear Senator Reid:
       On July 2, 2003 I became a displaced airline worker after 
     38 years as a TWA (now American Airlines) Flight Attendant. 
     As a result of union concessions given to American Airlines, 
     I received no severance pay.
       My Unemployment Benefits will expire on January 2, 2004.
       Congress has passed new legislation which made December 28, 
     2003 the cut-off day for Temporary Extended Unemployment 
     Compensation. After that date, there will be no more 
     extensions. I will miss the deadline for Extended 
     Unemployment Benefits by 5 days.
       I am a single woman and a sole supporter. I have no skills 
     applicable to this difficult job market and my age makes an 
     already bad job market even more limited. It will take time 
     to learn skills and find a suitable job. Extended 
     Unemployment Benefits will be needed for my very survival.
       I ask you--

  She has it in bold type--

     to please support S1708--

  The one we have tried to move seven times to the floor in the last 2 
days, objected to by the majority--

     which will extend the TEUC [benefits] and provide additional 
     Unemployment Benefits to those who cannot find jobs.

  This is a real person. This is not someone who is made up. This is 
descriptive of the 13,194 people who, during the last 30 hours, have 
lost their unemployment benefits. That is sad.
  I have another letter here from another woman. I will read the last 
paragraph:

       I am not writing this letter to get a hand out or sympathy. 
     For every job that is open, 50 people apply. I have faith in 
     God that he has a perfect job for me and that he will provide 
     for us.

  I ask unanimous consent that these two letters be printed in the 
Record, and with the permission of the Chair, I would ask the clerk to 
block off the names because I have not spoken to them for permission to 
make their names public.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:


[[Page S14717]]


                                                    July 31, 2003.
     To: President George W. Bush, Congressman John Gibbons, 
         Senator Harry Reid.
     Re unemployment benefits.
       Gentlemen: I really don't expect that any of you will 
     actually read this letter. It will probably go to an aide and 
     if I am lucky I may get a response. So why I am writing this 
     letter? Because there are many other people in this country 
     who are unemployed and have run out of unemployment benefits. 
     Man people like me, feel that writing a letter like this is a 
     waste of time. Many have no hope, but I believe that one 
     person's voice can make a difference.
       I live in a small community in Northern Nevada. There are 
     at least 50 people applying for every job opening. We have 
     thought about moving to other cities, but the job market is 
     tight every where. My husband is disabled and receives a 
     small social security check each month. It pays all but $15 
     of our first mortgage on our house. I have to supply the 
     money to pay a second mortgage and all of our living 
     expenses. Three years ago we had to file for bankruptcy. With 
     a job and a new start we have been rebuilding our credit, but 
     have not been able to refinance our home.
       In December of 2001 I had to quit my job. I quit for cause. 
     My doctor wrote a letter and I was eligible for unemployment 
     benefits. Less than 6 months after I left that company, the 
     position that I had held for 6 years was eliminated company 
     wide. Some people moved up into management, but many were 
     laid off. It took me five and a half months to find a job. My 
     training and experience has mostly been in the accounting 
     field. I took a job as an outside sales rep. for an office 
     supply company, because that was what was available. The job 
     lasted 8 months. Then the company that I was working for 
     updated their computer system to make it easier to purchase 
     items off an internet web site. As a result they laid off 
     some sales people including me.
       Here in lies the problem. Because I was on unemployment 
     from January to June 2002 it affected my base period for 
     benefits. When I got laid off on March 2003 I was only 
     eligible for 13 weeks of unemployment benefits not the full 
     26 weeks. My lack of employment in the base period was not by 
     choice. I was on unemployment, but because I was on 
     unemployment and had no job earnings it shortened the amount 
     of weeks that I was eligible for benefits. When I applied for 
     the federal extension the same thing happened. I was eligible 
     for 7 weeks not 13 weeks. I have sent out hundreds of resumes 
     with little response.
       I am not writing this letter to get a hand out or sympathy. 
     I have faith in God that He has the perfect job for me and 
     that He will provide for us. There are many thousands of 
     people who do not have this hope. They have been laid off 
     multiple times, and were eligible for little or no benefits. 
     I have friends that were laid off over a year ago and are 
     still trying to find work. Unemployment should not be a free 
     ride. There has to be a limit on benefits or it would turn 
     into another welfare situation. People would get on it and 
     have no incentive to better themselves and get off it. But 
     the way the current system is setup, it paralyzes people who 
     have been laid off multiple times over several years. All I 
     am asking is that people, who are truly trying to find work, 
     get a fair chance to provide for their families while they 
     seek employment. I would work a part-time job or 2 part-time 
     jobs in lieu of a full-time job if I could find them. So the 
     solution is two fold. Get the economy going so that people 
     like me can find a decent paying job or jobs. And revise the 
     current system so as not to penalize people who have already 
     gone through one or more layoffs in a short period of time.
       Gentlemen, this is the greatest country in the world. The 
     middle class needs a break. I don't want a free ride. I just 
     want a job or jobs that will supply the basic needs for our 
     family.
                                  ____

                                                 October 10, 2003.
     Hon. Harry Reid,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Reid: On July 2, 2003 I became a displaced 
     airline worker after 38 years as a TWA (now American 
     Airlines) Flight Attendant. As a result of union concessions 
     given to American Airlines prior to my furlough, I received 
     no severance pay.
       My Unemployment Benefits will expire on January 2, 2004.
       Congress has passed new legislation which made December 28, 
     2003 the cut-off date for Temporary Extended Unemployment 
     Compensation (TEUC). After that date, there will be no more 
     TEUC extensions. I will miss the deadline for Extended 
     Unemployment Benefits by 5 days.
       I am a single woman and sole supporter. I have no skills 
     applicable to this difficult job market and my age makes an 
     already bad job market even more limited. It will take time 
     to learn skills and find a suitable job. Extended 
     Unemployment Benefits will be needed for my very survival.
       I ASK YOU TO PLEASE SUPPORT SENATE BILL S. 1708 which will 
     extend the TEUC bill and provide additional Unemployment 
     Benefits to those of us who cannot find jobs.
       Thank you for your consideration in this matter.
           Respectfully submitted.

  Mr. REID. I would also say that this woman says she would take two 
jobs at minimum wage just to make things work. She has a husband who is 
disabled. That is what this is all about.
  We know that during the last 30 hours people in America have had some 
problems. Two thousand eight hundred thirty-three people have lost 
their jobs; 8,698 have lost health insurance; food stamps increased by 
6,237; the trade deficit has gone up $300 million; 36 mass layoffs, 
13,194 people lost their unemployment.
  During the last 30 hours, we have 65,357 people who applied for 
unemployment benefits for the first time. We have had, during this 30 
hours, desperate people; 5,137 people have filed for bankruptcy.
  I did general practice. I have had interviews with people who told me 
they had no choice but to file bankruptcy. Usually it is some problem 
with medical expenses, but these people are desperate. We don't have a 
bunch of deadbeats out there. We don't have 5,137 deadbeats. We have 
5,137 desperate people.
  What are we talking about here? Not doing something about the 
bankruptcy law when we came that close to passing it. There was one 
provision in it that because of the ideology of certain people it 
didn't pass. We came so close to reforming the bankruptcy law which 
would have helped a lot of these people. We should spend some time on 
bankruptcy.
  I have talked to the distinguished senior Senator from Iowa on many 
occasions about the need to do something about this. And by the way, he 
is a Republican. We need to do something about it. But what are we 
doing? Spending 30 hours talking about people who have jobs. They have 
not lost their health insurance. They are not drawing food stamps. They 
have not been part of mass layoffs. They have certainly not lost their 
unemployment. They have not had to file for unemployment benefits for 
the first time, and they have not had to file for bankruptcy.
  During the last 30 hours, to get real personal about this, 80 people 
have committed suicide. While we have been here talking about these 4 
people, 80 people in America have killed themselves. These are real 
people. The distinguished junior Senator from Oregon lost a 22-year-old 
son about 2 months ago as a result of suicide. In this Senate Chamber, 
there are lots of people who have suffered as a result of suicide. My 
father killed himself.
  We need to learn more about suicide. More than 31,000 people in 
America a year kill themselves. We don't know why. It is one of the 
leading causes of death for teenagers. Why are we spending time on 
these four people? Why couldn't we spend 30 hours trying to find out 
why people kill themselves? We don't know. And we, as a Congress, have 
trouble even having a hearing on it. The first hearing on this was held 
less than 10 years ago. We have done a little since then but not very 
much. There are desperate people out there trying to decide are they 
going to kill themselves today.
  I met up here in my office today with a prominent person, a prominent 
name in Washington, DC. She proceeded to tell me when she was 17 years 
old she tried to kill herself. She took a lot of pills. She described 
to me how she believed she went to the other side and came back. This 
isn't some nut. This is a good friend, someone who a lot of people 
know, a wonderful person. We need to learn more about suicide. But we 
are not going to do it talking about these four people, these four 
people who have jobs, who have health insurance, who are not on food 
stamps, who have not been part of mass layoffs, who have not filed for 
unemployment benefits or bankruptcy.

  During the last 30 hours--and this is very difficult to comprehend--
during the last 30 hours, 10,000 people have died in Africa because of 
AIDS; 10,000 people in 30 hours have died in one continent because of 
AIDS; 70,000 people in a week. There are no vacations. Christmastime, 
Thanksgiving, Easter, it doesn't matter, they keep dying. What about a 
debate for 30 hours recognizing what we can do to approach the needs of 
this worldwide problem which has an affect on America?
  During the last 30 hours, Nasiriyah, Iraq, a suicide bomber, 31 
killed; during the last 30 hours in Baghdad, Iraq, 2 of the 1st Armored 
Division killed; during the last 30 hours in Iraq, 37 attacks by 
terrorists, many of our troops not dead but injured; during the last 30 
hours,

[[Page S14718]]

seven funerals of American servicemen killed in a helicopter downing in 
Iraq, seven funerals.
  I understand how strongly people feel about these four people. I know 
how strongly people feel about this. But as I said yesterday, I don't 
in any way suggest we are wrong. I believe as strongly as I can that we 
have done the best thing for America in turning down these people who 
would be bad for the judiciary.
  I have been to juries lots of times. I have tried over 100 cases with 
juries. I have the greatest respect for our justice system. I have 
tremendous respect for judges who try cases themselves. But I also have 
some idea in my own mind, having been a trial lawyer, how important it 
is to have good people on the bench, especially the Federal bench. 
These are appointments for life. I think no matter how strongly people 
feel about this issue, and assuming for purposes of this discussion 
that we are wrong, which I disagree, but let's assume for purposes of 
discussion, don't you think we have carried this thing a little too 
far? Don't you think the same points could be made?
  I have tremendous respect for my friend from South Carolina. I sat 
right here, just like this, scared to death 5 years ago. It was the 
first time I had ever sat this close, first time I ever had the job as 
the assistant leader of the Democrats. I was afraid to be here. The 
first big thing was the impeachment trial of the President of the 
United States. The Senator from South Carolina was one of the managers. 
He is a fine lawyer. I have great respect for him. He is a man of 
courage. He breaks from his party on occasion. I admire him for that.
  But I say to my friend, I think we have made our points. I mean, you 
make a good case. But for Heaven's sake, everything has been said by 
your side, and everybody has said it. On our side, I think everything 
has been said, and everybody has said it.
  Enough is enough. I think during the last 30 hours we could have been 
discussing issues that are more important, such as jobs, not the four 
people who have jobs, who have health insurance, who have not had to go 
on food stamps, who have not been part of mass layoffs. They have not 
lost unemployment benefits. They haven't had to file bankruptcy. There 
are just so many problems we need to deal with that we have not done 
because of these 30 hours.
  I say to my friends, we have had an equal discussion. I think that is 
good, that the two leaders worked that out, because it could have been 
a real nasty situation here without allocating the time in a balanced 
fashion. Maybe history books will look at this as something that has 
been important to the country. I hope so. But I have my doubts.

  I think the more important issues are not those dealing with these 
four people. The more important issues are those dealing with the 
personal lives of other than those four people.
  I would ask that we recognize that. I know the content of the 
character of the Senator from South Carolina who is leading the debate 
on the other side. I know he will lead a civil debate. I appreciate 
that. But I just say: Why don't we all just wrap it up and go home. 
Come back and vote at 8:30. That is what the schedule is anyway. I 
think that would be better for the whole body.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. REID. Whatever time we have remaining, I yield to the majority.
  The PRESIDING OFFICER. Time is yielded back from the minority side. 
The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I have great respect for the Senator from 
Nevada and the deep concerns he has for a range of problems and 
concerns that he talked about. They are real. We are talking about more 
than just four people. We have to recognize that. It is not just about 
four people. For people who were confirmed and should be confirmed as 
court of appeals judges, we will have a tremendous impact on the lives 
of the folks about whom the Senator from Nevada was talking. That is 
what the courts do. It is not a personal thing. This is not a measure 
of whether these nominees have jobs, don't have jobs. It doesn't take 
away from anyone else. This is about the third leg of the stool of 
Government: legislative branch, we are part of that; executive branch; 
and judicial. Those are the three legs of the stool that uphold the 
system we have.

  It is not about four people. The Senator is right. There are so many 
important issues to talk about, such as AIDS. I came back from a trip 
to Africa with the majority leader and a group of my colleagues. We saw 
the devastation and destruction. We were in South Africa where 5 
million people are HIV positive, and 20,000 of them on treatment. We 
looked into the eyes of people who were dying and into the eyes of the 
doctors treating them. We are doing stuff about that; we are acting. We 
passed in this body a bill that provides over $2 billion--$2.4 billion, 
and you add in our commitment to the global fund. The President made a 
commitment of $15 billion, which is unprecedented, and overwhelmingly 
we are acting on it.
  It is not enough to simply lay out a litany of problems. Maybe I am 
more of an optimist and a realist. My favorite quote is from the first 
Prime Minister to serve Israel, who said that anybody who doesn't 
believe in miracles is a realist. Goodness gracious, the world is not 
falling apart. There is a lot of hope and optimism. It is not just 
enough to talk about problems, as my colleagues on the other side of 
the aisle do. We can talk about the economy and jobs. What are you 
doing about it? That is the question. What is the plan? Their plan has 
been to roll back the President's tax cut. That is what their nominees 
for President are talking about--rolling back the tax breaks we are 
giving to moms and dads, that we are giving to small business, 
accelerating depreciation, increasing the opportunity to expense 
capital investment to generate more investment. The latest survey shows 
that business investment is up by 15 percent. So it is not simply to 
lay out a litany of woes, how terrible the world is. What are you going 
to do about it?
  That is what my colleague from South Carolina and I talked about in 
our campaigns. We want to do something about it. It is not enough to 
lay out just how the sky is falling and how the world is falling apart. 
We are trying to do things here.
  We will have time to debate the economy. We have debated it, and we 
passed the third largest tax cut in the history of this country. And 
what do you see? The GDP is estimated at 7.2 percent, down in the third 
quarter of 2003. Employment increased by 126,000 in October, while the 
number of jobs added in September was revised to 125,000 from the 
previous estimate of 57,000. The unemployment rate decreased from 6.1 
percent in September to 6 percent. It is still too high but it is 
decreasing. There is a downward trend in jobless claims. The stock 
market, on November 3, jumped to a new 17-month high. We have trillions 
of dollars of new investment in this economy.
  The tax cuts we passed here, which were opposed by our friends across 
the aisle, are responsible for the accelerated growth in opportunity. 
Spending by businesses grew at an annual rate of 11.1 percent in the 
third quarter, following an impressive 7.3-percent gain in the second 
quarter. Again, these are things we have done that have encouraged 
investment and, in the end, generated opportunity and are generating 
jobs. That is what it is all about. We have a ways to go, absolutely. 
But it is not enough just to lay out the litany of how terrible things 
are. What are you going to do about it? One of the things we do about 
it is why this debate is important--it is to make sure we have a strong 
Government, that we have a strong judiciary. That is what this is 
about.

  The fact is, when the President of the United States has 30 percent 
of his circuit court judges and court of appeals judges filibustered, 
it is unprecedented in 214 years of the history of this country, and it 
is wrong. The fact is, we should talk about upholding the Constitution.
  I am a former solicitor general in Minnesota. I had the opportunity 
to argue before the highest court of my State many times. I have great 
love and appreciation for its constitution and history, and it is 
important. To the person who is unemployed and is getting a job, that 
is important.
  I say to that person that I am committed to doing everything I can, 
with every breath that I have, to make sure

[[Page S14719]]

you have opportunity. I am going to do that. At the same time, we have 
the ability to do more than one thing at a time in this body. I can 
tell you, we are debating at 1 in the morning, but to those listening, 
I hope this is an educational experience.
  Let's talk about the Constitution now. By the way, to my friends 
across the aisle, I noted his conversation with the doctor from Utah 
State, that he was concerned about health insurance, as he should be. 
One of the keys to getting health insurance is jobs, small business. 
The things that we have done to generate new investment and grow jobs, 
that helps people get health insurance. I ask my colleague, the 
distinguished minority leader, assistant minority leader, whether the 
doctor talked to him about medical malpractice, whether he talked to 
him about the impact that medical malpractice has on his ability to 
practice and to provide quality health care. The cost of that, by the 
way, on businesses makes it more difficult for them to grow jobs. That 
is another issue that was filibustered by our friends across the aisle.
  I think we came within a vote or two on class actions--within a vote 
of changing that. The fact is, it is not enough just to talk about it. 
So it is important to talk about the Constitution. That is what we are 
going to do.
  The fact is that all of us, when we got sworn in, raised our hands 
and swore to uphold it. The Congressional Oath of Office is: I solemnly 
swear that I will support and defend the Constitution of the United 
State against all enemies, foreign or domestic, that I will bear true 
faith and allegiance to the same, that I take this obligation freely, 
without any mental reservation or purpose of evasion and that I will 
well and faithfully discharge the duties of the office upon which I am 
about to enter, so help me God.
  That is a pretty strong commitment. It is not a partial commitment. 
It is not a 98-percent commitment, and it sure as heck isn't a 70-
percent commitment. That is what we are dealing with today. My 
colleagues seem proud of that. You are even using the 98-percent 
figure.
  Again, the reality is we are dealing with circuit court judges, and 
close to 30 percent have not been confirmed and have been filibustered. 
The fact is that right now it is four but tomorrow it will be six. We 
know the other six are there. Unless my friends from across the aisle 
would say we are not going to filibuster another six, I will run the 
names by them. We will change the chart and say something different. We 
all know the reality. Let's lay it out here at 1:10 in the morning.

  Twenty-nine nominees were confirmed and 12 were not. Just think, if 
we took the approach that it is not important, you know, 98 percent--as 
I said before on the floor, if the airline that got me to St. Paul told 
me that I had a 98-percent chance of getting there and a 2-percent 
chance I would crash, I would not be flying.
  The Constitution is wonderful. The first amendment says:

       Congress shall make no law respecting an establishment of 
     religion, or prohibiting the free exercise thereof; or 
     abridging the freedom of speech, or of the press; or the 
     right of the people to peacably assemble, and to petition the 
     Government for a redress of grievance.

  I want those listening to think why is it that in the 214 years of 
the history of this great Republic, this great country, the Senate has 
not done what we are doing now. We are changing the system. It is very 
dangerous.
  The second amendment says:

       A well regulated Militia, being necessary to the security 
     of a free State, the right of the people to keep and bear 
     Arms, not be infringed.

  Minnesotans are pretty strong about the second amendment. We like to 
hunt and we like our firearms. That is OK. Imagine if I went to a group 
of 172 using my colleagues' chart and said 168 of you are going to have 
the second amendment, or if I went to 41 and said we are going to give 
these rights to 29 of you. There would be a revolution.
  The third amendment says:

       No Soldier shall, in time of peace be quartered in any 
     house, without the consent of the Owner, nor in time of war, 
     but in a manner to be prescribed by law.

  Can you imagine if I went to 41 Minnesotans and said 29 of you are 
going to have a third amendment right, but 12 may be forced to quarter 
without your consent. I don't think they would do it. They would say, 
where is America? There is a reason why we have fidelity to the 
Constitution.
  The fourth amendment says:

       The right of people to be secure in their persons, houses, 
     papers, and effects, against unreasonable searches and 
     seizures.

  Can you imagine going to 41 Minnesotans and saying 29 of you will 
have the right not to be subjected to unreasonable search and seizure 
but 12 of you don't have that right? There would be a revolution. On 
and on.
  The fifth amendment talks about the right against self-incrimination.
  The sixth amendment says:

       In all criminal prosecutions, the accused shall enjoy the 
     right to a speedy and public trial, by an impartial jury of 
     the State and district wherein the crime shall have been 
     committed, which district shall have been previously 
     ascertained by law, and to be informed of the nature and 
     cause of the accusation; to be confronted with the witnesses 
     against him; to have compulsory process for obtaining 
     witnesses in his favor, and to have the Assistance of Counsel 
     for his defence.

  Can you imagine if out of 41 defendants, 29 were told you would have 
a right to speedy trial? Even if you told 168 they would have that 
right, but not the other 4, there would be a revolution.

  We are not just talking about four individuals here. We are talking 
about one of the foundations and the underpinnings of this Government.
  I tell the young people listening in the Chamber, this is your 
future. The greatness of this country is built on its fidelity to the 
constitutional principles. It has allowed us to kind of grow into the 
greatest nation in the world with the freedoms we enjoy, and those 
freedoms we have enjoyed have triggered great entrepreneurial 
opportunity--growing jobs. It is tied together and it is about growing 
jobs.
  You grow jobs when you have a constitution that is adhered to and you 
have stability. I am chairman of a subcommitte of the Foreign Relations 
Committee on which we both serve. I can tell you that the concerns I 
have about some of the countries in Latin America have to do with 
whether they have rule of law. The reality is, if there is no rule of 
law, we see there is no investment, you don't grow jobs. So they are 
related. They are related.
  In the end, I want to get away from just talking about the 
principles, these sorts of abstract constitutional principles. They are 
important and that is why we are here, because we must have fidelity 
there. We have to get things back in sync. We have to get away from 
this process, this unprecedented filibuster. By the way, those are not 
my words. Those are the words, as I understand it, of John Corzine, the 
chairman of the Democratic Senatorial Campaign Committee. In an e-mail 
he had--we have a chart here--it says:

       Senate Democrats have launched an unprecedented effort by 
     mounting filibusters against the Bush administration's most 
     radical nominees. Senate Democrats have led the effort to 
     save our courts.

  Unprecedented filibuster, that is what this is about. There has to be 
a better way. This is about being divisive. We have to get away from 
divisiveness, from everything being a battle. We have to get back to a 
fidelity to the principles that founded this great country. They are 
pretty clear. You don't need a Ph.D. or a law degree to understand the 
Constitution. It is pretty clear, pretty easy reading.
  So that is what this is about today. In the end, it is not simply 
about four people; it is not about whether they have a job. It is 
whether, in fact, we uphold the obligation that we have, that we do our 
duty, that we do our job. In the end, we should simply give people a 
vote. If you think that they are good nominees, vote for them. If you 
think they are bad nominees, vote against them. But you give them a 
vote. That is what we have done for over 200 years. To fail to do that 
will have terrible consequences.
  One last story before I turn the floor over to my colleague from 
South Carolina. It is about this building and a little bit of history 
from a number of years ago. There is an old Senate Chamber down the 
hall. When you walk out of here, it is maybe about 50 yards away. When 
we get sworn in in here in the official ceremony, we then have a 
ceremonial picture taking with the Vice President. It is a very special 
moment for all of us, especially for kids from humble roots. I am one 
of 8 kids,

[[Page S14720]]

and to have my mom and dad there was very special.
  In that old Senate Chamber, in the old days the Supreme Court 
actually operated on the floor above the Senate. At one time, they were 
planning on remodeling the Supreme Court chambers. Some enterprising 
young architect decided that one of the pillars that was kind of 
holding it up didn't need to be there. So they said don't worry about 
that. What happened was that the Supreme Court crashed into the Senate, 
disrupting its work.

  There is a moral to that story. If you displace or undermine one of 
the pillars of Government, which is what we are doing here, beware of 
the consequences. We cannot let that happen. These nominees--100 
percent of them--deserve what we have done for 214 years: give them a 
vote, vote them up, vote them down, but give them a vote.
  With that, I yield the floor to my colleague from South Carolina.
  Mr. GRAHAM. I thank the Senator. The Senator did an excellent job of 
trying to put into perspective what we are trying to do. Senator Reid 
from Nevada has left. If anybody deserves a break, he does. A couple of 
days ago, he spent about 8 hours-plus on the floor trying to prevent 
some legislation from coming forward that he thought was inappropriate. 
He was committed to making sure that the activity of the Senate did not 
go forward. He used his right as a Senator to speak. I applaud him for 
that. I don't agree with him, but the worst thing I think I can say 
about Senator Reid is that sometimes I disagree with him. He is a very 
nice man. I have enjoyed getting to know him over the years and serving 
with him. I appreciate the nice things he said about me.
  The point is that we disagree on this, and I don't question his 
motivation. I just question the judgment of what we are doing here. He 
described the United States problems in very graphic terms. God knows 
we have problems in this country, but I think it was used to try to 
illustrate or trivialize what we are doing tonight. If we have all 
these problems, why are we talking about this? I don't think it is 
healthy to trivialize the constitutional process of nominating judges. 
Whatever problems we have in this country--and there are a lot of 
them--none are going to be made better by hijacking the Constitution. 
If you expect us to just lay down and forget about it, then you have 
mistaken who we are. If you feel strong enough to stand up for 8 hours 
to stop something from happening, God bless you; if you think other 
people are not going to do the same, you have made a huge mistake. We 
are going to talk until 9 o'clock and do other things.
  I announced today that if this doesn't change, I am going to ask the 
Supreme Court to decide whether or not the tactics of the minority have 
violated the Constitution, because I believe they have. If you are into 
numbers, I can tell you this. In the past 11 Presidents, on their 
judicial nominees confirmed versus those filibustered, we have had 
2,372 people confirmed. We have not had one person filibustered. Now we 
have 4, and in just a couple weeks we are going to have a dozen. Some 
things were said. If nothing changes, nothing will change.
  I can stand here, talk until I am blue in the face, and I have no 
illusions about my ability to change anybody's vote on the other side. 
I feel a real need to let history know, and my constituents back in 
South Carolina know, I think this is a lousy thing that is going on. I 
think this is a change for the worse, that you are taking the country 
down a road no other group has ever taken it in the Senate. You are 
doing it for political reasons you believe are just, but I think 
history is going to judge you poorly. I think it is going to be one of 
the darkest chapters in the history of the Senate. You have started 
something you can't stop, and most likely we will answer in kind down 
the road and you have taken 200 years of history and thrown it in a 
ditch. That is a big deal.
  There are a lot of problems in this country, but you are about to 
create one that is very bad. You are adding to that list of problems 
the fact the Constitution has been changed in a way I think is illegal. 
Certainly it violates the traditions of the Senate. And we have to deal 
with it and we are going to deal with it. We are going to talk about it 
and we are going to try to get you to vote and we are not going to let 
this go.
  I am going to ask the Supreme Court to look at this case that is 
going on before the Senate and see if the filibuster, requiring 60 
votes, violates the terms of the Constitution because the Constitution 
requires a simple majority vote to confirm a judge sent over by the 
President.
  Since we are going to have about 8 hours, I will save some of the 
time to talk about the history of the constitutional debate that went 
into that clause, why they picked a majority versus a two-thirds 
requirement that you have for ratifying treaties and impeaching the 
President. There is absolutely a rhyme and a reason for everything in 
this document.
  There is no rhyme or reason for what is going on now, other than 
politics of the moment.
  If you listen to Senator Reid, you would want to leave the country. I 
mean it is an assessment of the problems of the country, given to try 
to trivialize our objection to the Constitution being changed in an 
improper way. But it also is a distortion of who we are as Americans, 
because Americans, given all of our problems, are still the most 
hopeful people in the world. After listening to this rendition you 
would just wonder why everybody is not moving to Canada or Mexico.
  We are not leaving the country. Other people are trying to get into 
our country. One of the biggest problems we have that he did not talk 
about is illegal immigration. People are literally risking their lives 
to get to be part of the American dream.
  I would rather focus on some of the positive aspects of our country, 
one of them being a courtroom available to everybody and anybody, 
regardless of your status in life, where you can go have your day in 
court, and that requires a judge. Judges are picked by the President 
and confirmed by the Senate. The advice and consent clause for the 
Senate has never meant a minority telling the President what to do. It 
has always meant a vote on the nominee with a majority being required 
to put you on the bench, until now.
  Let's talk a little bit about some of these people, the four names. 
But there are many more affected by this than just four. This is the 
America I like to talk about, and relish.
  Justice Brown: Janice Rogers Brown is one of the four who is being 
filibustered. She sits on the California Supreme Court. Senator Schumer 
said she is out of the mainstream. She is not of the temperament and 
the thought process, in his opinion, that makes her a mainstream 
person, so she would do harm to the country if she served as a judge.
  President Bush disagrees with Senator Schumer because he chose her to 
go on the court of appeals. Senator Schumer has an obligation under the 
Constitution to give his advice and give his consent and eventually 
vote. He doesn't have the right, in my opinion, to band together with 
39 other Senators and bring us to a screeching halt. No one has ever 
done that before. It is called a filibuster. The number of filibusters 
in the last 11 Presidencies is zero up until now.
  Let me tell you a little bit about Justice Brown. No. 1, she lives in 
California and she got 76 percent of the vote. In California you get to 
vote on a judge. You get to decide. You, as a citizen, get to vote to 
retain a judge once they become a judge. You actually get to express 
yourself. I am going to go out on a limb here and say no rightwing nut 
is going to get 76 percent of the vote in California. I am going to 
stand firmly behind that statement. I don't believe 76 percent of the 
electorate in California would vote for somebody described as Senator 
Schumer has described this lady. I believe 76 percent of the people in 
California see Judge Brown like the President sees Judge Brown. This 
whole argument that she is somehow out of the mainstream just does not 
pass the smell test because the people of California get to vote on 
Justice Brown.
  We finally got a Republican Governor of California. Arnold is an 
interesting figure, Governor Schwartzenegger is a larger-than-life 
figure--literally. But I don't think anybody would ever accuse him of 
being a rightwing nut. California's political makeup is such that the 
person described by Senator Schumer

[[Page S14721]]

would never, ever make it. This is just one example of the cut-and-
paste job on all four of these judges, with more to follow.
  Let's talk about the America she came from. Only in this country can 
you do what Senator Coleman and myself have done. I grew up in a pool 
hall restaurant--beer joint is probably a more accurate term--and made 
it to the Senate. I am very proud of my parents. They worked hard. They 
are small business people. I feel I am the luckiest person in the 
world.
  She is the daughter of a sharecropper. She was not born in 
California; she was born in Greenville, AL in 1949. She attended 
segregated schools. I attended segregated schools up until I was in the 
sixth grade. I was born in 1955.
  I can remember, I think it was the sixth grade--about 1967, somewhere 
along that period of time--showing up and for the first time in my life 
having African-American students attend my class. It all worked well 
back home where I lived. In other parts of the State it was more 
dramatic. In Alabama it was more dramatic. This is the State where 
George Wallace stood in front of the door of the University of Alabama 
and said, No, you are not coming here if you are an African American. 
It took the Alabama National Guard, federalized by President Kennedy, 
to open that door.
  That is where she grew up. She talked about listening to her 
grandmother's stories about the NAACP lawyer Fred Gray, who defended 
Dr. Martin Luther King, Jr., and Rosa Parks, and her experiences as a 
child of the South, and that motivated her to become a lawyer.

  Senator Schumer said she is not very good on affirmative action. 
Maybe her view of affirmative action is not what Senator Schumer's view 
is, but I would argue if she was somehow in the right ditch on 
affirmative action, 76 percent of the people in California wouldn't 
have voted for her and somebody would have informed them otherwise.
  This lady's story is compelling. She moved to Sacramento when she was 
a teenager. She got a BA in economics from California State in 
Sacramento in 1974, her J.D. from the UCLA School of Law in 1977. She 
received an honorary doctor of law degree from Pepperdine University 
Law School, Catholic University of America School of Law, and 
Southwestern University School of law.
  Prior to more than 8 years as judge in the State courts, she served 
from 1991 to 1994 as the legal affairs secretary to California Governor 
Pete Wilson, another known rightwing crazy person, where she provided 
legal advice on litigation, legislation, and policy matters. From 1987 
to 1990 she served as deputy secretary and general counsel for the 
California Business, Transportation and Housing Agency, where she 
supervised the State banking, real estate, corporations, thrift, and 
insurance departments.
  She was deputy attorney general in the Office of the California 
Attorney General. She began her career as a legislative counsel of the 
California legislature and more will come about Justice Brown.
  The PRESIDING OFFICER. The time of the majority has expired. Who 
yields time? The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I was on the floor the second time 
yesterday, 4 or 5 in the afternoon. I observed, then, the time we 
devoted to this had already become excessive as indicated by the fact 
the statements being mailed were becoming increasingly repetitive and 
redundant. Now I see the added problem is, as we go even further, they 
become less and less factually correct and reliable, which is bad 
enough under normal circumstances. But the accusations that are being 
made are the most serious accusations that can be directed toward 
another Senator.
  One point of factual agreement is we all do take an oath of office 
when we are sworn in here in this Chamber by the Vice President of the 
United States and we do swear to uphold the Constitution of the United 
States. When I took that oath 3 years ago, that was the most solemn 
oath I have taken in my lifetime. There is nothing I ever committed to 
that I take more seriously, and I do my best, as I can possibly see to 
do so, to uphold that. I have never had occasion in my almost 3 years 
here to question or certainly not to cast aspersions on any other 
Member for failing to uphold that solemn oath as he or she believes it 
is best performed.
  We have information available to us through the Library of Congress 
and the Congressional Research Service that has been in existence since 
just about the time the country began. We use it as a learned and 
nonpartisan and, as much as possible, nonbiased source of information 
about the 216-year history of this body. It is not hard to get this 
information. You just pick up the phone and call and ask to get it. So 
I did the other day.
  They list the chronological history of efforts to limit debate in the 
Senate. It goes back to the Journals of the Constitutional Congress in 
1778. It references the very first session of the Senate in 1789, which 
started adopting these rules of various sorts. You can read, and over 
and over in the summaries, I am sure you can go back to the Journals 
and read in greater detail, how this has been discussed, considered, 
debated, argued, voted upon, modified, turned down by Members of this 
body for 216 years.

  When people are accusing us of acting outside the rules and the 
procedures of this body in doing what has been done here and debated 
about here for all that time, they either are woefully ignorant of the 
facts or they know the facts and they are being, I think, extremely 
irresponsible to the American people, if they have the misfortune to be 
watching this at this hour, to lead them to believe we are doing 
something here which is anything other than our right, well established 
in 216 years.
  If the Members on the other side want to disagree with what we are 
doing, or why we are doing it, or who we are doing it for or against, 
they are perfectly within their rights to do so. But to say we are 
violating the rules of this body is not true. To say we are violating 
the Constitution of the United States is a heinous fault and I will go 
with the Senator from South Carolina, I will join with him going to the 
courts of this country, right up to the Supreme Court and let's get the 
ruling he wants. Because I guarantee what it will be. Courts have ruled 
for the last 216 years the House and the Senate have the right under 
the Constitution to establish their own rules. That is what we have 
done. That is what this book is about.
  This book is 1,524 pages, called ``Senate Procedure.'' These are all 
the precedents and changes in the rules and modifications and the like. 
It only goes up to about 1992 because over the last 11 years the chief 
Parliamentarian, who is the editor of this book, hasn't had the time to 
add to it. There are probably another 500 pages or whatever that have 
not been added to this that are all the different precedents, all the 
different changes. Any time any one of us thinks anybody else here is 
acting in violation of those, we have somebody right there. Every 
minute we are in session we have somebody we can ask and get a factual 
answer, an impartial and nonpartisan answer, and that is the 
Parliamentarian.
  I ask the Parliamentarian if anything in these books for 216 years 
precludes our right to do what we are doing and if it is not within the 
rules of this body. I think it is shameful that anybody states 
otherwise.
  One important rule, in 1902, was adopted. Rule XIX was amended by 
inserting at the beginning of clause No. 2 the following:

       No Senator in debate shall, directly or indirectly, by any 
     form of words impute to another Senator or to other Senators 
     any conduct or motive unworthy or unbecoming a Senator.

  I can't think of any imputing of any conduct or motive more unworthy 
to a United States Senator than the violation of the U.S. Constitution, 
violation of the Constitution that we each took the oath of office to 
uphold. To do so without basis in fact is just beyond the pale.
  The Senator from Mississippi, the chairman from Mississippi, earlier 
today said he had his disagreements, he thought we should review these 
matters in the Rules Committee. I laud him for saying so. He doesn't 
have to agree with what we are doing. He has every right to disagree 
and he has every right as the chairman of the committee to go through 
that process and I welcome the opportunity for him to bring in 
constitutional scholars, the

[[Page S14722]]

Congressional Research Service, the Library of Congress authorities, 
and go through all this and consider other questions about whether the 
minority should be able to hold up the nominations of some 60 nominees 
of a President of the other party when they are in the majority; as the 
Senator from Florida suggested, whether these should be lifetime 
appointments. By the time he passed away, Thomas Jefferson was opining 
that they should not be, to the Federal judiciary.

  Let's get the facts. Let's ask the Library of Congress, the 
Congressional Research Service, to tell us if this is wrong. It's on 
their stationery that up until 1917, when the Senate first adopted a 
cloture rule, until 1949, I read directly:

     . . . cloture could be moved only on legislative measures and 
     nominations could not be subjected to cloture attempts.

  But then the Senate rule was changed, by the Senate. Following the 
rules and procedures of Senate they changed it so these steps could be 
taken with regard to nominations.
  I am on page 3, reading again exactly:

       Even after Senate rules began to permit cloture on 
     nominations, cloture was sought not until 1968 on a motion to 
     proceed to consider the nomination of Justice Abe Fortas 
     which was debated at length.

  Moving ahead:

       Cloture was sought on no other nomination until 1980. 
     Subsequent to 1980, of the 12 nominations on which cloture 
     occurred during the 103d Congress, ten were for executive 
     branch positions except in that Congress most nominations on 
     which cloture had been sought have been to judicial 
     positions.

  They have a table which says between 1967 and 2002 on judicial 
nominations cloture was invoked by the Senate 11 times; cloture was not 
invoked 6 times. Executive branch nominations, cloture was invoked 10 
times, not 8 times.
  It is pretty easy to get this information. If somebody thinks they 
are just making it up, they are wrong. They should make that case. But 
otherwise people are making up misrepresentations and misinformation. 
It is outright false. They are doing a great disservice to this body 
and to the credibility we all strive to maintain.
  One of our predecessors from Minnesota, a man I worked for back in 
1975 as a legislative aide, Walter Mondale, former attorney general of 
Minnesota, served for 11 years as a Senator. He said one of his 
proudest accomplishments was modifying the procedures under rule XX 
from two-thirds to three-fifths of Senators. On behalf of the change, 
Senator Mondale said at the time as sponsor of this resolution the 
proposal was a reasonable accommodation of the right to debate and the 
right to decide. We believe this might be harmonized in such a way as 
to protect action.
  Anybody in this body has a perfect right to disagree with that 
statement by Senator Mondale with the actions of the majority of his 
colleagues in that session to make this modification and to leave this 
rule as it essentially is today. But to just imply it is a violation of 
the rules in what we are doing--implying we disrespect the body and the 
purpose of the established procedures and upholding the best interests 
of this country for 216 years--by people who have been here less than a 
year themselves I think is an abomination. Then to go beyond that and 
say we are in violation of our oath to uphold the Constitution of the 
United States is I think a disgrace.
  I yield to my colleague from New Jersey the balance of our time.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I thank the Senator from Minnesota. It 
is obvious he is outraged at the triviality that is being thrown out 
here about how we are violating our oath and violating our standards.
  Think about this. We are now in the 32nd hour of this talkathon on 
judicial nominations, brought to you by the Republican Party. I guess 
the first 30 hours were so successful they decided to extend the hours. 
But instead of helping anyone promoting a good cause, Republicans are 
using this staged event to push for job applicants who are unfit to 
take the job. They are unfit, they are unqualified, they have shown 
they are likely to abuse their authority as circuit court judges who 
advance an extreme rightwing agenda and not in the best interests of 
America.
  The Republicans so desperately wanted this talkathon to be a made-
for-television movie they attempted to coordinate their efforts with 
FOX News, the providers of fair and balanced Republican television. It 
comes from the distinguished majority leader's office, one of his staff 
people. It says: ``It is important to double your efforts to get your 
boss to S. 230 on time. FOX News channel is really excited about this 
marathon. Brit Hume at 6 would love to open with all of our 51 Senators 
walking onto the floor. The producer wants to know we will walk in 
exactly at 6:02 when the show starts so they can get it live to open 
Brit Hume's show. If not, can we give them an exact time for the walk 
in start?''
  That hardly sounds like a sincere effort to me to get something done.
  I hear the outrage about how we are playing politics on this side. 
What is this? If that is not raw production, I have never seen it. Line 
up. I wonder if the suit colors and ties were described at the same 
time. It is good to see a bunch of penguins walking down here 51 deep.
  FOX News presents--it says 30 hours. They made a mistake. They didn't 
know how enjoyable this was, that we were going to go on with this.
  The passions are so high there are things said that are just not 
accurate.
  I point to this hallowed document, Senate Manual, which talks about 
the Constitution of the United States. It is part of the book. It talks 
about the powers of the President. He ``shall have power by and with 
the advice and consent of the Senate to make treaties et cetera 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 United States.''
  Advise and consent--it doesn't say consent and advise. It doesn't say 
just approve them and we will talk about it later. We are maintaining 
our responsibility to the Constitution to a ``t''. It is our friends 
who want to ride roughshod over it and perhaps maybe find another way 
to curtail the appropriate dissent of the minority as has been 
evidenced so many times in the past.
  I think about what is going on here after a visit I made yesterday 
along with others to Walter Reed Hospital, and I met a young man there. 
I knew he was in a ward in an area--a single room but in an area where 
the amputees are cared for. I didn't want to really inspect him with my 
eyes. I reached out my hand to shake his hand, and I wound up feeling a 
cloth and nothing in the cloth. His hand was missing. On the other side 
his arm was missing. He is about 23 years old, full of life. My guess 
is 23. I know he is young. He was positive and said, I am going to get 
on with this. We had the good fortune to have former Senator Max 
Cleland from Georgia who lost three limbs in Vietnam and was made out 
to be unpatriotic in the last election. Figure that one out. But he had 
the good judgment to ride in there in his wheelchair and look at this 
young fellow who had been, by the way, 3 weeks in Iraq, and about 4 
months in the Reserve; no hand on either side, and no arm on one side. 
He told this young man, Have courage. There is life for you. And then 
he gets visited by Danny Inouye, Congressional Medal of Honor winner, 
missing an arm. He comes in to say to this young fellow, There is life 
out there. You can accomplish something.

  And here we stand on this nonsense. Why aren't we talking about what 
the problems are in Iraq and how we solve them?
  Let me read to my friends on the Republican side what a very 
distinguished Republican Senator said, John McCain. Few had his 
experience in military matters in a war. He said:

       The Pentagon's proposed withdrawal of U.S. troops in Iraq 
     would be an irrational move. ``If anything,'' said McCain, a 
     senior member of the Senate Armed Services Committee and an 
     outspoken critic of the administration's postwar policies in 
     Iraq, ``the United States needs to increase its troop 
     presence in Iraq, specifically special forces and Arabic-
     speaking intelligence officers. The attacks are up. The 
     wounded Americans are up. Killed Americans are up, and the 
     Pentagon announced a withdrawal or decrease in the number of 
     American troops. It is not reasonable or rationale,'' says 
     John McCain.

  I agree with him. Why aren't we discussing that? Why aren't we having 
a marathon, 30-hour marathon, and talking about the war, talking about 
what

[[Page S14723]]

is going on and talking about what we do to make it easier on those to 
make them safer, and send the 10,000 or 20,000 additional troops John 
McCain says are necessary and I believe are necessary? I am no military 
expert. I spent 3 years in the Army. I was a corporal during World War 
II. But I know we need more there. We have to help our troops.
  Do not talk about whether we are violating the Constitution. Where is 
your oath? Is it in your heart? It is the process we are talking about. 
Go to the Supreme Court and have a great trip. We will escort you 
there. Take and read the Constitution--just like you can, just like I 
can. Forgive me--just like the Senator from South Carolina can.
  That is what we ought to be talking about and not talking in front of 
the American people about the process and about how fair we have to be 
with judges we think are unfit and we are going to talk about it. Just 
as we were threatened by the debate that went on, we are not going to 
go away, as I heard the Senator from South Carolina say. We are going 
to stay here. We are going to do this, and I am going to the Supreme 
Court. Have a good visit. The fact of the matter is it is very clear 
what our responsibilities are.
  I talked about my trip yesterday to Walter Reed. On Monday, I made a 
trip to the Sacred Heart Cathedral in Newark and watched a young man 
who was on a Chinook helicopter. By the way, the fellow I saw in Walter 
Reed was not the American amputee. The other fellow, burned, broken 
bones all over his body, he was in the Chinook helicopter also. It 
wasn't many days ago this fate befell them, and they were already in 
the hospital here.
  But Sergeant Joe Parez--25 years old, wife, little baby girl, mother, 
father, brothers--was buried at the Cathedral in Newark. He was one of 
the 16 who perished when the Chinook helicopter went down.
  We had a brief moment of conversation. I said we would try to be of 
help to the widow and the family. She is a very young woman totally 
overcome by the loss of her husband.
  This was a week for me that brought home reality. I saw it when I 
served in Europe during World War II, and I saw it here, and I saw it 
when I went to the hospital that took care of Vietnam veterans.
  There is a price, a terrible price people are being asked to pay. 
They are there. They are worried about their families. They are worried 
about their jobs. They are worried about this country. They are worried 
about how they are going to adjust back into society after being away 
too long. We are stretching this rubberband so tight. We have 
reservists who signed up for duty that included weekends and a couple 
of weeks a year out in field exercises. Their job primarily was to be 
there in the case of emergency, floods, natural disasters, riots, those 
kinds of things that happen. But we do not talk about those. As a 
matter of fact, what has happened here I find quite shocking is there 
is a deliberate attempt by this administration to conceal the fact that 
these dead guys are coming home in caskets, and they deserve the honor 
of being acknowledged and not hidden off in some obscure air terminal 
and shipped quietly in trucks to get them out of the way. Stand up, Mr. 
President, and stand up, my friends on the Republican side, and demand 
we have an inquiry about this instead of fooling around with 30 hours 
here to prove nothing.
  The Constitution tells you how it goes. Read it. Read it and tell the 
truth to the American public. Stop talking about politics because that 
is exactly what you are doing. You think the TV perhaps is going to get 
your brave message out to the rest of the country. Yes. Our heroes 
stood up and they stood up for a process. The rate, I think, is 
something like $80,000 an hour it costs to put on this not very good 
circus, I would say.
  I say to the critics on the other side, stand up, talk about things 
that affect people, tell us how we are going to get out of Iraq without 
losing more of our young people. We are over 400,000. There are far 
more casualties than we had in gulf war 1.
  I managed to be the first legislator to be there in 1990. We had 
540,000 people on the ground and we lost far fewer than we have lost in 
Iraq II. Why? Maybe we were better prepared. Why? Maybe we had enough 
people to make sure they couldn't maraud our troops and our units there 
and decimate them, and not only break their lives but break the hearts 
of the Americans across the country because they do not understand what 
is happening.
  This is a colossal waste of time. Face up to it. The minority 
disagrees with the selection. You have seen the statistics--168 to 4. I 
think the number is a very small percentage of those who have been 
challenged. More judges have been confirmed in this Senate than we saw 
in the entire years of the Clinton administration. We have done our 
job, and we have done it well. Tempers fly high. I think they ought to. 
I don't like losing my temper. But I dislike losing my mind.
  That is what is happening here. This is a loss of purpose. This is 
raw politics. To call it anything else is unfair and false. The 
Constitution says advise and consent. It doesn't say consent and 
advise. It says nothing in the Constitution, no matter how many 
attributions, that we have to lay down and simply accept what the 
President sends down. There are checks and balances, just as a 
reminder, in case one doesn't understand that. This is a perfect 
example of what it is about.

  No, we will not accept people who we think are unfit. This has not 
been an unreasonable Senate. We have done what we have to. We have 
watched appropriations bills language all over the place. We have seen 
there is hardly a serious long day of work to get the job done. But 
this falsely heroic effort to make a difference in the way our society 
functions is I think see-through politics. I think it is obvious what 
we are watching--someone called it theater. I call it a circus. It is 
not fair to the people we serve.
  I hope we will be able to get on with the business of the people 
soon. We have our votes tomorrow morning. I would like to see us turn 
to the war in Iraq and have a serious debate about it and hear from the 
high-posted officials, the Secretary of Defense, the National Security 
Adviser.
  I was at a briefing today. I don't know whether any of the other 
Senators here were in the room. It was a relatively junior staff 
presentation. The news didn't particularly have much insight attached 
to it. But we went to try to find out.
  We ought to make a pledge right now that we will do another 30 hours, 
maybe start tomorrow night and talk about the Iraq war, talk about our 
people, talk about how we are going to get them home and talk about how 
we are going to end it; talk about how we are going to justify to the 
American people why we are spending $20 billion for the reconstruction 
of Iraq but we can't rebuild schoolhouses filled with asbestos or 
otherwise.
  The PRESIDING OFFICER. The minority's time is expired.
  Mr. LAUTENBERG. I yield the floor.
  Mr. GRAHAM of South Carolina. Mr. President, I thank Senator 
Lautenberg for his services to this country. Serving in World War II is 
a big deal no matter your rank. My dad was a corporal, too. If you 
think it is a waste of time, have your say. This is a huge deal. The 
Democratic leadership and the members of the Democratic Party have set 
in motion something I don't know how to stop. I had a chart that says 
in the last 11 Presidencies we had 2,372 people confirmed and not one 
person filibustered. You decided to do something different. It bothers 
me as much as our response bothers you. The people being filibustered 
are very qualified people, in my opinion, and you certainly have your 
right to disagree.
  I don't believe the Constitution gives the minority of the Senate the 
right to advise and consent. We have 214 years of history where the 
advice and consent clause has been the Senate speaking as a majority. 
What hurts the most about the filibusters, which are unprecedented and 
are harmful to the country, is every nominee that is being filibustered 
by our friends on the other side has enough votes to become a judge. 
Literally a minority of Senators have taken it upon themselves for the 
first time in the history of the country to make sure a majority of the 
Senate cannot vote to confirm a judge by using a rule of the Senate.
  I would like the Supreme Court to hear that case because I don't know 
of any other way to make this go forward.

[[Page S14724]]

Chances are the Supreme Court may very well say this is not something 
we decide because you are the Senate. We are the Court. These rules are 
your rules. They may well say that, but I feel a need to push this as 
far as you can to get an answer and try to move on and have a better 
future.
  The future of the Senate when it comes to judges is going to be 
lousy. We have four filibusters going on with another seven or eight to 
come. But if we behave with each other like this, we will have hundreds 
before long. As time marches on, we will have a lot of people caught in 
this vise.
  Senator Coleman from Minnesota made a great point, I thought. Justice 
Ginsburg would not have a prayer because she has a liberal view of the 
law and a lot of people on this side voted against her. But they voted 
and she won the day. Justice Scalia is vilified by the left. He would 
never have a shot. A lot of people on the Democrat side voted against 
him. But he won the day and he is sitting on the Court. That is the 
strength of the Nation. When you have someone like Ginsburg and Scalia 
in a room having to talk to each other trying to find a way to move 
forward in terms of judges, it is going to be very disappointing 
because good people are not going to put themselves through this.
  Justice Brown will be filibustered just as sure as I am standing 
here. She is an African American who sits on the Supreme Court of 
California. She has authored more majority opinions in California than 
any other justice. I gave a rundown a while ago about her story coming 
from a sharecropper family in Greenville, AL, going all the way to the 
Supreme Court in California, getting 76 percent of the vote in her last 
election. And you have to vote on judges in California. My argument is 
that no one would get 76 percent of the vote in California if they were 
the rightwing ideologue that the other side is describing.
  I am not here to convince Members that I am right. I am here to set 
the record straight in terms of why I believe President Bush picked a 
good person. If you disagree, vote against her. Don't allow the 
Constitution to be changed in the way you are doing because you are 
putting the country in constitutional and political quicksand. Members 
will regret it down the road. I know the country will regret it.
  Now, there is politics going on here. I will put a human face on 
this. Justice Brown has had a pretty rough time of it in committee. She 
has been very successful with her career in California. She has been 
successful in every endeavor she has engaged in, serving in a variety 
of capacities to the point that people want to promote her and the 
three-fourths of the citizens of her State think she has done a great 
job. But she comes to the Senate and she runs into a buzz saw because 
she is conservative. Apparently that is a crime.
  This is a cartoon by the Black Commentator, a paper. The first 
amendment allows people to talk about public figures. This is just a 
little bit of what it is like to be in the environment our friends on 
the other side have created. This cartoon has ``Welcome to the Federal 
Bench, Ms. Clarence, I mean, Ms. Rogers Brown. You'll fit right in.''
  And it is a caricature of President Bush and a racial stereotype, an 
offensive drawing, of Miss Brown. The people in the choir are clapping, 
as Justice Clarence Thomas--a very distorted picture which is 
offensive, I think--Colin Powell, African American, Secretary of State, 
a great general and somebody I admire, and Condoleezza Rice, our 
national security adviser, another African American who I think will 
help us do a good job in Iraq. This has been a miserable experience for 
this lady. I am very sorry she has had to go through this.
  Over 50 percent of the Senate will vote for her when the cloture vote 
comes. Pickering, Owens, Pryor, all have received over 50 votes but we 
cannot get to passage because the filibuster rule requires us to get 60 
votes. Therein is my problem. The Constitution does not require 60 
votes to confirm a judge. There are several places where two-thirds are 
required. The Constitution says you will advise and consent by majority 
vote in the Senate.
  They are using a procedural device, the Democratic Party is in this 
case, to block a vote on what I think are well-qualified people. No one 
else in the history of the country has done this before, Republican or 
Democrat. This is the first time someone has come out of the Judiciary 
Committee with a majority vote who cannot receive an up-or-down vote. 
There are four of them with a bunch more to come.
  I give no apology for wanting to try to do something about this 
because, as sure as we are all here tonight, there will be a Democratic 
President come later on and that person will make a recommendation to 
this body, a nomination to this body, and if we do not change the way 
this trend is going, it will be a miserable experience. We will get 
bogged down and we will never be able to move forward as the 
Constitution has envisioned. This has worked well for 214 years. This 
is not time to change it.
  Senator Lautenberg was right, there is a political dynamic going on 
here. I am sure Republicans have been abusive in the past in terms of 
the way the judges have been treated. I have heard a lot about that. 
Like Senator Coleman, I am new to the Senate. I would rather not 
perpetuate that problem. I would like to be someone who solved that 
problem.

