[Congressional Record Volume 150, Number 102 (Wednesday, July 21, 2004)]
[Senate]
[Pages S8522-S8528]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                            The Iraq Debate

  Mr. McCONNELL. Mr. President, I rise today to discuss a matter of 
great relevance to the debate about the war in Iraq and the recent 
Senate report on the intelligence community. This report has 
illuminated a subject of considerable controversy and partisan 
criticism of the President.
  I also rise to speak about the importance of maintaining a basic 
standard of fairness in American politics.
  I am talking about the controversy that erupted over the infamous 
``16

[[Page S8523]]

words'' in the State of the Union Address that Senator Kerry and 
numerous Senate Democrats and the media cited in accusations that the 
President misled the country into war.
  On January 28, 2003, President Bush told the American people that:

       The British government has learned that Saddam Hussein 
     recently sought significant quantities of uranium from 
     Africa.

  That was in the President's State of the Union address in January 
2003.
  When doubt surfaced about some--but not all--of the evidence 
supporting this claim, Joe Wilson, who had traveled to Niger to 
investigate an aspect of the intelligence, penned an op-ed in the New 
York Times accusing the administration of manipulating intelligence.
  Not pausing for a full investigation, a partisan parade of Democratic 
Senators and Presidential candidates took to the streets to criticize 
the President and accuse him of misleading the Nation into war, a very 
serious charge.
  Sensing a scandal, the media pounced.
  NBC aired 40 reports on Wilson's claim. CBS aired 30 reports, while 
ABC aired 18.
  Newspapers did not hold back either. The New York Times printed 70 
articles reinforcing these allegations, while the Washington Post 
printed 98.
  Pundits and politicians gorged themselves on the story.

  Joe Wilson rose to great fame on the back of this inflammatory 
charge. He wrote a book for which he received a five-figure advance, he 
was lionized by the liberal left, and he became an adviser to Senator 
Kerry's Presidential campaign, a campaign to which he is also a 
financial contributor.
  Of course, we now know Wilson's allegation was false. And we know the 
chief proponent of this charge, Joe Wilson, has been proven to be a 
liar.
  After more than a year of misrepresentation and obfuscation, two 
bipartisan reports from two different countries have thoroughly 
repudiated Wilson's assertions and determined that President Bush's 16-
word statement about Iraq's effort to procure uranium from Niger was 
well founded.
  In fact, the real 16-word statement we should focus on is the one 
from Lord Butler's comprehensive report about British intelligence. 
Here is what he had to say:

       We conclude that the statement in President Bush's State of 
     the Union address . . . is well founded.

  Let me repeat Lord Butler's statement:

       We conclude that the statement in President Bush's State of 
     the Union address . . . is well founded.

  Those are 16 words to remember.
  It is now worth the Senate's time to consider Mr. Wilson's claims.
  Claim No. 1 is Wilson's assertion that his Niger trip report should 
have debunked the State of the Union claim.
  On this bold allegation, the Senate's bipartisan report included this 
important conclusion:

       The report on the former Ambassador's trip to Niger, 
     disseminated in March 2002, did not change any analysts' 
     assessments of the Iraq-Niger uranium deal. For most 
     analysts, the information in the report lent more credibility 
     to the original CIA reports on the uranium deal. . . .

  Let me repeat:

       For most analysts, the information in the report lent more 
     credibility to the original CIA reports on the uranium deal. 
     . . .

  Claim No. 2 is similarly egregious.
  According to the Washington Post, ``Wilson provided misleading 
information to the Washington Post last June. He said then that the 
Niger intelligence was based on a document that had clearly been forged 
. . . '' But ``the documents . . . were not in U.S. hands until eight 
months after Wilson made his trip to Niger.''
  Predictably, this bombshell appeared on page A9. Page A9, Mr. 
President. After this story had previously enjoyed extensive coverage 
on Page A1.
  There were indeed document forgeries, but these documents were not 
the only evidence that convinced foreign intelligence services about 
Iraq's efforts to purchase uranium.
  Damningly, the former Prime Minister of Niger himself believed the 
Iraqis wanted to purchase uranium and according to the Financial Times:

       European intelligence officers have now revealed that three 
     years before the fake documents became public, human and 
     electronic intelligence sources from a number of countries 
     picked up repeated discussion of an illicit trade in uranium 
     from Niger. One of the customers discussed by the traders was 
     Iraq.

