[Congressional Record Volume 149, Number 164 (Wednesday, November 12, 2003)]
[Senate]
[Pages S14787-S14790]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF J. LEON HOLMES

  Mr. PRYOR. Mr. President, I want to again remind this Senate and my 
colleagues on both sides of the aisle about one of the judicial 
nominees who happens to be from my State of Arkansas, Mr. Leon Holmes.
  Leon and I practiced law together in Little Rock for a few years in 
the late

[[Page S14788]]

1980s or early 1990s. He is a very fine person, a very fine man, and a 
very fine lawyer. I am proud to count him as a friend.
  Let me emphasis that Leon Holmes and I don't agree on every single 
issue. There is no doubt that there are some things he and I disagree 
on. But I am very respectful of his views because I know that he has 
arrived at those views through long consideration. He is a man of great 
integrity and great judgment. President Bush nominated him in January 
of this year to be a district judge for the Eastern District of 
Arkansas.
  Mr. Holmes is a practicing lawyer in Little Rock, and has been with a 
number of very prestigious law firms in his legal career. He is 
considered probably by most people one of the best lawyers in Arkansas, 
and certainly on certain types of cases would be considered among the 
best, if not the best. But at any rate, President Bush nominated him in 
January--if my memory is correct, January 25--and his nomination went 
to the Judiciary Committee. He came out of the Judiciary Committee on 
May 1.
  For over 6 months now, Mr. Holmes has been languishing on the 
Executive Calendar. I am troubled as to why he has been languishing 
like that. I have talked to the Republican leader many times, to the 
Republican chairman of the Judiciary many times, and I have talked to 
my colleagues many times. Both Senators from Arkansas are quite puzzled 
as to why. We have had 30-plus hours of filibuster led by the 
Republican Party on some of these judicial nominations, and here we 
have a nomination that we want to proceed on. We want to move forward 
on that today. To date, there has not been anything scheduled.


                       Unanimous Consent Request

  With that in mind, I would like to ask unanimous consent--I know that 
we will need a moment to allow someone to come out on the Senate 
floor--that at a time to be determined by the two leaders, the Senate 
proceed to executive session to consider Executive Calendar No. 165, 
the nomination of J. Leon Holmes of Arkansas to be U.S. district judge, 
that it be considered under the following time limitation: 5 hours for 
debate equally divided between the chairman and the ranking member, or 
their designees; that when the time is used or yielded, the Senate 
without any intervening action or debate vote on confirmation of the 
nomination; that the President be immediately notified of the Senate's 
action, and the Senate return to legislative session.
  The PRESIDING OFFICER. The Chair informs the Senator from Arkansas 
that the leaders are trying to work out an agreement to bring this 
nominee to the floor, and at the current time, unfortunately, I will 
have to object in my capacity as a Senator from Nevada.
  Mr. PRYOR. Thank you, Mr. President.
  I have worked for months on this nomination.
  Let me emphasis that Mr. Holmes was not my nomination. He is 
President Bush's nomination. I wasn't consulted in any form or fashion 
before the nomination was put forward. I wasn't brought into the loop 
at all. The nomination was handed to me. Unfortunately, I continue to 
work on this and for whatever reason my efforts seem to be falling on 
deaf ears on the Republican side.
  Mr. DASCHLE. Mr. President, will the Senator from Arkansas yield for 
just a moment?
  Mr. PRYOR. Absolutely.
  Mr. DASCHLE. Mr. President, I appreciate the request made by the 
distinguished Senator from Arkansas. This is a matter that he and his 
colleague from Arkansas, Senator Lincoln, have been involved in and 
supported for a long period of time. He and I have had a number of 
conversations.
  I want to make sure that the record is clear there will be no 
objection on this side to having votes on the nomination. We have had 
now 40 hours of debate where one Republican after another has come to 
the floor in an outcry that we haven't been able to have a vote on a 
judge, that we are denied the opportunity to have an up-or-down vote on 
a judge.
  As we have said on 168 occasions, let us have the up-or-down vote. 
This one would be the 169th.
  We are prepared this afternoon within the next hour to have a vote on 
the judge referenced by the distinguished Senator from Arkansas.
  I appreciate very much his request. I certainly understand his 
frustration after all of the outcry that we have heard from our 
colleagues on the other side. It is amazingly ironic after all of that 
on a nominee for which there is absolutely no objection to moving to. I 
will oppose the nominee. I will vote against the nominee when it is 
presented to the Senate, but there is certainly no opposition within 
our caucus.
  I want the record to be clear with regard to that point. Again, as I 
have on other occasions, I want to work with the majority leader for a 
very short time and have a vote. Let us have the vote. After all of 
this, you would think that the Republican caucus and the majority 
leader and others responsible for these decisions would jump at the 
chance of having a vote on the Holmes nomination.
  We are ready. We will certainly not object to a time limit or to 
ultimately have an up-or-down vote, as the Senator from Arkansas has 
proposed.
  Mr. PRYOR. Mr. President, I would like to reiterate what the minority 
leader has just said. There is no hold on the Democratic side on this 
nomination. All systems are go on this side. I have talked to my 
Democratic colleagues and we are ready to vote Mr. Holmes up or down.
  Quite frankly, I know on a personal level that Mr. Holmes is ready to 
be voted up or down.
  Again, thank you, Mr. President, for the time. I yield the remainder 
of my time. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, we have had a good 39 hours, I guess, of 
debate. It is great to see my friend from Texas here, Senator Cornyn, 
who served on the Texas Supreme Court and understands these issues and 
chairs the constitutional law subcommittee of the Judiciary Committee. 
I say it is good because we have had a very bad and very historic 
change in the procedures of the Senate.
  After all this debate, I think it is doubtful anyone could maintain 
today that in previous years we did not have filibusters. And I don't 
think anyone could doubt that we now have sustained filibusters as an 
organized, systematic way to change the number of votes necessary to 
confirm a President's nomination from a majority of 51 to 60 votes. 
This is a big deal. It is not a good deal. It is not good for the 
Senate. It changes the historic balance of power. It enhances of power 
of the Senate.
  Now the Senate can block a nomination with only 40 votes. It weakens 
the President, and it weakens the courts. It is a classical alteration 
of the balance of power established by our Founders when this country 
was created. It is not good. It was driven by politics. It is a further 
decline in civility and debate, and it is a greater increase in the 
influence of politics in the confirmation process. This Senate is not 
and should not be proud of what has occurred to date.
  I am glad it was brought about with some pain. I am glad it just 
didn't slide in a banal way without any thought. I am glad there are 
Senators who stayed here all night last night. I was here past 
midnight. Some stayed here all night because they wanted to be sure 
they were on record and Americans understood what we have done. I think 
it ought to be seared on our souls what occurred here. Every Member of 
this body needs to think about it. We need to realize that this was not 
lightly done. There is no doubt that in the spring after the election 
of President Bush, Democratic Senators met in retreat and they had a 
conference with some liberal law professors. And as the New York Times 
reported on that retreat, the Senators decided to change the ground 
rules for confirmation. We have absolutely seen that.
  We had nominees blocked in committee on a party-line vote in the 
Judiciary Committee when the Democrats had their brief period of 
majority. Jim Jeffords switched parties. We had