  We have some quotes from the past that I will read quickly. Senator 
Leahy, the ranking member of the Judiciary Committee, said in 1998: I 
stated over and over again on this floor that I would refuse to put an 
anonymous hold on any judge--that is a way of keeping a judge coming 
through the committee--that I would object and fight against any 
filibuster on a judge, whether it is somebody I opposed or supported, 
that I felt the Senate should do its duty. If we don't like somebody 
the President nominates, vote him or her down.
  Very wise advice. We are not doing that at all. I don't know why we 
changed but we have.
  Senator Leahy, 1998: I cannot recall a judicial nomination being 
successfully filibustered. I do recall earlier this year when the 
Republican chairman of the Judiciary Committee and I noted how improper 
it would be to filibuster a judicial nomination.
  I will read before the night is over many statements in the past 
where our Democratic colleagues were absolutely against the idea of 
doing anything other than giving a person an up-or-down vote. That has 
changed in an unhealthy way.
  E-mails were talked about before. Let me read an e-mail that I think 
says a lot. This came from Senator Corzine, the chairman of the 
Democratic Senatorial Campaign Committee, November 3, 2003, not very 
long ago, and it was sent out to raise money. I am sure we have sent e-
mails and letters saying: Help us. The Democrats are destroying all of 
President Bush's nominations. That is the political environment we have 
gotten ourselves into. Like Senator Coleman, I would rather not 
perpetuate this. I would like to end it and move on and get it right.
  Based on the prior statements of Senator Leahy and others that we 
will read later on, they have changed for some reason. Now they are 
going into the past and saying, we are doing this because you did that. 
Where does this end? The truth is, no one has done what they are doing 
now. That is just a fact.
  From the e-mail:

       Senate Democrats have launched an unprecedented effort.

  I will stop right there. I think that is a true statement. I don't 
believe Senator Corzine is misleading the donor population. I think he 
is trying to tell them, folks, we are doing something nobody else has 
done before. This is unprecedented. You need to pay attention. You need 
to look at your Democratic Senators, pay attention to what we are 
doing, because we are taking a step no one has ever taken before. What 
is that step?

       By mounting filibusters against the Bush Administration's 
     most radical nominees, Senate Democrats have led the effort 
     to save our courts.

  This e-mail is designed, quite simply, to let people in the 
Democratic Party know that the Senate Democrats have done something 
different, something unprecedented, and they are filibustering the 
President's nominees because they are radical. You cannot send this e-
mail out to collect money and spend 32 hours denying you are 
filibustering anybody. You are filibustering judges in an unprecedented 
way.

[[Page S14725]]

And they are the Bush administration's nominees. The question is 
whether or not they are radical.
  If you think they are radical, vote against them. I don't believe 
Justice Brown is radical. I don't think 76 percent of the people in 
California who have voted would have voted for her if she was radical. 
I think the attacks against her have been radical. But that is just my 
opinion.
  This e-mail clearly establishes the fact that the Democratic Party 
has made a calculated effort in the Senate wing of the Democratic Party 
to do something different, to stand up against President Bush. They are 
blinded by the political moment. If we continue down this road, there 
will be more e-mails such as this on both sides of the aisle and it 
will be a disaster for the Constitution.
  There are men and women serving in Iraq. There are people putting 
their lives at stake for this country. God bless them. We all did take 
an oath. They have their opinion and I have my opinion about what the 
oath means. But it will not withstand the filibustering of these 
nominees. It would be irresponsible on my part, given what I believe my 
oath is, to just let this go and make like it is no big deal because I 
think this is a huge deal.
  I yield to the Senator from Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, following up on the comments of my friend 
and colleague from South Carolina, you have to ask yourself, 214 years 
and the Senate has not done this, has not stopped a judicial circuit 
court nominee by filibuster. That is a fact. My colleagues on the other 
side can argue with charts but that is the reality.
  You have to ask yourself, for 214 years was the Senate a rubberstamp 
for the President? I don't think so. I don't think anyone could make 
that argument. What you have is the reality that the Senate was 
exercising its constitutional responsibility. And doing it in a 
constitutionally responsible way.
  That is what is important, doing it with respect for the 
Constitution, respect for the authority of the President to set forth 
the nominee, respect for the obligations upon the Senate to advise and 
consent, by a majority vote. Again, the Constitution, article II, says 
treaties need a supermajority, not a simple majority vote. What we have 
here is the minority saying we are not living by majority votes when it 
comes to judicial nominees regardless of what is in the Constitution. 
That is unfortunate. It is more than unfortunate. It undermines the 
principles upon which this democracy is based.
  My colleague from Minnesota, the senior Senator from Minnesota, 
talked about this not being unprecedented. We have done it before.
  Here are the facts. This is a listing of judicial nominations subject 
to cloture attempts from 1968 to 2003. I will go through every one of 
them. The first one is Abe Fortas, Chief Justice. Cloture was rejected. 
I will come back to whether that was even a filibuster. That was not a 
partisan filibuster. In fact, it was a bipartisan effort because of 
ethic complaints about Fortas but it was not a partisan filibuster.

  A letter was sent to John Cornyn, chairman of the Subcommittee on the 
Constitution from the former Senator from Michigan, a predecessor of my 
colleague, Mr. Levin, who is sitting there, talking about the Fortas 
nomination and basically saying that it was not a filibuster.
  What happened, in a letter he says, while a few Senators might have 
contemplated use of the 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. Our 
position in 1968 to the Fortas nomination was not partisan. Some 
Republicans supported Fortas; some Democrats opposed him.
  Go through every listing on this chart. Outcome of cloture attempt, 
may have been rejected, may have been invoked, may have been withdrawn, 
but every nominee got a vote. That is what this is about. Vote them up 
or vote them down but give a vote.
  We have a minority for the first time in the history of this body 
basically saying, regardless of what is in the Constitution, regardless 
of the language of the Constitution that makes it clear that the advice 
and consent is based on majority, they are changing the rules of the 
game. The argument is that these candidates, these nominees are outside 
the mainstream.
  What is the mainstream? Who is the mainstream? Priscilla Owen 
received 84 percent of the vote in the last election for the Texas 
Supreme Court.
  I have to tell you, I would love to see an 84 percent in any 
election. Just about anybody in this body would love to see 84 percent. 
They would tell you that is mainstream. That is mainstream. That is the 
``wholestream.'' What is left is extreme. And that is what you have.
  Bill Pryor, 59 percent in his last election for Alabama Attorney 
General--59 percent.
  Janice Rogers Brown received 76 percent in her last election to the 
California Supreme Court.
  I would note one of the Senators from California, Mrs. Boxer, 
received 53 percent. Who represents the mainstream in California? 
Seventy-six percent of the vote. The other Senator from California, 
Mrs. Feinstein, by the way, former mayor of San Francisco--I am a 
former mayor. I have great respect and appreciation for mayors. It is a 
tough job. She is a great Senator. I do not always agree with her, but 
she is a great Senator. She got 56 percent of the vote. Janice Rogers 
Brown, who supposedly is the extreme, got 76 percent in her last 
election for the California Supreme Court. That is mainstream, not 
extreme.
  Charles Pickering was confirmed to the Federal district court in 1990 
by this body by unanimous consent. What that means is no one objected; 
everybody agreed. And today he is described as extreme?
  If I could go through some of the candidates, Priscilla Owen--a whole 
bunch of these nominees are out of the mainstream? I am not sure what 
they are talking about. She has served in the State of Texas on the 
highest court. She has been given the support of 15 past presidents of 
the State Bar of Texas, a bipartisan group. We are talking about the 
folks who know them best.
  Justice Owen was unanimously rated as well qualified by the American 
Bar Association. Apparently, this unanimous rating of the American Bar 
Association is out of the mainstream as well. I would submit, by the 
way, the American Bar Association is not a conservative interest group. 
I do not know who the members are, but I have to guess it is a 
bipartisan group. I have to guess there are some Democrats in that 
group.
  It is clear the so-called mainstream being portrayed by some in this 
body is not only an incorrect reflection of the average American but a 
single-issue extreme which flows only in the direction of special 
interest groups. That is really what this is about.
  You have to go through the records of these folks. I went to law 
school. Senator Graham went to law school. I went to the University of 
Iowa, did fairly well, and served 17 years in the attorney general's 
office, and solicitor general, chief prosecutor of the State of 
Minnesota. But you would love to have the qualifications and 
credentials of the folks here, the folks the President has nominated. 
These are quality, quality, quality folks.
  Then you read the statements of some of their supporters. Mary Sean 
O'Reilly, lifetime member of the NAACP and a Democrat:

       I met Justice Owen in January, 1995, while working with her 
     on the Supreme Court of Texas Gender Neutral Task Force. . . 
     . I worked with Justice Owen on Family Law 2000, an important 
     state-wide effort, initiated in great part by Justice Owen. . 
     . . In the almost eight years I have known Justice Owen, she 
     has always been refined, approachable, even tempered and 
     intellectually honest.

  That is what you want from a judge. That is what you want from a 
judge. You do not want fidelity on a single issue. What you want is the 
judge to be tempered, to be intellectually honest, to apply their best 
judgment, to interpret the Constitution.
  Raul Gonzalez, former Democratic justice on the Supreme Court of 
Texas. In Texas they elect their justices. In the elections, Democrats 
run, Republicans run. Senator Cornyn, one of our colleagues, also 
elected with us, is a

[[Page S14726]]

former member of the Texas Supreme Court, former attorney general.
  Raul Gonzalez, former Democratic justice on the Supreme Court of 
Texas:

       I found her to be apolitical, extremely bright, diligent in 
     her work, and of the highest integrity. I recommend her for 
     confirmation without reservation.

  John L. Hill, former Democratic chief justice on the Supreme Court of 
Texas:

       After years of closely observing Justice Owen's work, I can 
     assert with confidence that her approach to judicial 
     decision-making is restrained, that her opinions are fair and 
     well reasoned, and that her integrity is beyond reproach.

  That is what it is about: integrity beyond approach, opinions that 
are fair, well reasoned. That is what you look for in judges. You 
cannot allow a minority of folks in this body to toss about the label 
mainstream, fueled by folks with special interests. They are kind of 
pounding the drum, and people follow that drum.
  But you have to ask, who is in the mainstream? Folks who get 
overwhelmingly elected by the people of their State, who receive 
bipartisan support.
  Another former Democratic justice on the Supreme Court of Texas, Jack 
Hightower:

       I am a Democrat and my political philosophy is Democratic, 
     but I have tried very hard not to let preconceived philosophy 
     influence my decision on matters before the court. I believe 
     that Justice Owen has done the same.

  That is what you want. The reality is, judges are people. They have 
heart and soul like everyone else. If you are a defendant in front of 
them, you may worry about that. But they are people. They bring a life 
experience. They bring a perspective. They bring a philosophy. You 
cannot divorce that. You do not divorce that. Some may have been active 
in politics. There is no question about that. They bring positions on 
issues. They are not issue neutral. They have not been lobotomized. 
They bring a life experience and perspective.
  What we ask of them is to do what these folks--their colleagues, by 
the way, are from a different political perspective--say they do. We 
look to their ability to be well reasoned. We look to their ability to 
have integrity. We look at their ability to put aside the preconceived 
notions and simply say they will examine each case on the facts, and 
apply the law, the law that is done by--yes, that is what we do. That 
is what legislators do. That is what you are looking for.
  Former law clerk of Justice Owen, Lori Plager:

       During my time with her, I developed a deep and abiding 
     respect for her abilities, her work ethic, and, most 
     importantly, her character. Justice Owen is a woman 
     of integrity who has a profound respect for the rule of 
     law and our legal system.

  That is what it is about: respect for the law and the legal system. 
To be described as extreme, when you have this body of opinion of folks 
who know you, who have worked with you, who have been your colleagues, 
who sit side by side, who have watched you process and reason, and then 
to render judgments, when they are willing to put aside their political 
predisposition--and what we are asking for is our colleagues to put 
aside the politicization of this process, put aside what we have done. 
Do not go back on a history of 200 years. We have not allowed this to 
happen on the floor of this Senate. We have not rejected judges on the 
floor of this Senate by virtue of filibuster for 214 years.
  Hector De Leon, past president of Legal Aid:

       As the immediate past president of Legal Aid of Central 
     Texas, it is of particular significance to me that Justice 
     Owen has served as the liaison from the Texas Supreme Court 
     to statewide committees regarding legal services to the poor 
     and pro bono legal services. Undoubtedly, Justice Owen has an 
     understanding of and a commitment to the availability of 
     legal services to those who are disadvantaged and unable to 
     pay for such legal services. It is that type of insight and 
     empathy that Justice Owen will bring to the Fifth Circuit.

  That is what you are looking for. You cannot do any better than that. 
Do not allow folks to wave a flag and say ``extreme'' when you have 
folks who in their own community, overwhelmingly--overwhelmingly--
voted, reelected her to the Supreme Court of Texas in overwhelming 
numbers, and her colleagues coming forth and saying: Hey, this is a 
woman who is right. This is a woman who is talented. This is a woman 
who will not put the life experience she brings, perhaps preconceptions 
about issues--you have folks saying she will do what judges need to do. 
That is what it is about.
  Before the night is over, we will talk about others. We will talk 
about Bill Pryor. We will talk about Judge Kuhl. We will talk about 
Miguel Estrada, who has withdrawn. We will talk about Judge Pickering.
  But the common denominator in all of these, what the President has 
done is he has exercised his authority under the Constitution to 
nominate people who have integrity, who have the qualifications, who 
have the support of those with whom they have worked, and who, in many 
cases, when they have had to go before the people of their State, have 
been overwhelmingly endorsed as being part of the mainstream, not the 
extreme.
  The PRESIDING OFFICER. The Senate majority's time has expired.
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, how I wish we could take a week's worth of 
time to debate the issues which are of some critical importance to the 
people of my State; namely, the loss of manufacturing jobs and the 
problems we have in Iraq. These issues, the economy in general, job 
loss in particular, and loss of our troops abroad dominate the minds 
and the hearts of my constituents.
  But the majority has the power to take the Senate on a fruitless 
cruise. That is what we are about: rehashing the merits and demerits of 
4 of the 172 candidates who we have voted on in this Senate. I know 
these numbers are numbers which are very troubling to the majority. I 
can tell that by the fact they have attempted to come back with a whole 
bunch of other numbers.
  When this debate is over, when the dust is settled, what I think most 
people will remember, at least in terms of the calls to my office, is, 
Is this Senate being tied up, night after night, with complaints that 4 
of 172 judges have not been confirmed.
  Mr. President, 168 is a number now which is impressed on the minds of 
people who have watched this debate and heard this debate. The number 
four is a number which people now understand. Maybe the 98 percent 
confirmation rate is not quite at the same level as these 2 numbers, 
but those numbers--168 of President Bush's nominees confirmed by this 
Senate, 4 have not been confirmed by this Senate--those 2 numbers are 
very much emblazoned in the minds of people across this country.
  In rejecting these four, the Senate has exercised its advise and 
consent function according to our rules. It has carried out the checks 
and balances role according to the Constitution that gives us a check 
and a balance, according to the rules of the Senate.
  I want to go back a little bit in history. We have heard quite a bit 
tonight that this is the first time a filibuster has been used against 
a judge on the floor of the Senate. I will get into this in a little 
more detail. I hope to have a little time to talk about the economy and 
manufacturing job loss, and other things which are very much on the 
minds of my constituents.
  But since the majority has decided to set aside this time, mainly to 
debate the fact that only 98 percent of the judges who have come before 
us have been confirmed, and have now suggested, over and over and over 
again, that filibusters have never been used relative to judges, this 
is the New York Times headline of September 25, 1968 relative to Abe 
Fortas: ``Critics Of Fortas Begin Filibuster. . . .'' This is what the 
Senate Web site says about that filibuster. This is not a Democratic 
Web site. This is the Senate Web site for the date October 1, 1968: 
``Filibuster Derails Supreme Court Appointment.'' That is a Senate Web 
site.
  Folks on the other side, our colleagues on the other side, are 
saying: Well, what about circuit court nominees? We sometimes hear 
those words put in there when the statement is made that filibusters 
have not been used to derail judicial nominees. Sometimes the words 
``circuit court nominees'' are put in there instead of ``judicial 
nominees,'' sometimes the words ``circuit court'' are left out, 
sometimes they are included.
  If circuit court nominees have not been derailed by filibuster, it is 
not for

[[Page S14727]]

a lack of trying. The complaint of our colleagues on the Republican 
side, it seems to me, more accurately would be: Well, we have tried 
filibusters many times, but we have not succeeded. You folks are 
succeeding.
  That is the complaint when you strip away the rhetoric and look at 
the reality. If filibusters have not succeeded in derailing circuit 
court nominees of Democratic Presidents by Republican Senators, it is 
not for lack of trying. Because the effort was made over and over and 
over again with Clinton circuit court nominees. The difference is, the 
filibuster effort did not succeed because the supermajority, which was 
required during those filibusters, was achieved for those circuit court 
nominees. That is the difference.
  This is not at all unprecedented. This use of extended debate 
requiring a cloture vote on judicial nominees has been used repeatedly. 
It has not succeeded repeatedly, but it has been used repeatedly.
  One of our Republican colleagues, during a debate on a nominee--this 
is not a judicial nominee, but this is a nominee which is subject to 
this exact same language of the Constitution about advise and consent 
as our judicial nominees are--when a Clinton nominee to be Ambassador 
was before us, and there was a filibuster underway and that nomination 
was blocked, this is what one of our colleagues said. Now this was in 
1994, and the Senate was controlled by Democrats. The White House was 
controlled by Democrats. The House of Representatives was still 
controlled by Democrats. Our Republican colleague here in the Senate 
was pointing out the only power that was left to Republicans was the 
use of a filibuster and forcing a cloture vote. And I emphasize, this 
is on a nominee who had exactly the same rights or lack thereof to an 
up-or-down vote as a judicial nominee because the nomination is 
governed by the same advise and consent clause of the Constitution as 
our judicial nominees. Here is what our colleague said:

       In considering the nomination of Mr. Samuel Brown to be 
     Ambassador . . . I have reflected on the latitude which ought 
     to be accorded the President in making this decision for the 
     Ambassadorship, reflecting as well on the constitutional 
     responsibility of the Senate for advice and consent as a 
     check. I am troubled by a situation where the only pressure 
     point Republicans have in the U.S. Government is on cloture. 
     Once cloture is obtained, there are more than enough votes on 
     the other side of the aisle to cover the day. While the House 
     is not involved in this matter, the House is overwhelmingly 
     Democratic. There is a Democrat in the White House. The only 
     place that Republicans can assert any effective, decisive 
     action is by stopping somebody from coming up. We have 44 
     votes and we have more than enough, if there is unity among 
     the Republicans, to do that. I think Mr. Brown's nomination 
     and the responsibilities of the Conference on Security and 
     Cooperation in Europe are sufficiently important to preclude 
     his nomination.

  That is what our Republican colleague said in 1994:

       The only place that Republicans can assert any effective, 
     decisive action is by stopping somebody from coming up. We 
     have 44 votes.

  That has been the case not just with ambassadorial nominations but 
with other nominations subject to the advice and consent clause. The 
only difference with the circuit court nominees of President Clinton, 
for instance, who were filibustered is that there was not a 
supermajority to stop the confirmation of the judges. That is not a 
distinction which I would think the Republicans in this debate would 
want to emphasize, but it is a distinction in fact.
  Mr. President, 168 of this President's nominees have passed the test; 
4 have not. When the filibuster has been used relative to those four, 
the rules of the Senate which provide for that to occur, and there was 
not a supermajority, then those nominees have not been confirmed.
  What is at stake here is the functioning of the Senate as a check and 
a balance on executive power. Our Republican colleague who spoke that 
way in 1994 was exactly right. He was using the rules of the Senate in 
a totally appropriate way and saying that the only way we can stop 
this, the only way the minority has a voice, if we feel so deeply that 
there are 41 or more of us who wish to stop this nominee from being 
confirmed, we must use the filibuster, and we must force a cloture 
vote. Checks and balances are what are at stake here. The historic role 
of the Senate is what is at stake here.
  Then-Senator Lyndon Johnson, in March of 1949, said the following 
relative to these checks and balances:

       A man elevated to the Office of the President has virtually 
     unlimited powers of influence over his country. His own 
     personality is a force of great impact upon all the people of 
     the Nation and, in fact, upon the people of the world. Add to 
     those powers directly all those less conspicuous powers of 
     his aides, his administrative agencies and the multitude of 
     channels which feel his influence, and you have a force no 
     other representative government has even trusted for long to 
     one man.
       If on occasion you grant to this titular head of government 
     the further intoxicant of an overwhelming majority of loyal 
     supporters in the legislative branch, then you have a force 
     well nigh irresistible. The distinctions between legislative 
     and executive are difficult to preserve under such 
     circumstances. Mere memorandums become laws and laws become 
     mere memorandums. In such a situation, which happily is more 
     hypothetical than historical, the entire theory of our 
     Government system of checks and balances dissolves and 
     evaporates. The right to check and balance was not granted to 
     the majority because a majority rarely seeks control over 
     itself. Those rights were conceived and installed in the 
     Constitution solely as safeguards for the minority.

  He said:

       I am no historian, but as I have studied the history of 
     governments gone before us, I have been impressed by the fact 
     that the freedom of unlimited debate in legislative chambers 
     has been given up many times by members themselves who are 
     irritated or frustrated by a minority. But so far as I have 
     found, once that freedom was yielded, it has never been 
     returned. If we now give up this freedom in the Senate, I, 
     for one, do not expect to live to see its return.

  Much has been stated here about filibusters on the floor of the 
Senate. Too little has been said about stealth filibusters which occur 
in committee. Political scientist Sheldon Goldman of the University of 
Massachusetts, who is a neutral observer of the process, said the 
following in a Los Angeles Times article on November 6:

       The Bush administration has been spectacularly successful 
     in getting the overwhelming proportion of its judicial 
     nominations confirmed. There are only a relative handful 
     being filibustered and held up, and this contrasts with the 
     dozens of Clinton nominees who were held up by the 
     Republicans in the last 6 years of the Clinton 
     administration.

  Professor Goldman expressed it this way:

       The Republicans obstructed quietly in the committee. If 
     they didn't want to approve you, you just didn't get a 
     hearing.

  Here is one example. Kent Markus was nominated by President Clinton 
for a seat on the Sixth Circuit. He testified to the Senate Judiciary 
Committee on May 9, 2002, as follows. To their credit, Republican 
Senators told him two things.

       There will be no more confirmations to the Sixth Circuit 
     for the Clinton administration.

  Two:

       This has nothing to do with you. Don't take it personally. 
     It doesn't matter who the nominee is, what credentials they 
     may have, or what support they may have.

  Mr. Markus went on to testify that one Republican Senator told him 
the following:

       This is bigger than you, and this is bigger than me.

  Senator Kohl, who kindly championed his nomination in the Judiciary 
Committee, encountered a brick wall. The fact was a decision had been 
made to hold the vacancies and see who won the Presidential election. 
With a Bush win, all those seats could go to Bush, rather than Clinton 
nominees.
  That is what happened. That is exactly what happened to Kent Markus 
and his nomination. A hearing was denied to him. A vote was denied to 
him. And if there is some constitutional right which is being created 
here on the floor, I assume Kent Markus was denied his constitutional 
right to a vote, as were the dozens of other nominees of President 
Clinton who never got a hearing, much less a vote.
  I can't believe for one minute that any court, even if it reaches the 
merits of this case that is going to be brought, would say there is a 
constitutional right to have your nomination voted on when there are so 
many ways of blocking a nomination from getting a vote, starting with 
not having a hearing, starting with not having a markup, starting with 
not reporting a nomination to the floor, starting on the floor not 
reaching a vote up or down.
  When the Republican Senate denied committee hearings and votes for 63 
judicial nominees and more than 200 executive branch nominees, they 
blocked

[[Page S14728]]

a vote on those nominations. That was their right. They may have done 
the wrong thing in doing so, but they had a right to do so. I wish they 
hadn't. I wish they had allowed those to come to hearings. At least 
have a cloture vote, if nothing else, on the floor, but that was not to 
be.
  There are a lot of ways you can have a vote on this floor. One of 
them is a cloture vote and one of them is a vote up or down. But these 
63 judicial nominees never even got to a cloture vote, never even got 
to see if there could be a supermajority put together for them under 
our rules on the Senate floor.

  It is remarkable to me that our colleagues on the other side of the 
aisle make the claim that blocking nominees from having an up-or-down 
vote on the Senate floor is unprecedented, given the actions during the 
last administration.
  Republicans filibustered several Clinton nominees on the floor of the 
Senate, including Richard Paez, Marsha Berzon, Rosemary Barkett, and H. 
Lee Sarokin. Cloture votes requiring supermajorities were required to 
be produced for each of them.
  Our colleagues say these nominees were not blocked by a filibuster, 
which is an artful way of saying that the effort at the filibuster 
failed. That is very different from saying that the filibuster was not 
tried. It was. Cloture votes were required but supermajorities were 
obtained. That is the difference between those Clinton nominees and 
these four nominees. Here supermajorities have not been obtained. 
Therein lies the difference. Same cloture votes, same type of cloture 
votes required, but cloture was invoked for Berzon, Barkett, Paez, and 
Sarokin. Supermajorities supported those nominations, and the 
opposition had a right to force those votes. That required a 
supermajority. They had a right to filibuster, and, in fact, did so.
  Two of President Clinton's nominees, not judicial but nominees, still 
governed by that same advice and consent clause in the Constitution, 
were defeated by filibusters. One was Henry Foster nominated to be 
Surgeon General, and the other one was Sam Brown nominated to be 
ambassador. The argument relative to that nomination was quoted by me 
at some length a few moments ago where a Republican colleague within 
his rights using the rules said: We have only to put together 41 
Republican Senators and we can block this nomination. It is the only 
way to block a nomination with which we fervently disagree.
  Given the fact that the Democrats didn't control the White House, the 
Democrats controlled the Senate, our Republican colleague pointed out 
accurately that the only way to block that nominee was by use of the 
filibuster. Were his constitutional rights violated? I don't think so. 
I think he was given consideration by the Senate in the way that the 
Senate decides to consider nominees, and it can consider nominees in 
many ways.
  It can decide never even to give a nominee a hearing should it 
choose. I don't think that is a wise course, in most cases, but should 
the Senate choose not to give a nominee of the President a hearing, 
that is the Senate's decision. Or after a hearing, if it decides not to 
have a markup to vote that nominee either out of committee or to defeat 
that nominee, that is the Senate's decision. Should a chairman, acting 
alone, decide not to put a name on a markup, that may be that 
chairman's power.
  So the suggestion that requiring a supermajority vote by filibuster 
is new to the Senate is just simply wrong. We can argue--legitimately 
argue--and disagree over whether or not the Senate should give up this 
important check and balance on Presidential power, but we cannot argue, 
it seems to me, that it is unprecedented in its exercise.
  Here are the words of one more of our colleagues during a filibuster 
of a Clinton nominee on March 3, 2000. During the filibuster of the 
nomination of Judge Richard Paez to the Ninth Circuit, this is what our 
colleague said:

       I say to the American people who may be listening right 
     now, judges impact our lives big time in the decisions they 
     make. Citizens complain about violence and the criminals 
     getting out. There are bad judges making bad decisions that 
     cost Americans their liberties, cost them their lives 
     sometimes. That is wrong. We have an obligation in the Senate 
     to take a good hard look at a lifetime appointment to the 
     circuit. The members are there forever, even when they get 
     real old. It is pretty hard to get rid of them. This is a 
     lifetime appointment. We have a responsibility to make darn 
     sure these judges are going to represent the views of a 
     majority of the American people in terms of the law. I intend 
     to do that as long as I can stand here to do it.

  He didn't have 39 others or 40 others to stand with him. As a result 
of that, there was a supermajority for that judge, but it was despite 
the filibuster. It wasn't that there was no filibuster. It was despite 
the filibuster which the Republicans had a right to stage and did 
stage. But most Republicans decided, or at least enough Republicans 
decided not to continue that filibuster but, rather, to invoke cloture.
  To suggest the filibuster has never been used flies right in the face 
of history and recent history, as well as the history of Abe Fortas.
  Historian Robert Caro wrote the Rules Committee of this Senate as 
follows:

       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 Nation'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.

  He continued:

       Surrendering such authority is not something which should 
     be done just because of a Senator's point of view on the 
     particular issue of the moment--because much more than the 
     particular issue is involved. What if a Senator--let us say a 
     Senator from a small population state without any other means 
     of defense votes to support a new limitation on debate today. 
     What will he [or she] do in some future year when he is 
     trying to stop a bill or a nomination that a bare majority of 
     the Senate supports, but that he and 40 colleagues believe 
     would be terribly detrimental to their states or to the 
     nation. . . . What will he feel when he suddenly realizes 
     that his right to hold the Senate floor against that action 
     has been so greatly reduced that the bare majority can 
     silence him before he is finished making his case? What will 
     he do when he realizes that, without the right of extended 
     debate his cause is ultimately helpless?

  Finally, I ask unanimous consent that the letter from Senator 
Corzine, which has been referred to, apparently a fundraising letter, 
be printed in the Record in full because I think the words which were 
quoted by my friend on the other side had some very critical dots in 
there, and I think the dots should not have been there. The two 
sentences should not have been pushed together as though they were one. 
The document of Senator Corzine says the following:

       Senate Democrats have launched an unprecedented effort to 
     protect the rights of all Americans by keeping our courts 
     fair and impartial.

  That is the unprecedented effort. The next sentence is:

       By mounting filibusters against the Bush Administration's 
     most radical nominees, Senate Democrats have led the effort 
     to save our courts.

  The suggestion that the words read ``an unprecedented effort to mount 
filibusters'' is not an accurate reflection of that letter. The dots 
which were in the chart, it seems to me, take the place of some very 
critical words making two sentences look as though it is one sentence.
  I ask unanimous consent, just so we can have full disclosure of this 
letter, that this letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Despite the administration's desire to ignore the 
     Constitution's rule of ADVICE and CONSENT, Senate Democrats 
     are holding Republicans accountable.
       Why must the Democrats continue their fight against Charles 
     Pickering?
       While in law school, Mr. Pickering wrote an article 
     suggesting ways the state of Mississippi could better enforce 
     its ban on inter-racial marriage.
       As a state senator in the 1970's, Mr. Pickering worked to 
     repeal important provisions of the Voter Rights Act.
       In 1994, he went out of his way to seek a more lenient 
     sentence for a convicted cross-burner.
       Once defeated when Democrats had a majority in the Senate, 
     President Bush nominated Charles Pickering for a second time 
     after the 2002 elections and now two successful filibusters 
     launched by Senate Democrats have kept him off the bench!

[[Page S14729]]

       The Bush Administration is devoted to using the courts to 
     its political advantage. Time and again, this administration 
     has nominated ultra-conservative candidates who are zealously 
     devoted to advancing corporate interests, taking away 
     reproductive freedom, smashing the wall of separation between 
     church and state, and dismantling equal opportunity.
       But the Administration has got a big problem: Senate 
     Democrats. Senate Democrats have launched an unprecedented 
     effort to protect the rights of all Americans by keeping our 
     courts fair and impartial. By mounting filibusters against 
     the Bush Administration's most radical nominees, Senate 
     Democrats have led the effort to save our courts.
       Help the Senate Democrats keep fighting. Support the DSCC 
     efforts to help elect more Democrats to the Senate--and keep 
     the proven leaders we have. Help the DSCC send a message to 
     the Bush Administration--Senate Democrats will NOT rubber 
     stamp extremist judicial candidates. Help us fight to 
     maintain judicial integrity by sending more Democrats to the 
     United States Senate in 2004.
       Contribute Now!
           Sincerely,
                                              Senator Jon Corzine.
  Mr. LEVIN. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER (Mr. Allard). Forty seconds.
  Mr. LEVIN. I thank the Chair and thank my colleagues. I am happy to 
share with them the feeling that somehow or another hopefully we can 
find a way some day to get over the place we are at, not just on judges 
but on all of these nominees.
  I look forward to that Supreme Court case which my friends are going 
to file. I think it would be just fine to have the Supreme Court rule 
on this issue to clear the air on it. I have great confidence that they 
will support the right of the Senate.
  The PRESIDING OFFICER. The minority's time has expired.
  Mr. LEVIN. I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I have the greatest respect for my 
colleague, the Senator from Michigan. He serves as the ranking member 
on the Subcommittee on Investigations, which I chair, and serves this 
body as ranking member of Armed Services. He is a credit to this 
institution.
  I disagree with him, however, in his interpretation of the reality of 
the history of this body. It is very clear that this body has not 
successfully filibustered a circuit court nominee in its history. The 
one case that is mentioned again is Abe Fortas.
  As I indicated earlier, this was a bipartisan effort. It was not a 
partisan filibuster. So what we have here on the floor today is the 
first partisan filibuster, and the purpose is clear. My colleague has 
said this is the only tool that the minority thinks they have to stop 
the President from exercising his authority, but I think that he is 
right when he says the historic role of the Senate is what is at stake 
here.
  I say that because we have to reflect upon how our colleagues who 
preceded us--by the way, some of them are still here in some of the 
cases he talked about--what was going through their minds when they 
were faced with the same circumstances we are faced with today; that 
is, a group of folks in the majority in many cases who objected to a 
particular nominee.
  We can use the Clinton years as an example. There was a Republican 
majority for 6 years of President Clinton's term. No judicial nominee, 
not one judicial nominee, was ever deprived of a vote on the floor of 
the Senate. That is what we are talking about, a vote on the floor--not 
one.
  My colleague and friend from Michigan made reference to the cases of 
Marsha Berzon and Richard Paez in the year 2000, Ninth Circuit. 
Although most Republicans opposed their confirmation--and we heard some 
of my colleagues earlier tonight. Senator Sessions talked about that 
case. Senator Lott talked about that case. He was majority leader at 
the time. They also opposed any effort to prevent the full Senate from 
voting on their nominations. They did so and they told you it was 
because of their reverence and respect for the historic role of the 
Senate. That is what is at stake. That is the principle that has guided 
us for 214 years before today, before this 108th Congress.
  Colleagues had the opportunity to invoke cloture only if the 
Republican majority said we were to go along, and it was not because, 
as my colleague from Michigan somehow inferred, that they could not 
kind of put together the necessary votes to block it. No. What happened 
is that they were not willing to ignore the history and the tradition, 
and I think most importantly what the Constitution says, and that is 
that supermajorities are not required to confirm nominees for circuit 
courts.
  Debate on each of these nominations, Berzon and Paez, lasted only 1 
day and a majority of Republicans joined all Democrats in supporting 
cloture motions for debate on each nomination, including over 20 
Republicans who would eventually vote against confirmation and a 
majority of the Republican members of the Judiciary Committee. Senator 
Hatch talked about that.
  So our colleagues at that time faced two candidates in the Ninth 
Circuit. By the way, that is the same circuit that ruled the phrase 
``under God'' unconstitutional. That is the same circuit that initially 
was going to prevent the California recall from taking place until 
finally en banc the entire circuit had to come together and change 
that.
  In neither case did Republicans mount a party-line filibuster effort 
to prevent voting on a nominee. In fact, Majority Leader Lott filed the 
cloture motions for the above debates. So what we have is not what my 
friend and colleague from Michigan would infer, that somehow before 
there was simply an ability--yes, there were cloture motions and either 
they were invoked or they were rejected, and that somehow they were 
invoked and that is why you were able to vote on it. No. Here you had 
the Republican majority leader file the cloture motions for Berzon, for 
Paez. My colleague, Senator Sessions, said: I opposed them. I voted to 
support cloture. I voted against the nomination, and that is what we 
are asking for.
  Follow the history. That is what is at stake, as Senator Levin said, 
the historical role of the Senate. If it has changed it, it has changed 
it at great risk.
  The situation was similar in 1994 when some Republicans voiced 
objections to President Clinton's nomination of H. Sarokin to the 
United States Court of Appeals of the Third Circuit. A majority of 
Republicans supported a cloture motion after a relatively brief period 
of debate and cloture was invoked by a vote of 85 to 12. Judge Sarokin 
was then confirmed by a vote of only 65 to 35. Twenty-three then of my 
colleagues supported cloture. The majority supported cloture. Yet at 
the same time they voted against the candidate. That is the history of 
this body. That is what the Constitution requires.
  I am told that the only judge nominated by President Clinton who 
faced a partisan filibuster was that of Brian Theodore Stewart, a 
nominee to the Federal district court in Utah. However, it was Senate 
Democrats who filibustered the nominee in protest over purported delays 
in bringing other judicial nominees to the floor. A cloture motion was 
voted upon on September 21, 1999, and failed, falling short of the 60 
votes by a vote of 55 to 44, with all Democrats except Senator Moynihan 
opposing cloture.

  Once again, Democrats' objection was not to Judge Stewart himself and 
on October 5, 1999, the Senate confirmed him by a vote of 93 to 5. So 
for all the handwringing that we heard about the treatment of President 
Clinton's nominees, one is very clear: Every single one of them got a 
vote.
  The fact is that what happened here is that my colleagues followed 
the history and tradition of this body and said they would make sure 
they got a vote because that is what the Senate is called upon to do, 
advise and consent. There is a principle of majority rule, a principle, 
again, espoused in this document, in this Constitution, of the United 
States.
  My colleague also implied that it is just fine to prevent an up-or-
down vote on at least 4 of these nominees because we blocked 60 of 
President Clinton's nominees. I have two observations about that, and I 
know this is what frustrates me and my colleague Senator Graham. The 
fact is that there is and has been a tradition in this body, shortly 
before the end of the President's term. What happens is that folks kind 
of say, well, let's see who the new guy is, see what happens, and they 
slow it up.
  The numbers are even more stark, by the way, if we compare the number 
of

[[Page S14730]]

nominees left hanging at the end of the first Bush administration by 
Senate Democrats with the number of Clinton nominees awaiting 
confirmation at the end of the Clinton administration. The Democrat-
controlled Senate left 54 of the first President Bush nominees 
unconfirmed at the end of 1992. In contrast, at the end of the Clinton 
administration, 41 nominees remained unconfirmed.
  Let's stop that practice, unless a game is being played, unless these 
are clearly unqualified nominees, unless there is some reason to 
suspect we are not having qualified folks coming before us and we are 
playing politics.
  On the other hand, well, they did it to us and we are going to do it 
to them. It is like the Hatfields and McCoys, like Montague and 
Capulet. It is like a family feud. It is futile and it needs to stop. 
It needs to change.
  I appreciate the comments of my friend Senator Levin at the end 
saying maybe we can get beyond this. I hope we can get beyond this. I 
hope we can do what Senator Graham talked about when we started this 
conversation a little over 3 hours ago and he said let's look to the 
future.
  The future is only going to be a bright future if we, one, follow the 
dictates of the Constitution, understand that there is this concept of 
majority rule, that the Constitution dictates that these nominations be 
dealt with on a majority basis, and that this body respect the history 
and tradition. That is what we have.
  Then, of course, it is the responsibility of the President to bring 
forth qualified nominees and get past the rhetoric of extreme. I dealt 
with Priscilla Owen. Let me talk about Bill Pryor, for example. Alabama 
Attorney General Bill Pryor, nominee to the Eleventh Circuit, has 
earned a reputation as one of America's most experienced and esteemed 
State attorneys general. His nomination has received overwhelming 
support from across the ideological and political spectrum. Mr. Pryor 
was appointed attorney general of Alabama in 1997 and was 
overwhelmingly reelected; outstanding credentials. He was a law clerk 
for civil rights legend, the late Judge John Minor Wisdom.

  Senator Lamar Alexander, also one of our newer brethren, fraternity 
of those who just got elected this year, had an opportunity to work 
with Judge Wisdom, who is, by the way, one of the great civil rights 
legends. Attorney General Pryor worked for him. Pryor graduated magna 
cum laude in 1987 from Tulane University School of Law and was then 
chief of the Law Review. What is interesting is that Attorney General 
Pryor is being attacked as being extreme. He is a man, by the way, who 
does have very strong beliefs. He is human. He has strong beliefs. That 
is not a bad thing. That is a good thing.
  He is a person who has shown that he is willing to put his beliefs to 
the side to look at the law and to interpret the law, and that is what 
we expect a judge to do.
  My friend Senator Graham and I have talked about this. We talked 
about Bill Pryor. There is the chief judge in Alabama, who was involved 
with the case about the Ten Commandments in court. The courts have said 
that is unconstitutional.
  Now, I suspect General Pryor believes that is probably a good thing, 
but General Pryor then leads the effort to challenge--in effect, to 
prosecute--the chief justice saying the law has to be enforced. That is 
what it is about.
  Bill Pryor has also been a moderate voice in the partial-birth 
abortion debate. By the way, that is a mainstream position, but a court 
decision came down and challenged the Alabama law. General Pryor, in 
accordance with his duty to defend the statute, that is what he did. He 
then exercised that authority putting aside what I am sure are personal 
opinions to enforce the law. That is not extreme. That is mainstream. 
That is what we want on a court.
  Yes, we have people of character, principle, and strong beliefs. What 
the other side has done is they take folks who have these strong 
beliefs, who then espouse them. Along the way they may give a speech, 
they may give a writing, and then they wave that around to see how 
extreme they are, but we have to judge people by their actions. We have 
an attorney general who puts aside his personal beliefs to say he will 
enforce the law. That is what you do.
  My distinguished colleague who will take the floor after me, Senator 
Pryor, was a former attorney general. I know he operated in the same 
way. That is what he would expect of his colleagues, put aside personal 
beliefs to enforce the law. That is what makes a good judge. Vote them 
up, vote them down. Give them a vote.
  I yield the floor to my colleague, Senator Graham.
  Mr. GRAHAM of South Carolina. I thank the Senator for yielding. I 
think he did a very good job of trying to explain the best we can that 
this has never been done before, that this is truly a new era for the 
Senate. We are filibustering judges who have been reported out of the 
Judiciary Committee for the first time in the history of the country. 
That fact will never go away. It has never happened before. Abe Fortas 
was not a partisan filibuster. Republicans and Democrats thought the 
man was not qualified to be chief judge because of some ethics 
complaints, and the President withdrew it. But you had Republicans and 
Democrats banding together trying to send a message to the President 
that they did not think this person was promotable. They had 4 days of 
debate. It was not a filibuster. It wound up being a bipartisan effort 
to come together to send a message to the President.
  There is nothing bipartisan about this other than the fact that every 
nominee who is being filibustered has Republican and Democratic support 
to sit on the bench in a majority fashion. That is the problem here, 
that if all of these people who are being filibustered had their day on 
the floor, an up-or-down vote, they would be judges and they would have 
Democratic votes. One of them has 55, we believe, because 55 people 
have voted to allow a vote on the floor. That is important.
  These people would be judges, just like the two Senator Lott 
intervened on. The two Democrats who were being opposed by some Members 
of the Republican Party, Senator Lott stepped in and stopped it. He 
filed a cloture motion and it passed overwhelmingly to end debate, and 
they are sitting on the bench today. Good for him. I am glad he did it.
  I want to be fair, too, to Senator Corzine. There is nothing wrong 
with people talking about issues before the Senate in trying to get 
money sent to the parties. Both parties do that. I have never suggested 
that Senator Corzine has done anything wrong. I am just trying to put 
in perspective what this debate truly is all about, because when you 
are out there talking to your base about what you are doing that can be 
a pretty good evidence of what is in your heart and what you mean to 
do.
  Now I have the whole document. This chart is an excerpt from a 
November 3 fundraising e-mail sent out by Senator Corzine, the head of 
the Democratic Senatorial Campaign Committee. It says:

       Senate Democrats have launched an unprecedented effort . . 
     . By mounting filibusters against the Bush administration's 
     most radical nominees, Senate Democrats have led the effort 
     to save our courts.

  I have been saying for days now that this e-mail indicates that they 
view this to be an unprecedented effort by Democratic colleagues and 
the unprecedented effort is mounting filibusters. But this dot, dot, 
dot, now I have the whole e-mail and I do want to be fair. I do not 
think it has changed a thing. Having looked at the e-mail, I think it 
reinforces my point.
  This is what the actual paragraph says in full:

       Senate Democrats have launched an unprecedented effort to 
     protect the rights of all Americans by keeping our courts 
     fair and impartial. By mounting filibusters . . .

  I think a fair reading, a fair interpretation of the English 
language, is that the unprecedented effort refers to the filibusters. 
They are throwing in some nice language about being fair in there. 
Nothing has changed.
  This was an e-mail sent out to try to tell Democrats that we are up 
here fighting Bush in an unprecedented way by filibustering his judges 
because we think they are radical. This e-mail is about a particular 
judge, and I am going to read the whole thing. This is the way it is 
entitled:

       Senate Democrats protect our courts again. Dear Erin, 
     Senate Democrats have stopped another judicial extremist who

[[Page S14731]]

     wants nothing more than to turn back the clock on fifty years 
     of progress on civil liberties. Reproductive freedom, equal 
     opportunity, and corporate accountability again.

  What a lousy person that is--that is me stating.

       After being defeated under a Democratic controlled Senate, 
     controversial judicial nominee Charles Pickering was defeated 
     again on Thursday by Democrats in the Senate.
       For the first time in history, a President of the United 
     States re-nominated a judicial nominee that the committee had 
     already voted down but the Senate Democrats stopped the Bush 
     Administration in its tracks.

  That is true. When the Democrats had control of the Senate, Judge 
Pickering was voted down on a party-line vote. The President has a 
right to resubmit the nominee. I am very glad he did because this time 
he came out of committee on a party-line vote.
  We just have a different view of whether or not this man is a racist, 
because there is no other way to interpret what this e-mail is saying 
about this man.
  Continuing:

       Despite the administration's desire to ignore the 
     Constitution's rule of advice and consent, Senate Democrats 
     are holding Republicans accountable.
       Why must the Democrats continue their fight against Charles 
     Pickering?
       While in law school, Mr. Pickering wrote an article 
     suggesting ways the State of Mississippi could better enforce 
     its ban on interracial marriage.
       As a State senator in the 1970's, Mr. Pickering worked to 
     repeal important provisions of the Voter Rights Act.
       In 1994, he went out of his way to seek a more lenient 
     sentence for a convicted cross-burner.

  They have described somebody who is not what you would want to have 
on the bench. There is no other way to say it other than this e-mail is 
directly and indirectly suggesting Charles Pickering is racially 
motivated. What a horrible thing to say about somebody if it is not 
true.

       Once defeated when Democrats had a majority in the Senate, 
     President Bush nominated Charles Pickering for a second time 
     after the 2002 elections and now two successful filibusters 
     launched by Senate Democrats have kept him off the bench!
       The Bush Administration is devoted to using the courts to 
     its political advantage. Time and again, this administration 
     has nominated ultra-conservative candidates who are zealously 
     devoted to advancing corporate interests, taking away 
     reproductive freedom, smashing the wall of separation between 
     church and state, and dismantling equal opportunity.
       But the Administration has got a big problem: Senate 
     Democrats. Senate Democrats have launched an unprecedented 
     effort to protect the rights of all Americans by keeping our 
     courts fair and impartial. By mounting filibusters against 
     the Bush Administration's most radical nominees, Senate 
     Democrats have led the effort to save our courts.
       Help the Senate Democrats keep fighting. Support the DSCC 
     efforts to help elect more Democrats to the Senate--and keep 
     the proven leaders we have. Help the DSCC send a message to 
     the Bush Administration--Senate Democrats will NOT rubber 
     stamp extremist judicial candidates. Help us fight to 
     maintain judicial integrity by sending more Democrats to the 
     United States Senate in 2004.

