[Congressional Record Volume 150, Number 70 (Tuesday, May 18, 2004)]
[Senate]
[Pages S5575-S5582]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          LEGISLATIVE SESSION

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume legislative session.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I want to commend our two leaders. I have 
been working with Senator Daschle for months, as well as with the White 
House, to find a way out of the impasse in judicial confirmations. 
Senator Frist and I have spoken at length about this, and he has been 
working on it, as well.
  I was delighted to see the meeting that Senator Daschle, Senator 
Frist, and Mr. Card had today in which the White House agreed to no 
more recess appointments of judges. I think we have demonstrated our 
good faith. In the 17 months that the Democrats were in charge of the 
Senate, we confirmed 100 of President Bush's nominees to lifetime 
positions on the Federal bench. And the Republicans, during the 23 
months that they have been in charge of the Senate, they have confirmed 
another 73 plus one today. With this agreement, I think we should be in

[[Page S5576]]

a position to confirm another two dozen judicial nominees and achieve a 
total this is outstanding for a Presidential term. So I commend my 
friend from Tennessee. I commend my friend from South Dakota. And I 
appreciate their work in helping achieve this arrangement.
  I am pleased that the Senate has now received assurances from the 
White House that the President will not further abuse the recess 
appointment power by making judicial recess appointments this 
presidential term. It was the White House's refusal to reach a 
reasonable accommodation of the concerns of many Senators about the 
unilateral approach of the President regarding his recess appointments 
to the federal courts that complicated our efforts to reach agreement 
regarding votes on less controversial judicial nominees. Thanks to the 
work of the Democratic leader and the Republican leader, we have now 
received a firm commitment from the White House in that regard.
  I supported the nomination of Marcia Cooke. The Florida Senators 
supported the nomination of Marcia Cooke. All Democratic members of the 
Senate Judiciary Committee supported the nomination of Marcia Cooke. I 
am pleased to vote today to confirm the nomination of Marcia Cooke.
  The selection of Ms. Cooke to be a judicial nominee for the Southern 
District of Florida serves as an example of how the judicial 
nominations process should work. She was interviewed and recommended by 
Florida's bipartisan judicial selection commission. This selection 
commission was created by Senators Graham and Nelson in a negotiated 
agreement with the White House and it has produced talented and well-
respected attorneys for the lifetime appointments on the district 
courts in Florida.
  Ms. Cooke currently serves as an assistant county attorney in Miami-
Dade County. She previously worked for 3 years as Governor Jeb Bush's 
Inspector General in Florida with oversight responsibilities regarding 
Florida administrative agencies. Ms. Cooke also was selected as a 
Federal Magistrate Judge in Detroit, after serving as a Federal 
prosecutor and also as a public defender.
  I acted to report her nomination unanimously from the Judiciary 
Committee and welcome her confirmation today. Marcia Cooke is highly 
regarded. I congratulate Ms. Cooke and her family on her unanimous 
confirmation vote today.
  I note that President Bush has nominated only 16 African Americans to 
the Federal courts, only about a quarter of the number of African 
Americans nominated by President Clinton to the federal bench. In fact, 
this President has put more people actively involved in the Federalist 
Society on the bench than African Americans, Hispanics and members of 
other minority groups combined.
  With today's confirmation vote on Marcia Cooke to the U.S. District 
Court in Florida, the Senate has already confirmed 174 judicial 
nominees of President George W. Bush in 3\1/2\ years and blocked only a 
handful of the most extreme. Due to Democratic cooperation and 
bipartisanship, the Senate has confirmed more judges for this President 
than in President Ronald Reagan's entire first 4 years in office--and 
it was President Reagan who ultimately appointed more judges than any 
other President in U.S. history. In fact, we have cooperated in 
reducing the 110 vacancies we inherited from Republican obstruction of 
President Clinton's judicial nomination to near 40 and attained the 
lowest vacancy level in 14 years.
  Today, the Senate and the White House reached an agreement regarding 
25 of this President's judicial nominations pending on the floor, 
including Judge Cooke. Not all of these nominees are uncontroversial 
and some may require significant debate before their confirmation vote. 
With this agreement, the Senate is poised to confirm 198 judicial 
nominees of President Bush for lifetime positions on the Federal 
courts, including 35 circuit court nominees.
  We have already confirmed 30 circuit court nominees of President 
Bush. More of his circuit nominees have been confirmed than President 
Reagan had confirmed by this point in his first term. Recall that from 
the time Republicans assumed majority control of the Senate in 1995 
until Democratic control in the summer of 2001, circuit court vacancies 
more than doubled from 16 to 33. We have worked to cut those vacancies 
in half by confirming 30 of President Bush's circuit court nominees. 
With five additional circuit court nominees part of the agreement, 
President Bush will exceed the number of circuit court appointments 
during President Reagan's first term, as well.
  Republicans rarely acknowledge that 100 of President Bush's judicial 
nominees to the bench were confirmed under Democratic Senate leadership 
during 17 months. During the 23 months I have not served as Chairman of 
the Judiciary Committee and Republicans have been in control, the 
Senate has confirmed 74 additional judges. So in 30 percent more time, 
Senate Republicans have confirmed 26 percent fewer judges.
  With the agreement reached today, the Senate will confirm a total of 
29 judicial nominees of President Bush this year, including five 
circuit court nominees. With the progress we have already made this 
year and under the action agreed to today, the Senate will reach this 
mark before the July 4th recess. This is 29 times more judicial 
nominees than were allowed to be confirmed by Republicans before July 
during 1996, the last time an incumbent President was seeking 
reelection. During that session, Senate Republicans did not allow a 
single judicial nominee of President Clinton's to be confirmed before 
July. During that entire session Republicans allowed only 17 judicial 
nominees to be confirmed, none of them for the circuit courts. During 
that session when Republicans were in control of the Senate, they made 
sure that none of President Clinton's circuit court nominees were 
confirmed all session, not a single one. With our fifth judicial 
confirmation this year, we are well ahead of 1996.
  Republicans have made no apology for the way in which they acted in 
1996 but seek to employ a double standard now that a Republican 
occupies the White House.
  All told, Republicans blocked more than 60 of President Clinton's 
judicial nominees. Yet Republicans Senators now routinely claim that 
every judicial nominee of President Bush is entitled to a confirmation 
vote. Suddenly, without regard to history, including their own very 
recent history, they claim that the Constitution requires a 
confirmation vote, at least for Republican nominees. The Constitution 
certainly does not say that. Republicans seem to have ``confirmation 
amnesia'' when they complain that Senate Democrats have filibustered 
six judicial nominees of President Bush after Republicans defeated by 
delay 10 times more judicial nominees of President Clinton through 
anonymous holds and without accountability.