  And the Wall Street Journal has reported that:

       French and British intelligence (services) separately told 
     the U.S. about possible Iraqi attempts to buy uranium in 
     Niger.--7/19/04

  Mr. President, when the French corroborate a story that Iraq is 
seeking WMD, you're probably in the right ballpark.
  Indeed, the Senate's bipartisan report concluded that at the time:

     it was reasonable for analysts to assess that Iraq may have 
     been seeking uranium from Africa based on CIA reporting and 
     other available intelligence.

  Claim No. 3 is Wilson's repeated denial that his wife, Valerie Plame, 
a CIA analyst, never recommended him for the Niger trip.
  In his ironically titled book, The Politics of Truth, Wilson claimed:

       Valerie had nothing to do with the matter She definitely 
     had not proposed that I make the trip.

  In fact, the bipartisan Senate Intelligence Report includes testimony 
that Plame ``offered up his name'' and quotes a memo that Plame wrote 
that asserts ``my husband has good relations with Niger officials.''
  The New York Times recently reported that:

       Instead of assigning a trained intelligence officer to the 
     Niger case, though, the C.I.A. sent a former American 
     Ambassador, Joseph Wilson, to talk to former Niger officials. 
     His wife, Valerie Plame, was an officer in the 
     counterproliferation division, and she had suggested that he 
     be sent to Niger, according to the Senate report.

  That story can be read on Page A14 of the New York Times.
  Claim No. 4 is Wilson's allegation that the CIA warned the White 
House about the Niger claim and that the White House manipulated 
intelligence to bolster its argument for war. Wilson charged:

       The problem is not the intelligence but the manipulation of 
     intelligence. That will all come out despite (Sen.) Roberts' 
     effort to shift the blame. This was and is a White House 
     issue, not a CIA issue.
       This reckless charge by Wilson was, we know, repeated by 
     many of the President's critics.

  Of course, it is not true. It simply is not true.
  The Senate Intelligence Report determined the White House did not 
manipulate intelligence, but rather that the CIA had provided faulty 
information to policymakers. And the Washington Post recently reported 
that ``Contrary to Wilson's assertions the CIA did not tell the White 
House it had qualms about the reliability of the Africa intelligence.'' 
(Susan Schmidt, Washington Post, A9, 7/10/04)
  Again: Front page news on Page A9.
  According to the New York Times and the Senate Intelligence Report, 
Joe Wilson admitted to Committee staff that some of his assertions in 
his book may have, quote, ``involved a little literary flair.''
  ``Literary flair'' is a fancy way of saying what ordinary people 
shooting the breeze on their front porches all across America call by 
its real name: a lie. That is what it is.
  So, the truth is Joe Wilson did not expose the Administration; in 
fact, he has been exposed as a liar.
  He misrepresented the findings of his trip to Niger, he fabricated 
stories about recognizing forgeries he never saw, he falsely accused 
the White House of manipulating intelligence, and he misrepresented his 
wife's role in promoting him for the mission.
  Joe Wilson's false claims have been exposed, but the networks aren't 
rushing to correct the story. Will NBC correct the 40 times it ran 
Wilson's claims, will CBS correct the 30 times, will ABC correct the 
18?
  To be sure, a few networks and newspapers have noted the Senate 
Intelligence Report conclusions, but where is the balance? Where are 
the lead stories? Where are the banner headlines? In short, where is 
the fairness?
  Sadly, that is the state of political coverage in this election year. 
Screaming charges about the President made on A1, repudiation of the 
charges on A9, if they are made at all. Is that fair?
  What of the political campaigns? It's a small wonder the Democrat 
candidates for President and their supporters aggressively picked up 
the Wilson claim. After all, the media was driving the train, so why 
not hitch a ride?
  However, now that Wilson's false claims have been exposed, shouldn't 
a

[[Page S8524]]

basic sense of fairness prevail? Shouldn't the partisans admit they 
were wrong, too?
  For example, some of my colleagues in the Senate should ask 
themselves if it's now appropriate to distance themselves from Joe 
Wilson's distortions. Speaking on this floor on March 23, the Minority 
Leader praised Wilson and accused the Administration of retaliating 
against him:

       When Ambassador Joe Wilson told the truth about the 
     administration's misleading claims about Iraq, Niger, and 
     uranium, the people around the President didn't respond with 
     facts. Instead they publicly disclosed that Ambassador 
     Wilson's wife was a deep-cover CIA agent.

  Just last month, Senator Daschle noted:

       Sunlight, it's been said, is the best disinfectant. But for 
     too long, the administration has been able to keep Congress 
     and the American people in the dark . . . other serious 
     matters, such as the manipulation of intelligence about Iraq, 
     have received only fitful attention.