  That is the e-mail in its entirety. Now the accusations in that e-
mail are strong, they are direct, and I think vicious. Judge Pickering, 
according to this e-mail, is someone who wanted to keep the interracial 
marriage statute alive when he was in law school by writing law school 
papers in support of this. He went out of his way in 1994 to make a 
sentence more lenient for a convicted cross burner.
  The only thing a rational person would receive from that litany is 
Judge Pickering is friendly to a cross burner. If that is true, he 
should never have been a judge for 30 seconds. If the other things are 
true, it was a huge mistake to ever advance this man forward.
  But here is the problem I have with believing what is in this e-mail. 
Number one, I have met the man. I have talked to him. I served in the 
House with his son, Chip, who is one of the nicest, brightest young men 
I have ever met. This e-mail describes him as a very intolerant, 
racially insensitive person. But I can tell you without a doubt from 
personal experience he did a great job as a father because his son is 
anything but racially intolerant. His son is a wonderful young man.
  If that e-mail is true, then you explain to me how the American Bar 
Association could give him the highest rating possible, well qualified. 
Did they miss this racial past? Or do they condone it? How about this, 
maybe this is a cut-and-paste job and they didn't buy it. He graduated 
first in his class; 99.5 percent of the cases were affirmed or not 
appealed. His reversal rate is below the national average, two times 
lower than the average district judge in the Fifth Circuit Court of 
Appeals. He has never had a voting rights case appealed or reversed. He 
has never had a formal discrimination case reversed in 170 cases and is 
endorsed by the current president and 17 past presidents of the 
Mississippi State bar. Maybe they are all racist, too. He is endorsed 
by all major newspapers in Mississippi. He is endorsed by all statewide 
elected Democrats and the chairman of the Mississippi legislative black 
caucus. He was endorsed by former Democratic Governor William Winter, 
Bill Waller, former Democratic lieutenant governor, and the list goes 
on and on and on.
  Other people object, but I assure my colleagues this e-mail is a 
distortion of this man. Here is the Judge Pickering I have come to 
know. In 1967 when Mississippi was red hot and racial tensions were 
very high in the South, particularly in Mississippi, he served as an 
elected county prosecutor. He was asked to testify against the Imperial 
Wizard of the Ku Klux Klan of Mississippi. He took the stand against 
the Imperial Wizard successfully but lost his job. He was not in the 
mainstream; he was swimming upstream.
  In 1967, when schools were integrated in Mississippi--and I have told 
the story about integration in South Carolina--he chose to keep his 
children in public schools at a time when White flight was the dominant 
way of dealing with the problem in that part of Mississippi. You will 
see class photos in that era of a lot of African-American children and 
a smattering of White kids. Among those White families, White kids, 
were Judge Pickering's kids.
  He chose at a time, when others did not in large numbers, to try to 
make Mississippi better. He has been head of the Mississippi Baptist 
Association. He has been on the Federal bench for a dozen years, rated 
well qualified by the American Bar Association.
  Of all the events that have occurred in the Senate since I have been 
here, this one bothers me the most because southern White males are 
very open to the accusation that we are racially insensitive, due 
mostly to the way the South has conducted itself.
  When I grew up, my family had a restaurant and African Americans came 
to get their food and to buy a beer and they had to leave because there 
was no mixing of the races until I was in high school. That is not 
something to be proud of. Judge Pickering was part of the solution.
  What they are trying to cast this man as being is unfair to him; it 
is unfair to his family. If you believe it to be so, you can vote 
against him. But he is the best example of how sick the Senate has 
become.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. I ask unanimous consent we use 5 more minutes of the 
majority's time and we subtract it from the next hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COLEMAN. Mr. President, I will continue the Pickering story 
because I think it is important.
  My colleague, Senator Graham, has done a tremendous job of laying it 
out. I don't know Judge Pickering's son as well as Senator Graham does, 
but I have met him. I have to go beyond that.
  Senator Graham mentioned when he was in law school that he wrote an 
article on interracial marriage. That was in 1959. He was assigned to 
write an article. It was required, not voluntary. It was an academic 
exercise. The article evaluated various State laws on interracial 
marriage. He took no position on the moral nature of these laws nor did 
he advocate or condone the ban on interracial marriage. He was given an 
assignment and required to do it.
  In the case of the cross burning--and I am a former prosecutor and I 
have seen this happen--he simply sought precaution in sentencing. There 
was a bad investigation done by the Clinton Justice Department. They 
recommended a plea bargain to the guy in the cross burning who was the 
ring

[[Page S14732]]

leader. So he gets off. There is a trial then for the other guy. Judge 
Pickering is there and he sees it is simply not proportioned. He told 
the guy he tried, who was not the ring leader--but the other got was 
off the hook. He said what he had done was heinous and dastardly and 
would not be tolerated and someone would have to spend time in the 
penitentiary for his act and ruled according to the sentencing 
guidelines. On and on.
  This is an individual who, again, sent his kids to interracial 
schools in the 1970s. This is a guy who testified against the KKK. This 
was a death sentence.
  In 1985, he was president of the Mississippi Baptist Association, and 
he presided over the first convention addressed by an African-American 
pastor.
  I could go on and on and on. Again, what we have here is mainstream, 
not extreme. This is a person who was supported by the folks who know 
him best. Many African-American judges have written in support of Judge 
Pickering, including Justice David Keith, the first African-American 
Federal judge in Mississippi, Henry Wingate, the first African-American 
Supreme Court judge in Mississippi, Rubin Anderson, and Mississippi 
court judge Johnny Williams.
  What we have is a case where the people who know him best see this is 
a decent man. This is a man without prejudice. We have special interest 
groups with their own agenda from outside looking to shoot him down. In 
doing so, what we have is this Senate undermining the Constitution and 
our obligation. They are doing something that has not been done before, 
without legitimate base. Vote them up, vote them down, give them a 
vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. PRYOR. As I understand what just transpired, his additional 5 
minutes or so will be applied to the next hour so I still have 30 
minutes.
  The PRESIDING OFFICER. That is correct.
  Mr. PRYOR. Mr. President, I thank my colleagues on both sides of the 
aisle for their zealousness on the issues that are present here with 
regard to these judicial nominations. I know my colleagues on the 
Republican side have very strongly held opinions and viewpoints they 
are very sincere about holding. I may differ with them on some of the 
particulars and some of the conclusions, but I respect their opinions 
and I respect their zealousness and their commitment to their cause.
  Likewise, on the Democratic side, I have a number of colleagues over 
here who have done a very good job of poignantly discussing these 
issues and trying to present the other side of the story. I think they 
are equally passionate.
  In some of the finest traditions of the Senate, this august body, 
this Chamber, is like an arena where maybe two great competitors come 
in, hash it out and fight it out. That is how the Senate is designed. 
It is almost like in the Bible, the Book of Proverbs, as iron sharpens 
iron, one man sharpens another. I just hope that is the process we are 
going through, that we are sharpening the other, that we are making 
this engine better and we are progressing as a people and as a nation.
  I appreciate the Presiding Officer being here. It is the second night 
in a row the Senator has had the graveyard shift. Someone with your 
seniority, I am surprised to see down here two nights in a row. I know 
you are doing your duty for your colleagues and for your Nation. 
Certainly there are untold numbers of staff people who work for the 
various Senators, who work for the Senate itself, the Capitol Police, 
the C-SPAN team. I have been watching some of this at home or in my 
office and C-SPAN has done a great job. Periodically when a term will 
come up that may be unfamiliar to the viewers around the country, they 
will flash up a definition of that term, such as what a filibuster is, 
what a hold is, whatever the case may be. They have been taking this 
opportunity to use this as an instructional time for viewers back home 
to help understand their Government and help understand their Congress.
  I thank the cloakroom staff on both sides. I could go down the long 
list. The stenographers are doing double duty. There are so many people 
who should be thanked for allowing this marathon to go on. It has put 
strains on people. I am very sensitive to the fact they have families 
they need to get home to and they have lives outside of what goes on 
here on Capitol Hill. I express a deep and sincere debt of gratitude to 
those people.
  Let me talk about the judicial nomination process. Both my colleagues 
across the Chamber know I signed on to a letter with them this spring 
about trying to make this process work better. One thing I was 
concerned about in signing that letter is we might come to this point 
today where we would lock horns and have some gridlock on a few 
nominees. I hope we do not get to the point of gridlock overall in this 
process.
  As to the numbers, since we have been here this Congress, I believe 
we have confirmed 68 of President Bush's nominees and 4 have been 
blocked. Last Congress, there were an additional 100, so I believe the 
grand total is 168.
  We have seen a lot of charts with numbers and percentages, but I hope 
the whole process does not bog down. So the people around the country 
understand, we are talking only about a select few of the nominations, 
not the overall nomination process.
  One thing I was concerned about and one reason we wrote that letter 
several months ago was because we wanted to try to make the nomination 
process better.
  We want to try to make it more constructive and more productive. To 
me, a lot of that responsibility rests with the White House. We talked 
about that very briefly in that letter. I feel strongly that since the 
President, under the terms of the Constitution, is the one who begins 
the process of nominating, he and the White House staff need to try to 
get the Democratic and Republican leaders involved and sit down to try 
to work through some of these controversial nominations and try to 
figure out how we can do this better as we move forward.
  One thing I am concerned about is we, around here in the Congress, 
particularly in the Senate, probably more than the House, are so 
focused on tradition and history and how things have been done in the 
past that it is human nature, I guess, that we oftentimes cannot put 
aside the things that happened in the past. Sometimes those things are 
perceived to have been ill-willed or for whatever reason perceived to 
have been unfair, unjust, whatever the case may be. Of course, I have 
said many times that I have a concern that in this judicial nomination 
process there is sort of partisanship and gamesmanship, and it is just 
counterproductive for the people.
  So, again, I hope we can move forward. I want to try to continue to 
work with President Bush on his nominations. I believe I voted for 66 
of his nominations of judges. In fact, I was talking to my staff the 
other day, and I said: Well, the people who are calling in about some 
of these controversial judgeships, what are they saying to you? They 
say they want Senator Pryor to vote for candidate X, whoever that may 
be. The staffer will say: We appreciate your call. But we also want you 
to know he voted for 66 or 67 of President Bush's nominees. Invariably, 
the person on the other end of the line says: No, he hasn't. Because 
they are not hearing the other side of the story, that, again, we are 
only talking about a small percentage of the nominees who are not 
getting through.
  If you look at the numbers and the percentages that President Bush 
has accomplished since he has been President, they are historically 
high numbers.
  So I want to continue to work with the President and find that common 
ground. I believe we all have the constitutional responsibility to 
advise and consent on judicial nominations. Mostly what I am hearing on 
the other side--mostly--people believe the Senate should not be a 
rubberstamp. I think the vast majority of Senators believe the Senate 
should not be a rubberstamp and an automatic approval process for the 
President.
  I think we have a responsibility to the Nation to look at these--
again, the concept of iron sharpens iron, the President and the Senate 
sharpening each other, because he knows we will review and look very 
carefully at the nominations he puts forward. He puts

[[Page S14733]]

forward a higher quality nomination than if it was just a rubberstamp. 
That accountability is a positive thing for the people and for the 
Government. I take this responsibility seriously. I know all Members of 
the Senate do take their responsibility very seriously.
  Another thing I wish to say is that when I look at judges I kind of 
have a criteria. I have kind of broken it down into four parts. We try 
to be consistent in our office when we look at these four factors.
  One is just a starting point: Is the nominee qualified? Most of the 
people who make it through the committee are qualified. I think, again, 
there is a weeding out process there, but I start with the presumption 
that if they get to this stage in the process they are qualified.

  The second thing I ask myself is, can they be fair and impartial? I 
think that is an extremely important criteria. Admittedly, it is 
somewhat subjective. Reasonable minds can differ about if someone can 
be fair and impartial, and reasonable minds do differ.
  Again, that is one thing we get back to in the Senate. Someone like 
either of my two colleagues, who have spoken here in the last few 
minutes, who are so articulate and so good, they look at some of those 
nominees and there is no doubt in their minds, they are going to be 
fair and impartial. I look at them and I have some doubts. Again, that 
is how the process works. I am proud that their two States have sent 
them to the Senate. They are here to do their duty as God gives them 
the right to do it. I feel like I am here to do the same.
  So reasonable minds can differ about being fair and impartial. But 
regardless of how you come out on the conclusion, that is one of the 
criteria I use. I think it is extremely important for a judge.
  There is another, a third, element I look at; that is, has the 
nominee demonstrated an ability to exercise and to show the proper 
judicial temperament? For all the lawyers out there, and all the 
parties out there, if you have been in court before, you understand how 
important the judicial temperament can be in cases. Literally these 
judges oftentimes hold life or death in their hands for a criminal 
defendant. Or they may hold a business's solvency or whatever the case 
may be. It is very important. Their temperament oftentimes is 
determinative in how the case will come out. So again it is subjective, 
but I try to look at their judicial temperament.
  Then the fourth criteria is sort of the elastic clause. The 
Constitution has an elastic clause, so part of my criteria is kind of 
an elastic standard--and I don't say standard but elastic 
consideration--and that is, are there other factors or other 
circumstances, when you look at these nominees, that should be 
considered? And, boy, that is just open-ended.
  But I think, as Senators, we should consider the totality of the 
circumstances. We should look at these nominees in a historical 
context; it may be a social context; it may be something unique to that 
region or that State or that person. I think it is incumbent on us to 
look at those carefully.
  Here again, it is subjective. Is that something you can really write 
down as criteria of how it is going to work in every single case? No. 
Maybe it should not be. Maybe it should be left elastic so it can be 
changed and be looked at from different perspectives with each 
particular nominee.
  But regardless of that, I do take my role and my duties as a Senator 
very seriously. One of those roles that I believe very strongly about 
is the people of Arkansas sent me here to work with everybody else who 
is up here. If the people of this country want to elect George Bush as 
President, I am here to work with President Bush. Mississippi sends 
their set of Senators and Texas sends their set of Senators, and 
Massachusetts and California, and I believe my responsibility, as a 
Senator for Arkansas, is to work with who is here. That is what I have 
tried to do, and I will continue to try to do that.

  One thing also we need to keep in mind is that these judicial 
nominations we are talking about today and that we always have under 
consideration here in the Senate are lifetime appointments. Only under 
extreme circumstances will these people be removed from office. It is 
very rare that happens in American history, but it can happen. But 
these are lifetime appointments.
  I think it is critical that our judiciary is independent. I think 
that is the way our Founding Fathers set it up. We better get these 
nominees right on the front end because these people will serve for 
life.
  Like I say, they hold justice in their hands. Their application of 
the law will be determinative for so many things during the course of 
their careers.
  I think, simply put, people are entitled to know what nominees think. 
I think people are entitled to know about the qualifications. They need 
to have the assurance that these nominees under consideration by the 
Senate--the people need to have an assurance that if these people do 
put on the robe, do serve on the bench, that the integrity of the 
system will be there and that these people will do justice, as their 
responsibility requires.
  I personally believe the people of America want a moderate and 
balanced approach. Personally, I think most Americans do not want to 
see the courts packed with judges with a conservative agenda or judges 
with a liberal agenda. I think most Americans want to see moderate, 
fairminded people on the bench. Because people understand that if you 
go into this with an agenda, then the courts will not be balanced and 
that judge and the court will have one dominant point of view. That is 
not good for our justice system.
  I do think there has been a lot of discussion about some of these 
judges' records. Again, I think those are subject to interpretation. I 
am not going to try to get into all the particulars of those. We do not 
have time tonight, plus my colleagues, for the last several hours, the 
last 30-plus hours, have tried to do that. Many of them have done a 
very good job.
  What I would like to do, if I can, is talk about one thing that does 
bother me, and that is the fact we are getting toward the end of our 
calendar year in the Senate and this is crunch time for the Congress to 
get its work done. In fact, right now our colleagues in the House, down 
the hall, basically are only meeting about 1 day a week, maybe 2, for 
votes because they have taken care of a lot of their legislative 
business--not all. They still have some things pending. But they have 
gotten theirs down to the point where they do not have to be in very 
many legislative days. In fact, a lot of what they are doing is waiting 
on us to accomplish and to finish our business.
  Well, here we are spending 30-plus hours in a talkathon about these 
four judicial nominations that have been blocked. I think we need to 
keep it in perspective. Some of the Democrats have talked about 3 
million jobs that have been lost in the last 3 years and what we are 
arguing about here are four judicial jobs. Well, that may be fair; that 
may not be. But I think there is some merit to that.
  To keep it in perspective, 98 percent of President Bush's nominees 
have been confirmed. That is a pretty good percentage. You try to find 
another percentage like that in history, I am not sure you will find 
it. Also, when you look at Government and we look at anything involving 
human events, 98 percent is a pretty high percentage.

  So again, I would encourage all of us to try to keep this in 
perspective. I heard one of my colleagues last night talk about 98 
percent of this and 98 percent of that. In fact, it was Senator 
Chambliss of Georgia. He had a very humorous monologue about that. But 
the truth is, 98 percent in politics and in Government is a pretty 
doggone good success rate. In fact, I would go so far as to say I am 
not sure anybody in Washington ever gets 100 percent of what they want. 
Most people are happy to get 50 percent of what they want, if they can 
just get that done.
  But regardless of that, I think most people I talk to back home 
understand that judges are important, and they understand that it is 
important that we have an independent judiciary, but they also perceive 
that these four nominations are not urgent to the welfare of our 
Nation. So that causes me to question why we are doing this right now. 
If this is a big issue, can't we put it off until another time? But 
regardless, we find ourselves here. That is just where we are right 
now.
  I want to talk about one other thing that is a concern to people all 
over the

[[Page S14734]]

Nation; that is, losing jobs in the manufacturing sector of our 
economy. It was announced the other day that one of the great companies 
in the world, I guess--Michigan-based Whirlpool--plans to move some of 
its refrigerator production, which is made in Fort Smith, AR--they plan 
to move those jobs from Fort Smith down to Mexico. Very sad news.
  Jim Pickens, who was, until very recently, Arkansas' economic 
development director, said that it is clear that some of the 4,500 
Whirlpool jobs in Fort Smith will go.
  The problem with this is it is not an isolated incident. It is a 
trend. It is something to which we in the Senate should be devoting our 
time. It is something that folks back home are very concerned about, 
losing these manufacturing jobs.
  One thing that is of particular concern in the Whirlpool case is it 
was just a few months ago--about a year ago--when Whirlpool made an 
announcement they were going to actually add 700 jobs in Fort Smith. Of 
course, there was a lot of excitement about that announcement. Now 
there is a lot of disappointment about what Whirlpool has decided to 
do. I am not saying this to be critical of Whirlpool, but I am saying 
to my colleagues instead of spending this much time on these four 
judicial positions, let's spend this much legislative time in trying to 
figure out how to save our manufacturing sector. Because I think long 
term when you look at what is good for technology and good for this 
Government, good for this country, saving those manufacturing jobs is 
probably more important than these four judgeships we are talking 
about.
  Another thing that I must tell you I experienced today is I went to 
Walter Reed Hospital, the Army hospital here in the DC area, and talked 
to men and women who had come out of Iraq and Afghanistan. Very 
sobering, very serious. These are patriots of the first order. Some of 
them will have lifelong injuries due to their service to this country.
  One thing that was emphasized with us over and over is that Iraq is a 
very dangerous place right now. There again, I hope, and I sincerely 
hope, the Senate will spend this much time in deliberation and in 
consideration of how we should move forward in Iraq and what that 
future looks like for Iraq.
  Mr. President, it does not bother me to work late. This is the second 
night in a row that I have had a late night slot. But it does bother me 
a little bit that we may have lost some perspective in that we need to 
keep these other important issues in perspective. No question that our 
judiciary is important. That is our third branch of Government. But we 
also need to keep it in perspective.
  Mr. President, may I inquire, how much time do I have remaining?
  The PRESIDING OFFICER. Four and a half minutes.
  Mr. PRYOR. How much time?
  The PRESIDING OFFICER. Four and a half minutes.
  Mr. PRYOR. Let me read part of a letter from Robert Caro. He is the 
man who wrote the Pulitzer Prize winning book, ``Master of the 
Senate.''
  ``Master of the Senate'' is the story of Lyndon Johnson when he was a 
Senator. In June of this year, Robert Caro wrote a letter, not to me, 
but to Trent Lott and Chris Dodd, the two leaders of the Rules 
Committee.
  Mr. President, I ask unanimous consent to print this letter in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               Robert A. Caro,

                                                     June 3, 2003.
     Hon. Trent Lott, Chairman,
     Hon. Christopher J. Dodd, Ranking Member,
     Senate Committee on Rules and Administration, Russell Senate 
         Office Building, Washington, DC.
       Dear Senators Lott and Dodd: Several members of the Senate 
     have asked me whether my research on the history of the 
     Senate sheds light on the current debate over the role of the 
     Senate with respect to President Bush's judicial nominations.
       Defining the right of extended debate is always tricky. If 
     it is being used against you, it is a vicious weapon of 
     obstruction, whose use in a democracy is unconscionable. If 
     it is you who is using that weapon, it is a great one to have 
     in your arsenal.
       Many times in America's history, the right of extended 
     debate has been used to defend causes with which I profoundly 
     disagree. In Master of the Senate, I tried to show how it was 
     a last-resort, but very effective, barrier thrown up in the 
     most ignoble of causes: the continuation of racial 
     segregation.
       Nonetheless, great care should be taken in placing new 
     restrictions on that right. Senators who are considering 
     doing so should understand that they will be taking a step 
     that has significant implications for the balance of powers 
     created under the Constitution, and also for another very 
     fundamental concern in a democracy: the balance between 
     majority and minority rights.
       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 Senators to do that, no 
     matter how popular the President or how strongly the public 
     opinion polls of the moments support the President's stand on 
     the issue involved.
       I said in Chapter 1 of Master of the Senate that ``. . . in 
     creating the new nation, its Founding Fathers, the Framers of 
     its Constitution, gave its legislature . . . not only its own 
     powers, specified and sweeping . . . but also powers designed 
     to make the Congress independent of the President and to 
     restrain and act as a check on his authority, [including] 
     power to approve his appointments, even the appointments he 
     made within his own Administration. . . . And the most potent 
     of these restraining powers the Framers gave to the 
     Senate. . . . 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.' ''
       I also pointed out that ``the Framers wanted to check and 
     restrain not only the people's rulers,'' but also the 
     possibility that the majority will would be used, in 
     Madison's words, ``to oppress the minority.'' The Framers, he 
     said, established the Senate as the body ``first to protect 
     the people against their rulers; secondly to protect the 
     people against the transient impressions into which they 
     themselves might be led. . . . The use of the Senate is to 
     consist in its proceeding with more coolness, with more 
     system, and with more wisdom, than the popular branch.'' The 
     Constitutional Convention adopted the two-House Congress with 
     almost no dissent.
       To give the Senate strong protections from transient public 
     passions or executive pressure, the Convention kept the 
     Senate small so that it would have, again in Madison's words, 
     less propensity ``to yield to the impulse of sudden and 
     violent passions, and to be seduced by factious leaders into 
     intemperate and pernicious resolutions.'' To make the Senate 
     more stable, to keep it ``firm,'' and ``to insure their 
     independency'' [Edmund Randolph], the Framers gave Senators 
     terms three times as long as House members and half again as 
     long as the President's. As a final layer of armor, only one-
     third of the Senate would be elected every two years, so that 
     the Senate would change only gradually over time.
       As I wrote, since the power of the President and the power 
     of the people would be very strong under the Constitution, 
     ``to enable the Senate to stand against these powers--to 
     stand against them for centuries to come--the Framers of the 
     Constitution made the Senate very strong.''
       I have pointed out that one of the first acts of the Senate 
     was to write the 1789 statute setting up the federal 
     judiciary system. Sixteen years later, the Senate was called 
     upon to preserve and protect the independence of that system 
     by standing up to Thomas Jefferson, a popular President with 
     a majority in both Houses. Jefferson wanted the Senate to 
     help him tilt the Supreme Court in his own direction, by 
     convicting Justice Samuel Chase after the House had impeached 
     him on a party-line vote. Jefferson had more than enough of 
     his own party members in the Senate to convict Chase, but 
     enough Senators from both parties voted against the President 
     to sustain the independence of the Judiciary from the 
     Executive. As your colleague Senator Byrd said some two 
     centuries later, ``The Senate exercised in that fine moment 
     of drama the kind of independence, impartiality, fairness and 
     courage that, from time to time over the years, it has 
     brought to bear on the great issues of the country.'' The 
     independent Senate had vindicated the Framers' hope that it 
     would stand against the tyranny of presidential power and the 
     tides of public opinion.
       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 of Rule XXII in 1917 allowed a 
     two-thirds cloture vote on ``measures,'' but nominations 
     were not brought under the rule until 1949.
       In short, two centuries of history rebut any suggestion 
     that either the language or the intent of the Constitution 
     prohibits or

[[Page S14735]]

     counsels against the use of extended debate to resist 
     Presidential authority. To the contrary, the nation'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 issue of the moment--because much more than the 
     particular issue is involved. What is a Senator--let us say a 
     senator from small-population state without any other means 
     of defense--votes to support an new limitation on debate 
     today? What will he do in some future year when he is trying 
     to stop a bill or a nomination that a bare majority of the 
     Senate supports, but that he and 40 colleagues believe will 
     be terribly detrimental to their states or to the nation--an 
     action that he feels a few members of the senate may change 
     their view about if only he has enough time to explain the 
     full consequences to them and to the public? What will he 
     feel when he suddenly realizes that his right to hold the 
     senate floor against that action has been so greatly reduced 
     that the bare majority can silence him before he is finished 
     making his case? What will he do when he realizes that, 
     without the right of extended debate, his cause is ultimately 
     helpless?
       I am not attempting to say that the right of extended 
     debate should not be modified. I am, however, attempting to 
     say as strongly as I can, that in considering any 
     modification Senators should realize that they are dealing 
     not with the particular dispute of the moment, but with the 
     fundamental character of the Senate of the United States, and 
     with the deeper issue of the balance between majority and 
     minority rights.
       As I told a group of Senators last month, you need only 
     look at what happened when the Senate gradually surrendered 
     more and more its power over international affairs to learn 
     the lesson that once you surrender power, you never get it 
     back.
           Respectfully,
                                                   Robert A. Caro.

  Mr. PRYOR. Mr. President, basically what Robert Caro points out in 
this letter is:

       Several members of the Senate have asked me whether my 
     research on the history of the Senate sheds light on the 
     current debate over the role of the Senate with respect to 
     President Bush's judicial nominations.
       Defining the right of extended debate is always tricky. If 
     it is being used against you, it is a vicious weapon of 
     obstruction whose use in a democracy is unconscionable. If it 
     is you who is using that weapon, it is a great one to have in 
     your arsenal.

  I think right there we see the tension Mr. Caro captured so well in 
his book, but here again he has captured it and framed up the issue 
very well for us. The right of the filibuster or unlimited debate is 
something that is viewed very differently, depending which side of the 
filibuster you are on.
  It has historically in this country been used time and time again for 
almost everything under the Sun--sometimes successfully, sometimes not 
successfully. One thing he talks about is:

       Nonetheless, great care should be taken in placing new 
     restrictions on that right. Senators who are considering 
     doing so should understand that they will be taking a step 
     that has significant implications for the balance of powers 
     created under the Constitution, and also for another very 
     fundamental concern in a democracy: the balance between 
     majority and minority rights.

  I have no doubt some of my colleagues on the Republican side 
genuinely feel the Democrats are out of line in using the filibuster in 
this context. Also, I have no doubt many of my colleagues on the 
Democratic side feel we are perfectly within our rights to use the 
filibuster. Here again, I encourage my colleagues to look at this 
letter from Robert Caro dated June 3, 2003, which brings a historical--
not a political, not a partisan, but a historical--perspective to what 
we are talking about tonight and what we will be voting on in the 
morning.
  Again, I thank all my colleagues for being here. It is late-night 
duty. It is not easy. The staff has just done a fantastic job. My 
legislative director, Walter Pryor, has been with me every step of the 
way. I know he would like to get some normalcy back in his life, as do 
so many of us.
  Has my time expired, Mr. President?
  The PRESIDING OFFICER. The Senator has 40 seconds.
  Mr. PRYOR. Mr. President, again, I thank you and thank my colleagues 
on both sides of the aisle for all their hard work in bringing these 
issues to the forefront. I see my colleague from Rhode Island, Senator 
Reed, walk in. We went to Walter Reed Hospital today. I know he has had 
a long day. I look forward to listening to his remarks.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, I wish to acknowledge 
Senator Pryor's commitment to moving this process forward. He did write 
a letter a while back trying to find a way to better handle the 
problems we are having with judges. I think he has a very good heart 
about this. I respect him as a person. He has truly become a friend.
  With that kind of attitude, maybe we will find a way out of this down 
the road. Right now, unfortunately, we are stuck in the quicksand, not 
mud. The more we fight each other, the deeper into it we get. The 
atmosphere in the Senate right now about judges I think has taken a 
turn for the worse.
  There are probably many things one can point to in the past on the 
Republican side. I am not here to defend the past. I am here to talk 
about the future, and we have to deal with the present. Here is what 
about the present bothers me the most.
  There is an effort to filibuster judges in a way that has never 
occurred before in the history of the country. I think it is very 
unhealthy and constitutionally impermissible and will only be answered 
in kind. We are going to set the future course of the Senate down a 
road where it will be hard to get good men and women to apply. Let me 
tell you why I think they will not apply.
  I read a fundraising e-mail that concerned Charles Pickering. As one 
can tell when I spoke, it bothered me greatly what they are trying to 
do to Judge Pickering because I come from the South. I know how easy it 
is to be associated with the sins of the past, to be, for lack of a 
better word, sometimes stereotyped. Here are the accusations in the e-
mail:

       Why must the Democrats continue their fight against Charles 
     Pickering? While in law school, Mr. Pickering wrote an 
     article suggesting ways Mississippi can better enforce its 
     ban on interracial marriage.

  That statement clearly tries to make the reader believe this is a 
person who has supported interracial marriage bans and is racially 
insensitive. I ask the country to look at it in these terms. He was 
unanimously confirmed by this body 12 years ago. Not one person 
objected. I can't believe the whole body was asleep at the switch and 
this law school article was not known. He didn't advocate the ban on 
interracial marriage. It was under attack, and he wrote a scholarly 
dissertation about it.
  If you believe what the statement says, the entire Senate either 
didn't know about this or ignored it because the entire Senate 
unanimously approved Judge Pickering 12 years ago, long after he got 
out of law school, to sit on the Federal bench as a district court 
judge.
  The second point:

       As a State senator in the 1970s, Mr. Pickering worked to 
     repeal important provisions of the Voter Rights Act.

  The reader of this e-mail who is being asked to give money to help 
Democrats fight President Bush's nominees--what is the message you are 
trying to convey to the reader of this e-mail? That yet again in the 
1970s this same person, while holding public office in Mississippi was 
working to undermine laws that protected African Americans in the State 
of Mississippi. There is no other fair interpretation of why that is in 
this e-mail and trying to cast him in that light.
  Again, it is beyond my understanding and real belief, if that were 
true, if this man used his office in Mississippi in 1960 to undermine 
the Voting Rights Act, that this body 12 years ago would have 
unanimously approved him to be a district court judge.

  I believe these two statements were designed to emotionally charge 
the reader and to unfairly label Judge Pickering in a way that is not 
deserved and flies in the face of the fact that the Senate confirmed 
him unanimously 12 years ago.
  The last point:

       In 1994, he went out of his way to seek a more lenient 
     sentence for a convicted cross burner.

  My colleague from Minnesota very eloquently spoke about that case. I 
am on the Judiciary Committee. When I heard that accusation, it really 
did pique my interest. I wondered what was going on because none of us 
want a judge who is going to be sympathetic to such a horrible crime.

[[Page S14736]]

  Here is what actually happened. There were three defendants, not 
two--three defendants. The ringleader and the second oldest man, I 
believe, received a probationary sentence. The youngest of the three 
was charged with a crime of arson.
  What this judge did is he looked at the way the prosecutor handled 
three defendants, and he said: That is not fair. You are letting two of 
the worst guys go and impounding the youngest guy.
  That is what I want a judge to do. I want a judge to make sure the 
people who come before his court are treated in an apportioned manner.
  The third person, the youngest one, was given a speech and a lecture 
by Judge Pickering about the act of cross burning that should make us 
all very proud. The youngest defendant went to jail, but his sentence 
was adjusted in light of what happened to the other two people who 
basically got away with it because the prosecutor did a deal I don't 
understand myself.
  I do understand why Judge Pickering wanted to adjust the sentence, 
but if you listened to the words and read the transcript, he didn't go 
out of his way to do anything other than to make the sentences 
apportioned. He went out of his way to let the defendant know what a 
sleazy person he was by engaging in this activity, but he brought 
balance to the people before him.
  The reason I keep talking about this situation and Justice Brown is I 
am trying to let the record reflect for future review that I believe 
very sincerely these judicial nominees are having a tremendous hatchet 
job done on their lives. They are trying to make up reasons to justify 
a filibuster, and there is no good reason to have a filibuster.
  Senator Pryor is a very fairminded person. If he disagrees with me 
about Judge Pickering or anybody else, that is just life; he is right. 
All I am asking him and other Senators to do is to follow the 
Constitution, and the advice and consent clause for the entire history 
of the country when it comes to judges has been interpreted in a manner 
that the majority of the Senate will advise and consent, not a 
minority.
  What is happening to these four people--and we will talk more about 
the others--is very unhealthy for the country. The reason I say that is 
they are taking statements and articles, speeches, and letters to their 
church out of context, and liberal special interest groups are trying 
to oppose conservatives coming on the bench in an unfair way.

  These four individuals' lives have been distorted. That is what 
bothers me the most. If you don't like their philosophy, vote them up, 
vote them down, just vote, is the saying. If we continue what we are 
doing today into the future, no reasonable person is going to feel good 
about wanting to go on to the Federal bench given what is happening to 
these people, and that will be a huge loss to the country.
  The process we are engaged in today has no upside; it only has 
downsides, and the downsides I think are extremely dire for the 
country. Not only are you going to drive good people away because 
nobody is going to want to go through this--and I assure you it will be 
answered in kind, and that is sad because I know politics.
  The other downside is special interest groups, liberal or 
conservative, are going to have more power than they deserve over 
individual lives because all they need to do is get 41 votes.
  Special interest politics is part of our political landscape. The 
Constitution has checks and balances against each branch. One of the 
checks and balances I like the most about the way the judicial 
nominating process works is if a majority of us feel a person is 
qualified, they get to sit on the bench.
  Please, let's not as a group empower special interest groups to the 
point that 41 of us can stop somebody from sitting on the bench because 
we will have rewritten the Constitution, not only in its letter but its 
spirit.
  I end with this. Federalist Paper No. 66 has the following comment:

       It will be the Office of the President to nominate and, 
     with the advice and consent of the Senate, to appoint. There 
     will, of course, be no exertion of choice on the part of the 
     Senate. They may defeat one choice of the executive and 
     oblige him to make another, but they cannot themselves 
     choose. They can only gratify or reject the choice of the 
     President.

  For the sake of the future of law in this country, for the sake of 
the future of the Senate, let's not let a small group make it 
impossible for good people to serve.
  I yield the rest of the time to my good friend from Kansas, whom I 
have known since I have been in politics at the Federal level, Senator 
Brownback.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I appreciate my colleague from South 
Carolina carrying the comments and the load for several hours in the 
early morning as we approach 4:15 in the morning. We are talking about 
something of great importance. He has real wisdom in his words, too, 
about the point that the process on which we are embarked has no upside 
to it. When you have good people, qualified people blocked from the 
Federal bench not by majority vote but by filibuster, you are headed 
down a bad path. This bad path doesn't have a good ending.
  We will continue to have division in this body. I don't doubt we can 
be blocked on these for some time, but that is certainly going to carry 
over into the next election cycle, and this doesn't have an upside to 
it. Plus, we have good people waiting. We have people who are qualified 
and are not going to be serving on the Federal bench.
  We have a lot of hurt feelings. We have a lot of accusations made 
without truth. We have harsh words, harsh comments, and that all leads 
to a downward cycle. There isn't an up cycle here.
  I wish to take a few minutes to describe why I think we got to this 
point. We didn't used to be here. We have approved people of strong 
judicial opinions in recent times. They have generally been from the 
left, and those have been approved during the Clinton years.
  Lord knows we are talking about circuit court nominees now. What if 
we got a Supreme Court nominee? Does the body get tied up for 2 years? 
We have actually had one Supreme Court Justice who has been 
filibustered in the past.
  Why did we get to this point? It used to be if people had a litmus 
test on candidates, that was seen as a terrible thing and they were 
castigated. I don't know if the Presiding Officer or others remember 
when Ronald Reagan was accused of having a litmus test. That was just a 
horrible thing. His administration denied it. They didn't put forward 
people under a litmus test, and we were moving forward.
  Now people are being subject to a litmus test. They are being 
blocked. They are qualified, and they are being stopped. How did we get 
to this point? I want to take a shot at that and develop it from the 
standpoint of a case that is currently before the Supreme Court. It is 
the case of Michael A. Newdow v. The U.S. Congress, United States of 
America, George W. Bush, President of the United States, State of 
California, Elk Grove Unified School District. That would be the 
operative group in the Newdow case, the flag suit case. It is the case 
most people are familiar with where the Ninth Circuit Court of Appeals 
determined it was unconstitutional for our children in school to say 
the Pledge of Allegiance. The reason it is unconstitutional is because 
of something Dwight Eisenhower signed into law when he was President of 
the United States in 1954, and that is where the Congress of the United 
States added the phrase: ``One Nation under God.''
  That phrase was so offensive to Mr. Newdow or his child who was in 
the school that he said: I can't stand this any longer. He was joined 
by some other people and took this case to the Court.
  The Ninth Circuit said you are right. You should not have to. This is 
not right for our children to say one nation under God. That evoked 
quite a comment across the country. It evoked quite a comment by this 
body. I believe this body voted 99 to 0 to say that the flag salute is 
right; we should say this; it should be allowed by our children.
  There were a lot of protestations and the people commented that it 
was terrible that the Ninth Circuit would be so out of whack, so 
lacking of mainstream thought, so out of context and touch with the 
American public that they would rule against something that 98 percent 
of the American public is for, the flag salute.

[[Page S14737]]

  The problem with the public outpouring on Newdow and the problem 
facing the Supreme Court now on this Newdow case is that they were 
following precedence being developed over a period of 40 years, that 
the Supreme Court, circuit courts, and others had been working for a 
period of 40 years to remove the recognition of a higher moral 
authority from the public square. They were saying this is something we 
do not want in the public square.
  It started in 1962 that these series of cases is built upon. In 1962, 
Engel v. Vitale was the case that really started this whole string 
going. That was when our children were allowed to say a prayer at the 
beginning of the schoolday, and Engel v. Vitale said that was 
unconstitutional. It was followed by School District of Abington 
Township v. Schempp. There the Court held that the Bible readings in 
public school also violated the first amendment. It was followed, in 
1992, by Lee v. Weisman, a case about prayer that was being held at a 
graduation exercise. The Court held that was unconstitutional. It was 
followed, in 2000, by Santa Fe Independent School District v. Doe where 
prayer was being removed from being said at a football game. That is 
followed by the Newdow case now before the Court. I predict it will be 
followed by a case that will call for this body to remove ``In God we 
trust'' off the mantle that is here. I predict it will be followed by a 
case that will call on us to remove off of our money any reference to a 
higher moral authority, ``In God we trust'' being taken off of the back 
of the one dollar bill. It will follow, follow, follow.
  Well, people do not agree with that. Massive amounts of people in 
this country do not agree with that. People have mounted up now. 
Actually, some people do agree. Some people say, yes, we should remove 
the recognition of some higher moral authority, of God, from the public 
square. So we are engaged in this great ideological fight.
  I contend that this battle, this fight, of blocking these justices 
started about 40 years ago. Some of us participating in this form of 
debate feel as if the last couple of days have been along that 40-year 
line. What we are seeing is the courts injecting itself here into a 
societal issue that many people feel deeply about and immersing itself 
in this. Then both sides get fired up and we get good people such as 
Charles Pickering and Priscilla Owen and others--particularly a guy 
like Charles Pickering. He is probably the most instructive of the 
cases here.
  We have gone through ad nauseam his qualifications, but I want to 
make this point of him: First in his law school class, highest rating 
by Martindale Hubbell, unanimously approved by the Senate for a 
district court judge in 1990, affirmed on appeals 99.5 percent of the 
time, reversed only 26 times out of approximately 5,300 cases, received 
the ABA, the American Bar Association, highest rating, well qualified.

  So what is the problem with this picture? Mr. Pickering was president 
of the Southern Baptist Convention for Mississippi, so he is a man of 
faith. As such, when we have these 40 years of cases coming up that say 
we have to remove God from the public square and run into a guy such as 
Charles Pickering who says, I will uphold the law--and he has upheld 
the law because, if he had not, he would have been overturned many more 
times--he says I will uphold the law but I really think this line of 
cases and some of these discovered rights the court has done in just 
these last 40 years, I think they are wrong personally. I disagree with 
these. I will uphold the cases. But they run into people who are saying 
we are trying to remove God from the public square and we are going to 
try to remove people who believe in God from serving in the public 
square.
  You run into this clash, and you get this great clash in the 
civilization and you get this great clash in the culture. Now you have 
the courts injecting themselves in a great culture conflict that we are 
involved in in this country today. One of the key division issues in 
our country today is issues of culture. People ask what is that?
  Culture, it is difficult to say what that is, but people are 
concerned about it. There is not a company in this country that is not 
deeply concerned about its corporate culture. There is not a family in 
this country who is not concerned about its family's culture. There is 
now in the country itself concern about what its culture is going to 
be.
  The central issue is, are you going to recognize a higher moral 
authority or not? Is the motto ``in God we trust'' true or not? You get 
a guy qualified such as this who would say, yes, that motto is true. I 
believe it to be true. I will uphold the laws as ruled to date, but I 
do believe this motto is true. And it runs right smack into this series 
of cases and we are going to see it front and center again in Newdow. 
We will see it again and again.
  That is the problem actually with this, because it divides us on 
something that should not. It divides us on something that should unite 
us. It divides us in a way that I do not think is healthy for the 
country. I do not think this is good at all. I think it divides us on 
something that as a policy matter is not good and that is why I think 
it is also bad politics when this happens. I think bad policy is bad 
politics. That is why we have this level of fighting today. That is why 
I am speaking on the floor of the Senate at about 4:30 in the morning.
  We are going to continue to have this fight. Regardless of the vote 
that we take later this morning, how it takes place, probably really 
regardless of the dispensation of these four and future ones coming on, 
this is the cultural clash that we have. It is not healthy but it is 
going to continue.
  Mr. SANTORUM. Would the Senator from Kansas yield for a question?
  Mr. BROWNBACK. I would be happy to yield for a question.
  Mr. SANTORUM. Mr. President, the Senator from Kansas points out that 
Judge Pickering, who is a sitting Federal court judge right now, was 
affirmed in 99.5 percent of his cases. What I have heard from the other 
side is that we do not want these judges out of the mainstream being 
nominated.
  Now, would the Senator from Kansas say that someone who has been 
affirmed or not appealed in 99.5 percent of the cases since he has been 
on the Federal court is someone out of the mainstream?

  Mr. BROWNBACK. Mr. President, the number speaks for itself. 
Absolutely, this is a mainstream judge. When you get approved on that 
percentage of your cases that you have ruled on--remember, this is at 
the district court level, so he is both finding fact and applying law. 
You have to be a really good judge, if you are going to be upheld by 
people reviewing you 99.5 percent of the time on both facts, that means 
there is wisdom there, and law, which means he is applying it 
correctly.
  Mr. SANTORUM. I would ask the Senator from Kansas if he would look at 
maybe what the Senator from New York, Mr. Schumer, said yesterday he 
considers a mainstream judge. He referenced the Ninth Circuit and some 
of the judges that President Clinton nominated and were unanimously 
supported by Members on the other side of the aisle, a judge such as 
Richard Paez who was involved in the case the Senator just spoke of, 
the ``under God'' case in the pledge, who went in and tried to hold up 
the California election, ruled unconstitutional the California three 
strikes and you are out. This is a man that has been overturned--in 
fact the Ninth Circuit, with a majority of Democrat nominees, has been 
overturned more than any other circuit.
  Is that group of judges mainstream in the Senator's opinion?
  Mr. BROWNBACK. It is not mainstream.
  The PRESIDING OFFICER. The majority's time has expired.
  The Senator from Rhode Island.
  Mr. REED. Mr. President. Once again, we are engaged in the early 
hours of the morning in a discussion about judges and the role of the 
Senate, and our role is stark. We have the responsibility under the 
U.S. Constitution to give advice and consent to the nominations of the 
President of the United States, not advice and approval, not just 
advice, but advice and consent. That requires the Senate to take a very 
active role in reviewing the qualifications of nominees who come before 
us and making judgments about their ability to serve as members of the 
Federal judiciary.
  We take that seriously. I think that responsibility implies that at 
times we have to disagree with the President. It

[[Page S14738]]

is not unusual that such disagreements take place. This whole debate, I 
believe, might begin and end with a very simple statement of fact, 168 
to 4. One hundred sixty-eight of President Bush's nominees have been 
reviewed by this Senate and have been confirmed. Four have not. It 
suggests to me that the Senate is properly discharging its 
responsibilities to advise and consent with respect to the nominees of 
the President to the Federal judiciary.
  In fact, of those 168 individuals, they represent, I would suspect, 
jurists who have a conservative outlook, probably a different outlook 
than I have, on certain issues. Yet they represent both in terms of 
their conduct personally, but just as importantly their judicial 
temperament and their judicial philosophy, individuals who uphold the 
tradition of the Federal judiciary at the level of the district and 
circuit court individuals who follow law, not try to make it, who do 
not impose their views on the case before them but, in fact, follow 
precedence, who follow the guidance of the Constitution and the 
Congress in establishing the law.
  It is in those cases and the very few cases, 4 out of 168, where 
there seems to be a record of ideological commitment rather than legal 
scholarship, of political--with a small p--interest, rather than a 
judicial temperament that is fair and balanced, that the President's 
nominees have not passed the test.
  An example of this is the comment I made in May of 2003 when I 
contrasted the nomination of Judge Edward Prado to the pending 
nomination of the Texas Justice Priscilla Owen. Judge Prado served 19 
years on the United States district court. He is someone who has a 
record of fairness and evenhandedness. I would suspect, since he is a 
nominee of President Bush, that he has a conservative outlook in his 
approach to cases. But he is an appropriate judge. He follows 
precedence. He does not insert his particular philosophy, his 
particular ideology, into the cases before him. As a result, he was 
confirmed, an example of the 168 judges who have been confirmed by this 
Senate on behalf of President Bush.
  The four who did not pass the test were those whose record suggested 
that they were not evenhanded, they were not balanced; that indeed they 
inserted political or ideological bias in the conduct of their 
decisions. In that case, I think it is not only appropriate but it is 
our responsibility, as the constitutional body entrusted with advice 
and consent, to register our consent and to register our protest. And 
we have.
  This is not an unusual circumstance in the history of this Senate and 
of this country. There have been instances several times when 
Republicans have used the device of cloture votes and filibusters to 
express their concern about the qualifications or quality of a judicial 
nominee. It goes back many years, and it certainly continued into the 
administration of President Clinton. Abe Fortas, whose nomination as 
Chief Justice of the Supreme Court of the United States was subject to 
cloture votes, was subject to attempted filibusters by the Republicans. 
So were Rosemary Barkett and Stephen Breyer as a judicial nominee for 
the circuit court. Justice Breyer is now a member of the U.S. Supreme 
Court. In fact, I was here yesterday morning and listened to my 
colleague, the junior Senator from Missouri, talk about how Justice 
Breyer was at a conference he was attending and how he was articulate 
and appropriate, and might not be someone he philosophically agreed 
with but that he was a good judge--but Justice Breyer was the subject 
of cloture motions and a filibuster.
  Mr. SANTORUM. Would the Senator from Rhode Island yield for a 
question on that?
  Mr. REED. Could I just continue?
  Mr. SANTORUM. Certainly.
  Mr. REED. He was subject to a filibuster and subject to cloture votes 
before he was ultimately confirmed, and then ultimately went on to the 
U.S. Supreme Court.
  So this is not a procedure or a device that has not been used by the 
Republicans, because, in fact, it is part--indeed, a significant part--
of the procedural devices of the Senate, something that is appropriate.
  As I pointed out yesterday, what I find disconcerting and indeed 
somewhat contradictory to the argument of the Republicans today is that 
they were quite adept during the Clinton administration of using delay 
and denial of hearings to frustrate the nominations of so many 
individuals, so many potential judges, because many of these 
individuals never even reached the floor of the Senate for a vote. It 
was, in my words, a pocket veto.
  We are all familiar with the notion of a pocket veto. The President 
of the United States, in the last 10 days of a session, can simply put 
the bill in his pocket, not sign it, not comment on it, and it 
essentially dies as legislation. Well, that was done all too often in 
the Clinton administration.
  The most significant case is the one I mentioned before. In fact, the 
Senator from Pennsylvania and I yesterday had a bit of a colloquy about 
this. That is a nominee, Elena Kagan, who was nominated in 1999, spent 
18 months waiting for approval, no action was taken, and her nomination 
expired. Fortunately for Ms. Kagan, she has found other employment. She 
is now the dean of Harvard Law School, which might suggest that she 
certainly had some legal abilities that could have been used on the 
Federal bench. But that is an example of a pocket veto.
  Again, we are engaged in this discussion, this debate. It is a 
serious one, but it is taking place at a time when there are other very 
serious issues pressing this country. As my colleague from Nevada, 
Senator Harry Reid, pointed out in his long floor statement preceding 
this debate, that as we worry about four individuals who have not yet 
been confirmed, other Americans are seeing their jobs undercut. We are 
looking at unemployment rates of about 6.0 percent. They are hovering 
there. They seem to be persistent. Long-term unemployment is growing. 
It is becoming increasingly difficult for people to maintain their 
employment with good, solid jobs. We see the poverty rate going up. 
Meanwhile, the vacancies on the Federal courts have diminished 
significantly. We are at almost record levels of Federal judicial 
employment. But as we look at the people throughout this country, the 
poverty rate is growing. It is affecting children particularly. The 
rate of the uninsured, or people lacking health insurance, is 
increasing. Our budget deficit is soaring. The national debt is 
soaring. These are difficult issues, and yet we are here today talking 
about 4 individuals, out of 172, who have not been confirmed as judges 
and not been confirmed based, I think, on sound analysis and sound 
review of their records.

  So I think, again, to place this in context, we are performing our 
historic responsibilities that have been used and deployed by countless 
other Senates, both by Republicans and Democrats, throughout the course 
of this country's history. And indeed I think that is our 
responsibility and we are doing it.
  What I regret, and I hope after the conclusion of the votes this 
morning we can get back to, is critical business such as how do we 
expand economic opportunity in this country? How do we reinvigorate our 
manufacturing base, which is eroding dramatically? How do we give 
working families additional resources by raising the minimum wage? That 
would be something that would be very beneficial to millions of 
Americans. Can we pass good legislation that allows us to continue to 
invest in our infrastructure, in our highways, in our roads? And then 
in international affairs, how do we come to grips with the increasing 
crisis overseas in Iraq, a crisis that sees our soldiers, marines, 
airmen, and sailors each day engaged in conflict over there in a very 
difficult insurgency?
  As Senator Pryor mentioned, yesterday several of us had the 
opportunity to go up to Walter Reed Army Hospital. I have been there a 
few times over the last several months and have seen a Rhode Island 
military police unit, National Guard, assigned to Baghdad. They have 
suffered, unfortunately, casualties. To go there and see these young 
men, to see them having suffered, having served so magnificently, it 
makes you wonder why we are spending so much time on this debate, and 
not more time talking about the way ahead in Iraq, not talking about 
other situations of international concern.

  I find it startling just a few days ago the Central Intelligence 
Agency released a report concluding the North Koreans likely have 
several nuclear devices and likely will be able to deploy

[[Page S14739]]

those devices without testing. That they have apparently mastered a 
technological means to circumvent testing is startling, in fact, 
horrific information, but this is being lost in the shuffle with the 
Iraq situation. This is a fact that is startling and is pressing on our 
national security and our future security.
  But there is no extended debate on North Korean policy. There is no 
extended debate on the way ahead in Iraq. We have committed ourselves 
as a nation to a course of conduct that requires sacrifice, and yet we 
are not fully coming to grips with the nature of that sacrifice and 
what we should do.
  For many of these reasons, although this debate is certainly 
appropriate--that is one of the great things about the Senate, you can 
talk of the issues of the moment, the issues of the time, but certainly 
there are so many more pressing issues, so many more critical issues to 
the future of this country and to the future of America's families the 
continued obsession with this topic does disservice.
  Mr. SANTORUM. We have had debates in the past and I would like to ask 
the Senator from Rhode Island this question, and I am posing a 
hypothetical. Assume that, and I am sure some in this country would 
like to see this happen, in the next election President Bush is 
overwhelmingly defeated at the polls, after his defeat at the polls in 
November, President Bush nominates a judge to a circuit court after the 
election, and that the Senate happens to be in a lame-duck session 
after the election. He would nominate a judge to the circuit court. 
Let's also assume when President Bush gets defeated, not only does he 
get defeated but the Republicans lose control of the Senate. It is a 
huge win by the Democrats. Assume all that happens.
  President Bush, in the face of that, comes out after the election, 
nominates a judge to the circuit court and the Republicans jam that 
person through committee, get him to the floor and try to move a vote 
on that nomination to confirm him prior to the end when the Republicans 
would lose control and a new Democrat President is in place. Does the 
Senator believe your side of the aisle would confirm that nominee like 
that?
  Mr. REED. Reclaiming my time, I like your hypothetical. I like the 
context.
  Mr. SANTORUM. I thought this would be an interesting example.
  Mr. REED. I think you are being overly generous. I like to believe if 
the nominee was of the quality to serve on the Federal bench as a 
circuit judge, he or she would be approved, which is the rule that 
applies so far to 168 of the nominees of President Bush.
  I do say quite sincerely that, indeed, if someone was nominated by a 
President who did not measure up to those standards, the 168 judges who 
have been affirmed, they would not be voted in because they lack 
ability, skill, or judicial temperament, or the other criteria, and 
they would be opposed.
  Again, the record suggests that in dealing with President Bush's 
nominees, 168 have been confirmed. I suspect all of them are more 
conservative than any nominee suggested by President Clinton. All of 
them are individuals who, had a Democratic President been in office, 
would not have been nominated. That is the nature of the nomination 
process. Nonetheless, they were confirmed.
  Now, the last 2 days of a legislative session, with a change of 
power, et cetera, that introduces a unique aspect.
  Mr. SANTORUM. Do you believe anyone on your side of the aisle would 
try to block or attempt to filibuster given the unique nature of that 
circumstance?
  Mr. REED. There might be an attempt to do that, but your question to 
me is, what do I believe. Maybe this is an expression of my beliefs. I 
would like to think that, as in the case of 98 percent of President 
Bush's nominees, they would receive not only careful review but 
ultimately confirmation.
  Mr. SANTORUM. I ask the Senator two more points quickly. A nominee in 
November, to be confirmed within 3 or 4 weeks, the Senator would agree 
a careful review would be very difficult during that period.
  Mr. REED. I think the Senator is trying to refer to the more 
philosophical than pragmatic logistics. The reality is if someone, 
either someone who is a sitting judge or otherwise, was nominated----
  Mr. SANTORUM. Even assuming it was not a sitting judge.
  Mr. REED. Nominated in November, simply the FBI, background checks, 
the questionnaires, reviews, all those things, take time. In fact, the 
reaction, frankly, if any President did that, President Bush or 
President X or President Y did that, the public reaction would be very 
adverse, regardless of the Senate. I would like to move on.
  Mr. SANTORUM. The final point is, Justice Pryor, 1980, nominated by 
Jimmy Carter after the November election in 1980. The President's party 
lost the election, the Democrats lost the Senate, he was nominated 
after the election and was brought to the floor with no judicial 
experience, and the Republicans, who then took control of the Senate in 
1980, were asked to confirm him.
  What did the Republicans do? There were some on our side, I think the 
Senator can understand in response to the question, who said we should 
filibuster because we do not have the time to read his record, he has 
no judicial experience, but the Republican leader who was going to be 
the majority leader pushed his side not to filibuster, and moved him 
through. It was Justice Breyer.
  Mr. REED. My point was Justice Breyer was subject to a cloture vote, 
subject to a procedure that is being used here.
  Mr. SANTORUM. Under extraordinary circumstance, I think the Senator 
from Rhode Island would admit.
  Mr. REED. Let me reclaim my time. The circumstances might have been 
extraordinary but, again, this was an example of Republicans using the 
device of cloture votes, of threatened filibuster, of extended debate, 
to make a point that they felt uncomfortable with a judicial 
nomination. That is the principle.
  There is no special rule for the last 20 days of a session. There is 
no special rule that says that is when the filibuster is OK. There were 
sincere, well-meaning Senators, Republican Senators, who felt that 
because they did not have a chance to evaluate his record or because 
they felt his record was too liberal, they needed to do what they did. 
Justice Breyer, in fact, was well known to every person in this body. 
He had been the counsel to the Senate Judiciary Committee, and worked 
for Senator Kennedy on the deregulation of the airline industry. He was 
someone who had personal knowledge of every Senator in this body at the 
time.
  So this was not a question of who is this person. This was a question 
of some people expressing their sincere belief that because of his 
judicial philosophy, because of his temperament, because of the way he 
conducted himself, the Senate should not go forward in this automatic 
fashion.
  The point remains the same. This notion of the unprecedented, 
unconstitutional, un-American use of cloture votes and filibuster is 
quite wrong. It has been used before by both sides.
  The question must be back to the original hypothetical posed by the 
Senator from Pennsylvania, What is the criteria we are using. I urge 
that criteria has to be based upon a careful review of the conduct and 
temperament of the nominee. That is a better construct of the 
individual. Is this person someone who recognizes the careful balancing 
a judge must perform daily? Is this someone who, although he has very 
strong beliefs, strong ideas about the way the law should be 
interpreted, respects the fact that as a circuit judge or a district 
judge he or she has to follow precedent? Is this someone who does not 
try to impose their views on the law but tries to faithfully judge 
based on the law? That is the issue. That is the issue of all of these 
nominees, and 168 of President Bush's nominees have passed that test 
with flying colors. Four have not. That, I believe, is what we have to 
focus on.