  Republicans know that they filibustered Justice Abe Fortas' Supreme 
Court nomination and several Clinton nominees. Republicans cannot erase 
their history, try as they might. Republicans defeated more than 60 
Clinton judicial nominees and more than 200 of his executive branch 
nominees through delay. One judicial nomination was defeated when the 
Republican caucus took the unprecedented action of voting lockstep 
along party lines against confirmation of Judge Ronnie White.
  With the agreement reached today, we are likely to adjourn with fewer 
vacancies than at any time in nearly a quarter of a century, since 
President Reagan's first term and well below the level of vacancies 
tolerated by Republicans during President Clinton's two terms. Having 
defeated more than 60 of President Clinton's nominees, including almost 
two dozen circuit court nominees, through concerted inaction, Senate 
Republicans have no standing to complain about the way in which the 
Senate is acting on President Bush's nominees. We have acted more 
fairly, more quickly and on more nominees than Republicans would allow 
when President Clinton was making much more moderate nominations.
  I am pleased that the White House has promised to refrain from any 
more abuses of the recess appointment power. With that commitment, we 
have agreed to vote on two dozen judicial nominees this year. Even with 
the historically low vacancy levels we will reach as a result, I have 
no doubt that some partisan Republicans will still

[[Page S5577]]

complain that they did not get 100 percent of their judicial nominees 
confirmed. Something no President in memory has achieved. This Congress 
we reached the lowest level of vacancies since 1990. There are more 
federal judges on the bench now than at any time in U.S. history.
  Unfortunately, we are faced with continued White House defiance of 
the Senate's role as part of the checks and balances established by our 
Constitution. President Bush defied the Senate by recess appointing 
William Pryor and Charles Pickering, who were widely opposed due to 
their records of activism and poor ethics. No American President has 
ever abused the recess appointment power to put judges on the bench 
whose nominations were debated at length by the Senate and on which it 
had withheld its consent. The President's appointment of Charles 
Pickering was unprecedented, yet we noted our objection, turned the 
other cheek and continued to cooperate in the confirmation of judicial 
nominees. When the President abused his power a second time and 
appointed William Pryor, we had no alternative but to make our 
objection meaningful by seeking assurances from the White House that 
such abuse would not happen again.
  Over the past several weeks, I have shared with the Senate 
information about a number of divisive developments regarding judicial 
nominations including the Pickering recess appointment during the 
weekend for commemorating Dr. Martin Luther King Jr. In spite of all 
the affronts, Senate Democrats cooperated in confirming four additional 
judicial nominees this year and continued to participate in hearings 
for judicial nominees.
  The President's recess appointment of William Pryor was the last 
straw. It was properly termed an abuse of power by the Senate 
Democratic Leader. It was an abuse of the constitutional authority of 
the Executive to make necessary recess appointments during the 
unavailability of the Senate. The judicial recess appointments of 
nominees debated at length by the Senate was unprecedented.
  Actions like this showed the American people that this White House 
was determined to try to turn the independent federal judiciary into an 
arm of the Republican Party. Doing this further erodes the White 
House's credibility as well as the respect and confidence that the 
American people have for the courts.
  This is an administration that promised to unite the American people 
but that has chosen time and again to act in ways that divide us, to 
disrespect the Senate and our representative democracy. This is an 
administration that squandered the good will and good faith that 
Democrats showed in the aftermath of September 11, 2001. This is an 
administration that refused to acknowledge the strides we made in 
filling 100 judicial vacancies under Democratic Senate leadership 
during 17 difficult months in 2001 and 2002, while overcoming the 
September 11 attacks, the subsequent anthrax attacks and in spite of 
Republican mistreatment of scores of qualified, moderate judicial 
nominees of President Clinton.
  This is an administration that has time and time again demonstrated 
its unilateralism, arrogance and intention to divide the American 
people and the Senate with its controversial judicial nominations. With 
its recess appointments, the President acted--as he has in so many 
areas over the past 3\1/2\ years--unilaterally, overextending and 
expanding his power, with disregard for past practice and tradition, 
and the rule of law.
  The recess appointment of Mr. Pryor threatens both the independence 
of the judiciary and the constitutional balance of power between the 
legislative and executive branches. We entrust to the stewardship of 
lifetime judges in our independent Federal judiciary the rights that 
all of us are guaranteed by our Constitution and laws. That is an 
awesome responsibility. Accordingly, the Constitution was designed so 
that it would only be extended after the President and the Senate 
agreed on the suitability of the nomination. The President chose for 
the second time in as many months to circumvent this constitutional 
design and impose his will unilaterally.
  I have sought in good faith to work with this administration for the 
last 3\1/2\ years in filling judicial vacancies, including so many left 
open by Republican obstruction of President Clinton's qualified 
nominees. When Chairman, I made sure that President Bush's nominees 
were not treated the way his predecessor's had been. They were treated 
far more fairly, as I had promised. Republicans had averaged only 37 
confirmations a year while vacancies rose from 65 to 110 and circuit 
vacancies more than doubled from 16 to 33. Under Democratic leadership, 
we reversed those trends and opened the system to public accountability 
and debate by making home-State Senators' objections public for the 
first time. We openly debated and voted on nominations. We were able to 
confirm 100 judges in just 17 months and virtually doubled the 
Republican annual average of 37 with 72 confirmations in 2002, alone.
  I have urged that we work together, that we cooperate, and that the 
President live up to the promise he made to the American people during 
the last campaign when he said he would act as a uniter and not a 
divider. I have offered to consult and made sure we explained privately 
and in the public record why this President's most extreme and 
controversial nominations were unacceptable.