  I hope he will acknowledge now the inaccuracy of his statement, and 
allow the sunlight to shine on Ambassador Wilson's fictions.
  Senator Kerry welcomed Wilson onto his campaign team of advisors, and 
his campaign hosts Wilson's website, which carries a disclaimer that it 
is ``Paid for by John Kerry for President, Inc.''
  The Kerry/Wilson website includes a collection of articles by and 
about Joe Wilson that propound his baseless allegations against the 
Bush Administration, which I don't have time to go into today. Suffice 
it to say that showcasing Wilson's discredited views should at least be 
met with some acknowledgement that he was wrong all along.
  Perhaps we can learn a thing or two from the recent episode involving 
Sandy Berger.
  Berger, an advisor to President Clinton and Senator Kerry stepped 
down from the Kerry campaign. He's under investigation for removing and 
possibly destroying classified documents being reviewed by the 9/11 
Commission.
  Were I to engage in a little literary flair, I might say it seems 
Sandy walked out of the National Archives with some PDBs in his BVDs, 
and some classified docs in his socks. At any rate, I think it is 
appropriate, and politically wise, for him to leave the Kerry campaign.
  It is clear Senator Kerry approved of Mr. Berger's departure. He 
should certainly ask the discredited Mr. Wilson to leave the team as 
well.
  I close with a simple observation. I believe vigorous political 
disagreements are the heart of a strong democracy. When our debates are 
rooted in fact, impassioned political disagreement makes our country 
stronger.
  I also believe Americans value fundamental fairness--fundamental 
fairness--and deserve a news media that reflects this value. How is it 
fair to report an accusation with blaring page 1 headlines and around-
the-clock television coverage and not give a slam-dunk repudiation of 
the charge the same kind of attention?
  We will watch over the next few days to see if fundamental fairness 
will be met, and if those who championed Mr. Wilson's charges will set 
the record straight.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I compliment the distinguished majority 
whip, the assistant floor leader, for what is an excellent set of 
remarks, long overdue and very much on point.
  I am on the Senate Select Committee on Intelligence. I remember when 
this whole brouhaha came up, how demeaned the President of the United 
States was, not only by the media but by this man, Ambassador Wilson, 
who immediately took great glee in slamming the President because of 16 
words that happened to be accurate. We could not talk about it before 
now, but the British findings show the President was accurate. And I, 
for one, am very happy for the Butler report and for what came out.
  I agree with the distinguished Senator from Kentucky that this was 
page 1 offensive media to the President of the United States, 
undermining what he was saying, what he was doing, and what we have 
backed him on this floor in doing. Now that this man has been caught in 
these shall I say discrepancies--some might be a lot stronger than 
that--we see hardly any comments about it. But having said that, I have 
to say I have been reading the Washington Post, and they have acted 
quite responsibly. Many of the other media have not acted that way. But 
the distinguished Senator from Kentucky covered this matter very well.
  I feel sorry whenever partisan politics trumps truth, whenever, in 
the interest of trying to get a political advantage from one side or 
the other, anybody of the stature of a former Ambassador of the United 
States would participate in distorting the record, especially when 
he knew better.

  So again, I thank my colleague.
  Mr. McCONNELL. Mr. President, I thank my friend from Utah. Hopefully, 
this will be the beginning of a wave of coverage both on the networks 
and in the newspapers on correcting the record and making it clear that 
Mr. Wilson's assertions are demonstrably false and have been so found 
by two different important reports.
  Mr. HATCH. Mr. President, I thank my colleague. I want to comment 
that anybody with brains, when they saw that Iraqi team and knew of the 
Iraqi team--of course, they could not say much about it until now--knew 
the Iraqi team had gone over to Niger, why else would they have spent 
the time? Niger had hardly any exportable products other than food, 
except for yellowcake uranium. Why would they waste their time going to 
Niger?
  I remember at the time thinking: This smells, this argument that the 
President has misused 16 words and that the CIA should be held totally 
responsible because those 16 words were wrong. And now we find they 
were not necessarily wrong. In fact, they were right.
  That smacks of this whole matter of partisanship with regard to the 
current Presidential race. We have our two colleagues on the other side 
who are now running for President and Vice President who voted for our 
actions in Iraq. At least one of them spoke out on how serious the 
actions of the Iraqi regime under Saddam Hussein were, voted for it, 
and now they are trying to weasel out because they voted against 
funding it, saying they wanted to get it done right. Well, that is a 
nice argument, except that we have well over 100,000 of our young men 
and women over there, and others as well, who are put at risk if we do 
not fund the effort once it has started.
  Secondly, I heard lots of comments from the other side as to weapons 
of mass destruction. They knew Saddam Hussein had them in the early 
1990s. The U.N. knew they had them. Almost every Democrat of substance 
spoke out that he had them, were concerned about the fact that he had 
weapons of mass destruction, that he was trying to obtain weapons of 
mass destruction, including the distinguished candidate for President 
in the Democratic Party.
  And to get cheap political advantage, they have tried to undermine 
the President of the United States because, so far, we have not been 
able to discover except small evidences of actual weapons of mass 
destruction.
  What has not been said, for the most part, is any basement in 
Baghdad, any swimming pool in Baghdad--a city the size of Los Angeles--
could store all of the biological weapons necessary to kill a whole 
city such as Baghdad or Los Angeles and could store all of the chemical 
weapons that could cause havoc all over the world. The fact we have not 
found them yet does not mean they are not there.
  It does appear the nuclear program Saddam Hussein had authorized in 
the early 1990s--and had been well on its way to accomplishing the 
development of a nuclear device--was not as forward advanced as many of 
us thought. But there is no question they had the scientists in place. 
There is no question they had the knowledge in place. There is no 
question they had the documents in place. There is no question he 
wanted to do that, no question that he would have done it if he could.
  I think as time goes on, more and more information will come out that 
will indicate that the President of the United States has taken the 
right course, with the help of this whole body. It seems strange to me 
that so many are trying to weasel out of the position they took earlier 
in backing the President of the United States and in backing our 
country and in backing