  Once again, as we move forward--and this is an appropriate debate, 
this is one of the virtues, the glories of the Senate. We can stand 
here at 4:50 in the morning and talk about great issues that affect 
this great country. However, this is not the only issue. I would say 
there are so many more pressing issues. We will conclude this extended

[[Page S14740]]

debate this morning. We will vote, and then we have the responsibility 
of getting back to some very critical business the business of this 
economy, of this country, both here and across the globe.
  There is one issue among many issues we have to be particularly 
concerned about and that is the issue of our long-term economic 
vitality. We have a situation in the country where we are losing jobs 
left and right. We are particularly vulnerable to the loss of 
manufacturing jobs. Under the Clinton administration, in a huge jobs 
growth of the late 1990s, we saw an increase of 257,000 manufacturing 
jobs. Now we are seeing a contraction of employment generally, and 
particularly in manufacturing. We have lost about 2.45 million jobs in 
manufacturing. We have to do something. I hope we can.
  So far we have not taken action aggressively or as aggressively as we 
should. What we have seen in many respects is our manufacturing sector 
are jobs being lured overseas by lower wages, poor environmental 
quality standards, very little in the way of labor rights. It is 
attractive to employment. We have to do something about it. We operate 
in a context of international trade rules where we cannot simply put up 
a wall of tariffs around our country, so we have to be more creative 
and innovative. One of the problems that inhibits our creativity and 
our innovation is the fact that to help manufacturing concerns we have 
to provide some resources, in terms of manufacturing tax credits, in 
terms of a solution or at least progress when it comes to the issue of 
health care costs to companies throughout this country, which is 
probably one of the key problems facing every business enterprise in 
this Nation. That does not come cheap. When you look as it as we are, 
not only erosion of jobs but an erosion of the Federal budget moving in 
this administration from a surplus projected to be in the trillions of 
dollars over a decade, to deficits which are equally now being 
projected into the trillions of dollars, it constrains our ability to 
respond to these issues, to provide some type of benefits to alleviate 
the cost of health care for the manufacturing sector, to provide 
incentives for manufacturing, to provide tax credits and other programs 
so we can help manufacturing companies particularly deal with 
environmental concerns.
  One of the consistent complaints I get in Rhode Island is it is not 
fair, Senator, I have to abide by very strenuous rules on environmental 
emissions, yet I see competitors in China and other countries spewing 
smoke out of their smokestacks and pouring solids into the wastewater 
streams. I cannot do that.
  In fact, up my way, the manufacturers have been zealous in protecting 
the environment. But they are in a terrible dilemma. How do we help 
them? We could provide tax credits for environmental improvements. But 
again that costs money. It costs something else, too. It costs the time 
and attention of this Senate on this issue. It costs the same time we 
are spending to talk about judges to invest in the future of our 
economy and the future of this Nation. I hope we can spend the time.
  We have seen over the course of the last several years an economy 
that is beginning to at least show some signs of life, but we are not 
back yet by a long shot. There is a real fear we are leaving millions 
behind, a real fear in parts of this country that those jobs that were 
there 3 years ago, particularly in manufacturing, have not only been 
lost temporarily but have been lost forever. That goes not just to the 
individual families that have been affected, it goes to the fabric of 
the lives of those families.
  When a manufacturing plants closes, it is not just a sad day in the 
lives of the workers, it is a community feeling a loss. We are seeing 
too much of that.
  We have not only this challenge, we have the challenge of the 
tumultuous world. Again, when we look at the requirements and demands 
on our economy, and the requirements and demands of protecting 
ourselves internationally, we have to ask ourselves where are we going 
to get the resources, given the budget, to fund our military? To 
provide the resources to conduct a very expansive and aggressive 
foreign policy?
  Just a few days ago this body voted $87 billion for reconstruction of 
Iraq. That is $87 billion in the context of a deficit in which we are 
spending money literally we do not have. I am sure that will not be the 
last time we consider additional resources for Iraq, Afghanistan, and 
other countries. Yet we are not doing those things we need to do to 
ensure fully that our nation is entirely protected.
  So we have serious challenges before us. I hope again at the 
conclusion of this very extensive debate and at the conclusion of these 
votes this morning, we can get back to that critical business. 
Interestingly enough, we interrupted Senate proceedings at a juncture 
where we were ready to pass the HUD-VA appropriations bill to get on to 
the discussion of these judges. At that point, we were considering how 
we could strengthen further, increase further, the resources going to 
our Veterans Administration. That is another area of concern I have and 
I am sure we all have. We have to make sure those young Americans who 
are today struggling--and the fact those young Americans I visited 
yesterday who are being sent literally from Walter Reed Army Hospital 
to a VA facility, many of them amputees because of the nature of the 
conflict in Iraq that 5 years, 10 years from now they have the same 
quality of services they are getting today.
  That is a challenge. And it is a challenge we cannot meet unless we 
focus our attention and our time and our effort on this bill. That was 
the very bill we left to come on to this discussion of judges.
  How much time remains?
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. REED. I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, before I resume debate on the judicial 
nominations, all this talk about not having done work on the economy 
ignores the fact this Senate early this year passed a jobs and growth 
package that is working--7.2 percent growth in the last quarter. A lot 
of people, maybe some, may be upset we are having great economic growth 
and 300,000 jobs have been created.
  As this chart shows, we are now in the most jobs in the history of 
America, 138 million people. See the signs of doom and gloom and 6 
percent unemployment that 10 years ago would have been full employment, 
we are at that level now. The idea we are going to hell in a hand 
basket with the economy, some may wish that to be the case for 
political purposes, but it just is not. It is not a fact.

  The facts are this economy is growing. Sure, we have more to do. That 
is why we have the jobs and growth package we are trying to push 
through having to do with litigation reform, which is being blocked by 
the other side of the aisle. On several fronts, whether it is medical 
lawsuit abuse, whether it is class action reform--which we lost on the 
floor of the Senate by one single vote--whether it is asbestos 
legislation--talk about manufacturing jobs. Asbestos litigation is 
killing us. What is happening? The other side of the aisle is blocking 
it because their trial lawyer friends in the Democrat Party, who 
support the Democratic Party more than any group, they are blocking 
productivity, they are blocking job creation.
  They come to the floor and complain that there are no jobs available. 
The fact is, the policies of this administration are working, and it is 
just driving the other side crazy. They want to complain about the 
past.
  Look to the future. Things are looking great, except when it comes to 
the third branch of Government.
  The third branch of Government, the judicial branch of Government, is 
one of the most important branches of Government because it interprets 
our Constitution. It says what our rights and responsibilities are 
according to that Constitution.
  You have to wonder because I get this question all the time: Senator, 
why are you spending all this time on judicial nominations? What is so 
important? How does it affect me? I get reporters' questions all the 
time. Reporters sometimes can be insightful and sometimes they can ask 
the most basic of questions. And you wonder why. But in this case the 
basic question is a good question: Why should we care about this?

[[Page S14741]]

  Now, if you would listen to some on the other side, they would tell 
you, you should not care about this. Turn your televisions off. Nobody 
is paying attention. The sign from the Senator from Iowa: I am going to 
be watching ``The Bachelor'' tonight. That, to me, was one of the most 
telling things. It was a joke. Oh, but you know humor. Humor is one of 
the great things in our society, every society, because for humor to be 
really effective, there has to be a little bit of truth in it. The 
little bit of truth in that--I am going to be watching ``The 
Bachelor''--is don't pay attention. Please, don't pay attention to 
this. Go do something else. We would rather have you not know what is 
going on. We would rather have you, at 5 o'clock in the morning, be 
safely snuggled asleep in your bed knowing that, trust me, we have 
taken care of all of your concerns and needs. So go watch ``The 
Bachelor,'' something really important, something really significant, 
something that is going to elevate your life. Don't pay attention to 
one of the most important debates this Senate has ever had. Go watch 
``The Bachelor.'' Go watch the continued debasement of our society. 
That is what you should be doing.
  Now, I know that people are going to say: Oh, well, you can't take a 
joke. But in humor is truth; otherwise, the humor does not work, does 
it? Go watch the debasement of our society. I would argue, if you want 
to watch the debasement of our society, you should turn on to C-SPAN 
right now because what is happening on the floor of the Senate is an 
attempt by a minority to circumvent the Constitution.
  Why? Circumvent the Constitution by requiring a higher standard for 
the confirmation of judges than has ever been held before. Well, they 
say there have been filibusters before. There has never been a case 
where there has been an organized attempt to block a nomination by 
requiring a supermajority. There have been cloture votes filed here.

  In the case of Stephen Breyer, Justice Breyer, nominated after the 
1980 election, after Jimmy Carter lost, after the Democrats lost 
control of the Senate in a landslide election--can you imagine if 
President Bush had the gall to nominate someone to a circuit court 
after getting swamped in an election? There would be audible laughter 
on the other side of the aisle that we would consider a nomination at 
that point. Filibuster? My goodness, they would be screaming how dare 
you have the gall to do something like that?
  I know the Senator from Rhode Island said: Well, I would hope we 
would consider this. Oh, please. Please. Look at the nominations they 
are blocking now, ``out of the mainstream'' nominations they are 
blocking now.
  Janice Rogers Brown: 76 percent of the vote in California. Out of the 
mainstream?
  Priscilla Owen: 84 percent of the vote in Texas. Out of the 
mainstream?
  Oh, I would hope we would consider these nominations in due course? 
Really? Really not. No. What the Senate Republicans did in 1980, by 
confirming someone to an appellate court, shows what the Senate was 
like years ago. But it has fundamentally changed. Why? Well, back then 
we had leaders. You had Howard Baker. You had people here on this side 
of the aisle who put the institution first, who said, as a leader: We 
are not going to filibuster. In fact, they moved the cloture vote to 
move the judge. Why? Because we only had a week or so left when the 
nomination came up.
  Here in the Senate just to move anything takes weeks. At the end of a 
session, one Senator has enormous power because they can make you go 
through the procedures in the Senate to get to a vote, which takes 
weeks if there is not consent. So just one Senator, at the end of a 
session--we all know it. We all use this leverage. It is the beauty of 
this place. It is why one Senator is so much more powerful than dozens 
and dozens of House Members. It is because of the rules here.
  But the Senate minority leader, soon-to-be majority leader said: We 
are not going to do that. We are not going to filibuster. If there is a 
hold on soon-to-be Judge Breyer, we will work with the soon-to-be 
minority that was swept out of the election--huge losses; 
hemorrhaging--we will work with you to confirm someone who, by the way, 
is now on the United States Supreme Court and is writing opinions that 
make me throw up.
  But we did it because the Senate was a different place then than it 
is now. We did it because the leaders were different then. Leaders did 
not respond to the latest pro-choice Web site. They were not 
manipulated by organizations far from this place, who fund their 
campaigns and support their grassroots activity, narrow special 
interests, who seep into this Chamber like hidden gases underneath the 
door panel. That is what is poisoning this atmosphere. That is what is 
poisoning this atmosphere. It is narrow zealous special interests. That 
is what has changed in this place.
  But it is not just them. They cannot do it without us because there 
have been the NARALs and the ACLUs, and People for the American Way, 
and the trial lawyers association and all--labor unions--they have been 
out there before. But people in the Senate always stood up for the 
Senate against the passions of the moment, the special interests of the 
moment, the needs and wants of your supporters at the moment.

  They felt a responsibility. They felt a responsibility for their 
leadership in the Senate.
  It is amazing to stand here. The Chamber is basically empty. No 
offense to my colleagues from Kansas and South Dakota, but it is 5:10 
in the morning, as my voice echoes, resonates without very many people 
here. But you still look around this place, and you look at the empty 
chairs and you close your eyes and you can just feel the presence of 
the greats who have been here in the past, of the people who have sat 
in these chairs--these very chairs at these very desks in this very 
place, this beacon of deliberation, this beacon of sometimes delay and 
sometimes not particularly pretty debates in the Senate, but yet the 
essence of democracy here. And for 214 years--214 years--the leaders in 
this Chamber, not necessarily all the Members--we are a society of 
saints and sinners and everything in between, but the leaders in this 
Chamber always took the responsibility of leadership of this august 
body as a sacred trust because what we do here sets precedent for what 
will happen.
  The Senator from West Virginia changed the filibuster rule. I know 
with his sense of history he knew the consequence of his action. When 
he changed the rules postcloture for the recognition of a quorum, the 
Senator from West Virginia knew what the consequences of that would be. 
When we change any procedural thing in this Senate, we know because 
history has taught us that there are profound consequences.
  So when Senator Daschle, Senator Reid, Senator Kennedy, Senator 
Leahy, Senator Durbin, Senator Clinton, and Senator Schumer--the 
leaders of this new strategy--decided they were going to enlist their 
colleagues on a new course, they could not help but know. You cannot 
help but know, if you spend any time in this place. If you are a page, 
who comes in 15, 16, 17 years old, and comes in and just sits in this 
place for any period of time, you know that what you do here over the 
years remains in some way because you set precedent.
  You all know, just by looking at these sometimes not particularly 
attractive, sort of stodgy-looking leather chairs that this place is a 
place of tradition. It is a place of precedent. These are old wooden 
desks. We have little ink wells. Look at this little sand that comes 
out of these things that were used for people who signed documents with 
feathered pens. Come on. You cannot be here and not know that this is a 
place of tradition and precedent. It reeks of it.
  So when you change something here, you have to realize that it has a 
huge impact on our society. So I ask, what is the great issue of the 
day--issues of the day--that are so urgent, that are so powerful, that 
are so necessary for this precedent of the Senate, for a leader never 
to involve his party in a partisan attempt to block a nominee by 
requiring an unconstitutional supermajority to confirm the nominee. 
Never has been in history. Mr. President, 2,730 nominees since the 
filibuster rule was put in place in the last century. No nominee--
never, never with a nominee in the history of the country did a 
minority leader ever enjoin his forces to

[[Page S14742]]

block by using the filibuster. Never before. Now that is a precedent-
setter, folks.

  Why? Why? Why is it so important? What has changed that would not 
lead George Mitchell to do that? That would not lead Howard Baker to do 
that? That would not lead Mike Mansfield to do that? That would not 
lead Everett Dirksen to do that? That would not lead Senator Taft or 
Senator Vandenberg or Senator Johnson to do that?
  Let's go on back through history. All of these men--the giants of the 
Senate--the giants of the Senate never once employed this tactic. Do 
you think that Lyndon Johnson, as majority leader, ever had a nominee 
he did not want? I assure you, having read some of the history of 
Lyndon Johnson, and Caro's book--the Senator from Arkansas talked about 
it--there were people the Senator from Texas did not like. There were 
people the Senator from Ohio, Mr. Taft, did not like.
  You could go on throughout history, but did they ever apply a higher 
standard? Did they ever do that? The answer through history is no. 
Could they have? Well, obviously from what is happening right now, the 
answer is, yes, they could have. But did they do it? No.
  Were there issues of great importance during those times? Well, I 
would suggest if you were living through those times of war and 
depression and communism and segregation, and in prior centuries, 
slavery, reconstruction, and trust busting, and human rights, I would 
argue those are pretty big issues. Never before used.
  So I am going to go back to what the Senator from Kansas was talking 
about in the last hour. What are the issues--or what is the issue--that 
is so important that the Senator from South Dakota and the leadership 
of the Democratic Party would seek to change the way the Senate does 
business, would seek to change the precedent of the Senate and 
potentially forever change the judiciary of this country?
  Let's make no mistake about it, you are going to dramatically affect 
who is going to be applying for these judges, who is going to be 
confirmed, and what their point of view is going to be--I would argue 
what their competence is. The issue is clear, it all centers around 
this issue called the right to privacy--the right to privacy.
  Now, here is a copy of the U.S. Constitution. I am holding it up in 
my hand. I challenge any person in this country, in the world, to find 
the words ``right to privacy'' in this document. It does not exist. It 
does not exist. Wait a minute. I always thought--I ask students all the 
time: What section of the Constitution is the right to privacy? Will 
you please read the section that the Founders, or through 
constitutional amendment, established the right to privacy? Can you 
please find that for me?
  Well, oh, yes, it is in the--let me see. Is it in the 14th amendment? 
Is that where it is? No. I am sitting here reading: ``All persons born 
in the United States subject to jurisdiction . . .''--no, no, I don't 
see the words ``right to privacy'' in there. Maybe I was wrong. Maybe 
it is the 10th amendment: ``No powers delegated to the United States 
Constitution prohibit the States or reserve the States with respect to 
. . .''--no. Oh, it has to be the first amendment. Good: ``Congress 
shall make no law respecting the establishment of religion, prohibiting 
free speech or the exercise thereof, or abridging the freedom of speech 
or the right to peaceably assemble . . .'' --no, it is not there.
  Where is this right to privacy? Well, it was created by whom? It was 
created by judges. Was it amended because there is a provision in the 
Constitution, we can find that, that says how you amend this document. 
Is that the way it happened? No, it did not happen that way.
  We amended the Constitution because we put in place a power of 
authority, people on the highest court of the land who decided it was 
their responsibility to change the Constitution, that it was their 
responsibility to find new meaning in these words that have been around 
for a couple of centuries.
  I have always thought we were a government of laws and not of men, 
but that is not the case anymore. That is fundamentally what this 
debate is about because, you see, the written words of the Constitution 
that says a majority vote is necessary do not mean anything anymore 
because the Constitution is a dusty old document we can manipulate and 
change for whatever purpose because we have advances in society; we 
know more than they did then; we are enlightened. Come on, folks, 240 
years ago, they didn't have the level of sophistication and knowledge 
of our culture today, and so these dusty old documents need to be 
revised; it is so complicated to go through the amendment process of 
the Constitution; it is so cumbersome; we, the enlightened, will change 
it as, of course, the culture demands us to do, to free us from the 
bonds and shackles of these now long departed Founders of our country 
who couldn't possibly understand the complexity of the world today and 
the advancements today that have made this document so unnecessary. So 
we don't need to find anything in this piece of paper. In fact, if we 
can't find it, that is fine; we will simply create it.
  Who does this creating? It is the very judges we are debating today. 
The Senator from Kansas talked at length in the last hour about the 
line of cases that is taking an eraser to the word ``God,'' religion, 
erasing it from our public consciousness. It is as if the first 
amendment was never written:

       Congress shall make no law respecting an establishment of 
     religion, or prohibiting the free exercise thereof. . . .

  ``Free exercise thereof.'' I asked a group of students yesterday what 
were the first words in the Constitution, separation of church and 
state or exercise of free religion. Half said separation of church and 
state. Of course, if you listened to the judges and what popular 
culture says, you would believe that.
  Can you imagine, half the people I talked with yesterday did not 
think free exercise of religion was in the Constitution? Can you 
imagine? Why would they think that? Because in practice that is the 
message the culture sends about the Constitution. It is not about 
freedom of religion. If it were about freedom of religion, we wouldn't 
be erasing God from everything that is public in our culture.
  Who is doing the erasing? Is it Congress? Did Congress pass a law 
that says you can't have prayer before a football game? Did Congress 
pass a law that says we will scrap ``under God'' from the Pledge of 
Allegiance? Did the people speak out and say, We don't want the mention 
of any faith in the public square? Is that what Congress did? No.
  So people ask: What are the consequences of what we are doing here 
today? The consequences are clear. We have elected people who are 
erasing from the public consciousness some of the most important and 
fundamental rights and, I would argue, some of the most important and 
fundamental principles that keep our country moral, safe, free, and 
prosperous.
  Mr. BROWNBACK. Mr. President, will the Senator from Pennsylvania 
yield for a question?
  Mr. SANTORUM. I will be happy to yield to the Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I have been listening, and I think the 
Senator from Pennsylvania puts forward a brilliant and eloquent 
argument, and it gets to the nub of what we are talking about instead 
of the areas. It is in this last 4-year time period that a 
constitutional right to privacy has been discovered and which has 
spawned a series of cases. This is done by the Court. The Court has 
discovered this, and the Court has done this.
  Let me ask a simple question: Has the U.S. Supreme Court ever been 
wrong?
  Mr. SANTORUM. You would think from the debate here that this right to 
privacy, that has now been established as this incredibly well thought 
out and documented thing, is wholly supported within this document. I 
have folks on my side of the aisle--I always think of the former 
Senator from Washington, Slade Gorton, who is for abortion rights who 
thought Roe v. Wade was one of the worst legal decisions he had ever 
seen. So many people who are for abortion rights, who would have voted 
as a legislator to allow the legalization of abortion, saw this 
judicial construction or deconstruction of the Constitution as an 
abomination to our legal system.
  Has that ever happened before? Obviously, the Senator from Kansas is 
referring to some of the cases such as

[[Page S14743]]

Plessy v. Ferguson where the Court looked at this Constitution and 
said: You know, equality really doesn't mean equality. The words here 
aren't exactly what we think they are, and you can be separate and 
equal. Or we can go back to Dred Scott. They looked at this 
Constitution and said: You know, equal doesn't mean equal. This rash of 
cases we have seen where the courts have just decided to take these 
hallowed words and twist them into the culture of the day, this is not 
a new thing in America; unfortunately, it is a very old thing in 
America.
  The Court in Dred Scott said: Yes, people have rights and people 
should be treated equally, but--I think of ``Animal Farm''--some people 
are more equal than others. Some people have more rights than others. 
In the case of the slave, they really don't have much in the way of 
rights at all.
  We look back at those cases now with disgust, but judges found in 
this incredible document the right to do incredible harm to this 
country--incredible harm--and, in many cases, with complicity from the 
Senate, for it is we who are the guardians of this document because we 
put these judges in these places. So it is an important responsibility.
  That is why this debate is so important. That is why we shouldn't be 
watching ``The Bachelor.'' We should be watching out for the future of 
this country.
  In my next block of time in the next hour, the Senator from Kansas 
and I are going to talk about this right to privacy, this line of cases 
that has tried to erase God from the public memory and consciousness, 
all instigated by judges who would find wide praise and admiration on 
the other side of the aisle, who would be called mainstream judges--
mainstream judges who are striking at the heart of this document.
  What is a mainstream judge? Let's understand it. A mainstream judge 
says God has no place in the public square. That is a mainstream judge.
  A mainstream judge says you have the right as an individual to have 
dominion over somebody else and terminate their life if you want to. 
That is a mainstream judge.
  A mainstream judge says we are going to take the institution of 
marriage and corrupt it, deconstruct it, tear it apart, put it back 
together to mean nothing. It means any two people for any reason who 
want to get together should be recognized as married, irrespective of 
who they are. It has nothing to do with fathers and mothers and having 
children. What does that have to do with marriage? That is a mainstream 
judge.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SANTORUM. It is an extreme judge, not a mainstream judge.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, reference has been made at this early 
hour this morning about debasing the values of this institution and 
this country. If any American sadly wants to see debasing of the 
institution, they have only to look at the strategy that has been 
foisted upon this body and on the American people by the Republican 
leadership of this Senate with their fabrication of a ``crisis'' 
relative to the nomination and approval of Federal judges.
  There is no crisis. The fabricated crisis the media has talked about 
is a polite way of saying the phony crisis, the fake crisis.
  The reality of the situation is that this Senate has approved 168 
Federal judges nominated by President Bush. The Senate has blocked the 
approval of 4 Federal judges, a remarkable 98 percent success rate.
  The ratio of unfilled judgeships is now at its lowest point in some 
13 years. The pace of approval of judges is at a higher rate than that 
of past Presidents of either political party, and I think it is fair to 
say that of these 168 judges, most of whom I voted for, virtually all, 
if not all, were conservative Republican judges. That is to be 
anticipated. They were all nominated by President Bush.
  The question is not whether we should approve conservative Republican 
judges. We have, overwhelmingly. The question is, Should there be some 
shred of moderation, some shred of bipartisanship in this institution 
relative to these judges who will serve life terms on the bench? These 
are not Cabinet officers. These are not people who come and go with 
whatever President happens to be in office. These are people who will 
serve virtually their entire lives on the Federal bench. So this body 
has a constitutional obligation of advice and consent.
  Apparently, the other side believes unless there is 100 percent 
approval of Federal judges, that somehow we haven't done our job. I 
would say the opposite, that if all we do is rubberstamp the 
nominations of any President, Republican or Democrat, this body has 
fallen down in its obligations, constitutionally and ethically.
  One of the great things about the Senate and the great traditions of 
the Senate--and there are great traditions in this body--is that unlike 
the House--I served in the other body, as did many of my colleagues--
unlike the House of Representatives with its majoritarian philosophy, 
set up that way by the Founders, where if you have a majority of one 
vote, that is sufficient to ram through almost anything, the Senate was 
devised by the Founders of our Republic to be a moderating, cooling 
institution. That is why we have 6-year terms--because Senators are 
invited to take a longer term view of what is good for our Nation and 
what is not.
  The Senate is designed to be a body that doesn't jump every time a 
whim is expressed by the public or in the political whims of the day. 
Our role is to take a longer term view and to moderate what is 
oftentimes the hot politics of the House of Representatives.
  It is very difficult, because of the rules of this body, to jam 
through legislation for the approval of virtually anything of any 
controversy without some bipartisanship. That is the course of action 
we are seeing here today.
  While we have approved 168 of President Bush's judicial nominations, 
the minority party, a 51-to-49 minority, has said these are such 
important positions, let's make sure there is a general consensus about 
the support of these nominees. That is what the 60-vote rule requires.
  The other side is very frustrated because they like to jam things 
through the Senate with 51 votes, but that is not the way the Senate 
works on this or many other issues.
  I have to say President Bush's nominees have received prompt hearings 
compared to virtually any other standard. That contrasts greatly with 
President Clinton's experience. President Clinton was told: Don't bring 
us a nominee who is liberal; they will not receive a hearing. And, 
indeed, they did not.
  We had people nominated, closed up their law practices and put their 
family on hold for years upon years, and could not get a hearing under 
the Republican leadership during the Clinton years.

  That doesn't happen anymore. Now people who are nominated do receive 
timely consideration. They do get votes. They get votes on the floor of 
the Senate. But the Senate has chosen to use its prerogative to require 
bipartisanship on some of the judges who many in this body believe fall 
outside the mainstream of conservative thought in terms of their 
politics, in terms of their legal interpretations.
  There is no crisis in terms of judges. For over a decade, we have not 
had the ratio of judgeships filled as we have today. President Bush has 
an enormous winning record in terms of the nominations that have been 
approved. Again, virtually all of them are conservative Republican 
judges. That is his prerogative. The Senate has gone along with that. 
There is no problem there. This is not as though somehow the President 
is getting jammed.
  What is happening here, I think, is that there has been a strategy 
concocted by the leadership of the other side to try to gin up 
political support among a faction of their supporters. What we have 
here is politics, an effort to play to the radical right. It is costing 
$100,000 or more of the taxpayers' money for this debate, and yet what 
we have here is a phony, fake, fabricated crisis. This is no crisis. 
The Senate is dealing with judges in a timely and responsible fashion.
  President Bush, obviously, could have the approval not of 98 percent 
but 100 percent of his nominees if he were to send to us mainstream 
conservative Republican judges, as he largely has

[[Page S14744]]

done. Clearly, it is part of the political strategy to look around the 
country and find a handful who fall far outside the mainstream of 
Republican or Democrat judicial thinking and nominate them, knowing 
there will be resistance to these individuals.
  The thought is that by nominating these individuals, they can 
energize the radical right-wing political faction within the Republican 
Party. They will contribute money then if they see all this going on. 
It is a very cynical strategy. This has nothing to do with the 
interpretation of the Constitution. We are approving conservative 
Republican judges. It does have to do with able people who are in the 
mainstream, broadly thought.
  I think it is regrettable that we find this Senate and our work 
hijacked by those who want to push aside timely consideration in the 
Senate of issues pertaining to jobs, education, health care, energy, 
environment, our veterans and our military--all the issues with which 
this body ought to be dealing.
  The Federal fiscal year began October 1. Yet the Federal budget is 
not concluded. So there is so much that needs to be done, that we are 
being prevented from doing as we spend these many hours around the 
clock on a fabricated, phony crisis that does not exist. All of this to 
play to a very small faction politically in America. It has to do with 
political fundraising. It does not have anything to do with the quality 
of the court.
  I note that 95 percent of the Federal judicial seats are now filled. 
That is the lowest vacancy rate in 13 years. Last year, this Senate, 
led by my colleague Senator Daschle, confirmed the largest number of 
judicial nominees in a single year since 1994. There ought to be 
celebrations on the part of the other side in this body over the 
remarkable, timely, aggressive approval of Federal judges, the highest 
number of judicial nominees approved in a single year since 1994. The 
highest level of judicial seats filled, ratio of seats filled, in 13 
years. That ought to be cause for celebration. That is a remarkable 
level of progress, and it was done in a bipartisan fashion.
  Part of that time, the Democrats controlled the Judiciary Committee 
with Senator Leahy as chairman. Part of that time the Republicans 
controlled the Judiciary Committee. So the track record is truly 
extraordinary. What an irony that in the face of that reality, we find 
ourselves through the wee hours of the night, through the day 
yesterday, through the day today, being prevented from dealing with the 
real legislative issues while we talk about this political gamut that 
we have before us.
  Some say, well, what about the appellate court judges? That is the 
highest Federal court next to the Supreme Court itself, and one that 
truly does write law. Well, even there the Senate has confirmed 29 of 
President Bush's appellate court nominees to date, more Bush circuit 
court nominees than--get this, President Bush has had more of his 
appellate court nominees approved by this Senate than President 
Clinton, President Reagan, or President George Herbert Walker Bush had 
by this point in their administrations. Yet here we are, the other side 
posing as though there is some sort of terrible crisis going on when, 
in fact, it is just the opposite. Conservative Republican judges are 
being approved at a record pace by this body.
  What the other side seems to find unacceptable is that the Democratic 
Party is insisting that one should not go to a lifetime Federal bench 
unless there is a generally broad consensus, bipartisan consensus, not 
unanimous but a broad consensus, of at least 60 votes that that person 
deserves to sit on the bench dealing with legal issues that are of 
monumental importance to every American citizen for the rest of their 
lives. I think that is one of the great strengths of this body. That is 
one of the great strengths of the United States Senate, that we cannot 
be stampeded into the radical actions of a few but that we take a 
longer term view of what is good for America, what is consistent with 
American values, what is consistent with American priorities, for all 
of our people. That is what is happening in this body this year, and 
that is why a few on the other side are objecting so strenuously.
  Now, other judges have been filibustered; cloture votes have been 
held. Other judges have been held up in committee, which has been the 
favorite mechanism of keeping people from having a vote at all. That is 
to be said even for these four. They have been allowed votes in 
committee and cloture votes on the floor. They cannot get the 60-vote 
requirement and so they are not going to the Federal bench because they 
do not have that broad-based consensus of support in this body.
  That is what this body is all about. It is not just judges. This same 
60-vote rule prevails on virtually everything we do in the Senate, from 
the passage of health care, to education, to appropriations 
legislation. Virtually everything is subject to that consensus 
requirement. I think it reflects the best of our values in America and, 
in fact, it represents America coming together in this body to try to 
produce legislation that is good for us all. It is not ideologically 
driven. It is not the product of the far left or the far right. The 
product of the far left or the far right does not do well in this body 
because of the nature of the rules that have been the rules since our 
Republic began. It is one of the geniuses of the Founders of this 
Nation, that that is the profoundly important role of the Senate to 
moderate the radical winds that occasionally blow politically through 
this country and through Washington, DC.

  So it is a bulwark of individual freedom and of American values and 
priorities that we have a body like this that mandates that there be 
greater thoughtfulness, greater moderation, greater reflection than 
would otherwise be the case.
  There are other issues that we rightfully ought to be moving on to. 
Recently--yesterday, in fact--I visited the Walter Reed Army Hospital 
in Washington, DC. One of my constituents, a soldier injured in Iraq, 
was there. Senator Daschle and I and a contingent of other Senators 
visited our troops. We can take great pride in the quality of these 
young men and women and what they have done for America, what they are 
doing for America. They are extraordinary people with great courage, 
and they are getting on with their lives as best as they can.
  It was heartbreaking to go from room to room at Walter Reed and see 
our Iraq military veterans. In one room, a soldier has lost an arm. The 
next room, a 20-year-old young man has lost both arms. In the next 
room, a young man has lost his leg all the way to the hip. In another 
room, there was a young man with brain damage. In another room, a man 
has lost his feet. Another room, a man has lost his hand. In another 
room, an individual has lost his arm again. It goes on and on.
  There has been a lot of reference to those who have lost their lives 
and made the ultimate sacrifice in Iraq. Our hearts and prayers go out 
to them and their families, but we should not forget those as well who 
are alive and with us but whose bodies are shattered, whose lives are 
forever changed because of what they were willing to do for the United 
States of America in their military service.
  Their families were there. Young wives were there yesterday, many of 
them with very small babies, some pregnant. Now they have a husband who 
has no arms, who has no legs, who has brain damage. We need to give 
some thought to these families as well, think about the enormous 
sacrifices they are making for America.
  One of the great ironies and sad ironies of this debate that is going 
on is that the legislation that was taken off the floor in order for us 
to have this debate was the VA-HUD appropriations bill, the very bill 
where we will make determinations about whether these young men and 
young women, once they conclude their military service, will have the 
health care, the job training, and the therapy they need to get on with 
their lives. That was pushed aside. We do not have time for that debate 
apparently because we need to spend 2 days or more of the Senate's time 
on this phony crisis because 4 out of 172 judges have not been approved 
by this body. What a sad commentary about the priorities of the 
Republican leadership in this body.
  I do not ordinarily make partisan references lightly. I am a 
Democrat. I am elected in a State that is overwhelmingly Republican, 
and I am proud of the Republican support that has been

[[Page S14745]]

extended to me for many years. They are good, wonderful, thoughtful, 
patriotic, religious people on both sides, no question about that. But 
I am profoundly disappointed, to the point of contempt, for what has 
happened in this body the last day or so with the hijacking of the 
Senate's agenda already behind schedule on these important issues that 
we ought to be talking about in order to take up this question of 168 
to 4.
  I suggest that if it was 172 to 0, that would be good evidence that 
the Senate is not doing its job of advice and consent. This body is not 
meant to be a rubber stamp. That is not what the Founders of this 
Nation thought that they were doing when they wrote our Constitution 
and devised the rules of the Senate.
  Mr. President, in 1968 New York Senator Robert Kennedy launched a 
Presidential campaign at a time of great unrest and dissent in our 
nation. He ran a campaign that lasted 85 days to empower those who did 
not have the power, to bring justice to those who did not have justice, 
and the protest the direction of our great nation. At the beginning of 
that campaign, he addressed criticism of anti-war protesters by saying:

  There are millions of Americans living in hidden places, whose faces 
and names were never know. But I have seen children starving in 
Mississippi, idling their lives away in the ghetto, living without hope 
or future amid the despair on Indian reservations, with no jobs and 
little hope. I have seen proud men in the hills of Appalachia, who wish 
only to work in dignity--but the mines are closed, and the jobs are 
gone, and no one, neither industry or labor or government, has cared 
enough to help. Those conditions will change, those children will live, 
only if we dissent.
  So I dissent, and I know you do, too.
  Mr. President, I rise today to dissent. I dissent to the majority of 
this body's unwillingness to focus and deliver on healthcare and 
education. I dissent to this body's inability to provide for our 
veterans. I dissent to the President's blatant disregard for treaty and 
trust responsibilities to Indians. And most of all, I dissent this 
political charade.
  Instead of talking about judges, as a body, we should be addressing 
the unmet needs across this country.
  Our Veterans made tremendous sacrifices in service to our Nation. 
They have answered the call to defend our freedom and served our 
country at the time of its greatest need. We are trying to provide our 
veterans with the full benefits they have earned. While the White House 
can find money for tax cuts for America's wealthiest families and a $20 
billion lavish grant for Iraq, too often poverty is pled when it comes 
time to providing our veterans the benefits they deserve. Right now 
60,000 veterans are waiting 6 months or longer for an appointment at VA 
hospitals. I think it is important to fully fund VA health care so that 
veterans of Operation Iraqi Freedom can get the care they need when 
they return home.
  My own son served with the 101st Airborne in Iraq. He is home now. He 
is safe. He did not suffer one of these horrific injuries. We are 
grateful for that, but we are very mindful that tens of thousands of 
others are still there, have suffered horribly, have lost their lives, 
and their families have gone through enormous painful stress.
  In contrast, the Republican leadership in the Senate has broken their 
promise to provide an additional $1.8 billion for veterans health care 
this year and even proposed an increase in prescription drug copayments 
that impose a $250 annual membership fee for veterans seeking health 
care. Should we not be talking about these kind of priorities? It is 
astonishing to me that the Republican leadership of the Senate has set 
a target adjournment date only days from now, November 21, and has 
scheduled 39 straight hours of executive session to discuss this phony 
issue; not 39 straight hours to discuss critical legislation such as 
lack of prescription drug coverage facing millions of American 
beneficiaries in this country. Do not the 40 million Medicare 
beneficiaries deserve as much attention as this phony issue is 
receiving?
  We are at an impasse. We do not have a final Medicare bill. At this 
rate, spending hours and hours discussing nominations which have 
overwhelmingly been approved, instead of debating important Medicare 
legislation, makes me wonder about the priorities of the majority party 
in this body. They are dedicating nearly 10 hours each of discussion 
for four individual judges, but we cannot spend 1 hour each for every 
million individuals on Medicare. What is wrong with that picture? High 
drug spending is placing a heavy burden on American families, and many 
businesses are responding to rising drug spending by increasing the 
amount that employees must pay for prescription drugs. The public 
programs such as Medicaid and the Veterans Health Administration are 
also struggling to respond to soaring drug spending. Finding a solution 
to the prescription drug crisis in this country is a priority for me, 
for many in this body. It should be a priority for the entire body.
  States and local communities are struggling with the worst budget 
shortfalls since World War II and many have cut back on education 
funding, on instruction time, have laid off quality teachers and school 
staff. School district after school district in my home State of South 
Dakota are having opt-out votes, trying to do something to try to make 
sure that children in our communities have the resources they need to 
learn. Parents and students are holding bake sales and auctions to save 
teaching jobs, music, art, other student activities. It would be 
impossible for our public schools to meet the strict demands of the new 
Federal education law if vital school services continue to be cut all 
across our Nation.

  I believe that fighting to bridge this gap by increasing Federal aid 
to the States and raising public awareness of the school public crisis 
is essential. I think it is important to recognize that money alone is 
not the solution to improving our schools, but we need also to be 
cognizant of the fact that public schools need the financial resources 
necessary to successfully implement No Child Left Behind. The National 
Education Association's State-by-State report on layoffs and cuts 
affecting public schools and the responses of students, parents, and 
communities, NEA collected anecdotal data from 2003 through the end of 
September and finds the school district stress all across this country.
  In my home State of South Dakota, our Native-American community is 
struggling badly--high unemployment, lack of health care, high infant 
mortality, lack of jobs. Again, that is another area that deserves the 
attention of this body.
  These are the real crises that face America, not a 98-percent 
approval of conservative Republican judges, which this body has done.
  This President has been served very well by the Senate on the timely 
approval of 98 percent of these judicial nominations. I submit that the 
four who have been rejected were selected with the thought in mind that 
they would be rejected because what the other side of the body wants, 
and I think what the President wants, is a fight. They know that a 
fight will energize the radical right wing of the Republican Party and 
will energize political contributions. Sadly, that is what this debate 
is all about. That is why the taxpayers are having to fund $100,000 or 
more for the cost of this. That is why we are not able to get on to the 
other issues that truly we ought to be addressing right now.
  One hundred sixty-eight conservative Republican judges have already 
been approved, most with my support. That is not the question. The 
Federal bench has a higher ratio of judges seated now than we have had 
in 13 years. The appellate judges are being approved at a faster rate 
than Clinton, Reagan, or George Bush, Sr.
  So the record of this body, Republican and Democrat on the Judiciary 
Committee, has been one of accelerated consideration of judges in a way 
that has not been seen in many years. I think that reflects well on the 
body. What does not reflect well on this Senate is this hijacking that 
has taken place of our agenda, where we are being prevented from 
talking about the real issues, the real crises having to do with our 
children, having to do with our schools, having to do with our seniors, 
having to do with our veterans, having to do with health care costs. 
That has been hijacked by a body that wants to talk about these four 
judges who were selected, I think, by a process where the President and 
the leadership of the other side knew very well that these

[[Page S14746]]

would be lightening rod candidates, that they do not fall within the 
same mainstream body as the other 168 conservative Republican judges.
  That has led to this dispute, and the dispute, I think, is not about 
principle. It is about energizing politics. It is about raising money. 
That is a sad commentary. That is contrary to the values of this body 
and of the American people, Republican and Democrat. The American 
people deserve better than what has gone on on the floor of this Senate 
over these last many hours. We are going to see the rest of today 
wasted as well.
  Mr. President, our roads, schools, and infrastructure are crumbling 
as Nero fiddles here in the Senate. Yet our friends in the majority 
complain about a 98 percent approval rate for President Bush's judicial 
nominees. In baseball, that would equate to roughly a batting average 
of .980. A power hitter is someone with a batting average in the range 
of .330. That means if the Bush Administration's judicial approval rate 
in the Senate were considered in baseball terms, we would be batting 
nearly triple what any major league manager would love to have.
  And consider a baseball team that would have a .980 winning 
percentage. A winning percentage like that would far surpass any record 
set by any team in major league baseball; and would certainly beat the 
losing seasons of the Texas Rangers when President Bush was their 
managing general partner.
  In fact, the quality of some of the judicial appointments sent up 
here by President Bush shows the same judgment he used when he traded 
Sammy Sosa, a perennial home run leader, to the Chicago Cubs.
  The PRESIDING OFFICER (Mr. Coleman). The Senator's time has expired.
  Mr. JOHNSON. Mr. President, I yield the floor. I am sure it is a 
great place. I have not been there. I am sure it is wonderful. He used 
the whole day to talk about that, while we hear endlessly, Why are we 
not talking about veterans benefits or unemployment when all Monday was 
used by the Democratic side to talk about Searchlight, NV.

  It is a wonderful place, I am sure, but I don't know of any 
legislation pending about Searchlight, NV. Why weren't we talking on 
Monday about these things and not addressing the great issues of the 
day or addressing what we need to be doing about the war in Iraq? 
Instead, we are talking about Searchlight, NV. Where was the protest? 
Where was the anger? Where was the outrage. How about rabbits eating 
cactus? Again, I am sure it is a great place. No offense to anyone from 
Searchlight, NV.
  A week ago Friday, a week ago today, the other side ate a whole day 
up and we got no votes done on appropriations bills because they were 
chewing it up on filibustering at that point. Where was the outrage? We 
were not dealing with the great issues of the day. I guess it did not 
matter at that point in time.
  I find it interesting that this is all about fundraising. It seems 
the people fundraising are the left. This is NARAL, National Abortion 
Rights Action League, their Web site, going to task on Charles 
Pickering; others on the left, pushing this hard for fundraising and 
organizational purposes. I don't think that is at the root of what we 
are talking about and why we are spending this time and why we are 
being tied up on something that has been without precedent, a blockage 
of Federal judges. This is really about a big issue, and that is why we 
are here at 6 in the morning on Friday, because we are talking about a 
big issue and we need to talk about other issues as well--which I agree 
with; we need to talk about other items, but we need to talk about this 
one, too.
  When you get a judiciary that is blocked, you need to talk about it. 
Why would these folks be blocked? These are highly qualified. They get 
painted different ways, but we have been through ad nauseam the 
qualifications. They are highly qualified judges in mainstream 
positions in their States on the highest courts in Texas and 
California--I guess Texas and California are mainstream--they are on 
the highest courts. One is on the Federal bench in Mississippi, 
approved by this body previously.
  What this comes back to--and the Senator from Pennsylvania was 
hitting it when we last had the floor--was a discovered right by the 
Supreme Court, the right to privacy. If we blow away the smoke and we 
are stating why we are here at this point in time and why would such 
qualified judges be blocked, it is because of the court that has been 
writing laws and about the right of privacy, or this constitutional 
right, discovery. It is not in this document, as the Senator from 
Pennsylvania pointed out, the right to privacy.
  I find it interesting that others have mentioned that the appellate 
court writes laws and that is why the judges are important. The lower 
court, the Federal district trial court, does not write laws, but the 
appellate court does. There is the issue and the problem. The appellate 
court does not write laws. The Supreme Court does not write laws. They 
interpret the laws. They interpret the Constitution. They do not write 
it.
  Unfortunately, people in this body look at it differently. Some are 
saying, yes, the court can write laws at the appellate and the Supreme 
Court. If that is the case, we have a second legislative body in 
Washington: We have three units of government, but two happen to be 
legislative and one executive. Yes, one legislative also has a court 
and judicial judges as well, but we have a second legislative body. And 
we are seeing this stream develop further with some people on the other 
side of the aisle saying we should examine the political opinions of 
people we are appointing to the bench.

  If they are going to be a judge and they are going to interpret the 
law, why should a political opinion be of significance in the 
consideration? That is not their role. They are not a legislature. I am 
a legislator; you are a legislator; people in this body are 
legislators, but those on the Supreme Court or court of appeals are not 
legislators.
  Some say, OK, we need to examine the political ideology of the people 
coming forward for the bench even though they are saying we will follow 
the law and that leads to writing laws on the bench. I hold to the 
opinion--most people on this side do--what you want in a judge is 
someone who interprets the law and interprets the Constitution and does 
not write it. There would be times I would have actually liked a judge 
to interpret something to the right and write it more conservatively. I 
would think that would be appealing to me, but I don't want a judge 
like that. I don't want a judge to do that. That is my job. That is not 
his or her job.
  I am asking for one to stay within the document and not to discover 
or write amendments to this document. I want them to interpret the law. 
This is what we are seeing seep into this. These are not legislators. 
These are not legislators-to-be, going on the bench, who write laws. 
They interpret the laws.
  What we have seen taking place is one of the biggest laws written by 
the bench over the last 4 years, the right to privacy, or as is more 
common vernacular today, this is about abortion and the Supreme Court's 
discovering this right. That is why all the judges are always quizzed 
ad infinitum about their views, because if the court can write that 
law, the court can repeal that law, so they do not want someone to go 
on with a political philosophy contrary to this, who might write the 
law differently.
  Now, we have a bad premise here. The court should not be writing law. 
The court should be interpreting laws. So stick within the documents.
  We also have a bad premise in the second step, looking at the 
political philosophy of someone being appointed. No, look at the 
qualifications and their willingness to uphold the Constitution. We are 
down a bad road a couple of steps already. That is why we are here at 
this time of day, because these four appellate court judges would be 
not questioned to any degree if it was not about political philosophy. 
That is the issue, and it is a big issue, and it is worthy of this 
discussion. And it is sad we are at this point because I have some of 
my colleagues here who want to speak and I do not want to dominate this 
half hour.
  Mr. SANTORUM. I would like to ask the Senator a question. You may 
have answered the question I posed earlier: Why, throughout the history 
of the United States, have we not had a leader of the Senate, minority 
or majority,

[[Page S14747]]

join in blocking of a nominee to require a supermajority? Why has it 
never happened prior to this session?
  I think the Senator landed on it when the Senator said for the first 
time we are seeing people come to the court not to be judges but to be 
legislators, to make law instead of decide constitutional 
interpretation and to settle disputes. So we have entered into a time 
when political considerations now become much more important than the 
quality of the judge, the temperament of the judge, the qualifications 
of the judge, the experience. Those are now important, but they are 
almost secondary issues to the political philosophy of the judge 
because the courts now are fundamentally different than they were 50 
years ago or 60 years ago.
  Is that what the Senator from Kansas is saying?
  Mr. BROWNBACK. It is what I am saying. And it is bad that we are 
seeing this route taking place. This is going to lead us down a bad 
road. We are already started down the road.
  Now we appoint legislators for life with superpowers, and we are 
unable to pull them out other than maybe for moral turpitude. You have 
people who become--in essence, they can almost be dictatorial or 
tyrannical, and they are appointed for life. That is why so many people 
are so passionate about what takes place on the bench today, because 
now you have a superlegislator who does not answer to the public. It 
starts to get irritating to a lot of people.
  This is not the way we should be going. We should be backing up and 
saying these are three coequal branches of government with different 
jobs--not legislators each, but a legislative and executive and a 
judicial branch. This is the problem.
  If we keep going down this trail, and you have to examine political 
philosophy because judges can write laws or you can discover rights, 
including rights of privacy in the Constitution, and what other rights 
can you discover in the Constitution, and it will be important to know 
the political philosophy. Say we get one or two Supreme Court nominees 
to come up. Now we have somebody such that we are looking at a 
superlegislator for life in the highest court of the land who can, with 
a couple of other people, rewrite this document--not just legislate but 
rewrite the constitutional document. That is why we have the huge 
fights on this floor.
  We used to say in the past--thanks to the question my colleague 
raised, we say, I disagree with the philosophy of Ruth Bader Ginsburg, 
I disagree with the philosophy of someone else, but they said they 
would uphold the law. They are confined, as I am as a legislator, with 
a set of power and authority. I do not agree philosophically, but they 
are qualified and will do a good job and I don't have a good reason to 
vote against them.
  Mr. SANTORUM. This gets to the heart of this 168-to-4 number. The 
vast majority of the 168 are at the district court level, trial court 
level.
  What the Senator from Kansas is saying--and I want to make it clear--
the district court judges, by and large, do not make law. They are 
trying cases. Appellate court judges, we have seen now in recent years, 
have begun to take on the mantle of legislator in making law, and 
therefore all of the nominees who are being blocked on that side are 
these quasi-legislative-type judges.
  The Senator is suggesting the superlegislator is the Supreme Court. 
So if we are in for filibusters for appellate courts, can anyone 
imagine what a Supreme Court nominee fight will look like in the Senate 
now versus 20 or 30 years ago?
  Mr. BROWNBACK. Absolutely. That is the point. We will be in such a 
mammoth fight and engaging the entire country with this, how will you 
ever get that person through?
  It does go to this constitutional case that is being considered by 
the Supreme Court now on the flag salute, ``One Nation under God.'' 
Here was a continuation of the discovered set of laws that somehow 
discovered that our kids cannot say our flag salute, ``One Nation Under 
God.'' Ninety percent plus of the public is for the flag salute. I am 
confident that percentage is ahead of that. In this body, there is 
outrage. And the Ninth Circuit, in a consistent opinion with 40 years 
of discovery law, says: No, you cannot do that.
  So now you put somebody in a legislative role--circuit court, 
lifetime appointment, cannot remove them--and the Ninth Circuit, which 
gets overturned all the time--as a group of legislators they get 
overturned all the time by the Supreme Court. Now, say you get a 
Supreme Court position that opens. They are not going to get overturned 
by anyone. And you get people fearful of the tyranny of the judiciary 
which the Founding Fathers were fearful of themselves. They wanted the 
judiciary to be the most limited because they have the lifetime 
appointments. They have a pretty big set of powers. They feared tyranny 
could become an issue because it was a lifetime appointment and was not 
subject to the checks and balances of the people.
  People check and balance everyone in this body. But do they check and 
balance the judiciary? Where is the populace's ability to check and 
balance? That is why this is an important debate and why so many are 
concerned.
  What we should be doing is backing up and saying, no, this is about 
the strict construction of the documents that pass through the 
legislative bodies that are in the Constitution that go through an 
extraordinary process. Where, as the Senator from Pennsylvania pointed 
out, the Supreme Court discovers a new right in this Constitution, if 
we had written that in there, it would have taken a vote of two-thirds 
of this body, three-fourths of the States, to become law. This is a 
big, lengthy process and, as such, we have a limited number of 
constitutional amendments, as it should be. It is a strong document, 
standing over two centuries, and yet a court can discover this.
  We should back up and stand on the issue of, this should be about 
strict construction of what is taking place. This is a very important 
key fight to have.
  With that, I yield the floor. There are several other Members who 
seek to speak.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. I take a step back here and go through what we are 
doing. What is going on? What is going on in the Senate that has 
brought about this debate which has been so important? Can we agree on 
what is going on? I think we can. Let me use the words, and I would 
agree with these words written by Jon Corzine, the Senator from New 
Jersey, who happens to be the chairman of the Democratic Senatorial 
Committee.
  The Senator from South Carolina was here and the Senator from 
Minnesota was here talking about this throughout the night. We can 
agree on what is going on.