  Both his recess appointments are troubling. The President says that 
he wants judges who will ``follow the law'' and complains about what he 
calls ``judicial activism.'' Yet, he has acted--with disregard for the 
constitutional balance of powers and the Senate's advice and consent 
authority--unilaterally to install on the Federal bench two nominees 
from whom the Senate withheld its consent precisely because they are 
seen by so many as likely to be judicial activists, who will insert 
their personal views in decisions and will not follow the law.
  In the case of Mr. Pryor, he is among the most extreme and 
ideologically committed and opinionated nominees ever sent to the 
Senate. Mr. Pryor's nomination to a lifetime appointment on the Federal 
bench was opposed by every Democratic member on the Senate Judiciary 
Committee after hearings and debate. It was opposed on the Senate floor 
because he appears to have extreme--some might say ``radical''--ideas 
about what the Constitution should provide with regard to federalism, 
criminal justice and the death penalty, violence against women, the 
Americans with Disabilities Act, and the Government's ability to 
protect the environment on behalf of the American people. He has been a 
crusader for the ``federalist'' revolution. He has urged that Federal 
laws on behalf of the disabled, the aged, women, minorities, and the 
environment all be limited. His comments have revealed insensitivity to 
the barriers that disadvantaged persons and members of minority groups 
and women continue to face in the criminal justice system. He has 
testified before Congress in support of dropping a crucial part of the 
Voting Rights Act and has repeatedly described the Supreme Court and 
certain justices in overtly political terms. He received the lowest 
possible qualified rating from the American Bar Association--a partial 
rating of ``Not Qualified''--underscoring his unfitness for the bench. 
In sum, Mr. Pryor demonstrated that he is committed to an ideological 
agenda that puts corporate interests over the public's interests and 
that he would roll back the hard-won rights of consumers, minorities, 
women, and others.
  Mr. Pryor's nomination was considered in committee and on the Senate 
floor. The Senate debated his nomination, and had enough concerns about 
his fitness for a lifetime appointment that two motions to end debate 
on his nomination failed. That is the constitutional right of the 
Senate.
  But President Bush decided to use the recess appointment clause of 
the Constitution to end-run the Senate. As far as I know, this power 
has never been used this way before this President. Of course this is 
the first President in our Nation's history to renominate someone 
rejected after hearings, debate and a fair vote by the Senate Judiciary 
Committee. He did that twice. He has now twice overridden the Senate's 
withholding of its consent after hearings and debate on judicial 
nominees. This demonstrates contempt for the Constitution and the 
Senate. The New York Times editorialized about ``President Bush . . . 
stacking the courts with right-wing judges of dubious judicial 
qualifications'' and even

[[Page S5578]]

the Washington Post observed that recess appointments of judges 
``should never be used to mint judges who cannot be confirmed on their 
merits.''
  The recess appointments clause of the Constitution was not intended 
to change the balance of power between the Senate and the President 
that is established as part of the fundamental set of checks and 
balances in our Government. Indeed, the appointments clause in the 
Constitution requires the consent of the Senate as just such a 
fundamental check on the Executive. This was meant to protect against 
the ``aggrandizement of one branch at the expense of the other.'' The 
clause was debated at the Constitutional Convention, and the final 
language--with shared power--is intended to be a check upon favoritism 
of the President and prevent the appointment of unfit characters.
  The President's claimed power to make a unilateral appointment of a 
nominee the Senate considered and effectively rejected, slights the 
Framers' deliberate and considered decision to share the appointing 
power equally between the President and the Senate. This President's 
appointment of Mr. Pryor to the Eleventh Circuit--after he was 
considered by the full Senate seems irreconcilable with the original 
purpose of the appointments and recess appointment clauses in the 
Constitution. Perhaps that explains why the Pryor and Pickering recess 
appointments by this President are the first times in our centuries-
long history that the recess appointment power has been so abused. No 
other President has engaged in this manner. No other President sought 
such unilateral authority without balance from the Senate.
  The President chose to sully the Martin Luther King Jr. weekend with 
his unilateral appointment of Judge Pickering. Sadly, he chose the 
Presidents' Day congressional break unilaterally to appoint Mr. Pryor. 
After the Presidents' Day weekend, we resumed our proceedings in the 
Senate with the traditional reading of President's George Washington's 
Farewell Address. The Senate proceeds in this way every year. I urge 
this President and those in his administration to recall the wisdom of 
our first President. George Washington instructs us on the importance 
of not abusing the power each branch is given by the Constitution. He 
urges the three branches of our Government to ``confine themselves 
within their respective constitutional spheres.'' He said more than 200 
years ago words that ring true to this day:

       The spirit of encroachment tends to consolidate the powers 
     of all the departments in one, and thus to create, whatever 
     the form of government, a real despotism . . . The necessity 
     of reciprocal checks in the exercise of political power, by 
     dividing and distributing it into different depositaries, and 
     constituting each the guardian of the public weal against 
     invasions by the others, has been evinced by experiments 
     ancient and modern. . . To preserve them must be as necessary 
     as to institute them.