[[Page S8525]]

our soldiers, and are trying to make political advantage out of some of 
the difficulties we have over there.

  Now that political advantage has been tremendously diminished--
tremendously diminished--as of the time that jurisdiction was turned 
over to the Iraqis. They are now running their country, with us as 
backup to help them, to help bring about the freedoms all of us in 
America take for granted every day. I doubt they will ever have the 
total freedoms we take for granted every day, but they have a lot more 
freedom now than they ever even contemplated or thought possible under 
the Saddam Hussein regime.
  That is because of our country. That is because of our young men and 
women who have sacrificed. I particularly resent it when, for cheap 
political advantage, some of our colleagues get up and moan and groan 
about what is going on over there. Every time they do it, it undermines 
the very nature of what our young men and women are sacrificing to 
accomplish.
  Fortunately, it is the few who do that. But nobody on this floor on 
either side should be undermining our young men and women over in Iraq, 
who are heroically serving, some dying--over 900, as we stand here 
today.
  Cheap political advantage--that is the era we are in, I take it. Both 
sides from time to time have used efforts to accomplish cheap political 
advantage, but I have never heard it worse than what I have seen this 
year against this President. I have never seen a more vicious group of 
people than the outside commentators who hate President Bush. In all 
honesty, we can sit back and let these terrorists run around this world 
and do whatever they want to do and act like it won't affect us or we 
can take action to try to solve the problem.
  It is a long-term problem; it is not a short-term one. It is going to 
take a lot of courage and good leadership, and it is going to take 
people who don't just quit and hope they will go away. They are not 
going to go away. These people are committed ideologues. They are 
theocratic ideologues. And in many respects throughout the history of 
the world, that is where most of the really dangerous difficulties 
come. It is through vicious, radical, theocratic ideologues. Frankly, 
that is what we are facing. Anybody who thinks this is going to be just 
an easy slam dunk to resolve has not looked at any of the intelligence, 
has not thought it through, and really has not spent enough time 
worrying about it on the Senate floor or otherwise.
  I have not always agreed with our President. I probably have been 
wrong when I haven't. The fact is, I sure agree with him in supporting 
our troops and supporting freedom in the world. Think about it. If 
Saddam Hussein had been allowed to go on unchecked, not only would 
millions of Iraqis be kept in terrible conditions, upwards of a million 
killed viciously by that regime, but ultimately he would have developed 
nuclear weapons, as he was trying to do in the early 1990s and came 
close to doing by everybody's measure who knew anything about it. Had 
that occurred and we didn't do anything about it, guess who would have 
had to. And if they had to, as they did in the early 1980s in taking 
out the nuclear reactor, we would have world war III without question.
  So there is a lot involved here. This is not some simple itty-bitty 
problem, nor is it something conjured up by the President of the United 
States, nor is it something that really intelligent, honest, bipartisan 
people should ignore. We need to work together in the best interests of 
this country and of the world to make sure that these madmen do not 
control the world and continue to control our destinies and that these 
madmen don't get so powerful that they can do just about anything they 
want to in the world. You can see how they try to intimidate just by 
threats and even action. Well, great countries cannot give in to 
threats, nor can we give in to offensive action that needs to be dealt 
with. This country has led the world in standing for freedom.
  I have to say that I loved the comment of Colin Powell when somebody 
in a foreign land snidely accused the United States of attempted 
hegemony or trying to be imperial. He basically said: Our young men and 
women have given their lives all over this world for freedom, and the 
only ground that we have ever asked in return is that in which we bury 
our dead. That is true to this day. I think if the rest of the world 
looks at it honestly, they will have to say America really does stand 
for that principle: freedom and decency and honor and justice, not just 
in this land but for other lands as well.
  Mr. President, as I understand it, we are on the Saad nomination.
  The PRESIDING OFFICER (Mr. Talent). The Senator is correct.
  Mr. HATCH. As we begin the debate on this nomination, I want to put 
it in the larger context of the judicial nomination process.
  On May 9, 2001, President Bush nominated 11 outstanding individuals 
to serve on the Federal bench. I would note that this was months 
earlier than previous new Presidents, giving the Senate plenty of time 
to begin considering his nominees. In the 3-plus years--over 1,100 
days--since those nominations, the Senate has confirmed only 8 of the 
first 11 nominees. By comparison, the previous 3 Presidents saw their 
first 11 appeals court nominees all confirmed in an average of just 81 
days following their nomination. We are now 1,100 days past. Not so for 
President Bush.
  While three of his first nominees were confirmed within 6 months, 
many others waited for 2 years or more before they were confirmed. But 
even this long wait was better than the fate of the three remaining 
nominees who have been subjected to filibusters.
  One of those, Miguel Estrada, waited for more than 2\1/2\ years and 
became the target of the first filibuster against a judicial nominee in 
American history. This Hispanic man deserved better treatment, but he 
was mistreated for crass partisan purposes. Though a bipartisan 
majority of Senators supported Miguel Estrada, he had to withdraw after 
an unprecedented seven cloture votes, meaning seven attempts to try and 
get to a vote where he could have a vote up or down. Those seven 
cloture votes, any one of which would have ended the filibuster and 
allowed that vote up or down, he went through seven of them, the most 
in the history of this country for any judicial nominee. By the way, 
the only nominees who have ever had to go through cloture votes in a 
real filibuster or in real filibusters have been President Bush's 
nominees. We have had cloture votes before, but there never was any 
question that the nominees were going to get a vote in the end.
  Several weeks prior to those first nominations, shortly after 
President Bush's inauguration, the Democratic leader stated that the 
Senate minority would use ``whatever means necessary'' to block 
judicial nominees they did not like. We have seen the fulfillment of 
that statement as a variety of techniques have been employed to delay 
or obstruct the confirmation of nominees, including bottling up 
nominees in committee, injecting ideology into the confirmation 
process, seeking all unpublished opinions, requesting nominees to 
produce Government-owned confidential memoranda, repeated rounds of 
written questions, and multiple filibusters. It is a sad commentary on 
the deterioration of the judicial confirmation process that we are now 
approaching double-digit filibusters in the U.S. Senate of 10 judges or 
more.
  Let me reiterate a few points which I made yesterday concerning the 
process of confirming judges. Despite this range and frequency of 
obstructionist tactics which we have seen, some of them entirely new in 
American history, the Senate has confirmed 198 judges during the past 3 
years. I will note that this is behind the pace of President Clinton in 
his first term. And the minority has made even these confirmations as 
difficult as possible. Yet some of my colleagues think that the 
constitutional duty to advise and consent has a time clock attached to 
it and that the time has run out for the Senate to do its duty. I 
reject this analysis, either that the previous agreement to allow the 
vote on the 25 judges was the sum total of our work in the Senate or 
the notion that judicial nominations cannot be confirmed after some 
mythical deadline is announced.
  There are plenty of examples of confirmation of judges in 
Presidential election years during the fall, some of which occurred 
during or after the election was held. Stephen Breyer is a perfect 
illustration. He now sits on the Supreme Court of the United States.