       Senate Democrats have launched an unprecedented effort. By 
     mounting filibusters against the Bush Administration's most 
     radical nominees. . . .

  Unprecedented. And what does ``unprecedented'' mean, according to the 
dictionary? Having no precedent. What is precedent? An earlier 
occurrence.
  So, having no earlier occurrence. What does that mean? It has never 
happened before. That is not me. It is not Republicans saying this. You 
have protestations on the other side. This happens all the time. Come 
on, no big deal. The Senator from Illinois will show a chart, look at 
all these filibusters. Come on, no big deal. We do this all the time. 
Unprecedented. Their words, not mine.
  To whom? To their people? Guys, this is what we are really doing. We 
are not going to say this on the floor of the Senate, but this is what 
we are really doing. It is unprecedented.
  So what is going on? An unprecedented filibuster to raise the bar for 
certain nominees. That is what is going on. Not my words, the words of 
the Senator from New Jersey to the people he relies upon to support 
their party.
  Let's look at the facts. Is it unprecedented? Since the filibuster 
rule was put in place, 2,372 nominees came to the floor of the Senate. 
Has anyone been blocked by filibuster? No. So you see, 168 to 4--stack 
that percentage against 2,372 to zero. Four? Let me ask if it is four.


                       Unanimous Consent Request

  I ask unanimous consent that the Senate now proceed to the 
consideration of Calendar No. 169, the nomination of Carolyn Kuhl to be 
a United

[[Page S14748]]

States Circuit Judge for the Ninth Circuit; and further provided there 
be 100 hours of debate equally divided for the consideration of the 
nomination; and provided further the Senate proceed to a vote on the 
confirmation of the nominee, with no intervening action or debate.
  Mr. DURBIN. I object.
  Mr. SANTORUM. Now it is 168 to 5. So that chart is now outdated that 
the Senator from Illinois will show.


                       Unanimous Consent Request

  Mr. SANTORUM. I ask unanimous consent that the Senate now proceed to 
the consideration of Calendar No. 455, the nomination of Janice Rogers 
Brown to be United States Circuit Judge for the DC District Court; 
provided further that there be 200 hours of debate equally divided for 
the consideration of the nomination; provided further that following 
the debate, the Senate proceed to a vote on the nomination of Janice 
Rogers Brown, with no further intervening action or debate.
  Mr. DURBIN. Mr. President, I ask unanimous consent that that 
unanimous consent request be amended and that we move to legislative 
session immediately to consider an increase in the minimum wage and 
additional unemployment benefits for the 3 million Americans who have 
lost their jobs under President Bush's administration.
  Mr. SANTORUM. I want to make it clear that you are asking, in 
addition to this unanimous consent, that we would do this unanimous 
consent in addition to this?
  Mr. DURBIN. I ask unanimous consent that before we consider any 
unanimous consent request by the gentleman from Pennsylvania, that we 
first----
  Mr. SANTORUM. I would object. I object.
  Mr. DURBIN. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DURBIN. Mr. President, I reserve the right to object.
  Mr. SANTORUM. Mr. President, I have the floor.
  The PRESIDING OFFICER. The Senator--
  Mr. SANTORUM. Thank you.
  Mr. President, I renew my unanimous consent request.
  The PRESIDING OFFICER. The Senator may object or not object.
  Mr. DURBIN. Mr. President, parliamentary inquiry.
  The PRESIDING OFFICER. The Senator will state his inquiry.
  Mr. DURBIN. Will the Presiding Officer tell us what the pending 
business of the Senate is at this moment?
  The PRESIDING OFFICER. The nomination of Janice R. Brown, of 
California, to be United States Circuit judge for the District of 
Columbia Circuit.
  Mr. SANTORUM. I renew my unanimous consent request.
  The PRESIDING OFFICER. Is there objection?
  Mr. DURBIN. Mr. President, I object. If the Senator is not going to 
consider the----
  The PRESIDING OFFICER. Objection is heard.
  Mr. SANTORUM. Mr. President, I have the floor.
  Now that chart the Senator from Illinois is going to show is 168 to 
6. And I would project that 168 to 6 will soon be 168 to 7 and then 8 
and then 9 and then 10; and that this number is going to actually, 
looking forward into the future of the Senate, be a good percentage. I 
might agree with him looking forward because we will have set a 
precedent tonight. We will have set a precedent in this session of 
Congress that will go to haunt both sides forever. If we maintain it, 
it will. I guarantee it.
  What we are doing here is playing with real bullets. I tell you there 
are folks on our side of the aisle who are loving what you are doing. 
They are loving what you are doing, man. They just think, go, baby, go. 
Do this because we can't wait to get our arms around the next 
Democratic President who wants to stack the court with a bunch of 
people who believe God does not belong in the Pledge of Allegiance. We 
can't wait--who, by the way, got confirmed by the Clinton 
administration and by this Senate. We can't wait to get our arms around 
people who find in this Constitution things that are not in it, who 
believe it is their job to be the super Senator, the super legislator, 
the super President. We can't wait to block those nominees because, do 
you know what. You did it first. You did it first. You can say, oh, no, 
we didn't do it first. You did it first. You crossed the line. Oh, it 
has been threatened. It has been talked about around here. I will not 
deny that. I talked about it.
  Richard Paez, by the way, who tried to stop the California election a 
few days before the election, found somehow or other that ``you can't 
hold this election,'' that, to the people wanting to recall the 
Governor, ``you can't do that because, of course, I know more than the 
people.'' Richard Paez, Ninth Circuit, overturned more than any other 
circuit in the history of the United States. Clinton nominees, liberal, 
activist judges, out of step with the mainstream, the Senator from New 
York and maybe other Senators call mainstream, who says ``under God'' 
does not belong in the Pledge of Allegiance, who said ``three strikes 
and you're out,'' that the people of California voted for, is 
unconstitutional. The Supreme Court overturned that.

  That is the mainstream. Can't wait to get at the next Richard Paez. 
Can't wait to get at the next Marsha Berzon. Go on down the list of 
folks. Did I want to filibuster them? Did I want to filibuster Richard 
Paez because he was a district court judge? And he was awful. He 
expressed values and views that were so out of step with America and 
with my constituents in Pennsylvania, I just could not stand it. I 
said, come on. How can we continue to let these judges, who think they 
are God, who think they are Senators, who write laws that do not exist, 
who take the laws we do write and turn them into what they think, not 
what the Senate believed and what the President believed--how do we let 
these people keep coming at us and not do anything?
  My leader, Trent Lott, and my chairman of the Judiciary Committee, 
Orrin Hatch, said that is not the way we do things in the Senate. This 
is the passion of the day. But in the Senate, one of the great things--
and you hear it on both sides all the time--one of the great things 
about the Senate is we do not get caught up in the passion of the day. 
We understand the long term. We understand the greatness of America. We 
hear we are the cooling off. We do not get caught up with the passion 
of the day. We are the deliberative body. Therefore--and therefore--we 
have a higher calling than to respond to the NARAL ads or the People 
for the American Way ads. We have a higher calling. We are Senators. We 
look out for the long-term interests.
  How do you preserve the long-term interests? You do it by following 
the laws and the precedent. You do it by using what has been 
established over 214 years to protect rights, and we are throwing it 
away. We are throwing it away, and understand the stakes of what we are 
doing here. Understand the precedent we are turning over and what we 
are going to unleash on the floor of this Senate. Do you know what. 
Maybe it is a good thing. I have sat here now--I will not argue against 
my colleagues, but I have sat here now, and I listened to the Senator 
from Kansas.
  I would ask the Senator from South Carolina: Do you believe there are 
some on our side who, after listening to the Senator from Kansas and 
listening to the judges who have been put through--because we have been 
good stewards. We have allowed the Richard Paezs of this world to come 
and undermine our Constitution. We have allowed the left to seed into 
the court system those who would destroy this Constitution.
  Are there not Members of our side, I ask the Senator from South 
Carolina, who would say, thank you, we never had the courage--we never 
had the courage--to change the way the rules are here in the Senate to 
make sure that we could protect--as I think the Senator from New Jersey 
said--``protect our courts?'' We did not have the courage--as the 
Senator from New Jersey said--``to stop judicial extremists.''
  So maybe what we should be doing, I ask the Senator, is thanking the 
Senator from Illinois--and the Senator from North Dakota is here--and 
the Senator from South Dakota, Senator Daschle. Maybe what we should do 
is instead of protesting this is to thank them for giving us a tool, 
for giving us a tool to protect this document.

[[Page S14749]]

  I assure them--maybe I should not assure them--maybe I will ask the 
Senator from South Carolina, what do you think will happen now?
  Mr. GRAHAM of South Carolina. Well, to the best I can, to the Senator 
from Pennsylvania, for the last year--this is my first year--I have 
seen a trend that seems to be getting worse and worse. I can assure 
you, as the Senator from Pennsylvania has indicated, that for every 
liberal special interest group there is a conservative special interest 
group that feels just as passionately as the People for the American 
Way.
  The Senator is absolutely right. I have been trying to say this all 
night. We are in political quicksand. You have put us in a place we 
have never gone before, and the more we fight and the more we fuss, the 
quicksand takes you deeper and deeper, quicker and quicker.
  The truth is, the Senate will never be the same if this stands 
because the Senator from Pennsylvania is exactly right. There will be 
so much pressure on people on our side to stand up against anybody who 
is perceived to be liberal--not just whether or not they can follow the 
law, but they may have written an article when they were in law school. 
They maybe made a speech somewhere about the philosophy of life. And it 
will be seized upon, it will be touted, and it will be shouted, and 41 
of us may buy into that.
  The advise and consent clause has stood the test of time. But the 
formula that you are imposing upon the Senate is a formula for 
disaster, and a big loser. Who loses? It is average, everyday people 
who will be shut out because of special interest politics on the left 
and the right. The real big loser is somebody who loves the law who 
wants to be a judge but has said: I am not going to put myself and my 
family through that.
  So Senator Santorum is exactly right.
  The PRESIDING OFFICER (Mr. Bond). The Senator's time has expired.
  Mr. GRAHAM of South Carolina. There will be no turning back, and this 
will destroy us over time in terms of the rule of law.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Thank you, Mr. President.
  Let's not forget what this is all about. Mr. President, 168 of 
President Bush's nominees have been approved by the Senate; 4 have 
not--168 to 4. That is the score. This President has 98 percent of his 
nominees approved. We have now consumed 36 hours of the time of the 
Senate railing about the four who were held back.
  Those on the other side of the aisle believe the advise and consent 
clause of the Constitution is meaningless. They believe their 
President, their Republican President, should have every nominee, every 
judge. They really argue with the premise that these judges should be 
asked hard questions. They do not believe that a judge seeking a 
lifetime appointment to the bench should be asked, What do you believe? 
What values will motivate you if you were in a position of power, a 
position to decide cases and basically the position to decide the 
outcome of people's lives?
  They do not believe in that. Frankly, they are arguing that this 
Constitution, that they have sworn to uphold, which provides for the 
advice and consent of the Senate before a Presidential nominee is 
appointed to the bench, should be tossed out.
  Those of us on the Democratic side disagree. I think, frankly, in 
their heart of hearts a lot of the more moderate Republicans disagree. 
They understand that no President gets everything he wants 100 percent. 
No President should, Democrat or Republican. But they are loyalist, and 
their partisan loyalty is showing. It has shown for 36 hours.
  Let me show you the judicial confirmation scorecard so you will 
understand what has happened to nominees sent by Presidents to the 
Senate.
  President Clinton's nominees: 248 confirmed, 63 blocked. So 20 
percent of the nominees, one out of five sent to the Senate by 
President Clinton, were blocked by the Republicans, Senator Orrin 
Hatch, and the Senate Judiciary Committee.
  President Bush's nominees: 2 percent have been blocked.
  I listened to the Senator from Pennsylvania tell us, warning us that, 
frankly, stopping four judges will be remembered, and they will revisit 
this if the Democrats ever take control of the White House again.
  Well, let me remind my colleague from Pennsylvania, those 63 Clinton 
nominees who were blocked, most of them were never even given the 
courtesy of a hearing. I know this personally. Three judges from 
Illinois, three good people seeking Federal appointments, were stopped 
because one Republican Senator--in the case of one of my nominees, 
former Republican Senator John Ashcroft of Missouri--personally stopped 
this nominee. This nominee, a good person, who would have been an 
excellent judge, was stopped because Senator Ashcroft objected to him. 
In objecting to him, he never got a hearing.
  So for the Senator from Pennsylvania to come and warn us that if 
there is ever a Democratic President, you can count on nominees being 
stopped, we learned that lesson. We learned it when President Clinton 
offered nominees who were quality people, moderate people, and stopped 
because of some perceived slight, stopped because of some perceived 
position on issues that the right wing did not agree with.
  Let me show you some of the photographs of some of these nominees. 
You can see that even this small gathering of nominees here represent a 
rich diversity of people across America. The Republicans would have us 
believe these people sent to the Senate Judiciary Committee by 
President Clinton were somehow radical people, people who did not share 
the views and opinions of America.
  You can count on this: Within those people are excellent judges, 
people with the highest ratings from the American Bar Association, 
people who were rejected. It gets back to this, as shown on the next 
chart: The final score here is 168 to 4. So 168 of President Bush's 
nominees have been approved; only 4 have been held back. Ninety-eight 
percent have been approved.
  I listened to the speech just given by the Senator from Kansas. I 
hope that those who are following this debate, even though I cannot 
imagine at 3 o'clock in the morning on the west coast a lot of people 
are tuned in, but if those who are following this debate heard what the 
Senator from Kansas said, I think it was chilling and troubling, if not 
alarming. It is a clear indication of what is at stake here in this 
debate. The Senator from Pennsylvania joined in the chorus because 
the Senator from Kansas said they were opposed to judges who were 
``discovering the right of privacy in the Constitution.'' Those were 
his words, ``discovering the right of privacy in the Constitution.''

  Well, the Senator from Kansas is correct. The word ``privacy'' does 
not appear in the Constitution of the United States. But those who have 
interpreted this document have come to the conclusion that Americans 
have a basic right of privacy. I suppose from what the Senator from 
Kansas said, that is judicial activism in his eyes.
  But let's remember how that right of privacy first came to the 
Supreme Court and the decision made, the landmark decision of Griswold 
v. Connecticut, a Connecticut statute which said they would prohibit 
the right of married couples to buy birth control devices, 
contraception, an archaic statute from the 19th century that said that 
married couples could not buy birth control devices. We are talking 
about the ones most commonly known.
  The Supreme Court said that is wrong. We believe that the people of 
Connecticut, the people of America, have the basic right of privacy and 
that married couples should be allowed to make that decision, and no 
State government should prohibit them from making that decision.
  So in this case, the Supreme Court ``discovered'' the right of 
privacy in the Constitution. The Senator from Kansas believes, I 
suppose, that this is judicial activism, that the court went too far. 
How many people in America believe that? How many people in America 
believe that States or the Federal Government should prohibit the right 
of couples or even individuals to buy birth control devices, to buy 
birth control pills? Is that this discovered right of privacy at work? 
The same right of privacy, I might add,

[[Page S14750]]

that was at the core of the Roe v. Wade decision.
  So there we have it. They are looking for judges who even question 
the right of privacy in the Constitution. You wonder why we would even 
stop four judges because given free rein, I am afraid that my 
Republican friends would turn the clock back, turn the calendar back to 
the 19th century, questioning the right of privacy of Americans.
  I thought conservatives, by their nature, were opposed to the 
overreach of government. But what we hear this morning from the most 
conservative members of the Republican caucus is that we have to 
question the right of privacy. That is hard to believe.
  They also went on to say, the Senator from Kansas agreed with the 
Senator from Pennsylvania that we need a check and balance on the 
courts. Think about that for a moment. Oh, it is a nice-sounding 
phrase. But think about the check and balance on the courts, and then 
think about the principle of an independent judiciary. Those two are 
inconsistent.
  The check and balance on courts comes in the process when the 
President nominates a judge, and when we review that judge's 
credentials and decide whether that judge receives a lifetime 
appointment. Then there is the correct belief that short of 
impeachment, judges in America are independent to make decisions. It is 
one of the bedrocks of our democracy. That has been challenged on the 
floor of the Senate today by the most conservative members of the 
Republican caucus.
  You wonder why we are here for 36 hours? You wonder why we are taking 
all this time. It is because of the views just expressed this morning 
by two members of the Republican caucus which indicate the extreme 
position they are prepared to take, indicate why 168 of President 
Bush's nominees being approved and 4 being stopped is unacceptable, and 
indicate that they want to change the profile and complexion of the 
judiciary across America in profound ways.
  The Senator from Pennsylvania has political amnesia. He comes to the 
floor this morning and forgets that 63 of President Clinton's nominees 
never even received a hearing, not even the dignity of a hearing. And 
he warns us in a booming voice: We will remember this if there is ever 
a Democratic President.

  I say to the Senator from Pennsylvania, he is suffering from 
political amnesia. He has failed to acknowledge that 63 of President 
Clinton's nominees were never even given the dignity of a hearing. That 
was a sad outcome for those nominees and their families. To think we 
are not going to stop this process at this point in time, that we are 
going to continue on for another 3 hours is, frankly, I think, 
unfortunate.
  Yesterday, I went with a group of Senators out to Walter Reed 
Hospital to visit with some of our injured soldiers. Senator Tim 
Johnson from South Dakota was in that group, as well as Senator Byron 
Dorgan of North Dakota. There were about a dozen of us who went out and 
visited with these soldiers. It is something I am not going to forget. 
These are some of the best we have who have given the most. They have 
been subject to injuries which are truly sad and tragic in a way, but 
their courage and their determination are going to stick with me.
  Why aren't we talking about Iraq? Why aren't we talking about the 
veterans? Why aren't we talking about the need for this country's 
national security or its economy? Really, because there is another 
agenda in play here. We are involved in a made-for-TV filibuster. That 
is what this is all about. This isn't for real. Those cots were props 
on a stage. I walked around the Senate. Most of those cots are still 
cold as ice. They have never been warmed by a Senator's body. They were 
brought in here so Fox TV News and all the right wing talk shows could 
say: My goodness, we are staying up all night. There is a handful of 
Senators who have given a lot of hours here, no don't about it. This is 
a made-for-TV filibuster. Sadly, we are ignoring the agenda of this 
country.
  My colleague from North Dakota is here, and I yield the floor to him.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I appreciate the comments of my colleague 
from Illinois. This is, in many ways, an interesting debate and 
certainly an important debate largely because it is alleged that we 
have embarked on something unusual, something unique. Of course, that 
is not the case.
  The issue of filibusters is not a unique issue in the Senate. Let me 
talk just for a moment about something I listened to on the radio on 
the way in. C-SPAN is covering this by radio. I heard my colleagues, as 
my colleague from Illinois indicated, on the other side of the aisle 
talk about this issue of right to privacy. There is no right to 
privacy, they say. What is this right to privacy that somehow has been 
manufactured? They don't agree with the right to privacy. The American 
people don't have a right to privacy, they say; that is not in the U.S. 
Constitution.
  Let me give an example of right to privacy issues that relate 
directly to the issue of judgeships. We have a nominee before us named 
Carolyn Kuhl who is a State judge. Carolyn Kuhl was involved in a case 
and dismissed a claim and then was overturned in her dismissal. Let me 
describe the claim. It was an egregious invasion of privacy.
  An oncologist was giving a breast exam--in fact, a full examine, 
including a breast exam--to a woman in his examination room. Another 
person was in the room with a white coat, another male. That male 
turned out to be a pharmaceutical salesman. No, not a doctor, a 
pharmaceutical salesman observing the full physical, including the 
breast exam of this patient.
  The patient sued. Judge Kuhl dismissed it, just threw it out. This 
woman had no right to privacy, no right to expect privacy. That is what 
the judge said.

  That judge was overturned on appeal, and the court that unanimously 
overturned that said: The conduct was highly offensive--that is, 
allowing another male in the room to observe, and not even a doctor but 
a pharmaceutical salesman--that conduct was highly offensive and the 
patient had an ``objectively reasonable expectation of privacy.''
  My colleagues suggest this is a manufacturing of some right that 
doesn't exist. This woman has no right no privacy in the Constitution. 
Judge Kuhl would have it right, they would say.
  Judge Kuhl didn't have it right. This happens to be one of the judges 
who has been held up by the Senate--one of the 4; 168 approved, 4 not 
approved. This particular judge we decided does not merit approval by 
the Senate. The other side says there is no right to privacy, so don't 
be critical of this judge; there is no right to privacy for the 
American people.
  I don't understand that argument. I hear it, but I don't understand 
it. That is rooted somewhere in the 1930s or the 1920s or perhaps the 
1880s. It is certainly not what the American people would expect 
someone in the Senate to be asserting in the year 2003, that the 
American people have no right to privacy, or that Judge Kuhl's decision 
is the right decision, and that has already been determined. That was 
thrown out on appeal--unanimously, I might say. So Judge Kuhl is not 
advancing in the Senate. We make no apologies for that. This is someone 
far outside the mainstream whose record of decisions indicates to us we 
don't want to elevate this person to a lifetime on the Federal bench.
  Let me just say with respect to the 168 approved, 4 not, 2 of those 
are North Dakota Federal judges, judges from my State. Both are 
Republican and both nominations I was proud to support. They are both 
now on the Federal bench in North Dakota. I played a role in getting 
them there, and I am pleased I did. I think they will be great Federal 
judges.
  That happened the right way. The administration visited with Senator 
Conrad and myself and selected from among some good candidates two 
judge candidates we supported who we think will do well on the Federal 
bench.
  There are other approaches to this. One is, for example, saying to 
the two California Senators: It doesn't matter what you think, we are 
going to pick an ultraconservative in California whose record doesn't 
merit support by the Senate, and we are going to try to shove it down 
your throat because we believe we have a right to do that. That is the 
attitude. There is a kind of arrogance there, in my judgment.
  When they wrote the U.S. Constitution, the Framers decided they were

[[Page S14751]]

going to have a couple of steps to this process. I am glad they did. In 
fact, they almost decided the President should not be involved in the 
process. That was part of the discussion because they didn't want to 
give that much power to one person in this country, but they finally 
made a compromise with respect to judges. They said the President will 
nominate and the Congress will have a role of advising and consenting. 
That is, the President will nominate and the Congress will say yes or 
no.
  We have been extraordinarily cooperative with respect to this 
President. In almost all cases, we have said yes. In four, we have said 
no. For that, we now have a 30- or 39-hour extravaganza in which, when 
I was driving in this morning, I heard my colleagues talk about 
corruption and all the code words they have developed especially for 
this debate, especially for their political friends so the word will 
mean something and it becomes much more than actually exists. This is 
all a manufactured debate.

  They say there has never been a filibuster. That is not true. But if 
you say it eight times an hour for 39 hours, maybe some people will 
believe it. I don't know.
  This is the oft-repeated old story about the man who comes home at 2 
o'clock in the morning, having been drinking and with lipstick on his 
collar. And his spouse angrily confronts him and says: Where have you 
been?
  He says: Riding my bicycle.
  She says: That can't be true, I took your bicycle to the shop 
yesterday.
  He says: That's my story, and I'm going to stick to it.
  That is what is happening here: It is my story, patently untrue, 
obviously false, but they stick to it. They say there has never been a 
filibuster. The fact is, when the Republicans were in the minority, 
they filibustered 16 nominations in 1 Congress alone. So if they say it 
eight times the next half hour, just understand, it is not true. They 
can say it, say it, and say it, but it is not true.
  I guess debate is an opportunity to exchange views. It does not 
require someone to tell you the facts. The facts are, as my colleague 
from Illinois indicated, many of the nominees in the previous 
administration never even got a hearing--not even a hearing. But in 
addition to that, there have been numerous filibusters, and some of my 
colleagues, in fact, who are here this morning voted against cloture to 
sustain a filibuster, some of the same ones who are making this claim.
  I don't understand, I guess, how they think it sticks just to stand 
up here and say something they believe to be the case when they know it 
is simply not true.
  Let me, in the couple of minutes I have remaining, talk about some of 
the issues I wish they had passion to address. This, in many ways, 
relates to the right to privacy.
  The President and my colleagues on the other side of the aisle have 
decided in recent days that this young lady--her name is Joni Scott, 
who went to Cuba to distribute free Bibles--will be fined $10,000 by 
the U.S. Department of the Treasury. Why? Because she exercised her 
right to travel and distributed free Bibles to the poor people of Cuba.
  She now is subject to a $10,000 fine. I tried to change that the 
other night. I couldn't do it. The majority in this Congress and the 
President said: Absolutely not, we are going to maintain these travel 
restrictions that restrict the right of the American people to travel.
  By the way, this woman is going to get no relief. A $10,000 fine for 
an American citizen who distributes free Bibles in Cuba--maybe we could 
be talking about that this morning and see if we can agree that it is a 
perversion to do this. It seems to me this woman has some rights. Yes, 
the right to travel, perhaps the right to privacy, the right to 
distribute free Bibles. But the majority party says: No, she has no 
such right, none at all.
  Let me ask if we might not want to talk about another subject during 
these 39 hours. We have lost 3 million jobs in the last couple of years 
with a failed economic policy.
  This is a picture of a Huffy bicycle. They used to be made in the 
United States. In fact, right here under the handlebar they used to 
have a decal that was the American flag decal. Mr. President, 850 
workers in Ohio were fired because they were making $11 an hour, and 
they moved this bicycle manufacturing plant to China where they can pay 
33 cents an hour, and they took this flag decal off the handlebar and 
put on a decal of the globe. Not an American flag, a globe. Why? 
Because they decided $11 an hour is an egregious wage, outrageous 
amount of money to pay people when you can make it for 33 cents an hour 
in China, working 16 hours a day, 7 days a week. So we lost 850 jobs. 
These 850 people went home and had to tell their families: I lost my 
job. I am a good worker. I tried hard, but I couldn't compete with 33 
cents an hour.

  I wonder if maybe we wouldn't have the same passion on this floor to 
talk about jobs that Americans had but don't have any longer. Could we 
have a few of our friends stand up and join us to have a 39-hour debate 
about jobs the American people need, want, and deserve but don't have 
because these jobs are moved to parts of the world where people are 
paid 33 cents an hour.
  I could hold up another chart to show you 12-year-old kids working 12 
hours a day, being paid 12 cents an hour, and they get the jobs and 
those jobs leave this country. Is there a passion on this floor to talk 
about that? Oh, no, we don't have time. This isn't a big issue.
  The passion is to stand up here and say with respect to the four 
nominees to the court who have not advanced that we are engaged in a 
filibuster that has never before been done. That is absolutely, 
patently false, and the people who make that charge know it.
  My hope is we can stop some of this and get on to the things that 
really matter to the American people and the economy and the future of 
this country.
  My colleague from Illinois I know has additional comments.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank my colleague from North Dakota for 
reminding us that there are issues out there about which the American 
people really care. I dare say if you go to Missouri, Illinois, North 
Dakota, South Carolina, Georgia, or Minnesota and take the average 
person on the street and ask them: ``Where in the list of priorities in 
your life is the fact that 4 judges out of 172 nominated by President 
Bush have not been approved,'' my guess is they are going to say: I 
didn't even know that. Is that a big problem?
  In fact, this morning's Washington Post has an interesting story 
about what we are doing here, this made-for-TV filibuster. They say:

       The greatest deliberative body shows what it does best--
     talk itself silly.

  That is the Washington Post this morning. They refer to filibuster 
buttons--we have them on both sides of the aisle--filibuster T-shirts, 
and filibuster bingo games.
  I am glad they didn't disclose the identity of this man, but they 
went out and asked one of our Capitol Police officers what he thought 
about this marathon debate. He probably would lose his job if his name 
were disclosed because of the Republican majority. Here is what this 
man said, a Capitol policeman who has been standing guard over the 
Capitol through the wee hours of the morning while we gassed on here on 
the floor about our favorite political issue: the lack of confirmation 
of four judges.
  Incidentally, for those who are keeping score, I believe it cost us 
about a quarter of a million dollars in taxpayer money for additional 
pages to be printed in the Congressional Record and for additional 
Capitol Hill Police overtime protection because of this 39-hour 
marathon--a quarter of a million dollars.
  Let me get to the quote from this Capitol policeman. They asked about 
the made-for-TV filibuster. He said:

       I can see it if it was something important, like the budget 
     or Iraq, but who cares about judicial appointments. They 
     should get a life.

  There is a lot of wisdom out there standing in the hallways and in 
the streets in the cold wondering what in the world we are doing here. 
The Senator from North Dakota knows full well, if you go to his State 
or my State and talk about 3 million jobs lost under the Bush 
administration, those are the numbers they care about, not 168 to 4.

[[Page S14752]]

  The Republican majority is out of touch. They just don't get it. They 
don't understand what real families and real businesses across America 
care about.
  The cost of health insurance--for goodness' sake, how much time have 
we spent in the Senate talking about the cost of health insurance this 
year? Nada, zero, rien, not at all. No time to discuss the cost of 
health insurance, the biggest single issue facing families and 
businesses across America, but, boy, for four judges we are prepared to 
stand on this floor for 36 hours and grind red meat for Fox TV News and 
the right-wing radio boys. We will spend night and day. We will bring 
in our props such as cots and suitcases, and we will pretend this is a 
really serious filibuster and ignore the really serious issues that 
America really cares about.
  You wonder why fewer and fewer people take the Senate seriously? You 
wonder why fewer and fewer people vote? It is because of this kind of 
charade.
  Mr. DORGAN. Mr. President, will the Senator from Illinois yield?
  Mr. DURBIN. I yield for a question.
  Mr. DORGAN. In the previous administration, over 50 nominations were 
sent to the Congress in which there wasn't even 1 day of hearing--not 
even the courtesy of allowing someone to come to the Capitol for a 
hearing. Were any of the folks who are now on the floor of the Senate 
complaining about our holding up four judges who did get a hearing but 
we decided not to confirm--were any of the folks complaining back then 
that those 50 nominees never got a hearing?
  Mr. DURBIN. I say to the Senator from North Dakota, their passion for 
justice did not apply to a Democratic justice. Their passion for 
justice did not apply to 63 nominees who were not given a chance to 
come to the Senate floor. Their passion for judges did not apply to 
those men and women whose lives were changed forever. But when it comes 
to these four, we take up the time of the Senate, take up the money of 
the taxpayers to divert us from issues that people really care about. 
It tells us what it is all about.

  When the Senators from Kansas and Pennsylvania come to the floor and 
say, We want judges who don't discover the right of privacy in the 
Constitution, is that a conservative value, is that a family value--to 
reject the right of privacy? That is what they said, and I don't get 
it. If that is what they are for, they are clearly out of the 
mainstream, and we ought to take a closer look at every job.
  I even think Robert Bork, when he was trying to get on the Supreme 
Court, said he agreed with Griswold v. Connecticut, a right to privacy 
case. What we heard this morning from the most extreme members of the 
Republican caucus is they will not even acknowledge a right of privacy 
for individuals and families across America. That is a sad outcome and 
one I think, frankly, should be challenged because if that is really 
the standard we are going to play to, I am going to look a lot harder 
on the Senate Judiciary Committee to make sure we don't have nominees 
given lifetime appointments to the bench who would have our Government 
raiding the bedrooms and private lives of Americans. That is what it is 
all about. It should not be allowable.
  I see the majority leader on the floor and I respect him very much, 
but this is wrong. What we are doing is wrong. This made-for-TV 
filibuster over 4 judges after the President had 168 approved--why 
aren't we talking about issues people really care about, such as the 
cost of health care, the loss of jobs, the poor soldiers coming back 
injured who need help in veterans hospitals?
  The Presiding Officer is chairman of the Veterans' Administration and 
HUD subcommittee on the Appropriations Committee. We had to pull his 
bill from the floor the other day. We did not have time to finish the 
bill, the 2 hours it would take to finish that bill--$62 billion, if I 
am not mistaken, or $68 billion for the Veterans' Administration--
because we had to hurry on to this made-for-TV filibuster. That is sad. 
We should do the people's business. We should focus on things that 
Americans really care about.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, to be referred to as an extreme Member 
of the other side of the aisle, I would like to suggest that this 
extreme Member on the other side of the aisle never voted against 
cloture on a judicial nomination. How extreme is this Member versus the 
Member who just spoke, who has voted repeatedly and repeatedly and 
repeatedly and repeatedly and repeatedly against cloture? Who is the 
extremist?
  I will posit that to the American people. Who is the extremist? The 
Senator from Pennsylvania, who never in his career voted, ever, against 
a cloture petition for a judicial nomination or the Senator from 
Illinois, who has led the effort, organized the posse, to filibuster, 
for the first time in American history, nominations for the court?
  This is only 168 to 4. When the rules are changed, upon changing the 
rules you have to start with one. Then you do two. Then you do three. 
Then you do four. And today we do five. Today we do six. Next month it 
will be seven. Then it will be eight. Years from now, it will be 127, 
and then 3,455. It starts with one. It starts with the change.
  There have been 2,372 nominations since the filibuster rule was put 
in place; zero blocked on the Senate floor. It has never been done in 
history.
  Oh, it is only four, just a few. We are doing great. ``We just 
started,'' is what they are not saying--we have only just begun. We 
just started this, folks. Not the Senator from Pennsylvania, not the 
Senator from South Carolina, not the Senator from Missouri. The Senator 
from Missouri opposed a judge. He said, look, have an up-or-down vote 
and then I will vote no. That has been the way it has been done here. 
This idea that we have filibustered nominations by folks not getting a 
vote in committee, let us look at the record.
  Fifty-four Bush nominees under the Democratic Senate got no hearing, 
did not get confirmed. Have we complained that they were filibustered? 
No, because they were not. Every President at the end of his term has 
judicial nominations in committee who have not gotten through, for a 
variety of reasons. It is just the flow of the Senate. In this case, 54 
Bush nominations. How many Clinton nominations, after 8 years? Forty-
one.
  Let me repeat this again because we are saying this is different; 
Clinton was treated so unfairly. There were 377 nominations, 1 defeated 
on the floor, up-or-down vote. No filibuster.
  I remember--the Senator from Missouri, I am sure, can remember this--
Richard Paez. I do not know if the Senator from Missouri voted against 
him or not, but I sure did. I did not vote against cloture because the 
Senator from Mississippi, Mr. Lott, and the chairman, Senator Hatch, 
said: Do not set this precedent. Do not change the rules. It is going 
to come back and bite us. We cannot do this. It is too important to the 
future of the Senate. It is going to undermine the judiciary. The Ruth 
Bader Ginsburgs of this world, the Antonin Scalias of this world will 
not have a prayer getting through this place. The best and the 
brightest are going to get knocked away or scared away if we raise this 
bar, if we allow the extreme elements of either party to start to run 
the Senate. We cannot let this happen.
  As much as we may want to, as much as we did not want Richard Paez to 
be a Ninth Circuit Court judge, you have to hold back. You cannot let 
the passion of the moment completely destroy the precedent that has 
served this body and this country so well. Do not succumb to the 
special interest groups who are pleading with you. Come on.

  The Senator from South Carolina said just in the last hour that for 
every one liberal special interest group there is one conservative one. 
Guess what. When the shoe is on the other foot, do you think we are 
going to say, oh, well, we are going to go back to the way it was; we 
are going to let you have all of your liberal judges; we are only going 
to require 51 votes? Fat chance. Fat chance.
  Mr. GRAHAM of South Carolina. Will the Senator yield for a question?
  Mr. SANTORUM. I will yield the floor to the Senator from South 
Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. For something that is a waste of time, 
it

[[Page S14753]]

has been hard as heck to get to say anything around here because 
everybody is so fired up about talking, which I think is good. We have 
been in almost 39 hours, and if Senators get 15 minutes to express 
themselves they are lucky, which I think is a testament to how 
important this is to people.
  I am very proud of what the Senator from Pennsylvania has tried to 
tell the body about what the future will be like. The Senator from 
Minnesota and the Senator from Georgia, my two good friends, my 
classmates, we were not here during a lot of these problems of the 
past. We are worried about the future.
  I want to very quickly respond to my good friend from Illinois. Here 
is what I am willing to do--and I do not know who the Capitol Hill 
policeman was, God bless him for serving--I am willing to stand by a 
poll of all the cops in America and see whether they think appointing a 
judge is a big deal. It is my belief that most cops in America have had 
experiences in court that they really would like us to pick judges 
wisely. As a prosecutor, I can assure my colleagues who the judge is 
matters. I can assure my colleagues that most police officers do watch 
how the court operates, and they are concerned about the quality of 
judges because many of them have made cases risking their lives only to 
see it bounced.
  So I totally disagree that this police officer is speaking for the 
mainstream of cops. Cops care about judges.
  The Washington Post--I am not a great fan of the editorial page, but 
I read the Washington Post about what they think is going on here 
today. On February 5, 2003, the Washington Post said this filibustering 
of judges--Miguel Estrada--is really not a good thing. A world in which 
filibusters serve as an active instrument of nomination politics is not 
one either party should want.

  Well, the extreme Senator from Pennsylvania shares the same views as 
the Washington Post, which begins to bother me a little bit. Maybe he 
should be a little more extreme. But what he is saying is what the Post 
said back in February. You do not have to be a rocket scientist to 
figure this out because I figured it out. I am not a rocket scientist.
  This is about manufactured controversies. Judge Pickering, oh, this 
is no big deal. Why are the Senate Democrats sending out urgent e-mails 
saying send us money, my God, the country is about to blow up because 
the Bush administration is devoted to using the courts to its political 
advantage? If that does not get your blood boiling, what would? It 
would scare me if I got a memo from somebody who is a responsible 
member of the Senate Democratic leadership saying, send money quickly. 
The Bush people are taking over the courts, and they are going to put a 
guy on the court named Charles Pickering. While he was in law school, 
he wrote an article about making sure the ban on interracial marriage 
in Mississippi was not stricken down.
  As a State senator in the 1970s, Pickering worked to repeal the 
important provisions of the Voter Rights Act. That ought to scare you 
to death if you believe in racial harmony and justice.
  This e-mail is totally in contradiction of what has been said on the 
Senate floor. The e-mail says that Senate Democrats have launched an 
unprecedented effort. If you have listened to everybody for the last 33 
hours, this is just business as usual. The e-mail is the best evidence 
of what is going on over there. They have picked a few judges, for 
whatever reason. They have manufactured controversies about who these 
people are, and they are ruining their lives.
  Judge Pickering was approved by this body 12 years ago. I would 
daresay this body would not have unanimously put him on the district 
court as a Federal judge if they believed he was writing articles 
supporting interracial marriage bans and that while he was a State 
senator he actively undermined the rights of African Americans in 
Mississippi. That makes no sense. That means this place is totally 
asleep and worthless when it comes to screening, or they are 
manufacturing controversies about this judge.
  Judge Pickering was voted well qualified, the highest rating one can 
get from the American Bar Association. I am convinced that the ABA is 
not putting people on the bench well qualified if they believe they are 
a bunch of racists. It goes on and on with all four of these people, 
and it soon will become 12. That is why I am so upset.
  Special interest groups who do not live in Mississippi have declared 
war on the basic essence of who Charles Pickering is, defying all of 
the evidence out there by people who know him the best and what he has 
done with his life. That is a sad state. That will lead to chaos, and 
the Senator from Pennsylvania is absolutely right. You are going to 
have people applying for these jobs in the future who will have never 
uttered a word about anything because if they say anything that may get 
a liberal or a conservative special interest group mad at them, they 
will come and knock their head off. That is why we are here at 10 
minutes after 7 and you have to really watch it to make sure you do not 
deny your colleagues a chance to speak because contrary to what they 
say over there, this is a big deal to everybody, and, my God, it ought 
to be. If it gets to be where it is not a big deal to how a judge is 
appointed and nominated, and whether you follow the Constitution, our 
problems with the economy pale in comparison with our problems as a 
nation. When politics enters the judicial arena and the judicial arena 
just becomes another form of politics, then we have drifted far astray 
from where our forefathers wanted us to be.
  I will yield to my colleague from Missouri.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I could not agree more with my colleague 
from South Carolina. When I hear asked on this Senate floor, who cares 
about judicial appointments, who cares about the important judiciary 
that makes decisions that affect our everyday lives, I would join with 
him in saying that the people in Missouri care.
  I have found all of the problems--and there are many problems, there 
are lots of concerns. People are concerned about Iraq. They want to see 
the President carry on the war against terrorism. They are concerned 
about jobs. They are very grateful, I might add, that the Republican 
Congress has given the economy such a boost with its good fiscal policy 
and gotten the economy growing, an economy that President Bush 
inherited that was in the tank, but it is starting to grow, and we want 
it to grow faster. They ask me more about this unprecedented filibuster 
of judges than anything else.
  No matter where I go, in the rural areas, in the big cities, in the 
suburbs--my colleagues on the other side ask, who cares? Well, people 
in my State understand. They know how important the judiciary is. They 
know that appellate courts, the courts that oversee district courts 
usually in many States, make decisions that affect our everyday lives.
  The Senator from South Carolina was right. The police officers, the 
sheriffs, these are the folks who go out and risk their lives and then 
they see appellate judges, people on appeals courts, making decisions 
that turn these criminals loose. And they say what is this all about? I 
am risking my life, I am out there getting shot at, trying to bring 
somebody in, and an appellate court judge misuses the law to set him 
free. Our police officers, our law enforcement officers today 
understand the constitutional rights. They know. They have to abide by 
the standard. They have to respect the rights of all citizens. But when 
they do that, when they go through all of the steps and do it right and 
then a criminal is turned loose, they, who have risked their lives, 
know how important these judges are.
  My Democratic colleagues complain that we are taking time. Well, I 
have been waiting to get on the floor because this is something we need 
to talk about. We have listened to them all year long delay, 
filibuster. They bragged about they finally passed the Healthy Forests 
bill to stop the wildfires that have burned in California and threaten 
many States, and do my colleagues know what they are doing? They are 
filibustering the ability to take that bill to the conference so we can 
get it passed. They are filibustering that.
  My colleague from Illinois was talking about how long it took us to 
get to the VA-HUD bill, a bill I am responsible for. Well, something 
may have

[[Page S14754]]

interfered with taking up that bill when the minority whip spent 8\1/2\ 
hours on the Senate floor on Monday complaining about filibusters. 
Excuse me, but what is that when he will not release the floor 
beginning at 1:30? I gave up. I heard he went 8\1/2\ hours, maybe it 
was 9\1/2\ hours. I decided to turn on the ball game about then. But we 
were blocked from doing anything. We were blocked by the same Democrats 
who complained, after they filibustered all year long, that we are 
talking too much.
  There is a lot to be said, but the most important thing I can say is 
that the President has nominated 46 people to serve on the Federal 
circuit court, and the Senate has confirmed only 63 percent. This is 
what we are talking about, unprecedented. The President has made four 
nominations to the Court of Appeals for the DC Circuit, the second 
highest court in the land, and only one has been confirmed.

  Despite the self-congratulations of the Democrats who say they have 
confirmed 168, they have not confirmed 37 percent of the circuit 
judges. What nominee has withdrawn his name? One of the most qualified 
people ever nominated for the judiciary. Three remain filibustered. 
Three more are being threatened with that fate. Numerous others are 
being blocked or delayed by the minority. The reason most cited is that 
these nominees are out of the mainstream.
  The mainstream, it appears, is defined by a few of my colleagues and 
some of the most liberal interest groups in the country. I know the 
liberal interest groups, the Hollywood group, put in a lot of money, 
and they have strange ideas of what the mainstream is. When you talk 
about some of their mainstream Hollywood people or People for the 
American Way ideas, I tell my colleagues, that dog does not hunt in 
Missouri. I imagine it does not hunt in South Carolina, Georgia, and 
Pennsylvania either.
  If that is the litmus test, let us talk about who is in the 
mainstream. For the Ninth Circuit, Judge Carolyn Kuhl, the American Bar 
Association says she is well qualified for the position. Oh, earlier 
on, that was going to be the gold standard. The Democrats said: We 
cannot appoint anybody who is not rated at least qualified by the 
American Bar Association.
  She is rated well qualified, a distinguished career as an attorney 
with the Department of Justice, U.S. Solicitor General, a clerk for the 
United States Supreme Court. Twenty-three women judges on the Superior 
Court of Los Angeles, and nearly 100 judges who serve with her have 
spoken out on her outstanding abilities and professionalism. The 
litigation section of the L.A. County bar has also. Are those people 
out of the mainstream? Are they somehow different? Are they somehow 
unworthy?
  Then Judge Janice Rogers Brown, she is the first African-American 
woman to serve on the State's highest court. She was retained by the 
support of 76 percent of the voters in her last election. That is in 
California. Is 76 percent of the California voters out of the 
mainstream? Academics from colleges across the State have written in to 
speak about her professionalism and evenhandedness. Sounds like 
mainstream to me.
  They like to think that the panel of the Ninth Circuit, which is the 
most liberal, most overruled, most out of touch circuit court in the 
Nation, is mainstream, but this panel of Ninth Circuit judges tried to 
stay the recall election in California. The Ninth Circuit judges 
declared that the words ``under God'' in the Pledge of Allegiance are 
unconstitutional. Is that the mainstream? Two Democrats appointed to 
the Ninth Circuit ruled that convicted felons serving a life sentence 
have a fundamental right to procreate by artificial insemination. Are 
they in the mainstream? Where is that in the Constitution?
  Mr. President, I have many colleagues who need to speak. I have a 
whole lot more to say. I will be sharing it with you. But most of all, 
I am hearing from the people in Missouri who know their lives could be 
affected by what the nominees of the appellate courts in the Nation can 
provide.
  After 9/11, a Jordanian named Osama Awadallah was apprehended after 
material linking him to some of the hijackers was found in a car parked 
at Dulles by one of the hijackers. It was established that Awadallah 
knew two of the hijackers and had met with one of them up to forty 
times. But Clinton appointee Judge Shira Scheindlin dismissed his 
charges and in the process struck down a federal material witness 
statute long used by the Department of Justice to detain witnesses who 
are a flight risk. The fact that this was well-settled law used by the 
prosecution was no deterrent to the judge. Fortunately, she was 
overruled by the court of appeals.
  Yesterday, we also heard about Clinton appointee Judge Jed Rakoff, 
who ruled that the federal death penalty is unconstitutional, again 
disregarding well established precedent. In his opinion, the judge 
likened the statute to murder. The judge seemed to have total disregard 
for the fact that the arguments he made were those that should be made 
in a legislative body, but that would require one to be responsive to 
the will of the voters--what an old fashioned notion! Even the 
Washington Post--which opposes the death penalty--condemned this 
blatant overreaching decision as entirely inappropriate for a judge.
  Another recent Clinton appointee has ruled it necessary for the 
government to permit criminal illegal immigrants bail, rather than 
holding them for deportation--A very useful tool for our immigration 
services to ensure that criminal aliens are sent back to their native 
countries.
  President Clinton nominated a New Jersey federal judge to the court 
of appeals who once ruled that a homeless man, despite the disturbance 
he was causing the patrons, had a right not to be removed from a public 
library. Of course, he was supported unanimously by the Democrats. On 
the circuit court, he went on to rule that prisoners had a 
constitutional right protecting their mail from searches and argued 
that the government could not go after the proceeds of drug 
forfeitures--fortunately for the war on drugs, he was unsuccessful.
  Speaking of prisoner cases, one of the decisions issued by Judge 
Pickering that the Democrats have been critical of was a prisoner's 
rights case. A prisoner was dissatisfied with the prison issue 
typewriter because it was lacking a memory system--Judge Pickering 
ruled that this prisoner's typewriter was adequate and he did not have 
the right to one with memory. What a cruel decision. Is that what this 
debate has come down too? This hardly puts Judge Pickering out of the 
mainstream, in fact I would bet just about everyone listening to this 
debate would agree this decision is mainstream--It makes common sense.
  I could stand here all morning reading decision after decision handed 
down by Democrat appointed judges that simply defy reason and bear no 
resemblance to what most people in this chamber or in their states 
would consider to be the ``mainstream''. Yet a few of our colleagues 
have taken it upon themselves to make this critical determination. By 
their history, they have no credibility on this question. In fact, all 
the nominees who have been labeled as such actually enjoy the majority 
support in this body and have the support of Republicans and Democrats 
alike.
  Mr. President, it is time to give these extremely well-qualified, 
high-respected individuals an up or down vote. It is time for the 
minority to quit hiding behind this flimsy argument about being in the 
mainstream.
  It is too late for Miguel Estrada, his nomination was withdrawn after 
848 days and 7 cloture votes, unanimous rating of well qualified by the 
ABA, but it is time to give Justice Priscilla Owen a vote, her 
nomination has been pending for 917 days and there has been three 
cloture votes, unanimous rating of well qualified by the ABA, it is 
time to give Judge Charles Pickering a vote, his nomination has been 
pending for 901 days and he has an ABA rating of well qualified, it is 
time to give Attorney General William Pryor a vote, his nomination has 
been pending for 217 days and he received a qualified rating, it is 
time to give Judge Carolyn Kuhl a vote, her nomination has been pending 
for 873 days and the ABA has give her a well qualified rating, it is 
time to give Justice Janice Brown a vote, her nomination has been 
pending for 110 days, and it is time to give Judge Henry Saad a vote, 
his nomination has been pending for 743 days.