  The current occupant of the White House might do well to take this 
wisdom to heart and respect the constitutional allocations of shared 
authority that have protected our nation and our rights for more than 
200 years so brilliantly and effectively.
  The recess appointments power was intended as a means to fill 
vacancies when the Senate was not available to give its consent; it was 
intended to ensure effective functioning of the government when the 
Senate adjourned for months at a time. It was never intended as an 
alternative means of appointment by the Executive when the President 
chose to serve some partisan short-term goal by simply overriding the 
will of the Senate to employ his own--especially with respect to our 
third branch of Government, the Federal judiciary.
  This administration and its partisan enablers have demonstrated their 
disdain for the constitutional system of checks and balances and for 
shared power among the three branches of our Federal Government. By 
such actions, this Administration shows that it seeks all power 
consolidated in the Executive and that it wants a Judiciary that will 
serve its narrow ideological purposes.

  Such overreaching by this administration hurts the courts and the 
country. President Bush and his partisans have disrespected the Senate, 
its constitutional role of advice and consent on lifetime appointments 
to the Federal courts, the Federal courts, and the representative 
democracy that is so important to the American people. It is indicative 
of the confrontational and ``by any means necessary'' attitude that 
underlies so many actions by this administration and that created a 
climate on the Judiciary Committee in which Republican staff felt 
justified in spying upon their counterparts and stealing computer 
files.
  After 8 years in office in which more than 60 judicial nominees had 
been stalled from consideration by Republican partisans, President 
Clinton made his one and only recess appointment of a judge. Contrast 
that appointment with the actions of the current President:
  President Clinton acted to bring diversity to the Fourth Circuit, the 
last federal circuit court not to have had an African-American member. 
Judge Roger Gregory was subsequently approved by the Senate for a 
lifetime appointment under Democratic Senate leadership in the summer 
of 2001. This was made possible by the steadfast support of Senator 
John Warner, the senior Senator from Virginia, and I have commended my 
friend for his actions in this regard. When Judge Gregory's nomination 
was finally considered by the Senate, it passed by consensus and with 
only one negative vote. Senator Lott explained his vote as a protest 
vote against President Clinton's use of the recess appointment power. 
How ironic then that Judge Pickering now serves based on President 
Bush's abuse of that power.
  Judge Gregory was one of scores of highly qualified judicial 
nominations stalled under Republican Senate leadership. Indeed, Judge 
Gregory and so many others were prevented from having a hearing, from 
ever being considered by the Judiciary Committee and from ever being 
considered by the Senate. Sadly, others, such as the nominations of 
Bonnie Campbell, Christine Arguello, Allen Snyder, Kent Markus, 
Kathleen McCree Lewis, Jorge Rangel, Carlos Moreno, and so many more, 
have not been reinstated and considered. But President Clinton did not 
abuse his recess appointment power. Instead, his appointment of Judge 
Gregory was in keeping with traditional practices and his use of that 
power with respect to judicial appointments was limited to that one 
occasion.
  By contrast, the current President made two circuit recess 
appointments in 2 months and his White House had threatened that more 
were on the way. These appointments are from among the most 
controversial and contentious nominations this administration has sent 
the Senate. After reviewing their records and debating at length, the 
Senate withheld its consent. The reasons for opposing these nominations 
were discussed in hearings and open debate during which the case was 
made that these nominees were among the handful that a significant 
number of Senators determined had not demonstrated their fairness and 
impartiality to serve of judges.
  Contrast Roger Gregory's recess appointment, which fit squarely in 
the tradition of President's exercising such authority in order to 
expand civil rights and to bring diversity to the courts, with that of 
Mr. Pryor. Four of the five first African American appellate judges 
were recess-appointed to their first Article III position, including 
Judge William Hastie in 1949, Judge Thurgood Marshall in 1961, Judge 
Spottswood Robinson in 1961, and Judge Leon Higginbotham in 1964. The 
recent appoints of Judge Pickering and Mr. Pryor stand in sharp 
contrast to these outstanding nominees and the public purposes served 
by their appointments.
  The nominations of Judge Pickering and Mr. Pryor were opposed by 
individuals, organizations and editorial pages across the Nation. 
Organizations and individuals concerned about justice before the 
Federal courts, such as Log Cabin Republicans, the Leadership 
Conference on Civil Rights, and many others opposed the Pryor 
nomination. The opposition extended to include organizations that 
rarely take positions on nominations but felt so strongly about Mr. 
Pryor that they were compelled to lodge their opposition in the record, 
such as the National Senior Citizens Law Center, Anti-Defamation 
League, and Sierra Club. Rather than bring people together and move the