[[Page S8526]]

Stephen Breyer was confirmed to the First Circuit Court of Appeals. 
That is just one example. I was the one who helped make that possible 
because Reagan had been elected.
  The Republicans had won the Senate for the first time in decades. 
There was no real reason to allow what many thought was a liberal 
Democrat to be appointed to any court at that point or to be confirmed 
to any court at that point. But Stephen Breyer was an exceptional man. 
He not only had been chief of staff to Senator Kennedy on the Judiciary 
Committee, and not only was he a Harvard law professor and a brilliant 
legal theorist, he was a very honest, decent, honorable man. I helped 
carry that fight. It wasn't much of a fight in the end because the 
Republicans agreed, and we confirmed Stephen Breyer late in the year 
after the election took place.
  I helped facilitate that confirmation which took place after the 
November 1980 presidential election. That nomination was made by 
President Carter, who had just been defeated by President Reagan, and 
yet we acted on it. I note that Senator Thurmond was the ranking member 
at that time. Yet his name continues to be invoked as the authority of 
a binding precedent. I reject the notion of this purported rule and 
would hope that the service of the longest serving and oldest Member to 
have served in this body would not be used in the manner I have heard 
repeated in the committee and on the Senate floor.
  Besides, Senator Thurmond was chairman of the committee, and at one 
time he did say: We have had enough confirmations, and this is what we 
are going to do. We are going to stop this year.
  But even then he didn't.
  Under the Senate Democrats' theory, the Senate has apparently 
confirmed enough judges. The remaining vacancies, half of which are 
classified as judicial emergencies because of the backlog, just don't 
seem to matter to them. According to their analysis, because of some 
acceptable vacancy rate or because of the mythical time clock, the 
remaining 25 judges pending before the Senate should be dismissed out 
of hand. This is not logical, nor is it the proper approach to take 
under the Constitution.
  I will also respond to some of the arguments made that Senate 
Democrats have only rejected six or seven nominees. The fact is, the 
Senate has not rejected the nominees which have been filibustered. If 
they have the votes to defeat the nominee, then let those votes be cast 
and let the results stand. But a minority of Senators are denying the 
Senate from either confirming or defeating some of these nominees. That 
is what we are seeking today--an up or down vote.
  Mr. President, unfortunately, one of the battlegrounds of this 
judicial obstructionism has been the Sixth Circuit Court of Appeals. 
Despite President Bush's attempt to fill four critical vacancies on 
that court, and two district vacancies in Michigan, these nominations 
remained stalled in the Senate. There are many factors contributing to 
the stalemate we have found ourselves in with regard to confirmations 
on the Sixth Circuit, some of which go back to the Clinton 
administration. I will discuss that in detail at a later point, but for 
now, everyone knows that I have been working to reach an accommodation 
that would help move this process forward.
  I have great respect for Senators Levin and Stabenow. I have worked 
for many years with Senator Levin and have reached agreements with him 
on many difficult issues. For example, Senator Levin and I worked with 
Senators Biden and Moynihan to dramatically revise the regulations 
pertaining to heroin addiction treatment. That effort is paying off. I 
remain hopeful that we can do so here.
  On this issue, I have continued to work with Senators Levin and 
Stabenow. I have carefully listened to their concerns. And while the 
Michigan Senators' negative blue slips were accorded substantial 
weight--that is why this has taken so long--I delayed scheduling a 
hearing on any of the Michigan nominees because of the Michigan 
Senators' views. Their negative blue slips are not dispositive under 
the committee's Kennedy-Biden-Hatch blue slip policy. It was started by 
Senator Kennedy, confirmed by Senator Biden, and I have gone along with 