[[Page S14789]]

nominees not brought up for hearing in committee. And we had 
filibusters on the floor to a remarkable degree.
  I will just say that this is unhealthy. One of the things we had in 
the Judiciary Committee, in the courts subcommittee that I chaired and 
then Senator Schumer chaired after Jim Jeffords switched parties, and 
he began to have hearings on a number of things. He said the burden of 
proof should be on the nominee. That has not been the issue. So we had 
a hearing on the fact that the burden of proof should be on the 
nominee. We had a hearing that the Supreme Court was an extremist, 
activist, conservative court, which is so far from the truth, it is 
hard to believe it. That was the agenda of that.
  The third thing most threatening to us and to our classical 
understanding of law was a hearing to say: Well, politics is involved 
in everything. We ought to ask judges all about their ideology, their 
politics. That should be openly a part of the confirmation process.
  I felt so strongly against that. Lloyd Cutler, the White House 
counsel under President Carter and President Clinton, clearly and 
unequivocally rejected that. He said it would lead to the 
politicization of the courts. I practiced before Federal judges for 
nearly 15 years as a Federal prosecutor. I will just say that we have 
to believe--criminal defenders, civil litigants, prosecutors have to 
believe--that the judge who sits on their case will be able to set 
aside his or her personal political biases and ideas and beliefs, 
faithful beliefs, whatever; he will set them aside. When they go to 
that court, there will be a fair and objective trial, and they will be 
judged on the merits of the law and the facts and not what the judge 
thinks, not the politics of the judge.