[[Page S5579]]

country forward, this President's recess appointments are more examples 
of unnecessarily divisive action.
  Further, the legality of this President's use of the recess 
appointments power, without precedent and during such a short Senate 
break, is itself now a source of division and dispute. Recent Attorneys 
General have all opined that a recess of 10 days or less does not 
justify the President's use of the recess appointments power and would 
be considered unconstitutional. Starting in 1921, Attorney General 
Daugherty advised the President that he could make recess appointments 
during a mid-session adjournment of approximately four weeks but two 
days was not sufficient ``nor do I think an adjournment for five or 
even 10 days can be said to constitute the recess intended by the 
Constitution.'' More recently, a memo from the Reagan administration 
Justice Department concluded: ``Under no circumstances should the 
President attempt to make recess appointment during intrasession recess 
of less than 10 days.'' This year, a Federalist Society paper noted the 
dubious constitutionality of appointments during short intrasession 
breaks.
  We will not resolve the question of legality of these recess 
appointments here today, but we can all anticipate challenges to 
rulings in which Mr. Pryor participates. Thus, we can expect this 
audacious action by the administration will serve to spawn litigation 
and uncertainty for months and years to come.
  I thank the Democratic leader for the statements he made and the 
actions that he took in connection with the abuse of the recess 
appointment power by this President. I remind the Senate that a few 
years ago when President Clinton used his recess appointment power with 
regard to a short-term Executive appointment of James Hormel to serve 
as Ambassador to Luxembourg, Senator Inhofe responded by saying that 
President Clinton had ``shown contempt for Congress and the 
Constitution'' and declared that he would place ``holds on every single 
Presidential nomination.'' Republicans continued to block nominations 
until President Clinton agreed to make recess appointments only after 
Congress was notified in advance. On November 10, 1999, 17 Republican 
Senators sent a letter to President Clinton telling him that if he 
violated the agreement, they would ``put holds for the remaining of the 
term of your Presidency on all of the judicial nominees.''
  In November 1999, President Clinton sent a list of 13 positions to 
the Senate that he planned to fill through recess appointments. In 
response, Senator Inhofe denounced 5 of the 13 civilian nominees with a 
threat that if they went forward, he would personally place a hold on 
every one of President Clinton's judicial nominees for the remainder of 
his term. That led to more delays and to the need for a floor vote on a 
motion to proceed to consider the next judicial nomination, in order to 
override Republican objections.

  When President Clinton appointed Judge Gregory at the end of 2000, 
Senator Inhofe called it ``outrageously inappropriate for any president 
to fill a federal judgeship through a recess appointment in a 
deliberate way to bypass the Senate.'' When the Gregory nomination was 
confirmed with near unanimity under Senate Democratic leadership in 
2001, Senator Lott's spokesperson indicated that Senator Lott's 
solitary opposition was to underscore his position that ``any 
appointment of federal judges during a recess should be opposed.''
  Democrats have been measured in our response. Indeed, we continued 
our work after the unprecedented recess appointment of Judge Pickering. 
It was only with the repeated abuse of the recess appointment power to 
place Mr. Pryor on the Federal bench and the threat of additional 
recess appointments that we acted. I urged the White House to renounce 
this abuse of the recess appointment power so that we could resume 
Senate consideration of judicial nominations and increase our record 
number of confirmations before the end of the year. I am glad that the 
White House has finally decided to make a firm commitment against any 
additional judicial recess appointments.
  We are defending fair courts. We have acted to protect the Senate's 
role as a check on excessive White House power grabs and to block the 
lifetime appointments of a handful of nominees for lifetime seats, 
nominees who have records of extremism. The American people deserve a 
Federal judiciary with fair judges who will enforce their rights and 
uphold the law. Rather than work with all Senators, the White House has 
fixated on forcing through the most divisive people for these lifetime 
jobs. This White House has the wrong priorities and is taking the 
country in the wrong direction.
  President Bush ran as a ``uniter'' but has consciously chosen to send 
divisive nominees to the Senate. As a Presidential candidate, Bush 
promised the American people he would have ``no litmus test'' for 
Federal judges on reproductive rights ``or any other issue'' and that 
he would choose ``competent judges'' who would ``not use the bench for 
writing social policy.'' As President, he has broken these and other 
promises repeatedly.
  President Bush's choices for the only lifetime jobs in our system of 
Government show that he views the Federal courts as a spoils system for 
partisan activists, including some whose records prove that they will 
not be fair and impartial judges, but would use the Federal bench to 
write social policies they prefer into the law. Under our Constitution, 
the power to make lifetime appointments to the courts is shared: the 
President has the power to nominate or propose judges, but only the 
Senate has the power to confirm or reject those nominations. Throughout 
American history, the Senate has rejected judicial nominees. Not even 
President Washington saw all of his nominees confirmed. Senate 
Democrats have opposed only the most troubling judicial nominees of 
President Bush.
  In his judicial appointments, President Bush has sought out judicial 
activists, often quite young, with the hope that these judges will rule 
for decades to come in ways that advance the Republican Party's narrow 
and partisan political and social agenda. President Bush has proposed 
many nominees to the federal courts, especially the appellate courts, 
who have records of extreme partisanship, activism or just plain poor 
ethics.
  For example, President Bush nominated 41-year-old William Pryor for 
the appeals court after Mr. Pryor led the effort to undermine 
protections against age, sex and disability discrimination, to limit 
the reach of the Clean Water Act, to repeal the Voting Rights Act, to 
overturn Roe v. Wade, and to oppose lawsuits for tobacco-related deaths 
and illnesses. Mr. Pryor himself believes that President Bush should 
not appoint moderate judges to the federal courts, stating: ``I'm 
probably the only one who wanted [Bush v. Gore] 5-4.'' He said, ``I 
wanted Governor Bush to have a full appreciation of the judiciary and 
judicial selection so we can have no more appointments like Justice 
Souter.''
  Justice Souter's apparent ``offense'' was to be more faithful to the 
Constitution than to the partisan politics of the party of the 
President who nominated him to the highest court. Mr. Pryor was 
rejected under the Senate's longstanding Rules after extensive debate. 
But President Bush put him on the bench anyway. He is now sitting on 
the Court of Appeals for the Eleventh Circuit temporarily.
  President Bush also appointed Judge Charles Pickering to the appeals 
court even though the Senate refused consent to his nomination. Judge 
Pickering was opposed due to the low quality of his judging, his habit 
of inserting his personal views into his decisions, and his 
questionable ethics. Judge Pickering willfully violated judicial ethics 
by his extraordinary campaign to get around a mandatory prison sentence 
for a man convicted by a jury of his peers of burning a cross on an 
interracial couple's lawn. His record was criticized by civil rights 
leaders and organizations. Numerous African Americans in Mississippi 
and from across the country wrote in opposition to his nomination. 
President Bush recess appointed him to the Fifth Circuit on the weekend 
designated to honor the memory of Dr. Martin Luther King Jr.
  President Bush also nominated to the D.C. Circuit Justice Janice 
Rogers Brown of California who has a reputation for injecting her 
political views into her judicial opinions. In speeches and decisions, 
she literally advocated turning back the clock 100 years to the