my two liberal colleagues on the committee.
  I don't think there is any doubt that I have attempted to reach an 
accommodation that would fill these seats. Unfortunately, my efforts 
have not been successful. I remain hopeful that we can come to a 
resolution, and I will keep trying to do so. But I must emphasize, in 
my view, integral to any accommodation is the confirmation of Judge 
Saad, Judge Griffin, and Judge McKeague--at least votes up or down. 
Since they have a majority of people in the Senate who would vote for 
them, I believe they would be confirmed in the end.
  These are exceptional individuals. Judge Saad and Judge Griffin both 
serve on the Michigan Court of Appeals. Judge McKeague is a district 
Judge for the United States District Court for the Western District of 
Michigan. He was unanimously confirmed by the U.S. Senate.
  It has been nearly 1 year since the Judiciary Committee first 
considered the nomination of Henry W. Saad, who has been nominated for 
a position on the United States Court of Appeals for the Sixth Circuit. 
This is an historic appointment. Upon his confirmation, Judge Saad will 
become the first Arab-American to sit on the Sixth Circuit, which 
covers the States of Kentucky, Ohio, Tennessee, and Michigan.
  It is long past time for the Senate to consider Judge Saad's 
nomination. He was first nominated to fill a Federal judgeship in 1992, 
when the first President Bush nominated him for a seat on the United 
States District Court for the Eastern District of Michigan. The fact 
that he did not get a hearing may have worked to his benefit, since he 
was appointed in 1994 by Governor Engler to a seat on the Michigan 
Court of Appeals. He was elected to retain his seat in 1996 and again 
in 2002, receiving broad bipartisan support in each election.
  On November 8, 2001, President Bush nominated Judge Saad for a seat 
on the Sixth Circuit, the position for which we are considering him 
today. When no action was taken on his nomination during the 107th 
Congress, President Bush renominated him to the Sixth Circuit on 
January 7, 2003. All told, Judge Saad has been nominated for a seat on 
the Federal bench three separate times. It is high time the Senate 
completed action on his nomination.
  Judge Saad's credentials for this position are impeccable. He 
graduated with distinction from Wayne State University in 1971 and 
magna cum laude from Wayne State University Law School in 1974. He then 
spent 20 years in the private practice of law with one of Michigan's 
leading firms, Dickinson, Wright, specializing in product liability, 
commercial litigation, employment law, labor law, school law and libel 
law. In addition, he has served as an adjunct professor at both the 
University of Detroit Mercy School of Law and at Wayne State University 
Law School.
  Judge Saad is active in legal and community affairs. Some of the 
organizations he has been involved with include educational television, 
where he serves as a trustee, the American Heart Association, Mothers 
Against Drunk Driving, and other nonprofit organizations that serve the 
elderly and impaired. As a leader in the Arab-American community, Judge 
Saad has worked with a variety of organizations in promoting 
understanding and good relations throughout all ethnic, racial, and 
religious communities. He is an outstanding role model.
  Judge Saad enjoys broad bipartisan support throughout his State, as 
evidenced by endorsements in his last election by the Michigan State 
AFL-CIO and the United Auto Workers of Michigan. He has received dozens 
of letters of support from leading political figures, fellow judges, 
law professors, private attorneys, the Michigan Chamber of Commerce, 
and a variety of other groups.
  Let me quote from just a few of the letters received in support of 
Judge Saad's nomination. Maura D. Corrigan, Chief Justice of the 
Michigan Supreme Court, wrote: ``Henry Saad has distinguished himself 
as a fair-minded and independent jurist who respects the rule of law, 
the independence of the judiciary, and the constitutional role of the 
judiciary in our tripartite form of government. . . . Judge Saad is a 
public servant of exceptional intelligence