  Lloyd Cutler was correct, as every other witness was who testified at 
that hearing. We do not need to politicize the courts. We are heading 
in that way.
  Senators are so political. They are driven so much by the special 
interest groups that they think and believe everything can be settled 
by political deal. They think courts operate that way. That is not the 
way they do. I practiced in court. You go to court. You offer to put 
evidence. Somebody objects. The judge reads the law, and he decides, 
well, if it meets the standard to come in or it is excluded. You don't 
admit half of it. It is either admitted or it is not admitted, as Judge 
Cornyn so ably knew, both as attorney general and as a member of the 
Texas Supreme Court. Those are things that go to the core of the 
heritage of law we have been given.
  The whole world knows that America and the British have a magnificent 
legal system. The average citizen can borrow $100,000, buy a house, a 
$200,000 house, pay it back at 6 percent interest over 30 years. The 
money, the guy who loaned them $100,000 can believe he is going to 
collect it. If he doesn't pay it, he can foreclose, and there are 
procedures, and he pays off the debts and gets out and gets himself 
paid off. That is why he can afford to loan the man the money at this 
incredibly low rate.
  You go to undeveloped countries around the world, and you see houses 
half built and you say: Why? They say, well, they saved up enough money 
to put up the walls and roof, but not enough for the insides. There is 
no way for them to borrow money. They don't have a legal system that 
works like ours. We need to cherish and protect the system.
  Investors come from all over the world to America because they 
believe if they have to go to court, they will get a fair shake even 
though they are a company from Japan or South Korea or Singapore or 
China or Germany or France. That is something we need to protect. We do 
not need to allow it to be politicized. We need judges who follow the 
law as written, who will not impose their personal agendas in the 
decisionmaking process.
  All of these things are matters that President Bush talked about in 
his election campaign. He believes them deeply. The American people 
share those beliefs by a substantial number. But they are not shared to 
the degree they should be by others in this Chamber who are blocking 
these nominations.
  I hope that somehow, some way, this filibuster procedure can end. I 
hope that somehow, some way, we can avoid the collision we are engaged 
in now, the obstruction and the delay we are facing today, and get on 
with the classical way we have always handled judicial nominations in 
America. It is just unfortunate.
  So it has been good that we have had a painful, tough 39 hours. A lot 
of things have been said. I hope that as we go forward, we can work our 
way through it. It may take litigation. It may take rules changes. It 
may take other things. I hope we will continue to back an independent 
judiciary of men and women of quality and integrity.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I express my gratitude to the Senator from 
Alabama for his leadership on these issues. He and I share an 
experience in common, having been attorneys general of our respective 
States, I in Texas and he in Alabama. I guess that experience, together 
with the fundamental values we have all come to believe in, ensconced 
in the Constitution, that elevate the rule of law over the political 
maneuverings of men and women, is something about which we feel very 
strongly. I know he does, and I appreciate his eloquence and his 
passion and his commitment to those values and that ideal.
  I know after this lengthy debate there will be those who will want to 
make a judgment on who won and who lost. That is what I want to talk 
about for a few minutes because, frankly, I think the battle is not 
over. With the failure to achieve the necessary votes for cloture of 
these three nominees this morning, three highly qualified and 
distinguished individuals who, frankly, don't deserve the shabby 
treatment they have received during this confirmation process, there 
will be some who will say: Well, the majority was unable to get the 
minority to change their mind and so the majority must have lost. The 
stubborn, recalcitrant minority must have won.
  I would say this is a case of perhaps having lost the battle but the 
war is still raging. The war is still going on. Frankly, it is a war, a 
battle, a metaphor for a war that has been going on since the inception 
of this country. It is a debate about what kind of country this is, 
what kind of country America is.
  Indeed, it is also a question of what kind of country we will become. 
I believe that if our judicial confirmation process becomes so 
politicized, as it appears to have become, and the test for 
confirmation is political correctness and licking your finger and 
putting it in the wind to test which way public opinion is going, and 
to make sure that if you are a lawyer or a judge or an attorney general 
you have made decisions in a way that is consistent with public opinion 
polls rather than the law, I think we will risk losing that war because 
it is fundamentally a war of words, of ideas, about what kind of Nation 
we are and what kind of Nation we will become, whether we will become 
one ruled by politics and polls and special interest groups or whether 
we are a nation of laws and not men and women.
  There is more to be said. There is more to be done in this ongoing 
war. Of course, we all know those who have followed this debate are 
aware that the majority leader and Senator Zell Miller from Georgia, a 
Democrat colleague of ours, have filed a rule change proposal which 
would allow for sufficient debate in the Chamber on nominees but 
ultimately allow what the Constitution itself commands, and that is 
that majorities ultimately rule. This is about a fundamental precept of 
our democratic form of government which says that after the debate, 
after everybody has had their say, after we have learned from each 
other in the give and take, ultimately there has to be a vote, and that 
when those votes are counted, majorities will rule and they will 
determine the outcome.
  Of course, that is the rule everywhere where democracy is respected 
and practiced except, I am sad to say, in the Senate, when it comes to 
these judicial nominees, because what we have experienced here with 
this unprecedented obstruction is a tyranny of the minority. It is, 
frankly, a shame. I think we are poorer for it.