[[Page S5580]]

era when worker protections were declared unconstitutional by activist 
judges. Justice Brown has even described the year 1937--when her brand 
of judicial activism was repudiated--as ``the triumph of our own 
socialist revolution.'' Her views are so extreme and rigid she has 
suggested: ``There are so few true conservatives left in America that 
we probably should be included on the endangered species list.'' The 
Senate refused to grant consent to her nomination at the end of the 40-
hour talkathon Republicans engineered to shut down the Senate last 
year.
  President Bush also selected State Judge Carolyn Kuhl for an 
appellate judgeship after she spearheaded a failed effort to give tax-
exempt status to racially discriminatory schools like Bob Jones 
University, led the effort to get the Reagan Justice Department to seek 
the reversal of Roe v. Wade, sought to curtail discrimination laws, and 
tried to limit protections for     whistleblowers. Before she was 
nominated to the Federal bench, Judge Kuhl also ruled in a case that a 
breast cancer patient had no privacy claims against a doctor who 
allowed a drug salesman to watch her breast examination without her 
permission. Both California Senators opposed Judge Kuhl's nomination 
and the Senate withheld its consent.
  Additionally, President Bush chose Texas Supreme Court Justice 
Priscilla Owen for the federal bench after statements by her fellow 
judges in a wide range of cases--from environmental regulation to 
personal injury law to privacy to discrimination--that she was 
injecting her personal views into her opinions. Her opinions were 
called, among other things, ``nothing more than inflammatory rhetoric'' 
and an approach that ``defies the Legislature's clear and express 
limits on our jurisdiction.'' One opinion in which she tried to write 
her preferred social policies into law was called ``an unconscionable 
act of judicial activism'' by then Justice Alberto Gonzales, who is now 
President Bush's White House Counsel. The Senate withheld its consent 
from her nomination after extensive debate.