[[Page S8527]]

and integrity. He has the respect of the bench and the bar.'' Other 
judges have written that he is ``a hard-working and honorable 
individual'' and that he is ``an outstanding appellate jurist with a 
strong work ethic.'' Roman Gribbs, a lifelong Democrat and retired 
judge, wrote, ``Henry Saad is a man of personal and professional 
integrity, is fair-minded, very conscientious and is above all, an 
outstanding jurist.'' Judge Saad has clearly earned the respect and 
admiration of his colleagues on the Michigan State court bench. His 
nomination deserves consideration by this Senate.
  I hope that our consideration of Judge Saad's nomination is not 
overshadowed by collateral arguments about the propriety of his 
nomination, the committee blue slip process, an attack on his personal 
character and qualifications, or other diversionary arguments. The 
question before the Senate is the qualifications of Judge Saad to sit 
on the Federal bench.
  We have heard from the other side about the President just 
steamrolling these nominations, without consulting with the home state 
Senators.
  Mr. SESSIONS. Mr. President, I join the distinguished chairman of the 
Judiciary Committee, Senator Hatch, in supporting Henry Saad for the 
U.S. Circuit Court for the Sixth Circuit. He is an exceptionally 
qualified nominee who has great support in his area. He graduated with 
distinction from Wayne State University and then magna cum laude at 
Wayne State University School of Law. He has served for a decade on the 
Michigan Court of Appeals. He was nominated for this position by former 
President Bush 10 years ago and was held up, blocked, and did not get a 
hearing, and now he is back and being held up again.
  He has the necessary experience to serve. He has been active in his 
community. He is a Heart Association board member, Oakland College 
Community Foundation chairman, member of the board of the Judges 
Association, Michigan Department of Civil Rights hearing referee. He is 
a Community Foundation of Southeast Michigan board member. He has 
written a number of articles on subjects such as employment 
discrimination, AIDS in the workplace, libel standards, and legal 
ethics. He has given a number of speeches, primarily on appellate 
advocacy. He has been nominated for a position as an appellate judge, 
so this is good experience. Appellate judges do not try cases, as the 
Presiding Officer knows. Appellate judges review trials that went on 
before. They review briefs carefully and they hear arguments from 
attorneys involved in a case and who have written briefs in summary, 
and then they make written rulings to decide whether the trial was 
properly tried or not. We need him on this circuit.
  I have to share some thoughts about this matter because it is 
important and something smells bad. It is not good what has occurred 
with regard to this nominee and other nominees to the Sixth Circuit. 
There has been an orchestrated effort to block rule of law nominees for 
some time now.
  The House of Representatives had hearings on this matter some time 
ago and was highly critical about what has occurred. Frankly, I am not 
sure we fully know the story yet of all that occurred. Let's take 
recent history when the Democrats were in the majority in the Senate 
and they controlled the Judiciary Committee and could decide what 
nominees came up for vote.
  The Democrats made a number of questionable decisions, and they took 
care of some outside groups, and they took certain steps that were 
quite significant. A number of nominees were delayed or blocked. As I 
recall, even then there were four, maybe six, vacancies in this 
circuit. Right now, 25 percent of the circuit is vacant. It is an 
emergency situation, according to the courts, because we have so many 
vacancies there.
  Thirty-one assistant United States attorneys--these are the 
prosecutors who try cases every day, not a political group, but a group 
of workhorse attorneys trying cases--have expressed concern about the 
failure to fill these appointments and how long it takes their criminal 
appeals to be decided. But I want to share this with my colleagues 
because I think we might as well talk about it. I wish it had not 
happened, but it has.
  Take the case of Julia Gibbons of Tennessee. She was a very talented 
nominee to the Sixth Circuit early on. When the Democrats were in 
control of the Judiciary Committee, her nomination in 2001 was 
mysteriously slowed down. It did not move. At one point in March of 
2002, Senator McConnell spoke on the floor, and he complained that she 
had waited 164 days and never had a hearing, and we wondered what was 
going on and why this fine nominee was being held up.
  We now know through the release of internal memos that were published 
in newspapers, in the Wall Street Journal and other places that 
discussed this case, what happened. Frankly, I do not think these memos 
should have been made public--under the circumstances, they were, based 
on what I know. But things leak around here. That is the way it is. I 
have to share with this body what occurred.
  What we know is that in April of 2002, there was a staff memorandum 
to Senator Kennedy from his staff that indicates that the NAACP, which 
was a party to a Sixth Circuit case, the Michigan affirmative action 
case to be exact, that they considered to be an important case--this is 
what the memorandum says: That the NAACP