[[Page S14755]]

  Mr. President, it is time for the body to give these candidates an 
up-or-down vote.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Just like the Senator from Missouri, I want to talk 
for just a second about who cares about these judicial nominations 
because obviously the folks on the other side of the aisle who have 
been obstructionists in not allowing circuit court judges to come to a 
vote think the American public does not care about our Federal judicial 
system. Sure, our supporters understands it and they care. Sure, every 
Rotary Club I go to understands it and they care because they ask me 
about it. Every church where I go to speak, they care, they understand 
it, because they ask me about it. I have been walking down the street 
in my hometown and some stranger will come up to me. He understands it 
and he cares.
  Obviously, the Senator from Illinois is totally insensitive to these 
kinds of people.
  Let me tell you who else cares. That criminal defendant who is 
sitting in jail and who is having to wait longer than he ought to wait 
because we do not have Federal judges on the bench, he or she cares. 
That plaintiff or defendant in a civil lawsuit who is having to sit and 
wait and wait for justice, whatever that justice may be, on either side 
of the appellate case, he cares because he is not getting his case 
served.
  Obviously, the folks on the other side of the aisle who are 
complaining about and conducting this filibuster think those people are 
OK and they do not care. They care.
  I guess one of the major other differences between the Senator from 
Illinois and this Senator is that I don't go to the Washington Post to 
get my anecdotes. I don't go to any conservative newspaper to get my 
anecdotes.
  Yesterday I drove to my office over in the Russell Senate Office 
Building, and as I pulled my car up to the gate, just like all of us--
we stop, the Capitol Police have to come around and run the mirror 
under your car--the Capitol policeman came over to me and he knew I had 
been up except for an hour the night before, and I could tell he was 
dead tired, and he looked at me and he said: Senator how are you doing? 
And I said: I am tired. He said: Senator, you guys are doing the right 
thing. Make your point.
  You know that guy cares because he is like every other law 
enforcement officer in America. They depend on us to make sure we 
provide them with good judges to take the bad guys off the street which 
makes their job easier.
  There is one other point I want to make because I have heard this 
comment off and on for the last 38 hours. And that is, the fact that 
the score of 98 percent is a pretty good score. I don't care whether it 
is a math, English, or a reading test. They keep bringing this point up 
that we have confirmed 98 percent of the President's judicial nominees.
  First of all, the numbers are not right, but I will not get into 
that. I want to talk about the 98 percent. On its face, that might 
sound fine. When you come to messing with the Constitution of the 
United States, when it comes to the confirmation of judges, 98 percent 
is not good enough. The reason is that every other President in the 
history of the United States of America--and we have had 43 of them 
now--every single one of the other 42 Presidents of the United States 
has had a score of 100 percent when it comes to the issue of not having 
their judges filibustered.
  For these folks to stand up on the other side of the aisle and say 98 
percent is pretty good, they don't care about the fact that they are 
the first in the history of the United States of America to filibuster 
a judge.
  I repeat, if 98 percent is OK and they are smiling and happy about 
it, I would like to hear how many of them go home this afternoon and 
think they would get a good reception from their spouse if they said: 
You know, honey, I have been faithful to you 98 percent of the time. Or 
I wonder how many of them would feel good as they get on an airplane 
this afternoon and head home smiling and thinking, boy, we have done 
great work defending our judges and defending our filibuster of these 
judges but that airplane had a safety record of landing 98 percent of 
the time.
  There is a difference. We live under this document that has served us 
so well for so many years and 100 percent of the judges who are 
nominated have been confirmed by every other Senate for every other 
President prior to this one as per the language of this great document.
  I close by reading some comments out of a book written by a man of 
which I am a big fan. The Democrats in this Senate are not particularly 
a fan of his right now, but let me tell you, he is a great American. He 
is a great American who speaks the truth, and he is speaking the truth 
about what is going on in this body right now. ``The National Party No 
More, the Conscience of a Conservative Democrat.'' It is written by my 
colleague, my good friend from the State of Georgia, Senator Zell 
Miller.
  I ask unanimous consent that the entire chapter, chapter 8, entitled 
``41 Beats 59--That Strange Senate Math,'' be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 41 Beats 59--That Strange Senate Math

       The United States Senate is the only place on the planet 
     where 59 votes out of 100 cannot pass anything because 41 
     votes out of 100 can defeat it. Try explaining that at your 
     local Rotary Club or to someone in the Wal-Mart parking lot 
     or, for that matter, to the college freshman in Political 
     Science 101. You can't, because this strange Senate math 
     stands democracy on its head.
       By name, this incongruous, obstructionist procedure is 
     known as a filibuster. The word filibuster comes from a 
     Spanish word for ``pirate,'' and that is exactly what this 
     procedure does. It hijacks the democratic process. 
     Filibusters first caught the fancy of the nation after James 
     Stewart, in Frank Capra's classic movie Mr. Smith Goes to 
     Washington, made Mr. Smith a hero standing up to the Senate 
     bosses on behalf of the people. But now, however, most 
     Americans understand vaguely that in the Senate any member 
     can stand up and talk endless drivel for hours in order to 
     prevent legislation he or she opposes from coming to a vote. 
     The process is so ridiculous that the filibuster, like that 
     old comics-page blowhard Senator Claghorn, has unfortunately 
     become, in the minds of many, just another caricature of 
     the Senate, just another thing to laugh at, just more hot 
     air from the Cave of the Winds.
       Realizing that with the scrutiny of television, the people 
     would not stand for such nonsense, the ``Old Bulls'' of the 
     Senate fuzzed it up. They made it subtler. These verbal 
     gunslingers can now be forced to shut up, and the process and 
     the Senate move along toward a vote if sixty members remove 
     the cotton from their ears and vote for cloture. A cloture 
     shuts off what is called a debate but isn't because it takes 
     two sides talking to constitute a debate. If this sounds 
     confusing, it is meant to be. That is precisely the 
     objective.
       The short version of this debacle is that the way 
     filibuster is being used in the Senate gives the minority an 
     absolute veto on just about everything. In fact, the U.S. 
     Senate has become similar to the Security Council of the 
     United Nations where one country can veto the will of a clear 
     majority and castrate the entire process.
       Winston Churchill once said, ``Democracy is based on reason 
     and fair play.'' Well, there's nothing reasonable or fair 
     about what's been happening in this august body. It's not 
     just that it's an expensive waste of time and taxpayer money, 
     but it's also a flagrant abuse or majority rule, the 
     principle that democracy operates on everywhere. Everywhere, 
     that is, except in the U.S. Senate.
       Rule XXII of the Senate is the reason for all this. It was 
     adopted in 1917 and was meant to move things along. President 
     Woodrow Wilson had lashed out at what he called a ``little 
     group of willful men'' who had blocked his proposal to arm 
     our merchant ships against German submarines. Sixteen 
     senators could file a petition against a bill or an amendment 
     and if two-thirds approved it within two days, debate was to 
     be limited to one hour per member or one hundred hours. Later 
     it was modified to sixty votes, not two-thirds, necessary to 
     halt a filibuster. And in 2003, for the first time, it was 
     used to prevent a vote on the presidential judicial nominees.
       The longest filibuster in congressional history was waged 
     against the Civil Rights Act in August 1957 by Senator Strom 
     Thurmond of South Carolina, when he held the floor for 
     twenty-four hours and eighteen minutes. Wayne Morse of Oregon 
     comes in a close second with twenty-two hours and twenty-six 
     minutes. Probably the most entertaining was the Kingfish, 
     Huey P. Long of Louisiana, who in 1935 only went on for 
     fifteen hours, thirty minutes against one of President 
     Roosevelt's New Deal proposals. When asked how he kept from 
     answering the call of nature for that long he answered, ``Why 
     do you think I wore a navy blue suit?'' Strom Thurmond had 
     dehydrated himself in a sauna before taking the floor for his 
     record-setter and didn't worry about that problem.
       James Madison, the Father of the Constitution, feared some 
     future political leaders would pervert the legislative 
     process in

[[Page S14756]]

     just this way. He warned in Federalist Paper #58 that when it 
     happened, ``The Fundamental principle of free government 
     would be reversed. It would be no longer the majority that 
     would rule. The power would be transformed to the minority.'' 
     I'm sure the man who wrote the Constitution is spinning in 
     his grave.
       Alexander Hamilton may be taking a couple of revolutions as 
     well, because he agreed with Madison. He pointed out in his 
     Federalist Paper #68 that the vice president was given a tie-
     breaking vote for ``securing at all times the possibility of 
     a definite resolution of that body.'' A ``definite 
     resolution''; how well put. But no one has said it better 
     than Senator Henry Cabot Lodge in 1893, when obstructionism 
     was not nearly as bad as it is today: ``To vote without 
     debating is perilous, but to debate and never vote is 
     imbecile.''
       Years ago, when I was teaching freshman political science 
     at Young Harris College, I always repeated the old story 
     about the origin of the Senate. Thomas Jefferson was in 
     France when the Constitutional Convention was being held. 
     Later, he asked his friend George Washington, who presided 
     over the convention, about the purpose of this upper chamber, 
     the Senate. Washington, so the anecdote goes, then asked 
     Jefferson, ``Why do you pour coffee into your saucer?'' To 
     cool it,'' Jefferson replied. Washington responded, ``Even 
     so, we pour legislation into the senatorial saucer to cool 
     it.''
       Cool it, yes. but not freeze it into an ice cube. Truth is, 
     there is nothing at all said in the Constitution about 
     protecting Senate minorities. Our Founding Fathers, I 
     believe, thought the smaller size, longer and staggered 
     terms, as well as state legislation on the selection of 
     senators, would provide more wisdom.
       Some constitutional lawyers have argued that any kind of 
     super-majority vote is unconstitutional, other than for the 
     five areas specified in the Constitution: treaty 
     ratification, impeachment, override of a presidential vote, 
     constitutional amendments, and expelling a member of 
     Congress. As I write this, Judicial Watch is doing just that. 
     They have filed a lawsuit arguing that confirmation of judges 
     is not specified in the Constitution and, hence, does not 
     require a super majority.
       That's one possible remedy. There are others. We could 
     abolish Rule XXII that protects this travesty and let the 
     U.S. Senate operate under rules like every other democratic 
     legislative body in the world where a simple majority rules. 
     That's about as likely as a day dawning in Washington without 
     ten fund-raisers.
       Or we could modify what I call the ``two-track trick'' or 
     filibuster by stealth adopted a few years ago, where another 
     piece of legislation is considered at the same time a 
     filibuster goes its windy way. I call it ``filibuster-lite.'' 
     It's a way to avoid the inconvenience and pain of a real 
     filibuster as if we are using powder-puff, 16-ounce gloves 
     instead of bare knuckles. I'd much rather just duke it out in 
     a real debate and get it over than try to deceive the public 
     that no blood is being spilled. Many veterans of the senate--
     not a newcomer like myself--have expressed dismay wit the 
     process. Henry Clay, generally recognized as one of our 
     greatest senators, condemned the first organized filibuster 
     when it occurred in 1837. Even back then, he though there 
     needed to be some workable limitation for endless debate. If 
     only he could see what happened late in the twentieth 
     century, Clay would be another grave-spinner. In the 
     nineteenth century, there were twenty-there filibusters. In 
     the last thirty years of the twentieth century, there were 
     more than two hundred.
       Two pieces of crucial legislation that filibusters have 
     stymied over the years include the anti-lynching bill of the 
     1920s and abolishing the poll tax that was held up for 
     twenty-two years from 1942-1964. The Civil Rights Act of 1964 
     was filibustered for ninety-three calendar days.
       With Georgia's Senator Richard Russell as their leader and 
     unlimited debate as their weapon of choice, a small band of 
     Southern senators for years had managed to defeat or 
     drastically weaken any civil rights legislation that came 
     before the Senate. But it was different in 1964. The Senate 
     membership had changed and President Johnson was pushing it 
     with all his considerable power. He told the nation that 
     passing the legislation would be the most fitting memorial 
     that recently assassinated John F. Kennedy could be given. He 
     also managed to peel off Minority Leader Everett Dirksen who 
     often sided with Russell. In the end cloture was invoked 71-
     29 and the bill went on to pass by an overwhelming margin.
       Obviously, both parties have used filibusters time and time 
     again, one just as guilty at the other. In 1996, Democrats 
     blocked a vote on a constitutional amendment on term limits 
     and the Republicans blocked a vote to reform campaign 
     finance. Many conservatives would disagree with me, but I 
     happen to think the political process would have been 
     improved if both those measures had passed. Certainly, it 
     would have greatly weakened the current death-grip of the 
     well-heeled special interest groups because electing their 
     pet incumbents over and over with little or no opposition is 
     what gives both the tremendous power they have. I call it 
     ``the dance,'' and it's nothing like that Garth Brooks song 
     by the same name. After the music of election year stops, 
     it's the public that gets screwed.
       In the mid-1990s there was a bipartisan group of 
     distinguished citizens called ``Action, Not Gridlock'' that 
     came together with great ballyhoo, intent on reform and 
     majority rule. Republican Barry Goldwater was among them. 
     Then in 1995, Democratic Senators Tom Harkin and Joe 
     Lieberman introduced a rule change that I believe is the 
     best that's been proposed.
       Two years earlier, Harkin had let a committee hearing have 
     it with both barrels: ``There comes a time when tradition has 
     to meet the realities of the modern age. The minority's 
     rights must be protected. The majority should not be able to 
     run roughshod over them, but neither should a vexatious 
     minority be able to thwart the will of the majority and not 
     even permit legislation to come up for a meaningful vote.''
       The Harkin-Lieberman plan called for a four-step process 
     that kept sixty votes on the initial cloture vote, but 
     decreased it by three votes with each of the next three 
     cloture attempts until finally it got down to the majority of 
     fifty-one. They argued, logically, that this would preserve 
     the Senate tradition while giving the minority plenty of time 
     to plead its case without blocking the majority forever. I 
     liked this idea so well that in March 2003, I introduced an 
     identical bill. In May I joined with Majority Leader Bill 
     Frist in a modified version applying the process only to 
     judicial nominees. That seems to have the best chance for any 
     kind of change and I'm afraid that's not much. Both Harkin 
     and Lieberman now oppose what they so eloquently promoted a 
     few years earlier.
       As far as the fate of the Harkin-Lieberman rule change, the 
     New York Times celebrated New Year's Day 1995 with a lengthy 
     editorial beginning, ``The U.S. Senate likes to call itself 
     the world's greatest deliberative body. The greatest 
     obstructive body is more like it.'' The article continued, 
     ``Once a rarely-used tactic reserved for issues on which 
     senators help passionate convictions, the filibuster has 
     become the tool of the sore loser, dooming any measure that 
     cannot command the sixty required votes.''
       All of this came to naught, however, after the Republicans 
     solidly opposed the amendment and Democratic Senator Robert 
     Byrd who, like that mythical, hell-guarding, ferocious three-
     headed dog Cerberus, punctuated his opposition with the story 
     of how Cato the Younger, in 60 BC, got the floor in the Roman 
     Senate at midday and valiantly spoke until sundown, the time 
     of adjournment, in order to thwart one of Julius Caesar's 
     proposals. That story marked the end of the Harkin-Lieberman 
     filibuster reform bill. Never mind that Byrd didn't tell the 
     rest of the story, that Caesar was not thwarted and fourteen 
     years later Cato committed suicide while Caesar was at the 
     height of his power and still going strong.
       Now, I must admit I greatly admire and respect this man, 
     Cato the Younger. He was one of Rome's greatest statesmen, 
     not at all like his great grandfather Cato the Elder, who 
     exemplified the corruption and hypocrisy that later 
     undermined the traditions of republican liberty. Cato the 
     Younger was different. He was a moral man and a great 
     defender of the Constitution and the dominant role of the 
     Senate. That was his role and he always played it to the 
     hilt. His reputation was such that our Founding Fathers 
     admired him as a symbol of opposition to tyranny. In fact, 
     George Washington ordered a play about Cato performed to 
     inspire his soldiers at Valley Forge.
       But, truth be told, Cato met an ignoble end. His reputation 
     was greater than his ability. After he was defeated by Caesar 
     at the Battle of Thapsus, rather than accept the generous 
     offer of clemency from his old antagonist, he committed 
     suicide. And he botched that; he didn't fall directly on his 
     sword and it didn't kill him swiftly so he tore out his own 
     intestines with his bare hands. It gave ``spilling your 
     guts'' a new meaning and was a messy end for the First 
     Filibusterer. While today we can find many good books on 
     Caesar, I have yet to find one on Cato. So, you lovers of the 
     filibuster, I say that is a history lesson worth thinking 
     about.
       For all the good stories that have come down through the 
     centuries inspired by the filibuster, in the end, it has 
     nothing to do with ancient history.
       The filibuster has nothing to do with the British 
     Parliament.
       The filibuster has nothing to do with coffee cooling in a 
     saucer.
       The filibuster has nothing to do with freedom of speech.
       The filibuster has nothing to do with tradition.
       The filibuster has nothing to do with the Constitution.
       The filibuster has nothing to do with protecting minority 
     rights.
       The filibuster has everything to do with personal political 
     power. It's about Alpha dogs defending their turf in that 
     great big kennel under the dome.

  Mr. CHAMBLISS. Here is what he says:

       The United States Senate is the only place on the planet 
     where 59 votes out of 100 cannot pass anything because 41 
     votes out of 100 can defeat it. Try explaining that at your 
     local Rotary Club or to someone in the Wal-Mart parking lot 
     or, for that matter, to the college freshman in Political 
     Science 101. You can't, because the strange Senate math 
     stands democracy on its head.

  He then talks about ``Mr. Smith Goes To Washington'' and the 
perception about a filibuster. And he continues:


[[Page S14757]]


       Realizing that with the scrutiny of television, the people 
     would not stand for such nonsense, the ``Old Bulls'' of the 
     Senate fuzzed it up. They made it subtler. These verbal 
     gunslingers can now be forced to shut up, and the process and 
     the Senate move along toward a vote if sixty members remove 
     the cotton from their ears and vote for cloture. A cloture 
     shuts off what is called a debate but isn't because it takes 
     two sides talking to constitute a debate. If this sounds 
     confusing, it is meant to be. That is precisely the 
     objective.
       The short version of this debacle is that the way 
     filibuster is being used in the Senate gives the minority an 
     absolute veto on just about everything. In fact, the U.S. 
     Senate has become similar to the Security Council of the 
     United Nations where one country can veto the will of a clear 
     majority and castrate the entire process.

  He goes on and gives several anecdotes about the Constitution and 
what a great document it has been and cites Jefferson's comment to 
Washington about the function of the Senate and Washington's statement 
that has been mentioned several times about the function of the upper 
Chamber, the Senate. The story is told with Washington asking: Why do 
you pour coffee into your saucer? To cool it, Jefferson replied. And 
Washington said: Even as we pour legislation into the senatorial cup to 
cool it.
  Here is what Senator Miller says about that: Cool it, yes. But not 
freeze it into an ice cube.
  There is a significant difference.
  Again, he goes on talking about the history of the filibuster. In the 
history of Democratic Senators, Democratic Senators who are serving in 
this body today who in recent years have asked that this filibuster 
rule be changed so that we would not go through the process that we are 
experiencing today. All of a sudden those Democratic Senators have 
amnesia and are voting not to invoke cloture.
  This is the way Senator Miller winds up:

       For all the good stories that have come down through the 
     centuries inspired by the filibuster, in the end, it has 
     nothing to do with ancient history.
       The filibuster has nothing to do with the British 
     Parliament.
       The filibuster has nothing to do with coffee cooling in a 
     saucer.
       The filibuster has nothing to do with freedom of speech.
       The filibuster has nothing to do with tradition.
       The filibuster has nothing to do with the Constitution.
       The filibuster has nothing to do with protecting minority 
     rights.
       The filibuster has everything to do with personal political 
     power. It's about Alpha dogs defending their turf in that 
     great big kennel under the dome.

  I agree with Senator Miller.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Louisiana.
  Mr. BREAUX. Good morning, Mr. President and colleagues.
  I was very interested in listening to the distinguished Senator from 
Georgia and the Senator from Pennsylvania. I am trying to keep track of 
what he was quoting from. We decided he was quoting from Miller, 
chapter 1, verses 6 through 12. I am sure it is considered a holy 
document. And of course, as most documents, there are two sides to 
every story. Indeed, on that I imagine you have at least two sides to 
Miller, chapter 1, verses 6 through 12.
  I arrived in this institution over 30 years ago and remember quite 
well driving up from Washington 35 years ago in a U-Haul with two small 
children and my wife. I was in absolute awe of the Capitol. In fact, 
the first time I had ever had an opportunity to visit Washington was 
when I came here to work as a very young aide to a then-sitting Member 
of Congress on the House side.
  Over those 35 years, I have come to love and respect and appreciate 
all of the good things that this institution, including the other body, 
as well as the Senate, stands for. It is a wonderful opportunity to 
engage in serious debate about the important issues of the day and to 
address the important issues and problems facing the people of this 
Nation. That is what this institution does best.
  Unfortunately, every now and then the institution tends to break down 
and we spend an inordinate amount of time doing things that do not 
address the great issues of the day or contribute anything to solving 
the great problems of the day. This is one of those times. I have not 
lost my respect for this institution, and particularly the Senate, even 
though as in most things in the real world, sometimes things did not 
run quite as they should. We have now engaged in a couple of days of 
exhibiting how this institution does not work very well, although on 
very rare occasions. I still have the utmost respect for this 
institution and will continue to have that respect for as long as I 
live despite the fact that every now and then it breaks down.
  The issue it has broken down on--I imagine most people in this 
country are probably watching the morning news show; some are probably 
watching cartoons with their children. I doubt very well most are 
watching what some would consider a cartoon-type of atmosphere in this 
debate which has been on longer than it should. The issue is quite 
simple: Are Democrats stopping Republicans from getting their judges 
approved? And are we doing it in a way that is somehow unconstitutional 
or outside the rules of the Senate?
  If you look at the record of the judges, our side has pointed out we 
have approved 168 judges while only 4 have stopped. I was trying to 
say, how does that relate to the average American? If the Washington 
Redskins had a 98 percent win-loss record, people would think that is 
absolutely astounding, and Spurrier would be given a big raise if they 
had 98 percent win-loss. If Tiger Woods won 98 percent of the 
tournaments he entered, people would be writing in amazement about that 
incredible person capable of winning 98 percent of the time. I happen 
to play tennis, and if Andre Agassi won 98 percent of his matches, I 
would imagine people would say this is truly incredible, someone would 
be capable of winning 98 percent of the time. I guess I should throw in 
the New Orleans Saints because if they won 98 percent of the time, I 
cannot imagine what the State of Louisiana would do.

  But that is, in fact, the record the President of the United States, 
President Bush, has established with regard to the judges he has 
submitted for confirmation. It is truly a remarkable record of having 
almost every person he has submitted to the Congress be considered by 
appropriate committees and considered on the floor and approved. A 98 
percent record is truly a remarkable achievement by any measure, 
whether it is a sports metaphor or whether it is any other type of 
metaphor we can imagine.
  I will bring it closer to home. Imagine any Member of this body 
getting 98 percent of the vote. Maybe the distinguished Senator from 
Georgia who is in the Chamber is capable of that, but I don't know if 
any of us would ever get 98 percent of the vote. Some have been 
fortunate to get over 50 percent every now and then, but no one ever 
gets 98 percent of the vote. Teams do not win 98 percent of their 
games, golfers do not win 98 percent of the tournaments, and neither do 
tennis players. It is unheard of.
  If the average person starts looking at a record where 98 percent of 
the nominees have, in fact, been approved and are sitting on the bench 
and doing their duty, by any measure of any standard of operation in 
this country, people would say that is a pretty outstanding record. Yet 
the Senate has spent the last several days complaining about a 98 
percent achievement record by the President of the United States, 
saying somehow that is not enough; somehow it should be 100 percent 
every time with every nominee.
  Most American people would say: What are they talking about? Why are 
they spending so much time saying 98 percent achievement is not enough? 
That is where we are. That is what we are talking about.
  Enough said about that. After 2 days of talking 24 hours a day, we 
have heard enough about the 98 percent record. Some I voted for cloture 
and some I decided not. But the record speaks for itself. It is an 
outstanding record.
  Let me talk about one of the things we ought to be doing if we are 
going to be the greatest deliberative body in the history of the world, 
which I think the Senate truly is, something I have been working on for 
over 5 years as former chairman of the National Commission on Medicare 
Reform and now a member of the Senate Finance Committee working with 
our colleagues, trying, in a bipartisan fashion, to address one of the 
really important issues of this Nation.

[[Page S14758]]

  We are at a health care crisis in America. We have literally millions 
and millions of Americans with no health insurance at all. They have to 
go to emergency rooms. They are in the poorhouse and get services under 
the State Medicaid Program. Many of these people work hard every day. 
Yet the companies they work for no longer provide health insurance. It 
is truly a national problem of monumental proportions, yet we are not 
talking about that in the Senate today.
  Another issue is the fact that we have something over 40 million 
American citizens who have a health insurance plan that is inadequate, 
outdated, and in desperate need of reform in terms of how much money we 
spend on the program. The current program we have for seniors is 
unsustainable in terms of the money we spend and where it will come 
from.
  All of the Members in this Chamber and all of our employees have 
health insurance that is significantly better than every single one of 
the 40 million Americans who do not have health insurance. Our health 
insurance covers hospitalization, our health insurance covers doctors, 
our health insurance covers emergencies, and our health insurance 
covers prescription drugs. Yet we have not been able to do for seniors 
what we have done for ourselves. That is something that challenges this 
institution and something to which this institution has to pay 
attention.
  The simple fact is that Medicare today does not cover 47 percent of 
an average senior's health care costs. It is embarrassing that we, 
arguably the strongest Nation in the history of the world, have a 
system where the seniors of this country who have worked, earned, and 
paid into a fund to provide health insurance when they are old, now are 
covered by a policy that only covers 53 percent of the average senior's 
medical costs, and leaving 47 percent somewhere else.

  We have been working very hard for a long period of time to reform 
Medicare. The groups that have been working together have reached an 
agreement that is a tentative agreement, and no one is bound by it 
until we see the final product, and that includes me.
  The interesting thing about this is that if anything should not be 
political, it is health care. But I can think of no subject that has 
become more political than health care, and no subject that has become 
more political in health care than how we treat the Nation's seniors.
  Republicans continue to talk about why Democrats will not do what is 
needed and necessary to pass a reform bill. And Democrats continue to 
say Republicans want to privatize it and end Medicare as we know it.
  There are Republican political pundits in this city who have said we 
should pass a Republican-only bill in the House of Representatives and 
send it to the Senate so the Senate Democrats can kill it; it will be a 
terrific political issue for us. On the other hand, there are 
Democratic political pundits in this city who will say there is no way 
we can support and pass a Medicare bill. Why? Because it would give 
President Bush an opportunity to sign a bill in the Rose Garden and he 
might get credit doing so.
  So we continue to play what I would call the political blame game. We 
are more concerned about ourselves and our political parties than we 
are about the 40 million seniors who desperately need the help in order 
to get prescription drugs under a reformed Medicare plan.
  If we go along those lines, what we will have done is to say, once 
again: It is their fault it did not get done. And they will say: No, it 
is your fault it did not get done. But once again what we will give to 
America's seniors is a basket of excuses. And I have suggested many 
times that seniors cannot take an excuse to the drugstore and get their 
prescriptions filled. It is not possible.
  What they need is both sides to act like grownups and both parties 
not just to look at their political base but to look at what is good 
for America, and join forces and say: Yes, it is going to be a 
compromise. No, it is not going to be everything I would like if I had 
an opportunity to write the bill, but we do not. Each of us is part of 
a larger body, and each of us is part of a body that is almost evenly 
politically divided.
  So that is a challenge that is facing us. What we have tentatively 
agreed to is an insurance program under Medicare, for the first time 
since 1965, which will cover prescription drugs for America's seniors. 
They will pay a premium and have a small deductible and have some 
copayments, but every Member of the Senate has that type of a drug 
plan. The Federal Government will pay 75 percent of it, and the senior 
beneficiary will pay 25 percent.
  We will spend $400 billion over the next 10 years trying to make that 
happen. We see seniors every day going to Mexico and going to Canada to 
buy drugs from foreign countries. Why? Because they do not have 
insurance that covers it. Hospitalization in Canada is cheaper than it 
is here. Doctor treatments and doctor visits are cheaper in Canada than 
they are here. Why do seniors not complain about that and say: ``I am 
going to have my doctor visit in Canada. I am going to go to a hospital 
in Canada''? It is a very simple reason. Because they have an insurance 
policy in this country that covers doctors, and it covers 
hospitalization. But it does not cover prescription drugs. There is no 
insurance. So they have to bear the burden of 100 percent of the costs 
of prescription drugs.

  This legislation will be designed to say: All right, we are going to 
solve that problem. We are going to give you a prescription drug plan. 
We are going to take seniors who are now under the Medicaid Program for 
the poor and put all of them into the Medicare Program for all 40 
million American seniors. I think that is good, solid, public policy. 
We are going to make sure all low-income seniors get a special rate by 
reduced premiums or no premiums at all to make sure we take care of the 
most vulnerable among us as far as the senior population is concerned.
  It is important, as I conclude, when we look back on this session, 
that we will be able to say we have done more than create more excuses. 
The seniors can no longer live on political excuses coming out of 
Washington as to why we have not completed the job. There will be 
things in this bill that both sides will be able to pick and find and 
say, I can't be for it because of this. But I would just ask my 
colleagues to look at the broader picture, to look at the total package 
and say: When we have an opportunity, perhaps once in several decades, 
or once in a lifetime, to truly get something done to put in place a 
system that can be improved upon in the future, we will seize that 
unique opportunity and come together in a bipartisan fashion. And the 
American people will be able to say: Yes, they did it, and they did a 
good job.
  I think that is what this body should be dealing with. That is one of 
the critical, important issues of this day. And I would suggest we get 
on to it just as soon as we possibly can.
  With that, Mr. President, I yield to the distinguished Senator from 
New Mexico.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Thank you very much, Mr. President.
  Let me, first of all, commend my colleague from Louisiana, Senator 
Breaux, for the hard work he has been doing to try to get us to a 
prescription drug bill for Medicare beneficiaries that will, in fact, 
preserve the Medicare system but will also meet this very real need 
that most seniors and all of us have, to be able to afford prescription 
drugs.
  Let me say a few words about the issue of judicial appointments 
before I then talk about a couple of other issues I want to briefly 
visit as well.
  As I approach this whole question about judicial nominations, I guess 
my starting point is to ask, how is the system supposed to work? How is 
this system of choosing and nominating and confirming of judges 
supposed to work when it involves Federal judges?
  I think it is supposed to work the way it generally has worked with 
this President; and that is, it is supposed to work the way it has 
worked with regard to these 168 judges who have been confirmed. The 
truth is, these judges who were confirmed, they were nominated by the 
President, were confirmed by the Senate These are judges who are 
conservative in their political philosophy, in their legal philosophy. 
That is sort of a given with this President. We understand that. 
Everyone understands

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that. Democrats understand it. Republicans understand it. I have no 
problem with that.

  This President was elected as our President. He has the right to 
choose judges who have a conservative perspective, and clearly that is 
what he has done, and clearly that is the way the system is supposed to 
work. But as I think about how the process should work, it seems to me 
the very first step the President should take--and the President and 
his assistants, his general counsel have taken with regard to most of 
those 168 judges, maybe all of them, at least the ones I am familiar 
with--the first step is to go to the Senators from the State involved 
and ask those Senators if these are acceptable persons to be nominated.
  That is exactly what has a happened in the case of judicial 
nominations from my home State of New Mexico. And I am very 
appreciative of the President and his counsel for including me in that 
discussion and in that decisionmaking. Essentially, what has happened 
is that my colleague, Senator Domenici, and the White House have 
identified a person--in the case of each vacancy we have had in New 
Mexico--they have identified a person who they thought should be 
nominated for that position, and they have asked me to talk to that 
person and give them a response as to whether that was someone I would 
support as well.
  In each case, I had been very pleased to support those nominees. In 
each case, I have had the chance to sit with those people, talk to 
them, acquaint myself with their qualifications. And, as I say, I have 
been very pleased to support those nominations.
  That is the way the system, in my opinion, is supposed to work. But 
once the President has determined that the Senators from a particular 
State--at least one of the Senators, but preferably both Senators from 
a particular State--will support the nomination of a judge or judicial 
candidate from that State, then, of course, it is much easier to get 
the full Senate to go along with that. Frankly, that is the way the 
system ought to work.
  I have had circumstances where individual Senators have come to me, 
Democratic Senators have come to me and asked: Are you sure you want us 
to support this nominee for a judicial position in your State? because 
my staff tells me there are questions--and this and that. I am pleased 
at that point to be able to respond, yes, that I have checked out these 
nominees, I have determined that they are people I support, and I urge 
that the full Senate support them.
  Now, we have two judicial nominations coming before us today that are 
coming up for a vote on cloture that have not come up before, but in 
both cases my understanding is they are being presented as nominees 
over the strenuous objection of both Senators from the State from which 
the judges come.
  I have difficulty understanding why I should want to support a 
judicial nominee from a State if the Senators from that State oppose 
that nominee. I try to think of how I would feel if I were opposed to a 
nomination from my State and the President and a majority here in the 
Senate were trying to confirm that nomination over my strenuous 
objection.
  I think we have some obligation to our colleagues to defer to their 
own understanding and their own knowledge and their own opinion on 
these issues, particularly as it affects their State. Now, not 
exclusively; we do not have to defer. But I am just saying that as a 
precondition for going forward and considering a judicial nominee, we 
ought to begin by asking: Do the Senators from the State the judge 
comes from support the nomination? That seems to me to be a threshold 
question.

  In the case of Carolyn Kuhl, on whom we are having a cloture vote 
later today, as I understand it, and in the case of Janice Rogers 
Brown, about whom we are also having a cloture vote later today, I am 
informed that the Senators from California have determined they do not 
support these nominations. They are urging that the Senate not go 
forward with these nominations. They urge that the Judiciary Committee 
not report these nominations. And in spite of all of that, the 
President says we are going to do it any way.
  We are doing this over the objection of the Senators from California. 
That, to me, is a cause for concern. We are talking about a breakdown 
in the traditions and a breakdown in the system that is supposed to be 
functioning. To me, that is a clear breakdown in the system for 
choosing and nominating and confirming Federal judges.
  So I hope we can get back to a policy with regard to all the 
nominations that come from the White House and this President that is 
consistent with the experience I have had in my home State of New 
Mexico; and that is, that before a nomination is sent to the Senate for 
confirmation, Senators will be asked to give their opinion as to the 
appropriateness of the nominee.
  One good thing about this country--it is certainly true in my State; 
I am sure it is true in every State in this country--we have a wealth 
of very capable, honest, hard-working members of the bar who would love 
to serve on the Federal courts. There is no shortage of good people for 
these positions. Accordingly, it is not difficult to find a person to 
serve in these key positions who has the strong support of Senators, 
Congressmen, and public officials in these States.
  The list of organizations and public officials, and both California 
organizations and national organizations, that oppose the two nominees 
I have referred to here is extensive, and I have been given that list.
  Twenty-two members of the California congressional delegation have 
indicated their opposition to our going forward with the nomination of 
Janice Rogers Brown. We have members of the Judiciary Committee of the 
California Assembly who have come out in opposition to our going 
forward with Carolyn Kuhl's nomination to the Ninth Circuit Court of 
Appeals. There is a very long list of individuals and organizations.
  I know neither of these nominees personally myself, but, clearly, I 
have to give deference and some consideration to the opinions of those 
who have worked with them.
  Mr. LEAHY. Will the Senator yield for a question?
  Mr. BINGAMAN. I am very pleased to yield to my colleague.
  Mr. LEAHY. Mr. President, the distinguished Senator from New Mexico 
had an exemplary career as attorney general of New Mexico and, 
obviously, is in a position probably to know more about the bar of New 
Mexico than anyone else in his State; and his service replicates that 
of other Senators on both sides of the aisle from their representing 
their States.
  My question is this: The traditions of the Senate mean so much, and 
most of them are there for a reason. The tradition of having to get 
clearance from home State Senators--and, of course, every State is 
equal in the Senate. But Federal judges have an enormous impact on the 
States. The tradition has always been that the home State Senators have 
the best idea who the Federal judge is who is going to be making 
decisions that affect the men and women of that State. This has not 
always been perfect, but has it been the experience--I ask this of my 
friend and former attorney general of his State, a Senator of great 
respect and competence--has it been his experience that in the main, 
very much in the main, this has worked extremely well?

  Mr. BINGAMAN. Mr. President, in response to the question, I certainly 
would say it has been my experience that this does work. In fact, when 
the name of someone is being considered for appointment to a Federal 
judgeship in my State of New Mexico, I have been getting calls. I get 
calls from lawyers who have worked with these individuals. I get calls 
from people who have tried cases against these individuals. Some of 
them, frankly, are favorable and some may not be as favorable.
  I get a great deal of feedback on these individuals who are being 
considered by us for nomination. And, of course, I have the ability, as 
a Senator from New Mexico, to call people whose opinions I respect and 
to say: You have spent your lifetime practicing law in the courts in 
New Mexico. What do you think about the qualifications and the 
temperament and the appropriateness of this person for this kind of a 
judicial position? Based on that kind of feedback, then I am in a 
position to advise the President, advise my colleagues, advise anyone 
in the Senate that, in my opinion, this person would be well qualified.

[[Page S14760]]

  I am sure that same process occurs with every Senator in every State, 
and it should. I think that is exactly what the Framers of the 
Constitution had in mind when they talked about advice and consent. I 
think they were talking about Senators being able to give their advice 
before the President made a final determination as to who would be 
elevated to a judicial position, and Senators being able to either give 
their consent or withhold their consent.
  It is far preferable, in my view, if that advice and consent is 
requested and provided at an early stage in the process, not once the 
nominee has been sent up here, not once the President has had a press 
conference at the White House with the nominee in attendance. I think 
it is in many ways unfair to the people being nominated to have them 
pushed to that stage without the necessary advice and consent having 
been sought from the Senators in question.
  I think that is the unfortunate circumstance we find ourselves in 
this morning, that there are individuals being pushed upon us as 
appropriate members to be elevated to court of appeals positions, and 
the nominations are being strongly opposed by the Senators from the 
States from which those individuals come.
  So I think it would be unfortunate in the extreme if the Senate were 
to disregard the views of the Senators from those States and say: 
Regardless of their views, we are going to go forward here, regardless 
of the feedback they have provided; regardless of the numerous groups 
and individuals who have come forward to state objections here, we are 
going to push this nomination through the Senate.
  I do think there is a very valuable purpose the Senate serves; and 
that is, to slow things down. That is what we have done here as to some 
of these nominees. These are nominees who, in my view, should have been 
better vetted with the Senators from the States involved.
  If those Senators had been given an opportunity to make their case to 
the President and to his counsel at an early stage, perhaps we could 
have avoided some of the votes we are going to have to cast this 
morning. I think that would certainly be preferable.
  Has my time expired, Mr. President?
  The PRESIDING OFFICER. The Senator has 4 seconds.
  Mr. BINGAMAN. I will yield back my time, Mr. President.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I have great respect for the Senator from 
New Mexico and the principles he just talked about: his deep concern of 
the breakdown of the system, of the tradition of the Senate. It is 
important. This is a very special place. This is the greatest 
deliberative body in the world. I believe that. That is really what we 
are talking about today--the tradition of the Senate. That is part of 
why this debate is important.
  This is not a game. This is not a charade. This is important. The 
past 11 Presidents' judicial nominees confirmed v. filibustered: 2,372 
confirmed, 0 successfully filibustered until now--the traditions of the 
Senate, the traditions of this great institution.
  We have been up all night. We have had a lot of conversation, a lot 
of debate. My colleagues across the aisle said it is absolutely, 
patently false to say we haven't successfully filibustered circuit 
court nominees. Read my charts. They are real. Here is the list. 
Judicial nominees subjected to cloture attempts 1968 to 2003 time after 
time: No. 1, Abe Fortas, rejected. The Senator from Michigan, who was 
part of that process had a letter saying, by the way, that was a 
bipartisan effort. The Republican leader supported cloture on that. Of 
all these, not a single partisan effort where the nomination was 
successfully blocked.
  The folks involved in making those decisions who predated me reflect 
what the Senator from New Mexico talked about--a reverence for the 
tradition of this body, a tradition I believe that is reflected in the 
Constitution that says decisions about judges are done essentially by a 
majority--two-thirds for treaties.
  As I listened, I understood what was happening here. Part of this 
tradition is any single Senator can stand up and say: I object. That is 
who we are. That is a great power for an individual Senator.
  We talk about advice and consent. I think perhaps the concept now in 
people's minds is that we all should be part of this advice and consent 
process; we all should be heard. But the reality is, in the end, and 
again according to the Constitution, the decision is going to be made 
by a majority. It is not about the President being successful 98 
percent of the time. It is about 100 percent of the time giving an 
opportunity for an up-or-down vote. That is what this is about, 100 
percent of the time giving an up-or-down vote and then let the vote be 
what it may.
  In fact, nominees may be rejected. It is not about guaranteeing the 
outcome, but it is following the Constitution to give people a right to 
a vote. That is the process, that is the tradition, and that is the 
history. We run such a terrible risk when we cast that aside.
  This has been a very sharp debate. There has been a lot of discussion 
about all sorts of other issues about which we should be talking. I 
reiterate again, I am deeply concerned about jobs. I am deeply 
concerned about the economy. Some folks say it is hard, but we can 
actually multitask around here. We can absolutely uphold our 
constitutional responsibility to advise and consent and give a vote and 
do other business.
  We passed the third largest tax cut in the history of the country, 
and we are seeing the impact of that now. The economy is moving 
forward. GDP is up 7.2 percent in the last report. There are over 
250,000 jobs over the last couple of months. There is more to be done, 
but we can do more than one thing.

  For those of my colleagues who protest, oh, we are spending all this 
time, we spent 10 or 11 hours on Monday talking about Searchlight, NV, 
talking about rabbits eating cactus and rocks. That is part of the 
process. People get frustrated. I understand that.
  The bottom line is, we stand here after 30 hours of debate, now 
almost 38 hours, and what do we get out of that? What do we understand? 
We understand that the history of the Senate is one in which this body 
up to now has not used a partisan filibuster to block judicial 
nominees. We see that happening today. We see the record of that.
  They talk about 168 to 4 and talk about all the judges. Clearly, when 
we talk about appellate judges, we have 29 confirmed and 6 who have 
been blocked and 6 who are threatened to be blocked. Now we are talking 
about 29 and 12. That is 30 percent. Not only is that nothing to be 
proud of, but it is in contravention to the constitutional direction 
the Framers and the Founders gave us.
  The consequences of this are ones about which we should all be 
concerned. We are talking about our judicial system. This is not a 
game. This is one of the fundamental underpinnings of this 
constitutional democracy, and we have a solemn obligation and 
responsibility to choose men and women of good judgment and good 
character who bring a willingness to apply the law to the table and to 
make judgments.
  The reality is that those candidates before us are folks their own 
peers have said are of the highest quality. The American Bar 
Association, the gold standard that my colleagues on the other side 
talked about so many times, say they are highly qualified. In some 
cases, the voters, those who have run for office--Priscilla Owen, 
Janice Rogers Brown--have received overwhelming shows of support. That 
tells you something about the mainstream, the bipartisan nature of the 
support.
  Judge Carolyn Kuhl: A bipartisan group of nearly 100 of her 
colleagues said:

       We believe her elevation to the Ninth Circuit Court of 
     Appeals will bring credit to all of us and the Senate that 
     confirms her. As appellate judge, she will serve the people 
     of our country with distinction, as she has done as a trial 
     judge.

  A bipartisan group of 23 women judges of the superior court who 
served with Judge Kuhl wrote:

       As sitting judges, we, more than anyone, appreciate the 
     importance of an independent, fairminded, and principled 
     judiciary. We believe Carolyn Kuhl represents the best values 
     of such a judiciary.

  The fact is, these judges hold strong opinions, there is no question 
about that, but to a person they said they will do what a judge needs 
to do and put those personal opinions aside and apply the law. Their 
colleagues who

[[Page S14761]]

know them have raised their hands and said: Yes, that is what they have 
done; that is what they will do. The voters who know them reaffirmed 
their positions by reelecting them by overwhelming majorities. That is 
what we should be looking at. That is mainstream. That is not extreme.
  In the end, we are grasping for something simple: for every Senator 
on this floor to do what every Senator has the right to do--to be 
heard, to give your advice to the President of the United States, and 
if you don't agree with his nominees, do what has been done through the 
entire history of this country, for 214 years: Give your advice, give a 
vote; vote them up, vote them down, but give them a vote. It is what 
the Constitution requires. It is what I believe the future of this 
institution requires.
  Let's get beyond the partisan politics. Let's put it aside. Let's do 
the right thing. Let's come together. Let's focus on getting things 
done. That is our opportunity, and I hope we don't squander it.
  I yield to my colleague from South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, I thank the Senator for 
yielding. It has been a real pleasure to talk with him throughout the 
night. It has been a great debate. For something considered a waste of 
time, so many Senators have participated. It has not been a waste of 
your time or the country's time. We have a good record the people can 
look upon and make a decision about what we are doing here in this 
Senate.
  If I had to boil it down to what all this means to me, which I have 
to do between now and a quarter after, here is what I think is the down 
side of what we are doing in the Senate: Special interest politics is 
being given a green light to go after people they may disagree with 
because they think the nominee doesn't share their philosophy or 
political persuasion.
  You are giving them a green light to manufacture controversies, to go 
after people in a personal way, and we are going to rue the day we did 
that. The left is doing it today. The right will do it tomorrow. We are 
unleashing special interest forces. We should be deterring them. Right 
now we are emboldening them, and the country will be worse for the 
wear.
  There are people at the end of the process. We are talking about 
individuals. Miguel Estrada has claimed to be outside the mainstream. 
All I can tell you is that the Washington Post on February 5, 2003, not 
exactly a right-wing rag, said:

       Estrada is well qualified for the bench. This should not be 
     a tough case for confirmation. Democrats who disagree should 
     vote against him.

  I think that pretty well sums up the idea that he can't be that far 
out of the mainstream or the Washington Post would not have said that 
about him.
  If you disagree with me and think he is out of the mainstream, vote 
against him. Please don't continue the process of filibustering people 
because we are going to change the Senate forever, for the worst, and 
the future nominees to come, whatever they said in law school, whatever 
letter they may have written to their wife, whatever decision they made 
about going on a trip, if they said something that offends the left or 
offends the right, people are going to come after them like 
gangbusters, knock their heads off, and you are going to keep good men 
and women from wanting to serve. That is going to happen, sure as I am 
standing here. It will be a great tragedy. Please let's turn this 
around.
  Judge Brown will be No. 5. She sits on the Supreme Court of 
California. She is objected to. She is out of the mainstream allegedly. 
I would argue that 76 percent of the voters in California are not 
right-wing zealots, and that anybody who can get 76 percent of the vote 
in California has to have some sort of moderation about them. She has 
written the majority of the court's opinions. She is respected by her 
peers. You wouldn't get 76 percent of the vote in California if you 
were out of the mainstream in any real way.
  Justice Owen from Texas, No. 1 in everything. She serves on the State 
supreme court. She received 84 percent of the vote. The only people 
left who didn't vote for her are probably the extreme people. I would 
argue that 84 percent of the people who chose to vote in Texas is 
probably our best evidence about who she is and the way she conducts 
herself.
  Pryor: If you read in the paper today, the attorney general of 
Alabama has just successfully removed the chief justice of Alabama. It 
was his job to bring the case to the grievance committee in the State 
of Alabama, and the reason the chief justice was removed was that he 
defied a Federal court order to remove the Ten Commandments out of a 
courtroom in Alabama.

  Whatever you want to say about Attorney General Pryor being out of 
the mainstream, let me tell you that the Ten Commandments are popular 
in Alabama. He chose the less traveled route for a politician. He chose 
to enforce the law against a rogue judge who is pandering to the 
political moment. He followed his constitutional duty, and I bet you he 
agrees the Ten Commandments have a right to be displayed, but he said: 
It is not about me; it is about the law.
  Mr. SESSIONS. Mr. President, will the Senator yield?
  Mr. GRAHAM of South Carolina. Yes.
  Mr. SESSIONS. With regard to that matter, Attorney General Pryor did 
file a brief on behalf of Judge Moore and argued that the Ten 
Commandments were legitimate because there are three depictions of the 
Ten Commandments in the Supreme Court. And right on this wall are the 
words ``In God We Trust.'' He defended that.
  When the case was lost, the judicial inquiry commission brought a 
charge against the chief justice because he did not comply with the 
court order, and it was the duty of the attorney general to bring that 
case under Alabama law. So he was required to present the case that had 
been brought by something akin to a grand jury.
  Mr. SANTORUM. Will the Senator from Alabama say that is following the 
law?
  Mr. SESSIONS. It is absolutely following the law. There are a host of 
other examples to a degree I have never seen before in America. Bill 
Pryor always does what he believes the law compels him to do. Many 
times it is something he does not personally like to do.
  Mr. GRAHAM of South Carolina. Senator Leahy said in 1998:

       [I]f we don't like somebody the President nominates, vote 
     him or her down or up.

  He was right then. I am very afraid that we are opening the darkest 
chapter in the history of the Senate when it comes to judges. I don't 
want to be a part of it. I reject the past. I embrace a better future. 
Please, for God's sake, let's not continue to do this because we will 
all regret it.
  The PRESIDING OFFICER. The majority has 30 seconds remaining.
  Mr. SANTORUM. Maybe what we are finding out here is the minority 
doesn't want someone who is going to follow the law. I think what they 
really want is someone who is going to make the law, make the law 
politically, exactly maybe as the Senator from Vermont would like it to 
be made. Maybe there are things he or other Members on his side can't 
accomplish in the legislative chamber, so they want judges who will 
make the law they want. That is why the litmus test. They want activist 
judges on the court not to follow the law but to make it the way they 
really want it. That is what is at issue here.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I am glad to see my friend from South 
Carolina used a tiny part of a quote of mine. I am always glad when 
somebody quotes me, even when they don't do it accurately.
  What I was referring to, if you look at the quote, was the one-person 
filibusters of 63 of President Clinton's nominees, where one person, 
one Republican, usually anonymously, would object to President 
Clinton's nominees and then those nominees would never get a vote at 
all. Those were filibusters by one person done anonymously, not in the 
open.
  Here, of course, unlike what was done to President Clinton, the 
Democrats have cooperated to make sure that 168 of President Bush's 
nominees to the Federal judiciary have gone through and only 4 have 
not. We can see only 4 have been blocked. We have confirmed 168 and 
only blocked 4. That contrasts to the 63 anonymous filibusters done

[[Page S14762]]

by the Republicans--63 done by the Republicans when they were in 
charge.
  As I walked over this morning, I thought: Finally, the Republican 
leadership is bringing to a conclusion three really ``Alice in 
Wonderland'' kind of days, really wasted days in the history of the 
Senate. During those days, as much as the Republican leadership wanted 
to waste the Senate's time, at a cost of hundreds of thousands of tax 
dollars, I am proud of our Democratic Senators who had to endure 
endless criticism for objecting to a handful of the President's most 
extreme, controversial, and divisive nominees.
  What they have tried to do is get the Senate's attention back on the 
unfinished legislative business of this session that is of such concern 
to the lives of so many Americans. As I said, we have cooperated in the 
confirmation of 168 of this President's judicial nominees. We confirmed 
100 in the 17 months I was chairman and confirmed another 68 in the 17 
months my distinguished colleague from Utah was chairman. I am not 
going to criticize him that he didn't get as many confirmed as I did, 
but there are the numbers, 168 to 4. That is more judges than President 
Reagan, the ``all-time champ,'' appointed his entire first term in 
office when he had a Republican majority. So in less than three years, 
we have already eclipsed President Reagan's four year total.
  Among the 168 confirmations are more circuit court confirmations than 
for any of the last three Presidents at this stage in their first 
terms. The scorecard is 168 to 4.
  After this week, the total of those blocked could increase by two, 
but the number of confirmations will not have been increased. Rather 
than work with all Senators to confirm those nominees who can be 
confirmed after a vote or who may be confirmed after a reasonable 
debate and a vote, the Republican leadership has remained fixated on 
the most controversial and most divisive nominees.
  During this 40-hour talkathon, the Republican leadership of the 
Senate has taken what could have been productive days at the end of 
this year's legislative session and decided to abandon work on the real 
priorities of the American people. I understand that the reason they 
have been spending so much of the taxpayers' dollars in doing this 
talkathon is that some of the Republican campaign committees have tried 
to use this to raise money. If they are, instead of charging the 
taxpayers for this, I wish they would do it themselves.
  But what we have are our friends on the other side engaging in 
repetitive speeches about promoting a small handful of controversial 
nominees to lifetime positions as Federal judges. These are people who 
already have good well-paying jobs. They do not want to talk about the 
legislation that might help the more than 3 million Americans who have 
lost their jobs since President Bush assumed office.
  Unlike President Clinton's term, where a million new jobs were 
created every year, in the 3 years of President Bush's term, 3 million 
jobs have been lost, but they do not want to talk about that.
  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 just to keep the Federal Government going 
because we have not passed our appropriations bills. The law says we 
have to enact our 13 appropriations bills by the end of September. The 
Republican Congress has enacted only 5 of the total 13. They ignore the 
law on that, but then they waste this time and hundreds of thousands of 
taxpayer dollars to have a campaign talkathon.
  They do not want to vote on the appropriations bills and, instead, 
they want to waste time on this? They want to waste time giving 
lifetime jobs to three or four people but they do not want to do 
anything about the 3 million Americans who are out of jobs.
  Here is what they are not talking about, here are the issues that are 
not being voted on, here are the bills that the Republican leadership 
will not bring up: Funds that go to improve our schools. 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 
do not want to bring up appropriations for our veterans and for law 
enforcement. These are things that all people should be able to agree 
on, Republicans and Democrats, but we are told there is no time to 
bring up money for our law enforcement or for our veterans.
  In fact, during the first evening of this exercise in the wind 
chambers, the senior Senator from West Virginia was trying to get the 
Senate to do its work. Senator Byrd, as the ranking Democrat on the 
Appropriations Committee, urged the Senate to complete its work on the 
appropriations bills that fund services for our military veterans. He 
said, Why do we not finish this? This administration has cut money for 
veterans benefits. It has cut money for veterans hospitals. It has cut 
money for disabled veterans. He said, Can we not at least take a couple 
of hours more--if you are going to spend 40 or so hours talking about 
four judges, can we do something, can we take 2 more hours to finish 
the bill that will affect millions of America's veterans?
  He said we could do it in 2 hours. The Republican leadership 
objected. Those few minutes at the beginning of this debate may 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 American veterans so they could pull 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 him and said: ``The leader's right. What we 
are 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, the Republican caucus chose partisan 
theater over the work of the Senate.