  The nomination of Miguel Estrada, who was 39 when nominated to the 
nation's second highest court, is another example of President Bush's 
practice of dividing instead of uniting Americans. Despite concerns 
that were raised whether Mr. Estrada could keep his personal views out 
of his legal work at the Justice Department and the ample precedent for 
the Senate's request for legal memos in nominations. President Bush 
decided to stonewall the Senate. This stonewalling, combined with Mr. 
Estrada's refusal to answer numerous questions about his views prompted 
the extended debate that led to his withdrawal.
  Currently pending are William James Haynes, II and Brett Kavanaugh. 
Mr. Haynes has been less than forthcoming about his actions as the 
general counsel at the Department of Defense and his role in subverting 
legal protections in ways that may have contributed to the breakdown of 
compliance with the Geneva Conventions, our treaties against torture 
and the Constitution. Mr. Kavanaugh is another youthful nominee whose 
background as an aide to Kenneth Starr and in the White House is among 
the more partisan we have seen, even among this President's very 
partisan nominees.
  For doing their job and upholding their constitutional 
responsibilities, Democratic Senators have been wrongly attacked as 
anti-woman, anti-Hispanic, anti-Christian and anti-Catholic. Those 
charges are reprehensible, ad hominem attacks without basis. This is 
partisan sniping at its worst. Republican Senators have been all too 
willing to fuel such baseless claims and the President has shown his 
willingness to play partisan politics with judicial nominations.
  Some of this President's appointments have already started using 
their seat on the Federal bench to write their political, social or 
cultural views into law, despite promises that they would not do so. We 
are now seeing the impact of the Bush judges the Senate has confirmed 
in courts all over the country where a radically narrow view of the 
power of Congress, informed by a Federalist Society philosophy, is 
beginning to take hold. Let me give you a few examples of the ways in 
which these judges are attempting to remake the legal landscape in 
their own reactionary ideological image.
  Judge Jeffrey Sutton has written a dissent in a federal arson case 
putting forward a distressingly narrow interpretation of Congress' 
power under the Commerce Clause. Judge Sutton was an extremely 
controversial Bush nominee who promised the Senate that he would not 
have an agenda on the bench to narrow congressional power and he was 
confirmed by one of the smallest number and proportion of positive 
votes in history, 52-41.
  Judge John Roberts, another controversial nominee of President Bush, 
has questioned the constitutionality of the Endangered Species Act 
under a similar theory, showing his willingness to curtail Congress's 
ability to protect the environment. He has also ruled for the 
administration in the ongoing case seeking more transparency and 
accountability from Vice President Cheney and his Energy Task Force.
  Judge Edith Clement of the Fifth Circuit, another Bush circuit court 
nominee, has also showed her Federalist bent by voting to limit the 
Hobbs Act, also under the reasoning that Congress' ability to legislate 
under the Commerce Clause is more narrow than legal precedent actually 
shows. Other Bush judges have taken extreme positions and been 
criticized by their peers, often other conservatives, for overstepping 
bounds or substituting their views for the trial court's. Their tenure 
on the federal bench has so far been short, but even these few examples 
show that as it lengthens, the number of ideological opinions will 
grow.
  While Democrats have not imposed ideological litmus tests on the Bush 
nominees, it is clear that President Bush has. President Bush has named 
to the bench many who have been leaders in the right-to-life movement 
and none who have been leaders on the other side of that social issue. 
The President has sought out people he hopes share his social agenda 
for our Federal courts.
  President Bush has also used federal judgeships to reward lawyers who 
worked closely with Ken Starr or on the Florida recount, including some 
for lifetime seats who were as young as 34 years old. Many of his 
nominees have been drawn from a select group of neoconservatives whose 
views are surprisingly rigid given their youth. Indeed, more than half 
of President Bush's circuit court nominees have been involved with the 
Federalist Society and overall almost a quarter of all of his judicial 
nominees have been associated with this organization whose mission is 
to ``reorder the legal priorities'' along ideological lines. In fact, 
President Bush has chosen more judicial nominees involved in the 
Federalist Society than nominees who are Hispanic, African American or 
Asian Pacific combined.
  No one is entitled to a lifetime job as a judge, entrusted with 
making decisions that affect the lives, liberties and property of 
millions of Americans. I will continue to oppose judicial nominees who 
I do not think will be fair, independent Federal judges. We are 
committed to defending the rights guaranteed by the Constitution and to 
ensuring that our Federal courts have fair judges who will be faithful 
to the Constitution and its precedents, not loyal to the partisan 
political agenda of President Bush. The fairness of the Federal 
judiciary is indivisible from our American ideal of justice for all.
  Whether Congress may regulate lead in our water, whether we can 
provide leave for families during medical crises, and whether 
fundamental protections for our liberty, equality and privacy will be 
preserved, all these matters will be reviewed and decided by Federal 
judges. Our freedoms are the fruit of too much sacrifice to confirm 
those who will not fully enforce Federal protections.
  It is imperative that there be fair judges for all people--poor or 
rich, Republican or Democrat, of any race or religion. A number of 
President Bush's nominees have records that do not demonstrate that 
they will be impartial. Democrats have refused to rubber-stamp judicial 
activists. We know that the Federal courts should not be an arm of the 
Republican Party.
  There are any number of issues and bills that the Senate could and 
should be addressing instead of arguing over cloture petitions for 
judicial nominees. Judicial vacancies is about the only number going in 
the right direction.

[[Page S5581]]

With the deficit up, the debt up, the numbers of uninsured, unemployed 
and impoverished Americans up, but the number of Federal court 
vacancies going down, the Senate has much more to do.
  Of course, April 15 was the legal deadline for adoption of a Federal 
budget. Even though Republicans have excluded congressional Democrats 
from the discussion, they have not been able to agree even among 
themselves on the Federal budget resolution. That statutory requirement 
is being violated daily.