  We could talk about this ongoing war of ideas and debate. We can talk 
about the battle we fought here this last day

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and a half and how it is just one battle in this ongoing conflict of 
ideas and really debate about the nature of our country that we have 
had since the beginning of this country. But there is a judgment day. 
There is a judgment day under our form of government, and that is when 
ordinary citizens exercise their right to go to the polls and to say 
whether they approve or disapprove of what we are doing here in this 
Chamber.
  Whether you are a city councilman, county commissioner, Governor, 
Senator, Congressman, President of the United States, we are subject to 
the ultimate judgment of those voters, of those citizens, because we 
are a country that believes in the sovereignty of the people. And it is 
the people who will have the last word.
  I believe our friends on the other side of the aisle who have 
exercised this tyranny of the minority have made a very dangerous 
gamble. Their gamble is, what they are betting is, that not enough 
people are really paying attention. Of course, that is part of what we 
have been trying to do, to make sure that people who are interested 
have an opportunity to understand what is going on here and what is at 
stake.
  But ultimately, under our form of government, there can be no 
division in this body or anywhere else in this country about the fact 
that, ultimately, the American people will exercise the final judgment 
and determine who wins and who loses. That has not been decided today 
on this issue.
  This is just one battle in that ongoing war leading up to that day of 
judgment. Ultimately, for those of us who run for public office, that 
is what determines whether we will continue to serve here in this body 
or in any other elected office in this Nation or not; whether we 
maintain the confidence of the people; whether the people believe that 
what we are doing here represents their interests as opposed to special 
interests. And if, in fact, they have confidence in our judgment, our 
honesty, integrity, and what it is we are trying to accomplish here, 
then they will say so by returning us to this place, or any other 
office of public service. So, ultimately, this battle has really been a 
skirmish in this ongoing conflict.
  There is an important difference between those who would obstruct a 
bipartisan majority who want to confirm these fine nominees, and that 
is really the nature of the judicial branch of our Government.
  I have had the honor for 13 years to serve my State in the judiciary 
before I was attorney general, and now in the Senate. I believe 
fervently that what the Framers intended by creating the judicial 
branch was not one where we had ideologues on the bench, or even 
politicians who were trying to advance a political or personal agenda. 
What they conceived and what has helped maintain the rule of law by 
determining the independence of the judiciary is that we will have 
rules that will govern all of us, and there will be disputes about 
those rules and the facts will be decided by independent judges, not 
ideologues, not those politicians on the bench, not somebody who has 
run for a particular platform to be nominated and confirmed to lifetime 
tenure.
  The Framers' genius really was that that is a role they left to the 
representative branches of Government, the Congress and the executive 
branch, represented by the President. They conceived of a judiciary 
that would interpret the law and not make the law; that would interpret 
what the legislature's intent was, not promulgate public policy from 
the bench, or legislate from the bench. The legislation, they said, 
should come from the Congress. Once the Congress has determined the 
laws, then the President has a responsibility to execute the law.
  It is a judiciary that serves as the impartial ``umpire.'' We all 
know that, in any sporting activity, an umpire who takes sides before 
the contest is inconsistent with the whole idea of fair play. We are 
talking about more than fair play here. We are talking about what kind 
of nation America is and what kind of nation America will become, 
whether we preserve this concept of an independent judiciary, 
unaffected by politics, that determines the law, not makes the law.
  I believe James Madison, Alexander Hamilton, and others of the 
Founding Fathers, who so wisely conceived of this form of government, 
would literally roll in their graves if they heard some of the 
suggestions we have heard during this debate and elsewhere--that judges 
can, and perhaps should, be ideologues; and really what we are trying 
to do is achieve some sort of mythical balance to make sure we have 
enough conservatives and liberals and moderates on a multijudge bench, 
and somehow in this ``witch's brew'' we are going to come out with 
justice, with fairness; that people will know what the rules are ahead 
of time and be able to conform our conduct to what the rules are, so 
they can go about their business unafraid of being interfered with, 
molested, or sued.

  Indeed, that is what we depend on, the knowledge of what the rules 
are, and that they will be administered by those who do not have a 
stake in the outcome, or have an ax to grind, or have a political or 
personal agenda. That is what our judges are supposed to be, not those 
who participate in a game of political football.
  We do not want, as this process has seemed to degenerate into, judges 
who will precommit to the outcome of cases that may come before them 
before they have even heard the facts. In the Judiciary Committee, on 
which I serve, I have heard judicial nominees questioned about: How 
would you rule if such and so happened? What is your view of the 14th 
amendment or the 5th amendment? Assuming this given set of facts, how 
would you rule in that case?
  Those questions are entirely inappropriate. We don't want judges, and 
we should not confirm judges, who would prejudge a hypothetical set of 
facts. We want judges who have an open mind and a commitment to the 
rule of law, and who will enforce that law impartially, without regard 
to who wins or loses.
  If what we are doing here jeopardizes the rule of law, we will have 
done great damage not only to this body but to our country.
  Mr. President, I thank my colleagues for patiently listening after 
this long debate. But I believed it was important to make some of these 
points.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ENSIGN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
                                 ______