  We said can you not take 2 hours out of these 40 hours to at least do 
the appropriations bill for our veterans? I mean, you are not going to 
do the appropriations bills for our law enforcement. You are not going 
to do it for medical research. You are not going to do it for anything 
else. If you could just take 2 hours out of this, at a time when we are 
creating a lot more veterans, many of them horribly disabled and 
disfigured from the war in Iraq, we are told, no. We do not have 2 
hours for that.
  There is the unfinished business of 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 has, 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.
  Instead of working together on such important matters, we are being 
forced to repeat another cloture vote on the nomination of Priscilla 
Owen. The Senate has voted three times on this nomination, and three 
times, the Senate has decided against granting consent. Her nomination 
had been fairly and thoroughly considered by the Judiciary Committee 
last year, and her nomination was rejected on the merits. Never before 
has a President renominated a judicial nominee who was rejected on the 
merits by the Judiciary Committee.
  She has shown herself to be a judicial activist and an extremist even 
on the very conservative Texas Supreme Court where her conservative 
colleagues have criticized her judging. All that has occurred since the 
cloture votes during the spring and summer is that Republican partisans 
have ratcheted up their name calling and Justice Owen has been made to 
serve as a political prop for the White House.
  In fact, I commend to my colleagues an insightful article by David 
Margolick that appeared recently in Vanity Fair magazine entitled 
``Bush Scored Advantage.''
  The second in this series of votes is to be on Judge Carolyn Kuhl. 
This nomination to the 9th Circuit has been opposed by both the home-
state Senators from California and for good reason. From her days 
seeking to change

[[Page S14763]]

federal policy and provide tax breaks to Bob Jones University, to her 
efforts to overturn Roe v. Wade, to her recent decisions seeking to 
excuse the invasions of the privacy of Ms. Sanchez-Scott, a breast 
cancer survivor, Carolyn Kuhl has been extreme.
  Finally, the Senate will be required to vote in relation to a 
nomination that has been whisked through the Judiciary Committee in the 
last several days, that of Janice R. Brown. This controversial 
nomination is opposed by the Congressional Black Caucus, the National 
Bar Association, the California Association of Black Lawyers and a long 
list of African-American and civil rights leaders and organizations. 
Former Senator and former ambassador Carol Moseley Braun has recently 
written to us opposing this nomination. I ask that her November 12 
letter be made part of the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

      Women's Organizations Opposing Nomination of Priscilla Owen

     National Organization for Women
     National Organization for Women, Texas Chapter
     NOW Legal Defense & Education Fund
     Religious Coalition for Reproductive Rights
     National Abortion Federation
     National Women's Law Center
     NARAL Pro-Choice America
     National Council of Jewish Women
     National Council of Jewish Women, Texas
     American Association of University Women
     American Association of University Women of Texas
     National Family Planning and Reproductive Health Association
     National Women's Political Caucus
     Texas Women's Political Caucus
     Texas Freedom Network
     Women's Issues Network--Dallas
     Women's Health and Family Planning Association of Texas
     Republican Pro-Choice Coalition
     Gender Justice Action Group
     Feminist Majority
     National Partnership for Women & Families
     Greater Dallas Coalition for Reproductive Freedom
     Texas Abortion and Reproductive Rights Action League
     Planned Parenthood Federation of America
     Planned Parenthood Association of Hidalgo County
     Planned Parenthood Association of Lubbock
     Planned Parenthood of Cameron and Willacy Counties
     Planned Parenthood of Houston and Southeast Texas
     Planned Parenthood of North Texas
     Planned Parenthood of San Antonio & South Central Texas
     Planned Parenthood of South Texas
     Planned Parenthood of the Texas Capital Region
     Planned Parenthood of West Texas
                                  ____


   Women's Organizations Opposing Nomination of Janice Rodgers Brown

     National Organization for Women
     California National Organization for Women
     NOW Legal Defense & Education Fund
     Religious Coalition for Reproductive Rights
     National Abortion Federation
     National Women's Law Center
     NARAL Pro-Choice America
     National Council of Jewish Women
     National Council of Jewish Women, California
     National Council of Jewish Women, Los Angeles
     American Association of University Women
     National Family Planning and Reproductive Health Association
     National Partnership for Women and Families
     Feminist Majority
     Planned Parenthood Federation of America
     Planned Parenthood of Golden Gate
     Planned Parenthood of Los Angeles
     Women Lawyers Association of Los Angeles
     Women's Reproductive Rights Assistance Project
     Pacifica Institute for Women's Health
     Black Women Lawyers of Los Angeles
     California Abortion and Reproductive Rights Action League
     California Women's Law Center
                                  ____


       Women's Organizations Opposing Nomination of Carolyn Kuhl

     American Association of University Women
     Breast Cancer Action
     Breast Cancer Fund
     California Abortion and Reproductive Rights Action League
     California National Organization for Women
     California Women Lawyers
     California Women's Law Center
     Center for Reproductive Law and Policy
     Coalition of Labor Union Women (CLUW)
     Feminist Majority
     Los Angeles African-American Women's Political Action 
         Committee
     NARAL Pro-Choice America
     National Abortion Federation
     National Council of Jewish Women
     National Organization for Women
     National Partnership for Women and Families
     National Women's Law Center
     National Women's Political Caucus--California
     Pacific Institute for Women's Health
     Planned Parenthood Federation of America
     Planned Parenthood Affiliates of California
     San Diego County National Organization for Women
     Women's Committee, Labor Committee for Latin American 
         Advancement
     Women's Leadership Alliance Women's Political Committee
     Women's International League for Peace and Freedom
     Women's Reproductive Rights Assistance Project.
                                  ____

                                                November 12, 2003.
     Hon. Bill Frist,
     Majority Leader, U.S. Senate, Russell Senate Office Building, 
         Washington, DC.
     Hon. Tom Daschle,
     Minority Leader, U.S. Senate, Hart Senate Office Building, 
         Washington, DC.
       Gentlemen: Respect for the rule of law, and the 
     impartiality of the judiciary are almost synonymous concepts. 
     It is out of concern for both that I want to convey my most 
     serious concern about the State's consideration of the 
     nomination of Justice Janice Rogers Brown for the United 
     States Court of Appeals for the District of Columbia Circuit.
       Justice Brown has not demonstrated the balance and judicial 
     temperament and prudence that are central to a respected 
     judiciary. Indeed, she has spoken to an organization of my 
     own alma mater, the University of Chicago Federalist Society, 
     in terms so radical as to bring into question her own regard 
     for the position she currently occupies. The extremism of her 
     views has been publicly demonstrated time and time again, 
     particularly concerning matters of settled law regarding the 
     national government's responsibility to protect civil and 
     political rights of women and minorities. Such extremism 
     undermines the confidence any citizen might have in the 
     capacity of this nominee to fairly interpret and administer 
     the law.
       I am the only African American woman to have served in the 
     United States Senate, or on its Judiciary committee. As such 
     I have not only an appreciation for the gravity of the 
     Senate's role and responsibility in regards to the 
     appointment process, but I also have a keen appreciation for 
     the diversity of opinion among African Americans. Not all 
     black people think alike, and I have no doubt that there is a 
     constituency that would be happy to see an African American 
     of any political persuasion confirmed for such an important 
     position as the D.C. Circuit Court of Appeals. However, it 
     does both the black community as well as the courts a great 
     disservice to confirm to such a position an individual who 
     has so clearly demonstrated a disregard for the balance and 
     impartiality required of the members of the bench.
       I appeal to our President to exercise greater respect for 
     the traditions of the judiciary in making future nominations. 
     Justice Brown should be given an opportunity to mature in her 
     demeanor and her judicial conduct, but not as a member of the 
     Circuit Court. As such, I urge the members of the Committee 
     to reject this nomination.
           Sincerely,
                                              Carol Moseley-Braun.

  Mr. LEAHY. The San Francisco Chronicle and the Washington Post 
editorialize against her as an example of the Bush Administration's 
efforts to pack the circuit courts with ideologues. In her decisions 
and her writings and speeches she has shown herself to be a consummate 
judicial activist who will disregard precedent when convenient to her 
ends. Her view of government is not consistent with the work of the 
D.C. Circuit in reviewing the environmental protections, workplace 
protections, consumer protections and other government regulations 
authorized by Congress to protect all Americans.
  The obvious intent of these stacked votes is a partisan effort to 
paint opposition Senators as anti-woman. Women know better. Women 
leaders, women's rights organizations have opposed these nominations. I 
know the Republican partisan public relations machine will be cranking 
overtime to say we are anti-woman. Given that we are being led by 
Senator Barbara Mikulski, Senator Dianne Feinstein, Senator Barbara 
Boxer, Senator Patty Murray, Senator Mary Landrieu, Senator Blanche 
Lincoln, Senator Maria Cantwell, Senator Hillary Clinton, and Senator 
Debbie Stabenow, it is hard to see how Democrats can be subjected to 
such allegations with a straight face. I mean, tell them that they are 
anti-woman. These are all women who have the finest records of 
defending, upholding, and advancing women's rights. It is crazy.
  When we were in charge, the Senate confirmed 100 of President Bush's 
judicial nominees, including 21 women, in just 17 months. They included 
4 women 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,

[[Page S14764]]

or 18 percent, and only 8 women to circuit courts out of 32 circuit 
court nominees, or 25 percent. Well, this year, Democrats have 
supported the confirmation of 12 additional women nominated to the 
Federal bench, including 3 more to our Courts of Appeal. The thirty-
three women judges confirmed represent 20 percent of the 168 judges 
confirmed so far.
  Perhaps, though, they are a little bit nervous about this. President 
Bush has nominated far fewer women to the Federal bench than President 
Clinton did. This President's nominees have included only one woman in 
each five judicial nominees. 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. They did it by their one-person anonymous 
filibuster. Do not give me this baloney that, oh, it is so terrible 
that we are standing out here in open session blocking four judges. 
They blocked 63 by anonymous filibuster, 18 of them women. The women 
who were blocked from getting Senate action on their judicial 
nominations by the Republicans include Kathleen McCree Lewis, Elena 
Kagan, Elizabeth Gibson, Helene White, Christine Arguello, Bonnie 
Campbell--all of whom were nominated to the circuit courts. Now, these 
six outstanding women lawyers and judges were not extreme or 
ideologues. They were blocked anonymously by Republican Senators. This 
was done without any explanation. This was done without a vote of any 
kind. We never had a debate on them.
  These other judges, the 4 out of 168 of President Bush's who have 
been confirmed, at least there was a debate on them. We discussed the 
merits of their nominations. The 63 of President Clinton's nominees who 
were blocked by the Republican majority would have liked to have at 
least had a hearing or debate on the merits of their nominations. There 
was no debate. Nobody wanted to come to the floor and talk about them, 
not when they could do a one-person filibuster, and do it anonymously 
so the press in their hometown would never know who was holding them 
up, including some of the Senators from the States where they were 
nominated. They could do this anonymously, and they could do it in a 
way that they would never have their fingerprints on it.
  Now, I have heard more crocodile tears shed on this Senate floor this 
week than I have heard in my 29 years. Why? Because 4 judges of 
President Bush's were stopped, out of 168 who were confirmed. He has 
had less nominees stopped than any President I can remember since I 
have served in the Senate.
  I yield the floor.
  (At the request of Mr. Dashle, the following statement was ordered to 
be printed in the Record.)
 Mr. EDWARDS. Mr. President, my Republican colleagues are 
calling this 30-plus-hour marathon ``Justice for Judges.'' Now, I'm all 
for justice for judges. And that's exactly what every single one of 
President Bush's judicial nominees has gotten.
  But I ask my colleagues, where is Justice for the American people? 
They seem more concerned about Justice for a handful of judges--the 2 
percent of those Bush's nominee who haven't been confirmed--than 
justice, fair play and opportunity for the American people.
  The Republican majority claims that we're facing a vacancy crisis in 
our Federal courts. Ninety eight percent of Bush's judges have been 
confirmed and this is a crisis? Two percent of Bush's judges have not 
been given lifetime appointments and we're in a crisis?
  Under George W. Bush, the unemployment has risen to 6 percent the 
poverty rate has increased to 12.1 percent the percentage of Americans 
with no health insurance has gone up to 15.2 percent. And, during this 
time, the vacancy rate on the Federal courts has gone down to 4.5 
percent its lowest point in over 13 years. In fact, there are more 
full-time Federal judges on the bench today than at any other time in 
U.S. history? The vacancy rate is now below the number that Senator 
Hatch called ``full-employment'' in the Federal judiciary during the 
Clinton administration.
  Where is the concern for the 6 percent of the American people who 
can't find jobs? The same people who claim that 4.5 percent vacancy is 
a crisis think that 6 percent unemployment is great news, that a 
``jobless recovery'' is a good thing. Why aren't they at least as 
concerned about Justice for the Jobless, Justice for Working People, 
Justice for the Poor, Justice for Families?
  So, what does this marathon debate tell us about the priorities of 
the Republican majority? What does it tell us when they are more 
concerned about securing lifetime jobs for three sitting judges and a 
State attorney general than in securing jobs for the 9 million 
Americans who are out of work?
  Why are they more interested in fighting for three judges and an 
attorney general--all of whom have received full and fair 
consideration--than fighting to bring hope back to the American people?
  Why aren't we spending 30 hours debating how to help the 9 million 
Americans who no longer have the dignity and self-respect that comes 
from completing a hard day's work? Why doesn't the Republican majority 
schedule 30 hours of debate to figure out how to provide health care to 
the American people and prescription drug benefits to the elderly?
  We should be figuring out how to bring back the 3 million jobs we've 
lost on George Bush's watch--one job lost for every minute he has been 
in office.
  We should be addressing the anxiety of families who fear that by 
sundown they will be without a safe home. We should be working to find 
a way to lift the tax burdens on working families and provide real 
economic opportunities so they can provide food, clothing, and shelter 
for their families.
  We should be debating about the best way to close the education gap 
and support and fund our public schools.
  We should be working together to lift Americans out of poverty.
  And we should be coming together, not to fight for justice for judges 
but to fight to end the injustice that still tugs on the soul of 
America.
  In other words, we should be fighting for Justice for the American 
People.
  But instead, my Republican colleagues have virtually shut down the 
Senate to force lifetime appointments for three judges and an attorney 
general.
  This political stunt is getting lots of coverage, but it's not doing 
a thing to improve the life of one single American--except three 
sitting judges and an attorney general.
  We have confirmed 168 of President Bush's nominees. I voted for the 
vast majority of these judges, even though many of these judges have 
held conservative ideologies with which I strongly differ, because I 
believed they would ultimately enforce the Constitution and the law.
  But I cannot and will not vote for these four nominees, for good 
reason. These nominees not only do not represent the mainstream, but 
they have demonstrated an unwillingness to set aside their personal 
views to uphold the law and protect civil rights. We have good reason 
to oppose these nominees. And we not only have the right, we have a 
constitutional obligation to stand up to the President when he makes 
unacceptable nominations to the bench.
  Our Founding Fathers did not give the President unilateral or 
unfettered power to select Article III judges. They wanted to ensure 
that the people--through their elected representatives--have a say in 
who will be appointed to the Federal bench. So they created a 
partnership between the President and the Senate by requiring the 
President to obtain the advice and consent of the Senate in nominating 
judges.
  Every President--whether Republican or Democrat--must consult in a 
meaningful way with the Senate to appoint highly qualified judges to 
the Federal bench. The give and take that results makes it far more 
likely that we will have a judiciary that is not skewed too far to the 
right or too far to the left, a balanced judiciary that reflects the 
people it serves.
  Meaningful consultation does not mean that the White House just sends 
us who they want and we rubberstamp them, without careful examination 
and consideration. Meaningful consultation often involves compromise 
and consensus.
  This approach has worked reasonably well--with some exceptions--over 
the years. But now we find ourselves dealing with a White House that 
disdains

[[Page S14765]]

this longstanding principle of advice and consent. Instead, the 
President is appointing judges who are far out of the mainstream. 
Judges who are hostile to civil rights and equal justice. Judges who 
are not only willing but eager to put their personal views above the 
law. Judges he certainly knows are unacceptable to us and our 
constituents. These appointments are being made without our advice and 
without our consent. We have tried to work with the White House to find 
common ground, but most of our attempts to reach consensus with the 
administration have been dismissed. In some instances, our commitment 
to fairness and diversity has been attacked. This is not the way this 
process should work. It is wrong. It would be wrong, regardless what 
party the President belongs to.
  Any honest observer must acknowledge that previous administrations of 
both parties attempted in good faith to work with the Senate in its 
appointments process. President Clinton put up numerous highly 
qualified mainstream nominees for Federal judgeships, only to have them 
blocked, denied hearings and denied votes by a Republican Senate. 
Twenty percent of Bill Clinton's judges were blocked by a Republican 
Senate. We heard nothing about justice for judges then.
  This had a particular impact on my home State of North Carolina, 
which is part of the Fourth Circuit. North Carolina--the largest State 
in the circuit--until this year had not been represented on the court 
since 1994. President Clinton tried three times to put a North 
Carolinian on the court, only to have his nominees blocked for reasons 
other than their qualifications. In fact, during his last 6 years in 
office, President Clinton had eight nominees--four of them African 
American--blocked in the Fourth Circuit alone. These were well-
qualified men and women, none of whom could be labeled ideologues, 
whose views were well within the mainstream of legal thought and 
practice. Nevertheless, they were blocked. I believe that this was part 
of a plan, a plan to keep these seats open for a Republican President 
who would fill them with right-wing judges outside of the mainstream.
  We've seen what happens when the President meets us halfway. He's 
done it before--rarely, but he's done it. He reached out to us on 
Allyson Duncan, an outstanding North Carolinian who just last month was 
formally installed as a judge on the Fourth Circuit Court of Appeals, 
breaking a logjam that had held our State back for a decade.
  In that case, President Bush did more than just pay lipservice to our 
constitutional obligation to a advise and consent. He reached out to us 
before he made his decision--he consulted with us--he sought our 
advice. And in making his decision, the President selected a nominee 
who represents the mainstream of our State.
  Throughout Judge Duncan's confirmation process, I commended the 
President for consulting with us and making an excellent nomination. 
And I told him that if he takes this approach to future judicial 
nominations we have a real opportunity to find common ground in the 
search for excellence on the Federal bench. When we work together, we 
find outstanding nominees like Allyson Duncan, who represents the best 
of North Carolina and America.
  In light of our efforts to cooperate with the President on 
nominations, I'm puzzled and troubled by the Republican attacks on us, 
the accusations that we are anti-women, anti-black, anti-Hispanic, 
anti-Southern, anti-Catholic. They're running attack ads against us 
that represent the worst forms of religious and racial McCarthyism. 
They're doing this even though the record shows that Democrats have 
voted to confirm 13 of President Bush's African-American nominees while 
Republicans blocked 12 of Clinton's African-American nominees. We have 
confirmed 33 of Bush's woman nominees. Nearly 40 percent of the Bush 
judges confirmed have been from southern States. So, not only are these 
accusations of bias flat-out wrong, they are outrageous and I must 
speak out against such demagoguery and race baiting.
  We have gone the extra mile. We have demonstrated that we are willing 
to work with the White House to move forward on nominees who provide 
balance to the courts. We have confirmed 168 of President Bush's 
judicial nominees--98 percent. We have been more than cooperative.
  It's really a shame that the majority doesn't spend a fraction of the 
time they've spent on the full employment program for judges on finding 
ways to improve the lives of the American people.
  The American people deserve better than this. We owe it to them to 
call a halt to this marathon madness and get down to work to address 
the problems they sent us here to solve. It is time to fight for 
justice, jobs and opportunity for the American people.
  Mr. DODD. Mr. President, the majority has indicated that as part of 
this debate to invoke cloture on these three nominees to the Federal 
judiciary, they may move to consider S. Res. 138, a resolution 
introduced by the majority leader, Senator Frist, which would amend the 
Senate rules to treat debate on Executive Calendar items differently 
than matters on the Legislative Calendar.
  Nothing is more fundamental to the ability of the Senate to fully 
exercise its constitutional responsibility to provide advice and 
consent to the President's executive nominees than to subject such 
nominees to full and deliberative debate. And any move to amend the 
Senate rules to place additional limitations on that debate is 
tantamount to a ceding of legislative branch powers to the executive. I 
appreciate the opportunity to speak on the issue of proposed changes to 
Senate rule XXII.
  The filibuster is widely viewed as one of the Senate's most 
characteristic procedural rules. I believe we can all agree that the 
best way to consider a change to Senate rules is to do so in accordance 
with existing Senate rules. I believe this 30-hour debate will follow 
Senate rules and precedent.
  Any attempt to change Senate rules, particularly cloture rule XXII, 
should be in keeping with the deliberative rules, precedents and 
practices that have been the hallmark of this institution since it was 
conceived during a steamy summer in Philadelphia over 217 years ago.
  Senate rules have endured the age-old test of time, people, places, 
and events. Senate rules delineate the constitutional responsibilities 
of the body and define the character of the institution. Making changes 
to the rules and the precedent of the Senate is not an action that 
should be taken lightly or for partisan purposes.
  In the history of the institution, the rules of the Senate have been 
through general revision just seven times: 1806, 1820, 1828, 1868, 
1877, 1884, and 1979. The architecture of our Senate rules and 
precedents is built on the foundation of the right to debate and amend, 
the two basic principles that make the Senate the upper House in all of 
the legislative bodies of the world. If you chip and change this 
keystone, then you chip and change the Senate as an institution.
  Herein lies the central paradox and towering majesty of the Senate. 
What makes this institution so revered and unique is what can 
simultaneously gall us the most: the practice of extended debate.
  But the Founders insulated the Senate from sanction for debate and 
explicitly left it to ``determine the rules of its proceedings.''
  The rules of the Senate reflect the intent of the Framers that the 
Senate be the ``saucer into which the nation's passions may be poured 
to cool.'' The ability to fully examine and debate any matter of 
national importance is the hallmark of the Senate. Nowhere more than in 
the advice and consent responsibility of the Senate do we see the 
Framer's intent to balance the fear of a resulting tyranny of a 
majority against the principle of majority rule.
  As Alexis de Tocqueville observed: ``. . . the main evil of the 
present democratic institutions of the United States. . . . [arises 
from] the very inadequate securities against tyranny. . . . if ever the 
free institutions of America are destroyed, that event may be 
attributed to the unlimited authority of the majorities, which at some 
future time may urge the minorities to desperation. . . .''
  The President nominates, but his power is balanced, and checked, by 
the power of the Senate to provide advice and consent. Neither can act 
alone. And in the case of the judiciary, the creation of the third, 
separate and equal, branch of Government, the powers are deliberately 
counterposed.

[[Page S14766]]

  This is not the first controversy over Senate rules, precedents and 
practices of the right to extended debate. Through our history, the 
right of extended debate has never been seriously questioned as other 
than a vital foundation of our Republic. This right has been a catalyst 
for achieving the most remarkable feature of our civilization: the 
degree to which we have been able to provide our citizens with, at one 
and the same time, both great freedom and great stability.
  As Robert Caro, author of ``The Master of the Senate,'' for which he 
was awarded his second Pulitzer prize, has observed, and I quote him, 
``in creating the new nation, its founding fathers, the framers of its 
constitution, gave its legislature not only its own powers specified 
and sweeping, but also powers designed to make the Congress independent 
of the President, and to restrain and to act as a check on his 
authority, including power to approve his appointments, even the 
appointments he made within his own administration. And the most potent 
of these restraining powers the framers gave to the Senate.''
  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 United States Senate. This is 
the American way and it must remain the American way. While the 
Founding Fathers recognized the inherent dangers in granting a minority 
of Senators a veto over the will of the majority, the Constitution did 
just that.
  But proposals to limit debate would change that.
  S. Res. 138, a proposal by Majority Leader Frist, would amend Senate 
rule XXII to provide for a declining number of votes required to invoke 
cloture on Executive Calendar items, such as judicial nominations.
  I have deep reservations about Majority Leader Frist's resolution to 
amend Senate rule XXII. I fully appreciate the majority leader's desire 
to expedite the business of the Senate. I fully understand the 
frustration with respect to the deep desire to invoke cloture on 
Executive Calendar items, including executive nominations such as 
judicial nominations.
  But there is simply no crisis facing our judiciary today that 
necessitates the damage to the very fiber of this institution that such 
a rules change would render. The vacancy for the Federal judiciary is 
at its lowest level in 13 years.
  Since President Bush came into office, the Senate has confirmed 168 
of his nominees and has decided not to proceed with only 4. That is a 
98 percent success rate for the President. In my view, this is a great 
success rate.
  The Senate must not act to change its rules. To do so now would 
amount to a ``hijacking'' of the Senate's constitutional duty to 
provide advice and consent to the President's nomination authority. The 
supermajority requirement is consistent with the intent, spirit and 
language of the Constitution.
  S. Res. 138 presents the question of whether rule XXII should be 
revised to accommodate a targeted remedy for filibusters of judicial 
nominations. The real question should be whether S. Res. 138 strikes 
the most appropriate balance between existing Senate rules and the 
advice and consent duties of the Senate. In the view of this Senator, 
it does not.
  The cloture rule exists by virtue of the longstanding rules of the 
Senate enacted pursuant to authority under the Constitution, article I, 
section 5.
  The Constitution expressly authorizes such procedural rules and sets 
no standard to limit the Senate's discretion in formulating such rules. 
Further, the Constitution does not compel the Senate to take any 
action, much less a final vote, on any matter, legislative or 
executive.
  There is no argument to the fact that the Senate has plenary 
authority to devise its own rules. Nor is there any argument to the 
fact that there is no right to mandatory majority rule. Most 
importantly, the Senate tradition on filibuster offends no 
constitutional edict. In the words of Chief Justice Burger, ``there is 
nothing in the language of the Constitution or history or our cases 
that require a majority always prevail on every issue.''
  At its most fundamental core, the Senate is a testament to the 
coexisting rights of the majority and the minority. Small states have 
an equal say in the Senate's tradition, and rules protect debate no 
matter whether it is a principled stand of one Senator or a chorus of 
the convinced. The Senate rules balance majority rule with minority 
right.
  As a Senator in this body, I recall watching the Senate as a very 
determined minority insisted on their right to be heard on the issue of 
civil rights. Their position on civil rights was unfair, unpopular, and 
illegal. Yet the majority of Senators did not question the right of the 
minority Senators to assert their right under Senate rules and 
precedent to debate, delay, diminish or defeat civil rights 
legislation. And, the minority did so for years.
  Ultimately, both the noble principles of racial equality and extended 
debate prevailed in the Senate. But the Senate rule that had been long 
thwarted was left essentially unchanged.
  Prior to 1917, there was only a century old rule that required 
unanimous consent to cut off debate. This means that for 111 years, the 
Senate practice of extended debate was absolute in its scope. All 
Senators had to consent in order to bring consideration of a matter to 
a close. For the subsequent period of 58 years, two-thirds of the 
Senate were required to end debate. Currently, three-fifths are 
required. Until 1949, there was no procedure for limiting debate on 
nominations in the Senate. For the past 212 years, there has never been 
a Senate rule that permits a simple majority to force a vote on any 
matter up for consideration, including judicial nominations.
  In this historical context, S. Res. 138 would be without precedent to 
require a simple majority to invoke cloture, in my view. S. Res. 138 
would reduce to a majority vote that Senate procedural rule which girds 
the independence of the coequal judicial branch.
  There is an irony to S. Res. 138 that cannot go unstated or 
unexamined. It would reform the cloture process only for nominations 
and leave cloture for the remainder of the Senate debate as it is. 
Arguably, it is precisely in the area of nominations, particularly 
judicial nominations, that the Framers intended these powers to be 
utilized.
  S. Res. 138 would fundamentally alter the nature of the Senate and 
the balance of powers created by the Framers of the Constitution. It 
would undermine the Senate's role in our constitutional democracy, cede 
enormous power to the Executive and upset the deliberate system of 
checks and balances intended by the Framers.
  S. Res. 138 would fundamentally diminish the Senate's power in 
relation to that of the Executive. And if the Senate cedes such power 
to the Executive, then I do not think the Senate will ever get that 
power back. Of all the issues that the Senate faces now and in future 
Congresses--such as war, the economy, health, education, election 
reform, jobs--none is more important than this one on Senate rule 
changes. Why? Because how we resolve this issue will, in many respects, 
determine how we resolve all others.
  S. Res. 138 proffers change that is historically significant. 
However, S. Res. 138 does not proffer filibuster reform that will 
permit ample debate while rejecting delay in perpetuity. Nor does S. 
Res. 138 fit squarely within Senate tradition of balancing the right to 
debate with the responsibility to conclude the people's business.
  Instead, S. Res. 138 would shift the balance of power on advise and 
consent to the executive branch. To accommodate this proposal means a 
profound change in the Senate as an institution and the character of 
the Senate as a body itself.
  It reduces the constitutional advice and consent authority, indeed 
duty, to a mere rubber stamp of the President's prerogatives. We must 
always attempt to find the right checks and balances between a rubber 
stamp and a deliberative body on both legislation and nominations. This 
is what makes the Senate, as an institution, so powerful, so special, 
so unique.
  We must remember that during the Constitutional Convention, only 
after lengthy debate, was the power to appoint judges committed to the 
President as well as to the Senate. Why? John Rutledge of South 
Carolina said

[[Page S14767]]

it best: ``the people will think we are leaning too much toward 
monarchy'' if the President is given free rein to appoint judges.
  The final compromise was characterized by Governor Morris of 
Pennsylvania as giving the Senate the power to appoint judges nominated 
to them by the President. In Federalist 76, Hamilton explained, ``the 
Senate's review would prevent the President from appointing justices to 
be the obsequious instruments of his pleasure.''
  Against this backdrop, I find it quite troubling that Majority Leader 
Frist now suggests that we narrow deliberation, debate, and the rights 
of the minority with respect to the nomination process and thereby 
enhance the ability of the majority to turn the Senate into a rubber 
stamp of a President's nominee.
  What is at stake in this debate is nothing less than the integrity of 
the Senate and the independence of the judicial branch--the deliberate 
intention of the Framers to ensure against the excess of the Executive.
  In describing the role of the Senate to provide advice and consent to 
executive nominations, Roger Sherman noted: ``the Convention, who 
formed this Constitution, thought it would tend to secure the liberties 
of the people, if they prohibited the President from the sole 
appointment of all officers. They knew that the crown of Great Britain, 
by having that prerogative has been enabled to swallow up the whole 
administration . . . but this government is different, and intended by 
the people to be different.''
  The real problem here is not constitutional, but rather it is 
institutional. Senators must think of themselves as part of an 
institution, held together by a common respect for its rules and 
traditions. We have a responsibility to the President, the people, and 
to the institution.
  This is a moment for Senators, as Senators, to stand up for the 
Senate.
  Those of us fortunate to serve in this body are but its temporary 
custodians. We are stewards of an institution governed by rules and 
practices that have withstood the test of more than two centuries of 
time. Now is not the time to retool the rules to achieve goals that 
are, in essence, transient and partisan in nature, no matter how deeply 
felt.
  When in history has the will of a minority--through extended debate 
been able to stop anything that this Nation desired or that had the 
broad support of its people? The Senate works its will, extended debate 
and all, as it was intended to work--in the words of James Madison--`` 
. . . to consist in its proceedings with more coolness, with more 
system, and with more wisdom, than the popular branch.''
  The disagreements that we have over judicial appointments, and over 
some legislation, will likely be long forgotten, and of limited 
consequence, in years to come. But to change the rules and practices of 
the U.S. Senate in the manner that is here proposed, in my view, would 
do permanent and lasting damage, not only to this institution but to 
our democracy that has served us so long and so well.
  I hope that cooler heads will prevail and that the majority leader 
will not bring up S. Res. 138 to amend the rules of the Senate.
  But if that happens, I urge my colleagues, as Senators, to uphold the 
unique authority of the Senate to give equal voice to all States, 
indeed to all people, and to forego the political expedience of the 
moment in order to ensure the integrity of the Senate, and the 
functioning of this Republic, for generations to come.
  Mr. LIEBERMAN. Mr. President, in the course of this debate, I have 
been deeply disturbed to hear the characterization my Republican 
colleagues have given to a filibuster reform proposal Senator Harkin 
and I offered nearly a decade ago. They have referred to our proposal, 
and our statements in support of it, as precedent for their efforts 
here today. As I have said in the past, I believe that is deeply wrong. 
To make clear both what our proposal did, and why my Republican 
colleagues' characterizations of it are wrong, I thought it would be 
worthwhile to make sure the record included testimony I offered to the 
Senate Rules Committee this past June. I ask unanimous consent that the 
full text of that testimony be reprinted in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Statement of Senator Joe Lieberman, Senate Rules and Administration 
                        Committee, June 5, 2003

       Chairman Lott, Senator Dodd and Members of the Committee. I 
     greatly appreciate the opportunity to submit this statement 
     for your hearing record, so that I can share with the 
     Committee my thoughts on filibuster reform and my previous 
     efforts on the topic.
       In late 1994, I joined Senator Harkin in launching an 
     effort to encourage Senate discussion of reforming the 
     Senate's cloture rule. Like Senator Harkin, I had become 
     increasingly frustrated at the way the Senate's cloture rule 
     repeatedly allowed a minority of Members to prevent the 
     Senate's majority from enacting legislation. I felt--and 
     continue to feel--that the Senate rules should be changed to 
     prevent a small minority of Senators from bringing 
     legislation to a halt simply by saying that they will never 
     end debate. Senator Harkin and I therefore offered a proposal 
     under which an initial cloture vote would require 60 votes, 
     but the requisite number to reach cloture would decline by 
     three with each of the next three cloture attempts on the 
     same matter. As of the fourth cloture vote, 51 votes--a 
     simple majority--would suffice to invoke cloture.
       This was not a partisan effort on our part. Indeed, Senator 
     Harkin and I offered our proposal after the Democrats lost 
     their majority status and at a time we therefore fully 
     understood that our proposal would more often than not--in 
     the short term, at least--inure to our party's detriment. Let 
     me say that again: our proposal was not an effort to push 
     through our own agenda or help our own party. Nor was it a 
     proposal aimed at carving out special rules for one type of 
     legislation or Senate action in order to ease enactment or 
     Senate approval of one particular agenda.
       In early January 1995, we offered our proposal on the 
     Senate floor. After a good debate, the Senate voted on it 
     and, unfortunately, we lost by a landslide. 76-19. Among 
     those voting against our proposal were every Member of this 
     Committee who was in the Senate at the time, including the 
     current Majority Leader, whose proposal the Committee is 
     considering today. I considered that an unfortunate result 
     then, and I continue to consider it so today. Despite the 
     often troubling ways in which the current Majority has sought 
     to run the Senate, I still believe the filibuster rule should 
     be changed so that once Members have had an opportunity to 
     fully debate and seek to amend measures, the majority can 
     have its say.
       But that is unfortunately not what the Majority Leader's 
     proposal seeks to do. Indeed, although I expect some will 
     seek to characterize the proposal the Committee is 
     considering as akin to the Harkin-Lieberman one, it most 
     assuredly is not. Our proposal applied across the board--to 
     legislation and nominations alike. As I already mentioned, it 
     was the legislative gridlock that motivated us back then, and 
     that continues to be the real problem caused by the cloture 
     rules. But my Republican colleagues don't want an across-the-
     board reform. As they would have no choice but to 
     acknowledge, they don't want to give up their own ability to 
     filibuster legislation, even while they are in the Majority. 
     That's because, whether it's the patients' bill of rights, 
     campaign finance reform or a plethora of other issues, they 
     have launched their own filibusters while in the Majority, 
     and they just don't want to give up their ability to continue 
     to do so. Majority rule apparently should only go so far in 
     their view.
       What the Majority Leader's proposal amounts to is a demand 
     for unilateral disarmament. It is an effort to force the 
     current minority party to swallow a rules change that allows 
     this President and his party to carve an exception from the 
     Senate rules for their out-of-the-mainstream judicial 
     nominees, while keeping the parts of the cloture rule that 
     they want to continue taking advantage of. But the issue of 
     how the Senate operates should not be subjected to such one-
     sided demands. We all must work with the rules we have and 
     seek to apply them fairly and impartially. That's why, as I 
     said at the time I first made this proposal with Senator 
     Harkin, even though I support filibuster reform, as long as 
     the rules are what they are, I'm not going to be the only one 
     to abandon them. I will continue, as a representative of the 
     interests of the voters of my state, to live within them and 
     support filibusters where I think it appropriate.
       In short, in contrast to the serious reform effort we made, 
     this proposal amounts to one party's effort to turn a Senate 
     rule into a partisan tool--to cherry pick its favored issue 
     in the name of democracy, while leaving themselves free to 
     filibuster away on legislative proposals they don't like. I 
     would welcome more company in the effort to engage in serious 
     reform of the cloture rules so that we all--Republicans, 
     Democrats and Independents alike--can make the Senate work 
     better for the American people. But this unfortunately is not 
     that effort.

  Mr. SANTORUM. Mr. President, this is a very historic time for our 
country. Until this Congress there had never been a filibuster of a 
circuit court nominee in the history of this country. Thus far we have 
had four filibusters of highly qualified judicial nominees this year 
and may have two more by the

[[Page S14768]]

end of this week. It is not the intent of the Constitution to confirm a 
nominee with 60 votes but to confirm with a simple majority. Whether we 
vote a nominee up or we vote them down, it is our duty to bring them 
for a vote and to represent the will of the majority in the advice and 
consent role of the Senate in relation to the President's nominees. If 
the minority would like to create a 60-vote requirement, then they 
should respect the Constitution and introduce a constitutional 
amendment to do so--and build the necessary support for it around the 
Nation--rather than through this backdoor assault. The precedent that 
is being set through this abuse of the filibuster is a dangerous and 
destructive one for future Presidents, future nominees, and most 
importantly the future of the Judiciary.
  As we look at the nominees that have faced obstruction, I ask what 
makes these nominees ripe for such unprecedented obstruction in our 
country's history? The most recent judicial nominee to experience this 
assault is California Supreme Court Justice Janice Rogers Brown. I 
spoke on the floor a few weeks ago of the cruel treatment that Justice 
Brown has had to endure. Ms. Brown was recently degraded by a 
stereotypical cartoon on blackcommentator.com. The cartoon has 
President Bush and Justice Brown walking into a room and the President 
saying, ``Welcome to the Federal bench, Ms. Clarence--I mean Ms. Rogers 
Brown, you'll fit right in.'' In the background are Justice Thomas, 
Colin Powell, and Condoleeza Rice. The bottom says, ``News item: Bush 
nominates Clarence-like conservative to the bench.'' Left oriented 
groups opposing the President's nominees did not condemn this 
distortion.
  In Justice Brown's Judiciary Committee hearing, she responded to this 
cartoon saying, ``But while I've been having those meetings, people 
have said to me: `Well, you know, it's not personal, it's just 
politics, it's not personal.' And I just want to say to you that it is 
personal, it's very personal--to the nominees, and to the people who 
care about them.'' It doesn't get more personal than this. Brown is a 
very intelligent woman who is a Supreme Court Justice in our Nation's 
largest State, was re-elected to her seat with 76 percent of the public 
vote, possesses a stellar educational record and has a great judicial 
reputation. However, in order to fulfill her dream and the President's 
wishes, she must subject herself to unfair personal attacks and 
embarrassing degradation.
  Carolyn Kuhl, another female judicial nominee, also faces harsh and 
unwarranted criticism in her nomination for the Ninth Circuit Court of 
Appeals, a circuit court that even Senator Schumer admits is way too 
liberal and is the most overturned circuit of the 13 circuits. The 
Judicial Conference of the United States has declared this vacant seat 
a ``judicial emergency.'' But this is not even the main crisis for this 
court. This court gave us the notorious Pledge of Allegiance decision 
that Democrats joined Republicans in disavowing. Our friends on the 
other side of the aisle stress the importance of appropriate balance on 
the court. This court has 17 judges appointed by a Democratic President 
and 8 appointed by a Republican President. It seems apparent that Judge 
Kuhl would be a perfect candidate to better balance a court tipped 
extremely to the left. Judge Kuhl, like the overwhelming majority of 
President Bush's nominees, has received a ``Well Qualified'' rating 
from the ABA, the ``Gold Standard,'' previously deferred to by 
Democrats in the Judiciary Committee. However, Judge Kuhl has been 
receiving unfair treatment from leftist special interest groups seeking 
to control the nominations process through the historically 
unprecedented misuse of the filibuster. They criticize Kuhl's role in a 
1986 case in which the Government filed a brief stating President 
Reagan's position that Roe v. Wade was wrongly decided.
  Rather than be criticized, Judge Kuhl should be praised for 
fulfilling her ethical duty to her client. Her job was to represent the 
President's position before the Supreme Court. Rule 1.2b of the Model 
Rules of Professional Conduct state that ``[a] lawyer's representation 
of a client, including representation by appointment does not 
constitute an endorsement of the political, social, or moral views or 
activities.'' The hypocrisy of those opposing her nomination lies in 
the fact that they have not objected to past nominees who were 
attorneys on the same government brief. Furthermore, Judge Kuhl is 
supported by a wide range of pro-choice supporters who strongly believe 
that she will uphold the law. So, as I have asked before, what makes 
Judge Kuhl so special that warrants obstruction as a judicial 
appointee?
  Then, there is Priscilla Owen. Justice Owen was nominated for the 
Fifth Circuit Court of Appeals by President Bush in May of 2001. 
Justice Owen was elected by 84 percent of the voters of Texas to the 
Texas Supreme Court. This vacancy has been declared a ``judicial 
emergency'' by the Judicial Conference of the United States. She has 
yet to have an up-or-down vote. She has significant bipartisan support, 
including from three former Democrat judges on the Texas Supreme Court 
and a bipartisan group of 15 past Presidents of the State Bar of Texas. 
Owen is yet another nominee who has received a unanimous ``Well 
Qualified Rating'' from the ABA. Critics argue that she has strong 
views on abortion, but she has always interpreted the law faithfully by 
applying statutes enacted by the Texas Legislature.
  Abortion-rights activists claim that Owen's decision to uphold a new 
statute that requires girls under the age of 18 to notify their parents 
of an abortion is an example of judicial activism. Never mentioned by 
these organizations is that not only was Owen upholding a statute 
enacted by the Texas Legislature, the U.S. Supreme Court has long held 
that parental notification is permissible under the constitutional 
right of abortion as dictated by Roe v. Wade. The claims that Owen is a 
judge who has and will continue to practice judicial activism are not 
true and unwarranted. As of today it will be 917 days since President 
Bush nominated Justice Owen. You will not find a more qualified 
candidate.
  Another nominee who has been waiting more than two years is Charles 
Pickering. A nominee for the Fifth Circuit of Appeals, another vacant 
seat declared a ``judicial emergency,'' Judge Pickering has been 
labeled by some of those across the aisle as ``racially insensitive'', 
and that his ``poor'' judicial record reflects this. How is it then 
that Pickering has received a ``Well Qualified'' rating by the ABA, the 
``Gold Standard'' according to Democrats on the Judiciary Committee, to 
serve on the Fifth Circuit Court of Appeals? Many of Pickering's 
colleagues, civil rights leaders, and Democratic leaders from his own 
State attest to Pickering's remarkable record on race. James Charles 
Evers, brother of slain civil rights leader Medgar Evers, has endorsed 
Pickering by saying ``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. He has taken tough stands at tough times in the past, 
and the treatment he and his record are receiving at the hands of 
certain interest groups is shameful.'' Along with the false accusations 
of racial insensitivity, activists also accuse Pickering as not being 
fit to hear abortion cases. Pickering has testified that he is 
committed to following Supreme Court Precedent in Roe v. Wade and 
Planned Parenthood v. Casey.
  Abortion rights activists in their assault on some of the President's 
nominees have especially focused their attacks on Alabama Attorney 
General William Pryor, nominee for the 11th Circuit Court of Appeals. 
General Pryor has been criticized by these organizations as well as 
from colleagues across the aisle for what they term ``deeply held 
beliefs.'' Earlier this year, I spoke on the floor about General 
Pryor's ``deeply held beliefs.'' Criticism of Pryor's beliefs stem from 
his views on abortion. These views are, in large part, due to his 
background as a devoted Catholic. Being a devoted Catholic requires one 
to oppose the practice of abortion, and General Pryor is indeed a 
devoted Catholic. As a practicing Catholic myself, I am disturbed at 
what is being conceived here. If the Catholic philosophy of having no 
leeway on the concept of abortion is preventing General Pryor from an 
up or down vote, then we have a constitutional crisis on our hands 
which would eliminate tens of millions of Americans from being 
considered for Federal

[[Page S14769]]

judgeships. General Pryor's record speaks for itself. Though he has 
criticized the Supreme Court's decisions on abortion, which is well 
within his rights as an American citizen, he has demonstrated a 
commitment over the years to enforce and uphold the law as one of the 
longest serving attorneys general in the Nation.
  I fear for the future of the judicial nomination process. Good, 
decent people who have outstanding records of upholding the law are 
being put through unfair, unjust and unnecessary attacks by people do 
not agree with their conservative values. One must ask my colleagues, 
why they think the politicization of the Judiciary is in anyone's 
interests. At what price do we continue this unfair degradation of 
judicial nominees?
  We all know the sad ending of Miguel Estrada's nomination. His 
qualifications remain outstanding. He came to the United States at age 
17 after being born and raised in Honduras. He graduated magna cum 
laude from Harvard Law School where he was editor of Harvard Law 
Review. He is a former assistant to the Solicitor General and argued 15 
cases before the U.S. Supreme Court. He clerked for Supreme Court 
Justice Anthony Kennedy, a Justice who does not share Estrada's 
conservative philosophies. He received strong support from prominent 
members of the Clinton administration whom he worked for.
  Are we to believe that documents the administration is unwilling to 
share from the Solicitor General's Office are what blocked his 
nomination, when all previous living Solicitors General, Republican and 
Democrat, signed a letter saying such work products should not be 
required to be provided? To do so would only undermine the ability of 
the office to represent the Federal Government and the President and 
would negatively impact the ability to attract quality lawyers to the 
office. We have also discussed time and again the appropriateness of 
Estrada's reluctance to prejudge cases at committee hearings. Opponents 
knew that they had no basis to oppose his nomination so they chose to 
place the burden on the nominee to prove a negative or else to have the 
Office of the Solicitor General undermine its independence and 
effectiveness.
  So what is the answer to why these nominees are receiving 
unprecedented unfair treatment? Why are we spending time here arguing 
for these candidates that are so well qualified for judgeships? I have 
voted for dozens of judicial nominees whose philosophies I do not share 
in deference to the President and to the Constitution. I fear the 
answer is the belief by a minority of Senators that there is short-term 
political gain in filibustering these nominees because some special 
interest groups are demanding this. But the long-term cost of this 
short-term thinking is tremendous. This unfair obstruction is setting a 
dangerous precedent and direction for the future of the Judiciary. The 
Constitution has given the Senate the responsibility to defend the 
judiciary there is no one else.
  Mr. INOUYE. Mr. President, it is most unfortunate that we in the 
Senate found ourselves embroiled in a lengthy and costly debate over 
four of President George W. Bush's judicial nominations--and make no 
mistake: this debate will cost more than is readily apparent.
  On a simple level, the preparation for 30 hours of debate on the 
Senate floor will translate into hundreds--possibly thousands of man 
hours of preparation. My fellow Senators, their staffs, and the myriad 
interested civic groups will toil ceaselessly to ensure that both 
Democrats and Republicans will be able to get their messages across to 
the American people. The media coverage and analysis are likely to be 
comprehensive and focused intensely down to the most minute details. 
Like a ravenous beast, this spectacle will devour our time, attention, 
and energy, until eventually, it consumes itself.
  My Democratic colleagues and I are acutely aware of another cost of 
this debate: the cost of opportunities lost to the Senate and to the 
Nation. Thirty hours of sustained attention could have addressed the 
needs of the 3 million citizens who have lost their jobs since the 
President took the oath of office. Thirty hours of continuous inquiry 
could have finished our constitutionally mandated duty of providing 
funds for the Federal Government. Thirty hours of debate could have 
broken the logjam on Medicare and Medicaid reform. Any of these goals 
would have been worthy of America's time, but regrettably, our 30 hours 
of debate will purchase for us none of these noble ends.
  Instead, our colleagues from across the aisle will have spent this 
time on four men and women--four men and women who have jobs. Four men 
and women who collectively make a million dollars every year. Four men 
and women who have already been the subject of countless hours of 
debate in the Senate, and whose records have already been displayed 
amply before the American people. Four prosperous men and women against 
the millions of American citizens who are unemployed.
  By far the highest price of these 30 hours of debate, however, will 
be its contribution to the growing rift between people of different 
ideological bents. The Senate has always been a place where Senators--a 
group as diverse and varied as the people they represent--have been 
able to put aside their differences and work for the good of the 
country as a whole. As one Senator who has had the privilege of 
participating in the life of this institution for over 40 years, I 
cannot understand why the majority leadership has brought us to this 
point.
  My grave concern is tempered only by my hope and confidence that we 
will rise above the divisive spirit that provoked today's debate, and 
begin to do the work of the Nation and its people.
  The PRESIDING OFFICER. Under the previous order, the hour of 8:30 
a.m. having arrived, the Senate will begin an hour of debate equally 
divided prior to the first cloture vote. Under the previous order, the 
last 20 minutes will be equally divided with the first 10 minutes under 
the control of the Democratic leader or his designee, and the last 10 
minutes under the control of the majority leader or his designee.
  Who seeks time?
  The Senator from Utah.
  Mr. HATCH. Mr. President, let me personally express gratitude and 
thanks to Senator Santorum of Pennsylvania, Senator Norman Coleman of 
Minnesota, Senator Lindsey Graham of South Carolina, and Senator Jeff 
Sessions of Alabama, all of whom stayed here all night last night to 
make the points they have made. I personally appreciate it.
  Senator Graham asked me to take time to read the full quote of 
Senator Leahy that he was not given the benefit of. Senator Leahy said 
he was misquoted, so I will read the full quote: This is Senator Leahy 
in the Congressional Record of June 18, 1998, regarding delays in 
Senate action on judicial nominations:

       I have stated over and over again on this floor that I 
     would refuse to put an anonymous hold on any judge; that I 
     would object and fight against any filibuster on a judge, 
     whether it is somebody I opposed or supported; that I felt 
     the Senate should do its duty. If we don't like somebody the 
     President nominates, vote him or her down.

  Now, that is the correct full statement by the distinguished ranking 
member of the committee. Senator Graham wanted me to make sure that the 
full statement was put in.
  What is involved here is whether or not we are going to abide by the 
Constitution because the Constitution is pretty clear on this subject 
of advice and consent. This little book right here contains the 
Constitution of the United States. In article II, section 2, clause 2, 
speaking of the President, it says this:

       He shall have Power, by and with the Advice and Consent of 
     the Senate, to make Treaties, provided two thirds of the 
     Senators present concur, and he shall nominate, and by and 
     with the Advice and Consent of the Senate--

  It goes on to say appoint judges. Now, that is what the Constitution 
says. The Founding Fathers knew what a supermajority vote was. They put 
that requirement in here, where it was necessary for treaties. It is 
very clear to anybody who reads it, and I think any constitutional 
scholar, that advice and consent means a vote up or down, a majority 
vote up or down.
  During the Clinton years, when Democrats were afraid the Republicans 
were going to filibuster their nominees, Democrat after Democrat got up 
and said we should not filibuster, vote up or down one way or another. 
If my colleagues do not like a judge, vote against him or her. A lot of 
those

[[Page S14770]]

quotes have been put in the record during this 40-hour debate. The fact 
is, when push comes to shove, when it becomes to their political 
advantage to stop people on the floor of the Senate, they start 
filibustering.
  This business of one-man filibusters, that is pure bunk. The fact is, 
everybody who came to the floor got a vote up or down. Now, there were 
a few on our side who wanted to filibuster some of those judges because 
they were so liberal, but I personally stood up in our conference and 
in our caucuses, as did Senator Lott, who was then the majority leader, 
and said that is not going to happen because that is constitutionally 
unsound. Plus, it is not right.
  But it has happened, as our colleagues on the other side have not 
been able to stop themselves from taking political advantage.
  Why are they doing this against these six people? I get a kick out of 
the use of 168 to 4. Today it is 6. What will it be tomorrow? I can 
tell my colleagues the number is going to go up continuously because 
they do not want anybody on these circuit courts of appeals who may be 
pro-life. That is what this is all about. It is about abortion. 
Otherwise, how could anyone find one fault with Priscilla Owen? I do 
not even know what her position is on abortion. I know that question is 
not asked by the White House or by us. I do not know what her position 
is.
  What fault can my colleagues find with a woman who was No. 1 on the 
bar exam in that State and who broke through the glass ceiling for 
women? Now, women are partners in law firms, where before they could 
not get secretarial jobs half the time. It was terrible what women went 
through. She was one of the people who broke through that problem. She 
won 84 percent of the vote in Texas, which is not particularly a 
Republican State, although it is fast becoming one looking at what is 
going on up here, just like Alabama is becoming a Republican State when 
they see the injustice and unfairness going on here.
  Priscilla Owen won 84 percent of the vote; every newspaper in that 
State ran editorials supporting her, and yet she is being treated like 
dirt here. Why? Because in a dissent she would have upheld the rights 
of a parent to have notification that those parents' child was about to 
have an abortion. Eighty-two percent of the American people believe 
that is the right thing to do. She was merely evaluating whether the 
lower court finder of fact in that parental notification case had made 
an error, and he hadn't, so she thought that the factfinding judge 
ought to be upheld. What is wrong with that?
  Going to Janice Rogers Brown, Janice Rogers Brown won 76 percent of 
the vote in her reelection, more than the leading liberal then on the 
California Supreme Court, Stanley Mosk. Mosk was a liberal voice on the 
court. He got 68 percent. Janice Brown got 76 percent. Now, I know if 
this was reversed and Mosk was the one who was nominated by a 
Democrat President, the Democrats would be arguing that he got 68 
percent of the vote and that we should just confirm him. And we, as 
Republicans, probably would if we concluded that he was competent, had 
a good temperament, was intelligent enough to do the job, was honest 
and a person of integrity, even though we disagree with him on many 
issues.