  The transportation bill is long overdue. Again, it is Republicans who 
cannot agree on a transportation bill that will fix our roads, bridges 
and provide for public transportation. That bill would mean hundreds of 
billions of dollars to our local communities and States all across the 
country.
  A supposed priority this year was going to be welfare legislation. 
Republicans have not agreed on a welfare reform extension.
  We have no legislation to confront the soaring gas prices that affect 
all Americans, nor will the Republican leadership schedule action on 
the bipartisan NOPEC bill that was unanimously reported by the 
Judiciary Committee to clarify that OPEC cannot act collusively with 
impunity from the law.
  This week we mark the 50th anniversary of the Supreme Court's 
decision in Brown v. Board of Education, a landmark decision of the 
United States Supreme Court. It offered African-Americans throughout 
our Nation hope that the Government of the United States was prepared 
to make real Jefferson's declaration that ``all men are created 
equal.'' It made good on Justice Harlan's famous words of dissent in 
Plessy v. Ferguson: ``In view of the Constitution, in the eye of the 
law, there is in this country no superior, dominant, ruling class of 
citizens. There is no caste here.''
  Of course, the decision in Brown was not universally celebrated at 
the time. It was condemned from some quarters and sparked defiance in 
many parts of this nation. It was the beginning, not the end, of a long 
process of desegregation that was fought vigorously in many 
communities. Even today, 50 years later, there is still significant 
work to be done to ensure equal educational opportunity for all of our 
children. Schools in our cities are all too often in disrepair, both 
physically and in the quality of education they can offer to the most 
vulnerable children among us.
  As we commemorate Brown, we must also note that the Republican 
Congress has funded Title I--the Federal program most directly targeted 
toward those schools and toward reducing educational inequality--at 
$6.3 billion below its authorized level for the current year.
  We should celebrate the brave families who desegregated our schools, 
and the accomplished lawyers, including Thurgood Marshall, who led the 
fight. We should commemorate the nine Justices who were unanimous in 
their dedication to the constitutional principle of equality. And we 
should remember the many leaders who have continued the battle for 
justice in the decades since.
  This anniversary should not be the cause of complacency or self-
congratulation--our work is not done. There is much else we could be 
doing--but are not--in the area of civil rights. The Voting Rights Act 
is slated to expire in 2007, and the Majority Leader and the Chairman 
of the Judiciary Committee have said they want to make its key 
provisions permanent. I have said that I support this goal and want to 
make sure we achieve it in the way most likely to survive an inevitable 
constitutional challenge before a Supreme Court that shows little 
deference to Acts of Congress. Senator Kennedy and I have both said we 
want to work with Senators Frist and Hatch to begin committee 
consideration of the Voting Rights Act and build the legislative 
history that would justify making it permanent to the judicial branch. 
Up until now, we have received no response.
  We have been fighting now for many years to pass hate crimes 
legislation that would both improve our existing hate crimes laws and 
apply them against criminals who target gay and lesbian Americans. I am 
one of 49 cosponsors of S. 966, the Local Law Enforcement Enhancement 
Act. This bill has passed the Senate before, only to be blocked by the 
Republican leadership in the House. In recent years, however, we have 
been unable to get the Senate to adopt it. In the last Congress, almost 
every Republican Senator voted against cloture on the hate crimes bill, 
dooming it to failure. In the current Congress, we have not considered 
the bill.
  Meanwhile, the bipartisan Employment Non-Discrimination Act 
(``ENDA'') of 2003 (S. 1705) is bottled up in the HELP Committee. This 
bill has 43 cosponsors. It would prohibit workplace discrimination 
based on sexual orientation. One might think that opposing firing 
people simply because they are gay is a rather commonplace position in 
2004. In the Senate, however, we cannot get a vote on ENDA.
  The Development, Relief, and Education for Alien Minors Act (``DREAM 
Act'') S. 1545, continues to languish on the Senate calendar. This is a 
bill that the Judiciary Committee approved last November. It has 46 
cosponsors, including a dozen Republicans. Its lead sponsors are 
Senator Hatch and Senator Durbin. It would restore to States the right 
to provide in-state tuition to undocumented aliens who graduate from 
U.S. high schools.
  The beneficiaries would be young people who came here as children, 
not of their own volition. They would be people like Jazmin Segura, a 
Los Angeles high school senior from a high-crime neighborhood with a 
3.88 GPA. Ms. Segura, who came to the United States from Mexico when 
she was nine years old, was featured in a Wall Street Journal article 
last month. She had been accepted at the University of California at 
Berkeley and at UCLA, but did not know whether she would be able to 
afford to go.
  We have legislation at the ready that could help Ms. Segura and many 
others like her. If we held a vote on this bill right now, it would 
undoubtedly pass by a wide margin. But the Republican leadership--eager 
to reach out only rhetorically to the Hispanic community--has refused 
to bring it up for a vote.
  I came to the floor nearly two weeks ago to decry the Senate's 
failure to consider legislation to respond to a crisis affecting 
industries throughout the economy that depend on temporary labor. More 
than 2 months ago the Department of Homeland Security announced that 
for the first time ever the annual cap for H-2B visas had been met. 
These visas are used by a wide range of industries throughout the 
nation to fill temporary labor needs. In my home State of Vermont, they 
are used primarily by the tourist industry.
  In response to this announcement, I joined with a substantial 
bipartisan coalition in introducing S. 2252, the Save Summer Act of 
2004. Senator Kennedy is the lead sponsor of this bipartisan bill, 
which has 18 cosponsors, including 8 Republicans. Our bill would add 
40,000 visas for the current fiscal year, providing relief to those 
summer-oriented businesses that had never even had the opportunity to 
apply for visas. Senator Hatch introduced a competing bill sponsored 
only by Republicans, S. 2258. I do not think that bill is as good as 
our bipartisan bill, but it is certainly better than nothing. 
Unfortunately, a small minority of the Republican caucus has demanded 
we do nothing, and the Republican leadership has acceded to that 
demand. Either the Save Summer Act of Senator Hatch's bill would 
command the support of an overwhelming majority of Senators, but the 
majority leader has brought neither forward for a vote.
  When it comes to immigration, the Republican leadership has ignored 
not only the concerns of the tourism industry and other businesses that 
depend on temporary summer workers, but even to the needs of farmers. 
Senators Craig and Kennedy joined together in introducing S. 1645, the 
Agricultural Job, Opportunity, Benefits, and Security Act. This bill 
has 62 cosponsors, including 25 Republicans. It would solve problems in 
the H-2A program that have plagued American farmers for years, while 
also providing a path to legalization for farm workers who have been 
working here illegally for years. It has the vociferous support of both 
farmers and farm workers; it is indeed an example of the sort of 
compromise legislation that used to be a

[[Page S5582]]

hallmark of this body. But we cannot get a vote on this bill.
  So while the Republican leadership has devoted time last week and 
this to an impasse over judicial nominees caused by the President's 
abuse of the recess appointment power, we have seen little effort to 
work on matters of significance that can and should be considered and 
acted upon by the Senate to make bipartisan progress for all Americans.
  While we celebrate progress today on judicial nomination, I hope that 
we will also soon see progress on these legislative matters. Through 
bipartisan action we can do much to serve the American people.

                          ____________________