  My contention is that the fact that a person may be pro-life is 
irrelevant, or the fact that a person is pro-choice is irrelevant if 
that person is otherwise qualified for these Federal judgeships. If we 
get to the point where we stop people because of one litmus test issue, 
Katie bar the door, it is going to politicize the Federal judiciary in 
a way that never should happen.
  Janice Rogers Brown is the justice who wrote a majority of the 
majority opinions last year in the California Supreme Court. She also 
joined in unanimous opinions, I think around 73 times. There is no 
question she is in the mainstream. That just has become a bad 
redefining of terms by our friends on the other side. Since they do not 
have any real arguments against these people, they will say, well, they 
are outside the mainstream of American jurisprudence. Well, that is 
just pure bunk and everybody knows it.
  What about Carolyn Kuhl? Carolyn Kuhl has 100 of her fellow judges on 
the California Superior Court, Democrats and Republicans, vociferously 
supporting her as somebody who would make an excellent judge on the 
Ninth Circuit Court of Appeals, which has a tremendous imbalance. 
Senator Schumer is constantly talking about imbalance, that we should 
balance up the courts, liberals and conservatives being equal. Well, 
there are 17 Clinton and Carter nominees and judges on the ninth 
Circuit Court of Appeals. I believe there may be eight judges on that 
court nominated by Republican Presidents.

  If that is the case, if they really want balance, why oppose even 
voting on Carolyn Kuhl, one of the leading scholars in America? What do 
they hold against her? When she was a 28-year-old, a junior lawyer in 
the Department of Justice, doing the bidding of the then-President, 
Ronald Reagan, she actually helped write some of the briefs which she 
would do in the normal course of events--anyone would do, even if you 
do not agree, because that is your job--on some issues that our friends 
on the other side do not appreciate. Again, it comes down to abortion.
  I was talking to one of the leading civil rights ministers who during 
the 1960s was threatened every day. He was head of the ACLU in 
Mississippi, a liberal Democrat who has been in some of the Democrats' 
meetings, during which they've plotted their mistreatment of the 
President's nominees. He said to me: Senator Hatch, you are absolutely 
right--he is pro-choice, by the way, but he sees the injustice of this 
as he came out in support of the judge. He said: Senator Hatch, you are 
absolutely right, this is all about abortion.
  We do not know where these nominees stand on abortion, at least I 
don't. I have had discussions with all three of them and never asked 
the question. Whether pro-choice or pro-life is irrelevant if they are 
otherwise qualified to serve on the courts.
  What is being done to these three women we are going to vote on 
today? We are not voting on their right to be a judge, we are voting on 
cloture, on the right to go forward and have a vote up and down on 
these judges. For the first time in history, the absolute first time in 
history, we now have filibusters against six incredibly qualified, well 
qualified candidates.
  During the 8 years of the Clinton administration, time after time, 
the Democrats would say: We have a person who is qualified by the 
American Bar Association. That is the gold standard, the American gold 
standard. The imprimatur of the American Bar Association, that is all 
it takes. 377 Clinton nominees got through; one was rejected by a 
majority vote on the Senate floor. 377. Amazing how the statistics are 
distorting. This talk about 168--that was a hard fought battle on most 
of them. It was not at all simple to get them through. Democrats have 
politicized everything around here with regard to the judiciary. I 
would like to end that by having votes up and down on all judicial 
nominees.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. How much time is available to the Senator from Vermont?
  The PRESIDING OFFICER. The Senator from Vermont has 30 minutes, and 
that includes time for the Democratic leader.
  Mr. LEAHY. I obviously will not take that time.
  Again, in 29 years here, I have been accustomed to some hyperbole and 
some interesting changes of statistics and even quotes. I have great 
respect for my dear friend from Utah, but, man, he has hit the trifecta 
of the hyperbole in the out-of-context quotes.
  Of course, what he does not point out, when I spoke of filibusters on 
this floor, I was talking about the one-person anonymous hold 
filibuster on Sonia Sotomayor. It was only after a public outcry that 
she was allowed a vote and she had overwhelming support in this body--
not somebody who was almost 50-50 or 52-48, she had overwhelming 
support. But she was not allowed to get a vote. And even that took 2 
years of putting her life on hold. Editorial writers from the right to 
the left said: Give this woman a vote. This was a consensus candidate.
  We hear about all the ones who got votes. For some reason, there 
seems to be a reluctance by my friends on the other side to talk about 
the 63 who were never allowed votes. They were

[[Page S14771]]

blocked because one Republican would anonymously say no.
  I don't find the record of cooperation during the Clinton years to be 
anything to brag about. Sixty-three fine men and women were blocked and 
never given a vote. In fact, when President Bush took office, there was 
an unprecedented number of vacancies in a lot of the circuits. Why? As 
testimony before our committee showed, because the nominees were told 
by Republican Senators: We think you are great. We think you would make 
a good judge. But we have been told we are not allowed to move you 
forward, we are not allowed to give you a vote. We are not allowed to 
give you a hearing because someday there will be a Republican President 
and he will want to fill those vacancies.
  Notwithstanding that, when I was chairman, even though it pained me 
to do it, I allowed those vacancies to be filled by President Reagan's 
nominees, by President Bush's nominees, even though in testimony before 
our committee the nominees said they were told by Republicans they 
would never be allowed to have a vote.
  I don't hear the other side talk about the 63 who were given a one-
person filibuster, anonymously, whether they were judges from 
Pennsylvania, Ohio, Missouri, Michigan, or elsewhere. They were blocked 
by these one-person anonymous holds. Sometimes it was not too difficult 
to realize who the hold was because it was usually from their own 
State.
  Of course, there were many others. As the distinguished Senator from 
Utah has said in his own writings, the Democratic President would 
consult with him on different people and he would tell them no, do not 
even send this one up, they will not get a vote. So they never came 
forward. I guess on inaugural day that consultation stopped.
  We have confirmed 168 and held back 4. Is anyone going to tell me 
with a straight face that in the Bush administration, with all the 
promises they have made to the far right, there are not a whole lot of 
pro-life judges in here? Of course there are. Many have been very 
clear, saying they were pro-life, but I voted for them because I 
believed they could be fair, they would be judicious, they would follow 
the law, they would follow the precedence and not their personal 
inclinations.

  When I hear of the crocodile tears about Ms. Kuhl, saying she was a 
young person writing a memo for the Reagan administration, do not hold 
that against her--come on. She was not only writing a memo, she was a 
spear carrier for Bob Jones University.
  Now I know Bob Jones University is kind of a pet of the other side, 
but this is a university where the founder and philosophies are anti-
Catholic, anti-Mormon, anti-Black. Yet we are supposed to say, forget 
the fact she was anti-Catholic, anti-Mormon, anti-Black in her support 
of this, she was only doing her job. She was only doing her job.
  A lawyer has a right to follow their conscience. If a lawyer has a 
client and says: Go out there and take a position that really should 
not be sustained--in this case, a position on Bob Jones University--you 
ought to say: No, I quit. I quit. We have seen many instances of that 
in the past.
  Not counting the time for the leader, how much time remains to the 
Senator from Vermont?
  The PRESIDING OFFICER. Thirteen minutes.
  Mr. LEAHY. I yield 10 minutes to the distinguished Senator from 
California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I thank Senator Leahy for so many things. 
He has been so strong on this whole issue of making sure we do not put 
on the bench folks who are so outside the mainstream that they would 
set us back. Because you have a very strong position as a top Democrat, 
you have allowed to be approved 168 of George Bush's nominees.
  He has talked to us in depth, as well as other Members of the 
Judiciary Committee, about the four, up to now, who the Senator 
believes are far outside that mainstream. In order to protect the 
rights of our people, this is not some argument about a football game, 
that you are beating us 168 to 4. It is about protecting the people we 
represent, protecting their rights, protecting their health, making 
sure they are treated equally before the law. All the things that we as 
a great country, the greatest in the world, have given to our 
citizenry, could be overturned if we wind up having a court system that 
is radical and that moves away from those freedoms.
  So if nothing else, I hope people in America understand that the 
Republicans in the Senate are complaining because they did not get all 
of their President's nominees. So we have made the point over and over.
  Today, we are going to add two more, I believe, to this list and it 
will be 168 to 6, for a 97 percent success rate. Why are we doing that? 
Why do we think we are going to stop two of these candidates today--
actually, we have stopped a third before and we will do that again. 
Because they do not reflect the values of this country in their 
decisions. I could go over them one by one; I don't have the time to 
do that. And they would be dangerous.

  Here is the interesting thing. We have sitting in the committee two 
nominees who cleared the committee, Mark Filip and Gary Sharp, one from 
Illinois, one from New York, and all you have to do is bring those out. 
They have full support. You will be back up to 98 percent before the 
day's end.
  I say to my friends, I do not deserve to be a Senator if I do not 
exercise the power our Founders gave us explicitly in the Constitution, 
the power of advice and consent. It does not say sometimes advice and 
consent. It does not say maybe advice and consent. It does not say if 
you feel like it. It does not say if there is a Democrat in power or 
Republican. It says the Senate has the power to advise and consent. 
This does not mean rolling over for any Member.
  That is the key point. Do the people of America want a rubberstamp 
Senate or do they really want Senators who take their responsibility 
seriously and look at each nominee seriously?
  The power we were given is a very important power. I will explain 
that to the people of my State. If they want a Senator who will be a 
rubberstamp for a President of either party, they need to think long 
and hard about Senator Boxer because I am not their girl. I am not 
going to do that. That is not why I am here.
  So anyone reading the Constitution knows that Senator Leahy and 
members of the Judiciary Committee--and I see the Senator from Illinois 
here--they are just doing their job.
  The Republicans have spoken almost 40 hours. I lost track after 30 
hours. They are telling us essentially: Don't do your job; be a 
rubberstamp. We are not going down that path.
  I am happy to yield.
  Mr. DURBIN. I know we are coming to the breathless close of this 
wonderful marathon, this made-for-TV filibuster.
  I ask the Senator through the Chair the following question: Is the 
Senator aware in the early hours this morning Republican Senators from 
Kansas and Pennsylvania came before the Senate and raised the question 
of whether the Constitution includes the right to privacy? According to 
the Senator from Kansas, he referred to it as the discovered right of 
privacy in the Constitution.
  I would like to ask through the Chair if the Senator from California 
could reflect on the right to privacy, particularly as it relates to 
one anomaly from her State, Carolyn Kuhl.
  Mrs. BOXER. Absolutely. I will show the number of women's 
organizations who oppose Carolyn Kuhl. I am glad the Senator raised 
this question.
  It is particularly interesting that today we have three women before 
the Senate. I say to my colleagues from both sides of the aisle, as a 
woman who has been in public life, actually elected to my first office 
in 1976, making sure that women have an equal opportunity, making sure 
that women move into positions of leadership has been one of the 
hallmarks of my career.
  Now we hear people on the other side saying anyone who votes against 
these women is not in favor of women.
  Let me state from the bottom of my heart--and I will get to that 
issue of privacy--the worst thing that can happen to the women of this 
country--to your daughters, to your nieces, to your aunts, to your 
grandmothers, for that matter, to your moms--the worst thing is to have 
a woman in power who rules against the interests of women. Carolyn Kuhl 
is one such woman. Janice Brown is one such woman. And Priscilla Owen. 
And those are the three

[[Page S14772]]

who come before the Senate today in a package. Each of them, if you 
look at their decisions, has been hostile to women.

  I will talk about the Carolyn Kuhl case. Before Carolyn Kuhl, as a 
sitting State judge, comes a case in which a woman is explaining that 
she went to a physician for a followup mastectomy examination, a very 
humiliating, difficult, painful moment for that woman. That woman has 
written us and her story is in the Record. I have placed it in the 
Record.
  The woman simply said to Judge Kuhl: My privacy was violated because 
I went to my doctor and the doctor allowed in the room a drug salesman. 
The doctor did not ask me, the doctor never told me.
  This drug salesman was leaning over the table, was fanning this woman 
with a fan, was involved in this intimate exam.
  Every woman in this country knows that if that happened to them, they 
would be humiliated beyond belief. This woman had the courage to sue. 
Carolyn Kuhl ruled against the woman, and the excuse is, she allowed 
the case against the doctor to go forward. Untrue. That particular case 
never was before her. The issue was breach of privacy. She ruled 
against the woman. Carolyn Kuhl had to write an apology to the 
committee for misstating what actually had happened.
  Mr. LEAHY. Will the Senator yield?
  Mrs. BOXER. Yes.
  Mr. LEAHY. In other words, under this ruling, if the doctor had 
invited his auto mechanic because he might like to watch breast exams, 
put him in a white coat, it would be the patient's fault for saying: By 
the way, is this another doctor? Is this your auto mechanic?
  Mrs. BOXER. My friend is right.
  Mr. LEAHY. Frankly, I would hope I could say to my wife or my 
daughters, there would be a right of privacy issue here. For those who 
say there is no privacy in a case such as this, they have never been in 
a doctor's office for an examination.
  I yield back to the Senator from California.
  Mrs. BOXER. Let me say that, fortunately, her decision was overruled 
unanimously by the State appellate court. This is the State appellate 
court. There are lots of Republicans on that court. They saw this was a 
terrible decision.
  Here is the list of women's groups against the nomination of Carolyn 
Kuhl. It includes Breast Cancer Action, Breast Cancer Fund--on and on--
Women's Leadership Alliance. And the same list--actually a few 
different names, for Janice Brown and for Priscilla Owen. These women 
do not care about women advancing. They have not cared about the equal 
rights of women.
  Let's have some backbone here and stand up when we think these 
nominees are good for the people and oppose them when we know they have 
been bad for the people and they will do worse yet.
  The PRESIDING OFFICER (Mr. Smith). The Senator's time has expired.
  Who seeks time?
  Mr. LEAHY. Mr. President, what is the time remaining?
  The PRESIDING OFFICER. The Senator from Vermont has 2 minutes 13 
seconds; the Senator from Utah has 8 minutes 12 seconds.
  Mr. LEAHY. Well, and there is time reserved for the two leaders?
  The PRESIDING OFFICER. There are 10 minutes each for the majority 
leader and the minority leader.
  Mr. LEAHY. Mr. President, over these past 24 hours, the American 
public has heard a lot of what one could generously describe as wishful 
thinking from the other side of the aisle about the history of the 
Senate in considering nominations, especially recent history of 
Republican obstruction when a Democrat was in the White House. Their 
efforts to re-write American history and the history of this Senate 
remind me of the old Soviet Union, re-writing its history books to suit 
the ruling party and erasing photos that would reveal inconvenient 
facts. Their misleading and wrong assertions have been made over and 
over and over again, perhaps in the hope that repetition would turn 
those falsehoods into fact. I think it is important for posterity to 
set the record straight.

  Last night, echoing Republican press conference, Republicans took to 
the floor to claim that no judicial nominee had ever been filibustered 
or blocked from getting a confirmation vote in the history of the 
Senate. They made these assertions repeatedly while pointing to signs 
with the number zero printed on them. They refused to acknowledge that 
any judicial nominee has ever been filibustered, that any has ever been 
denied a confirmation vote, that any nominee for even a short-term 
position has ever been filibustered on the floor or filibustered in 
Committee. The repeated the party line from GOPUSA that ``no federal 
judicial nominee by the past 42 presidents has been filibustered in the 
history of the U.S. Senate dating back to 1784.'' I ask unanimous 
consent to place the following excerpt from the New York Times from 
1968 into the Record about the filibuster in the Senate over the 
nomination of Justice Abe Fortas to be Chief Justice of the Supreme 
Court, a letter signed by more than 60 law professors from across the 
country in support of the use of the filibuster of judicial nominees, 
and an important and outstanding letter from Professor Michael Gerhardt 
which thoroughly addresses the specious arguments being made about the 
use of the filibuster under our Constitution. I hope that this evidence 
would cause some of my colleagues to reconsider some of the false and 
misleading statements made by my colleagues on the other side of the 
aisle. One can always hope.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the New York Times, Sept. 25, 1968]

                   Precedent for Judicial Filibusters

        Critics of Fortas Begin Filibuster, Citing ``Propriety''


   Griffin Attack Lasts 3 Hours--Mansfield Backs Justice, but Scores 
Lecture Fee.
                                  ____


                                                     May 16, 2003.
     Hon. Bill Frist and Tom Daschle,
     U.S. Capitol,
     Washington, DC.
       Dear Senators Frist and Daschle: As law professors, we 
     write to express our opinion that the Senate's use of the 
     filibuster with respect to both legislation and nominations 
     is constitutional. Both the text of the Constitution and 
     historical practices strongly support the constitutionality 
     of the filibuster. Article I, Section 5 expressly provides, 
     ``Each House may determine the Rules of its Proceedings.'' 
     Article I, Section 5 plainly authorizes the Senate to make 
     procedural rules. It empowers the Senate as well to delegate 
     what is sometimes final authority over the fate of 
     legislation and nominations to committees and their chairs. 
     The textual authority for the filibuster is precisely the 
     same as those for these other measures. If these measures are 
     constitutional, then so too is the filibuster.
       The Supreme Court has repeatedly emphasized the relevance 
     of historical practices for determining constitutionality. 
     The filibuster, understood as protracted debate precluding 
     final Senate consideration of a legislative matter, began 
     early in the history of the Republic. It has been used 
     frequently by senators from both parties with respect to 
     nominations as well as legislation. In fact, it has been used 
     effectively to defeat presidential nominations, including the 
     nominations of Abe Fortas to be Chief Justice of the United 
     States in 1968, Sam Brown to be Ambassador in 1994, and Henry 
     Foster to be Surgeon General in 1995. This longstanding 
     historical practice weighs heavily in support of the 
     filibuster's constitutionality.
       The filibuster reflects the Senate's longstanding respect 
     for minority views and underscores the unique role of the 
     Senate as a part of American democracy. It has the salutary 
     effect of giving an incentive to all sides to seek compromise 
     on issues where points of view are sharply divided. With 
     regard to nominations to an independent branch of government 
     such as the judiciary, the filibuster encourages the 
     President to find common ground with the Senate by nominating 
     individuals who can garner consensus.
       For these and other reasons, we conclude the filibuster is 
     constitutional.
           Very truly yours,
           (Signed by 60 Law Professors).
                                  ____

                                      University of North Carolina


                                                School of Law,

                                                November 10, 2003.
     Hon. Patrick Leahy,
     Dirksen Senate Office Building,
     Washington, DC.
       Dear Senator Leahy: I understand that this week the 
     Republican leadership will be coordinating thirty hours of 
     debate about the legitimacy of the recent filibusters against 
     three of President Bush's judicial nominees. To assist you 
     (and the Senate) in this debate, I have taken the liberty of 
     providing below a revised version of my testimony earlier 
     this summer on behalf of the filibuster. The revised 
     testimony reflects my thinking and research on the subject 
     since my testimony in May and June. My continued thinking and 
     research on the filibuster

[[Page S14773]]

     have clarified further the solid constitutional foundations 
     for filibustering judicial nominations. My hope is that this 
     revised testimony may help to set the record straight on the 
     Senate's longstanding commitments to allowing the filibuster 
     (against all kinds of nominations) and to amending its rules 
     in accordance with its rules.


                           executive summary

       The filibuster derives its authority from the Senate's 
     express power to design its own procedural rules to govern 
     its internal affairs and the Senate's consistent support for 
     its legitimacy. It is also one of many counter-majoritarian 
     features of the Senate, including the committee system and 
     unanimous consent requirements. If these practices are 
     constitutional, then so too is the filibuster.
       While there have been many criticisms directed against the 
     filibuster in recent months, none has merit, in my opinion. 
     First, the most popular arguments against the filibuster are 
     circular, i.e., they simply assume their conclusion. The 
     arguments presume that some constitutional principle, such as 
     majority rule or anti-entrenchment, trumps the filibuster. 
     Then, operating from this premise, they set out to 
     demonstrate flaws in the arguments of the defenders of the 
     filibuster. Yet, exposing flaws in the other side's arguments 
     does not make an affirmative case for a constitutional 
     principle of majority rule or anti-entrenchment; it merely 
     shows imperfections in the defense of the filibuster. The 
     absence of support for the other side does not establish the 
     legitimacy of the case against the filibuster. Those 
     maintaining that the filibuster is illegitimate must show the 
     constitutional foundations for the principles on which they 
     are relying. Second, the arguments against the filibuster--
     e.g., it violates majority rule--cannot be squared with the 
     constitutional structure as it was designed or has evolved. 
     Third, Article I of the Constitution contains no explicit or 
     implicit anti-entrenchment principle that would preclude the 
     Senate from adopting, for the sake of institutional 
     stability and order, certain procedural rules that carry 
     over from one session to the next and may only be altered 
     with super-majority approval. In fact, entrenchment is far 
     more consistent with our constitutional structure than 
     anti-entrenchment is. Entrenchment is much more the rule 
     rather than the exception in the legislative process. Even 
     legislative bodies such as the House that formally 
     reconstitute themselves as the outset of each new session 
     have pre-set agendas in place prior to any vote as to how 
     they should proceed to reconstitute themselves, what they 
     should do once they have formally reconstituted 
     themselves, the committees to which members need to be 
     assigned, how those assignments may take place, the 
     jurisdictions of those committees, and even the rules they 
     may select under which to operate. Moreover, given that 
     only a third of the Senate is up for re-election at any 
     one time, there is no ``new'' majority that comes into 
     power at the outset of a session who can credibly claim 
     any entitlement to vote on the rules under which it would 
     be operating throughout the session.
       The filibuster is best understood as a classic example of a 
     non-reviewable, legislative constitutional judgment. It is a 
     practice that has the same claim to legitimacy as many 
     countermajoritarian practices within the Senate, including 
     the committee structure and unanimous consent requirements. 
     The Constitution permits all of these practices, but it does 
     not mandate any of them. These practices define the Senate's 
     uniqueness as a political institution, particularly its 
     historic commitments to various objectives--respecting the 
     equality of its membership and to minority viewpoints; 
     encouraging compromise on especially divisive matters; and 
     facilitating stability, order, and collegiality in the long 
     run. The principal checks on these practices, including the 
     filibuster, are political. They include the Senate Rules, the 
     need to maintain collegiality within the institution, and the 
     political accountability of senators for their support for, 
     or opposition to, filibusters.


                                   I.

       Neither the Constitution nor the Senate Rules expressly 
     mention, or mandate, the filibuster. Nevertheless, the best 
     starting place for understanding the authority for the 
     filibuster is Article I of the Constitution, which governs 
     and defines the powers of the Congress. In Article I, section 
     5, the Constitution provides, ``Each House [of the Congress] 
     may determine the Rules of its Proceedings.'' This section 
     plainly authorizes the Senate to make procedural rules, 
     including but not limited to the length of debate in the 
     Senate. This section further authorizes the Senate to 
     delegate official responsibility to smaller units (and even 
     individual members) within the Senate. Many of these 
     delegations allow committees and their Chairs to have what is 
     sometimes final say over the fates of legislation and 
     nominations. This same authority provides the support for 
     many informal senatorial practices such as senatorial 
     courtesy--in which individual senators may make 
     recommendations to the President on the people whom he should 
     nominate to federal offices in their respective states--as 
     well as the blue-slip process that has traditionally allowed 
     individual senators with the means by which to nullify 
     nominations to judgeships within their respective states. In 
     addition, a single senator may place a ``hold'' on 
     legislation or a nomination, postponing consideration to a 
     later date. The filibuster derives its legitimacy from the 
     same authority that allows for each of these other 
     legislative practices--Article I, Section 5, which empowers 
     the Senate to implement procedural rules, including the 
     specific rule governing the procedure for cloture, Rule XXII. 
     If these practices are constitutional, then so too is the 
     filibuster.
       The other, possible authority for the filibuster is 
     historical practices. The filibuster has been employed, in 
     one form or another, as extended debate in the Senate 
     throughout the history of the Senate. In fact, ``the 
     strategic use of delay in debate is as old as the Senate 
     itself. The first recorded episode of dilatory debate 
     occurred in 1790, when senators from Virginia and South 
     Carolina filibustered to prevent the location of the first 
     Congress in Philadelphia.'' While the First Congress allowed 
     a so-called motion for the previous question which could 
     not be debated, its name was misleading. In practice, 
     ``the previous question motion was seldom used before the 
     Senate abolished it in 1806;'' and it rarely succeeded in 
     silencing those senators determined to continue the 
     debate. Instead, the motion tended, once made, to end 
     debate by requiring the removal of the matter being 
     debated from the Senate agenda. Thus, it did not force a 
     vote but rather forced the Senate to move onto other 
     business. Moreover, the availability of this motion did 
     not prevent the Senate from continuing to permit 
     protracted debate to delay floor votes. The eminent 
     biographer Robert Caro explains the history of the 
     filibuster subsequent to the abolition of the previous 
     question motion:
       ``For many years after 1806--for 111 years, to be precise--
     the only way a senator could be made to stop talking so that 
     a vote could be taken on a proposed measure was if there were 
     unanimous consent that he do so, an obvious impossibility. 
     And there took place therefore so many `extended discussions' 
     of measures to keep them from coming to a vote that the 
     device got a name, `filibuster,' from the Dutch vrijbuiter, 
     which means `freebooter' or `pirate,' and which passed into 
     the Spanish as filibustero, because the sleek, swift ship 
     used by the Caribbean pirates was called filibote, and into 
     legislative parlance because the device was, after all, a 
     pirating, or highjacking, of the very heart of the 
     legislative process.''
       In other words, the practice in the Senate from 1806 until 
     1917 allowed the smallest minority possible with the Senate--
     a single senator--to bar a floor vote on any legislative 
     matter by engaging in an extended speech. During this period, 
     every floor vote required unanimous consent.
       The Senate first, formally curbed the practice of endless 
     debate in 1917, after eleven senators had successfully 
     filibustered President Woodrow Wilson's proposal to arm 
     American merchantmen against German submarine attacks. At 
     President Wilson's urging, the Senate passed Rule XXII, which 
     allows debate upon a ``pending'' matter to be terminated 
     when, after a petition for such ``cloture'' was presented by 
     sixteen senators and approved by two-thirds of the senators 
     present and voting. In subsequent years, senators from both 
     parties have used the filibuster to block a floor vote on a 
     wide range of legislation. From 1917 until 2000, cloture was 
     invoked 193 times out of the 545 times it was attempted. 
     During the period from 1927 through 1962, the Senate did not 
     invoke cloture once. In this period, conservative senators 
     repeatedly used the filibuster to block civil rights 
     legislation, provoking liberal senators to denounce the 
     filibuster as illegitimate and conservative senators to 
     defend it. In the late 1960s and early 1970s, conservatives 
     and liberals switched positions on the filibuster: Liberal 
     senators used the filibuster to block centerpieces of 
     President Nixon's social and economic agenda while many 
     conservative senators questioned its legitimacy. After Bill 
     Clinton became president, a series of Republican filibusters 
     blocked by aspects of his legislative agenda, including a 
     comprehensive bill providing for national health care reform. 
     Nevertheless, the filibuster has endured, with the most 
     recent reform occurring in 985 when a super-majority within 
     the Senate approved an amendment to Rule XXII requiring only 
     three-fifths, rather than two-thirds, of the Senate as the 
     requisite number to invoke cloture.
       Throughout the long history of its deployment in the 
     Senate, the filibuster has not been restricted to delaying 
     floor votes only on legislation. It has been often used to 
     thwart presidential nominations. The first, recorded instance 
     in which it was clearly and unambiguously employed to defeat 
     a judicial nomination occurred in 1881. At the time, 
     Republicans held a majority of the seats in the Senate but 
     were unable to end the filibuster, which had been employed 
     near the end of the legislative session, the preclude a floor 
     vote on President Rutherford B. Hayes' nomination of Stanley 
     Matthews to the Supreme Court. Though Matthews eventually 
     served as an Associate Justice, it was only because Hayes' 
     Republican successor, President James Garfield, re-nominated 
     Matthews in the next legislative session. (There were also 
     nine other occasions in the nineteenth century when the 
     Senate held no floor votes on Supreme Court nominations.) A 
     recent Congressional Research Service study shows that from 
     1949 through 2002, senators have employed the filibuster 
     against 35 presidential nominations, on 21 of which senators 
     had sought and invoked cloture. 17 of the 35 nominations 
     filibustered were to Article III

[[Page S14774]]

     courts. All 21 nominations on which cloture was invoked were 
     eventually confirmed. Of the 14 nominations on which cloture 
     was sought but not invoked, 11 were eventually confirmed. For 
     instance, Republican senators filibustered President 
     Clinton's nominations of Walter Dellinger to head the Office 
     of Legal Counsel in the Justice Department and Janet 
     Napolitano to be U.S. Attorney for Arizona, but eventually 
     the Senate confirmed both nominees--Dellinger after 
     Republican senators relinquished their opposition to his 
     nomination and Napolitano after the Senate voted 72-26 on a 
     cloture motion to end the filibuster against her nomination. 
     Four of the 35 filibustered nominations failed altogether--
     then-Associate Justice Abe Fortas to be Chief Justice and 
     Judge Homer Thornberry to be an Associate Justice in 1968, 
     Sam Brown to be Ambassador in 1994, and Dr. Henry Foster to 
     be Surgeon General in 1995. Other nominations have failed 
     without having been formally filibustered, as Senator Jesse 
     Helms' threat of a filibuster nullified President Clinton's 
     intention to nominate then-Assistant Attorney General Walter 
     Dellinger as Solicitor General. Another dramatic use of the 
     filibuster occurred when Republican senators filibustered 
     five of President Clinton's nominations to the State 
     Department in order to gain leverage in a dispute over 
     whether the State Department adequately investigated 
     allegations that a former Clinton campaign worker who later 
     served in the department had improperly searched the records 
     of 160 former political appointees and publicly disclosed the 
     contents of two of the files. As John McGinnis and Michael 
     Rappaport concluded in their extended study of the 
     Constitution's super-majority voting requirements, ``the 
     continuous use of filibusters since the early Republic 
     provides compelling support for their constitutionality.

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LEAHY. I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I am highly offended, and I think anybody 
who is fairminded would be highly offended by this one-sided, partisan 
attack on Judge Kuhl, and bringing up that particular case because 
everybody knows that case was settled by the woman's doctor, the one 
who was at fault. And, frankly, that was hitting below the belt.
  Carolyn Kuhl, she is a pioneer for women: cum laude graduate of 
Princeton University; Duke University Law School: Order of the Coif; 
law clerk to then-Judge Anthony Kennedy of the Ninth Circuit.
  She worked at the Department of Justice: Special assistant to the 
Attorney General; Deputy Assistant Attorney General; Deputy Solicitor 
General.
  She was 28 years old when she was asked to work on the Bob Jones 
case. I think it is slanderous to say that Republicans support Bob 
Jones University's attitudes about race. Give me a break. Nobody on 
this side does, and neither did she. The case she worked on was a tax 
issue, and she had an obligation to work with her senior people in the 
Department. She was very junior at the time. And, frankly, they had a 
reasonable argument about a certain IRS tax exemption relevant to 
private universities.
  She was a partner in the Los Angeles firm of Munger, Tolles & Olson, 
one of the best law firms in the country. She is the first female 
supervising judge of the Civil Department of the Los Angeles County 
Superior Court.
  This is a woman of tremendous abilities. They pick one case out of 
the hundreds or thousands she has heard and tried, and then distort 
that case. It drives you nuts around here.
  ``Both Democrats and Republicans . . . step up to the plate to 
support [Judge] Kuhl.'' This is Vilma Martinez--not known for 
conservative politics, by the way--who is one of the top leaders in the 
Mexican American Legal Defense and Education Foundation, if I recall it 
correctly. In the Daily Journal this is what Vilma Martinez had to say:

       [Judge Kuhl] stepped up to the plate. She wrote letters, 
     made phone calls and exhorted her fellow Republicans to 
     confirm [Judge] Paez and other Clinton nominees.

  Judge Paez was a very controversial nominee. I know. I had to work it 
through to even give him a chance. But he got a vote up and down. And, 
unfortunately, some of my colleagues who were against him were right. 
He has become a very activist judge on the Ninth Circuit Court of 
Appeals, just stepping right in and becoming a member of the leftist 
majority on that court.
  Vilma Martinez, this Hispanic-American leader, says:

       [Judge Kuhl's efforts are] characteristic of her sense of 
     fairness and respect for an independent judiciary.

  She goes on to say:

       [M]any of the groups that support Judge Paez, ironically, 
     have turned their fire on Judge Kuhl, apparently to exact 
     payback against Senate Republicans.

  If you listen to those arguments, it is easy to conclude that.
  Then, in the bottom paragraph, Vilma Martinez says this--and Vilma 
Martinez is a Democrat, not a Republican--she says:

       This turnabout is not fair play. It is the continuation of 
     a vicious cycle that punishes worthy judicial candidates in a 
     misguided effort to use the judiciary to further narrow 
     political ends.

  That is the type of stuff we are dealing with around here: 
distortions, distortions of the facts, maligning absolutely qualified 
people. Look at this. Carolyn Kuhl has the support of pro-choice women. 
Anne Egerton, judge on the LA Superior Court:

       I understand that some have raised concerns about Judge 
     Kuhl's commitment to gender equality and reproductive rights. 
     I do not share those concerns. . . . I have been a registered 
     Democrat for thirty years, and I have supported--financially 
     and otherwise--[Senator Feinstein], Senator Boxer, and other 
     Democratic legislators and candidates. I have no 
     reservations in recommending Judge Carolyn Kuhl . . . for 
     appointment to the Ninth Circuit Court of Appeals.

  Take Gretchen Nelson, pro-choice Democrat, plaintiff's attorney. On 
February 14 she had this to say:

       I am opposed to the appointment of any judicial nominee who 
     is incapable of ruling based upon a considered and impartial 
     analysis of all of the facts and legal issues presented in 
     any manner. Judge Kuhl is not such a nominee and she is well-
     deserving of appointment to the Ninth Circuit.

  Let's quit slandering these people. Let's quit distorting the facts. 
All because you think they might be pro-life.
  My gosh, look at the women judges who support Judge Kuhl's 
confirmation. A bipartisan group of 23 women judges at the Los Angeles 
Superior Court, on February 22, said this:

       Judge Kuhl approaches her job with respect for the law and 
     not a political agenda. Judge Kuhl has been a mentor to new 
     women judges. . . . She has helped promote the careers of 
     women, both Republican and Democrat. . . . As sitting Judges, 
     we more than anyone appreciate the importance of an 
     independent, fair-minded and principled judiciary. We believe 
     that Carolyn Kuhl represents the best values of such a 
     judiciary.

  Let's get this out of this totally slanderous political debate and 
start talking about the real facts.
  Democrats on this Floor have tried to confuse the issue, to pretend 
that what they are doing is no different than what happened to some of 
President Clinton's nominees. But they are dead wrong. They are 
comparing apples to oranges. They are different. We did not filibuster 
a single Clinton nominee who had majority support. Once on the floor, 
all of them received up or down votes. 377 confirmed for Clinton. 
Despite the Democrats, not because of them, we have confirmed 168 Bush 
nominees.
  One Senator went so far as to call the four filibustered nominees, as 
of yesterday, lemons, if you can believe it, when all of them have well 
qualified ratings from the American Bar Association.
  Look at the facts. President Bush has had 29 circuit court of appeals 
nominees confirmed, but another 12 of them, at least, are facing 
filibusters. I believe that number is really higher, about 17. It is an 
amazing, unprecedented series of filibusters of appellate nominees, 
what we are going through, and there are more to come.
  Let me get the last chart up there. The real facts are that since we 
have had the filibuster rule, since the administration of Franklin 
Delano Roosevelt, we have had 2,372 judges confirmed and zero 
filibustered--until now.
  Now, it is one thing to filibuster, it is another thing to slander 
these people. I have seen so much of that over the last 2 or 3 years 
that I am just sick of it. I am just sick of it.
  Let's give these people votes up and down. The reason they will not 
is they know there are enough good-thinking people in this Senate on 
both sides who would--for all of these six people who are being 
filibustered--confirm them on a bipartisan majority.
  So a tyrannical minority--which is in so many ways slandering these 
people, these honest, decent, good people--is preventing votes up and 
down on judicial nominees for the first time in the history of this 
country.

[[Page S14775]]

  Mr. President, how much time do I have left?
  The PRESIDING OFFICER. The Senator has 1 minute 15 seconds.
  Mr. HATCH. I yield it to the distinguished Senator from Pennsylvania.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I plead with the Members on the other 
side of the aisle to stop this. I have folks on our side of the aisle 
saying: Don't plead with them. Don't plead with them. Let them do it. 
Because we will have our opportunity someday, and we will make sure 
there is not another liberal judge ever, ever, to get on that--no more 
Richard Paezes, no more Ruth Bader Ginsburgs--never, because what is 
good for the goose is good for the gander. Let them up the ante. We 
will take all those activist judges they send up and we will shoot them 
down.
  Is that what they want? Anybody who gives a political opinion in 
America no longer will be eligible for the judiciary. We are going to 
sanitize the judiciary? We are going to send it to ``Mediocrityville''? 
Is that what we really want here?
  Because let me assure you, as I live and breathe, that is what will 
happen. If we keep this up--it is 4 today; it will be 6--in 2 hours it 
will be 6. The Senator from Utah said pretty soon it will be 12. Why it 
is only 4? Because you just started. You always start with 1.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SANTORUM. Stop now. You have a chance to save this country and 
this judiciary. Stop now.
  The PRESIDING OFFICER. The Democrat leader is recognized.
  Mr. DASCHLE. Mr. President, as I understand it, I have 10 minutes.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DASCHLE. I would ask the Presiding Officer if he could notify me 
when I have used all but 3 minutes.
  Mr. President, I find it remarkable that our colleagues can continue 
to come to the floor these past 40 hours and lament the fact that we 
have had votes on 172 judicial nominees and 4 of them have not been 
confirmed because they have not attained cloture. With passion and with 
emotion they scream out. Where is the fairness for those four nominees, 
they ask. Where is the fairness?
  I find it remarkable that some of the very people who lament not 
getting a vote for those 4 nominees were participants in the effort to 
deny even a hearing to 63 nominees for the bench during the Clinton 
administration. Don't talk to me about the unfairness of a cloture vote 
on the Senate floor. Don't talk to me about cloture. Don't talk to me 
until you talk about those 63 who waited, in some cases 4 years, and 
never got a hearing--or a committee vote.
  Denying consideration of judicial nominees is an ongoing practice 
that our Republican colleagues have been involved in for as long as 
they have been in the Senate. So this extraordinary outcry, this 
emotional fervor that we hear so often on the other side, with their 
misleading charts, does not bear up to the facts.
  You tell those 63 people who have not had even a chance for a vote, 
who should have been confirmed, how it is right for them now not to 
have the jobs for which they work were nominated--you tell them about 
the fairness of those four votes.
  We have done all we can to work with our colleagues to accommodate 
all nominees. We have now spent 40 hours talking about this matter. And 
we have actually spent over 20 days debating judicial nominations since 
the Bush administration has come to office, 20 days debating and 
largely confirming the nominees sent to us from the White House.
  From the beginning of these last 40 hours, our message was really 
very simple: We have confirmed 168 of the 172 nominees to date. We have 
worked with our colleagues on the other side to do as much as we can to 
ensure that they get a fair debate and ultimately an opportunity to be 
voted on, whether it is a cloture vote or an up-or-down vote on this 
Senate floor--unlike what they did on 63 occasions during the Clinton 
administration.
  What we have said over the course of these 40 hours, though, is that 
it is very unfortunate that while we are debating these four jobs, we 
are not debating what the American people care most about. We are not 
debating the fact that 3 million people have lost their jobs, or what 
to do about it. We are not debating the fact that we are not working on 
the things the American people care most about.
  Several times we spoke about the need to pass the highway bill, and 
our Republican colleagues ignored our concerns. Several times we spoke 
about the need to pass the manufacturing jobs credit bill; our 
Republican colleagues ignored our concerns. These are bills that could 
truly provide the opportunity for the unemployed in this country to 
actually acquire a good job and be a little more confident that they 
will have a brighter future.
  Several times we have asked for an increase in the minimum wage by 
unanimous consent so those who are working would get the pay they 
deserve.
  Republicans objected.
  We could have been spending our time a lot more effectively, a lot 
more in concert with the expectations of the American people, but that 
has not been the case.
  We will continue to work with our colleagues, and in those cases 
where we can find agreement, we will continue to confirm most of the 
Bush nominees. But that will not be the case this morning.
  We are now debating three justices who continue to insist on putting 
their own views above the law, to interpret law on their own and 
without regard to judicial precedent.
  As a result, virtually every single women's organization and every 
single civil rights organization in the country has urged the Senate, 
pleaded with all 100 Senators to reject these nominations.
  I am very grateful for the effort made by our Democratic colleagues 
on the Judiciary Committee who have put the time and effort they have 
into analyzing the record of these nominees and have concluded, as I 
have, that they do not warrant confirmation.
  Mr. President, there will come a day, once again, when we can find 
nominees for whom there can be agreement. But until that happens, until 
we have the confidence that we can look upon them with an expectation 
that they will uphold the law, interpret law and not write the law, we 
have no other recourse but to oppose their nominations, as we will this 
morning.
  I yield such time as he may require to the distinguished Senator from 
New York.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Thank you.
  Mr. President, I thank my colleague from South Dakota for once again 
being our leader in every way. We are grateful to him, and I think I 
speak for every Member on this side of the aisle.
  Mr. President, this debate ends as it began, with this one immutable 
fact: 168 to 4; 168 judges confirmed, 4 rejected.
  The other side has spent 39 hours trying to come up with other signs, 
trying to come up with other ways. In reality, this debate has actually 
helped our side because this fact stands out above all others.

  Are we being obstructionist when we approve 168 and reject 4? 
Everyone but the most extreme of Americans say absolutely not. Are we 
violating what the Founding Fathers wanted when they talked about 
advise and consent when we merely blocked 4, 2 percent of the 100 
percent of the judges brought up? Every seventh grader who studies 
constitutional law knows that 168 to 4 is not obstructionist.
  The bottom line is the other side has spent hours on sophistry, 
successful filibusters are wrong, but unsuccessful filibusters are OK 
because they engaged in filibusters on judicial candidates in 2000 and 
1994 and previously. Filibusters of judges are unconstitutional, but 
filibusters of statutes, of laws, of bills are perfectly OK. What 
sophistry.
  The bottom line is that the other side comes up first with the result 
and then tries to make the argument backward. I understand why. The 
small hard-right minority has a scorched earth policy in America. They 
have to get everything their way and then are pushing, pushing, pushing 
the other side. They are saying: Do something. But, frankly, because of 
the wisdom of the Founding Fathers, the Senate still is the cooling 
saucer, and there is nothing they can do.

[[Page S14776]]

  This debate has degenerated. To try and get this to be 172 to 0, 
there is name-calling: anti-Hispanic, anti-Black, anti-Catholic. We 
know what low and cheap shots those are. We are opposing judges based 
on their being out of the mainstream, judges who would make law, not 
interpret law. I don't like judges far left or far right who do that.
  Then last night we got from my good friend from Utah, whom I love, he 
says calling for rollcall votes was obstructionist. That is how absurd 
and how frustrated and how piqued the other side has been. Calling for 
rollcall votes on judges is obstructionist? I say to my colleagues, we 
on this side would have rather spent the time debating how to bring 
jobs back to America, how to bring health care to America, how to raise 
the minimum wage.
  But at the end of the day, this exercise, come up in the mind of a 
few, has ended up benefiting us, and there is one solution, I say to my 
good friend from Pennsylvania, who pleads earnestly----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SCHUMER. To stop this, and that is come talk to us, work with us 
in a bipartisan way, nominate judges both sides can support. Don't say 
my way or the highway and this will stop. But that is the only way to 
stop it.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, over the past 2 days, the Senate has 
sustained what has truly been an extraordinary, all-hours debate, a 
debate on judicial confirmations and on the very nature of each 
Senator's duty and right to give advice and consent on the nominations 
sent to us by the President of the United States, just as the 
Constitution requires.
  We have placed our differences over the last 39 hours, to paraphrase 
Justice Brandeis, in the disinfectant sunshine of public opinion. This 
continuous debate has been framed by the bipartisan effort on a very 
simple principle; and that is, give us an opportunity for an up vote or 
a down vote, just give us that right to vote.
  We have been focused on the Fifth Circuit Court nominee, Justice 
Priscilla Owen of Texas, who has already been denied that simple up-or-
down vote on three previous occasions. It has been focused on two new 
circuit court nominees from California, Judge Carolyn Kuhl, nominated 
to the Ninth Circuit Court of Appeals, and Janice Rogers Brown 
nominated to the DC Circuit Court of Appeals.
  We also debated the bipartisan proposal cosponsored by Democrat 
Senator Zell Miller of Georgia to limit the use of the filibuster as to 
all nominations, a proposal that I believe will change the all too 
rancorous way that Washington does business. Indeed, this proposal, 
although more narrow, was based on one previously supported by Senators 
Kennedy, Lieberman, Kerry, and other Democrats.
  The minority has suggested again and again--we heard it just a few 
minutes ago--that we should not have spent this time on this issue of 
the Constitution of the United States of America; that we should not 
have spent this time discussing the unfair treatment of the President's 
nominees. They argue that we should not have spent this time on these 
new judicial nominees that we will be voting on in cloture in just a 
few minutes.
  We simply don't believe that the Senate stewardship, our 
responsibility, that stewardship for the third branch of Government is 
the least of our duties, as is suggested that we should not be spending 
time focused on these issues.
  It is almost as if the other side of the aisle said these issues are 
not important. On the contrary, the Senate stewardship of the 
independent judiciary is perhaps the Senate's most important task. Why? 
Because it is our responsibility. It is not the responsibility of the 
House of Representatives.
  George Washington understood this. He believed the judiciary was the 
most important of the three branches because the courts would protect 
our liberties. But America's courts do much more than that.
  We heard a lot about the economy. We heard a lot about jobs. It is 
our independent judiciary that provides the anchor for America's 
economic strength. It is the stability, and it is the confidence that 
our courts provide that make the United States of America the safest 
location, the best location for domestic investment, for foreign 
investment, whether in industry or commerce, and for the overall 
economy. Why? Because the courts protect those liberties. That means, 
what? More jobs. It means more prosperity for all Americans.
  Our courts guard the rule of law, and to the extent they are free of 
results-oriented politics and other forms of corruption, they are the 
foundation stones that have allowed America's history to unfold 
differently than our sister republics to the south.

  In this past year, Americans have come to understand the influence of 
the courts over our everyday lives, over our daily lives, over our 
national culture in ways that our Founding Fathers would have never 
imagined.
  Of course, the Democrats' complaint that we are spending too much 
time on these issues is a little bit strained in that it is they who 
are filibustering, continuing to debate, denying that opportunity to 
vote yes or no on these nominees. The filibuster rule, when not abused, 
is intended to give the minority more time, to allow more time for 
debate.
  Despite the complaints and the charges back and forth, I do give my 
Democratic colleagues real credit for collegially joining in this 
debate over the last 39 hours. I am enormously proud of my Republican 
colleagues. I believe that both sides should feel a certain degree of 
satisfaction as to how this historic debate has been conducted.
  In the past 2 days, we have debated three nominees who the American 
Bar Association considers qualified to serve on the appellate court but 
who a Democrat minority considers out of the American mainstream. How 
many times have we heard that over the last 39 hours--``out of the 
mainstream.''
  I can tell you I don't think the minority has argued effectively or 
persuasively how Justice Owen, who was elected to the Texas Supreme 
Court by 83 percent of Texas voters, is out of the mainstream. Out of 
the mainstream, Justice Brown. Out of the mainstream when she was 
retained to serve by 76 percent of California voters? Is that out of 
the mainstream?
  They have certainly not convinced any fairminded person how it is 
that Judge Carolyn Kuhl--who has the support of over 100 California 
judges and labor unions across the political spectrum, and yes, even 
trial lawyers--cannot serve on that Ninth Circuit, that really 
worrisome Ninth Circuit Court that declared the Pledge of Allegiance 
unconstitutional.
  What we have seen, and the reason this debate is historic is that it 
underscores and it lets the American people know, as well as restates 
the importance of the issue, that over the past year, the minority has 
used the filibuster to deny a bipartisan majority the opportunity to 
vote up or down, to give advice and consent. Let me say that again.
  A minority, for the first time in history--it happened this year--for 
the first time in history, a minority in this body is using the 
filibuster to deny a bipartisan majority the opportunity to vote yes or 
no.
  It has come up that while majorities have delayed judges in the past 
through the majority's delegation to the Judiciary Committee, votes on 
judges have never before been blocked by a minority. Of course, this 
debate has been more than about Senate procedure. In effect, what we 
have seen over the last year is the minority is, in effect, amending 
the people's Constitution without the people's assent. The reason for 
this is now well know.
  Senate liberals have sought with increasing intensity to politicize 
not just the confirmation process, but the courts themselves. In 
pursuing this course, they are threatening the legitimacy of America's 
courts. That legitimacy comes from much more than just black robes or a 
high bench. It comes from the people's belief that judges will apply 
the law or the Constitution without regard to personal politics.
  Rather than seeking to determine the judiciousness of a nominee and 
whether a nominee will be able to rule without bias, liberal Democrats 
are out to guarantee that our judges are, in fact, biased against some 
and in favor of others. In America, with that result,

[[Page S14777]]

citizens will have to worry about the personal politics of the judge 
before whom they come for justice. I say judiciousness, why?
  Like other Senators this year faced with the question of what is 
required by the Constitution's mandate that the Senate give the 
President advice and consent, I have turned for guidance to the 
Founding Fathers and especially to the father of the independent 
judiciary, John Adams, to find that correct standard by which we give 
advice and consent on a judicial nominee.
  President Adams, the father of our independent judiciary, 
memorialized for us what the standards should be for confirming our 
judges. He wrote that they should be ``men [and women] of experience on 
the laws, of exemplary morals, invincible patience, unruffled calmness, 
and indefatigable application who will be appointed for life and 
subservient to none.''
  President Adams understood well enough the challenge of being 
judicious despite one's opinions and even in the face of unpopular 
opinion. Few people remember it was John Adams who defended the British 
soldiers who, on March 5, 1770, shot into a crowd on the streets of 
Boston. Our children study this episode today as the Boston massacre. 
It is a history lesson we can learn from in our work and on judicial 
nominations.
  John Adams defended the British soldiers before a Boston court with 
angry mobs in the street.
  I will close in a second. I will speak on leader time for the next 
minute.
  I have to wonder, Mr. President, if today John Adams would be 
obstructed by filibuster because an out-of-touch minority, urged on by 
special interest groups, questions John Adams' qualifications based on 
his past advocacy simply for being a good lawyer defending a client, 
however politically unpopular.
  In a few minutes, the filibustering minority will have another 
opportunity to stand in the light of the Senate floor and do the right 
thing. I say to the minority: Give these nominees a vote. Vote them up 
or vote them down, but just give them an honest up-or-down vote.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I will use leader time first to engage in 
a brief colloquy with the distinguished majority leader with regard to 
the schedule for the remainder of the day. I wonder if he can inform us 
as to what his intentions are with regard to schedule.
  Mr. FRIST. Mr. President, I will be happy to talk during the votes 
with the leadership on the other side. My intent would be to have these 
three consecutive cloture votes and then after that have no other votes 
today. Before saying that with definitiveness, I would like to have a 
discussion with the minority leader, if there is other business he 
would like to bring to the floor as well.
  We likely will have other business following that. Again, I expect no 
rollcall votes after these three votes.
  Mr. DASCHLE. I thank the majority leader.
  Mr. President, I also note at the end of this period of time, we have 
been here now for about 40 hours. It is probably not accurate to say we 
have all been here for 40 hours. Some of us had the luxury of coming 
and going, but there have been a lot of staff on the Senate floor, in 
our cloakrooms, in the Sergeant at Arms Office, our Capitol Police, all 
of our clerks--the extraordinary effort that they have made in these 
last 40 hours should be recognized.
  I know I speak for all of our colleagues on both sides of the aisle 
in expressing our heartfelt gratitude to all of them. Once again, they 
have exceeded our expectations, and we are grateful for their 
dedication and professionalism during these difficult days.
  I yield the floor.

                          ____________________