     would like the Judiciary Committee to hold off on any Sixth 
     Circuit nominees until the University of Michigan case 
     regarding the constitutionality of affirmative action in 
     higher education is decided by the en banc, Sixth Circuit. . 
     . .
       The thinking is that the current Sixth Circuit will sustain 
     the affirmative action program, but that if a new judge with 
     conservative views is confirmed before the case is decided, 
     the new judge will be able . . . to review the case and vote 
     on it.

  The Kennedy memorandum further states that some ``are a little 
concerned about the propriety of scheduling hearings based on the 
resolution of a particular case. We are also aware that the Sixth 
Circuit is in dire need of judges.''
  The memorandum goes on to conclude:

       Nevertheless we recommend that Gibbons be scheduled for a 
     later hearing: The Michigan case is important.

  Even though it was understood to be wrong to influence the outcome of 
a pending case, it was recommended that Gibbons be delayed.
  Now, people like to suggest that the holdup in these nominations is 
some flap with the home State Senators, that it is tit for tat. I 
remember a good friend who former President Bush nominated, John 
Smietanka, for this circuit. He was blocked. He was a wonderful 
nominee, a saintly person really, a great judge. He was blocked, so 
they say this is all tit for tat, but I do not think so.
  I am afraid what really is at work is this circuit was narrowly 
divided. In fact, as I recall, the University of Michigan case was 
decided by one vote. Had the new judge been confirmed and voted the 
other way, it would have been a tie vote. That verdict would not have 
come out as it did. So I think there is an attempt to shape the makeup 
of this court. Let's not make any mistake about this whole issue. The 
judiciary debate is not about politics; it is not Republican versus 
Democrat. This debate is about the beliefs, the value judgment, and the 
legal philosophy of President Bush, and I dare suggest a vast majority 
of American citizens. President Bush and the American people believe 
that judges should be bound by the law, they should follow the law, 
they should strictly follow the law, and that unelected, lifetime 
appointed Federal judges are not in power to set social policy because 
they are unaccountable to the public. So that is the big deal.
  There are people who believe otherwise. There are people who can no 
longer win these issues at the ballot box, if they ever could. They 
want judges to declare things that they do not want to have their 
fingerprints on, like taking God out of the Pledge of Allegiance. These 
are activist decisions. So I believe this is a matter far deeper than 
just Republican versus Democrat; it represents a debate about the 
nature of the American judiciary--do we stay true to an Anglo-American 
tradition that judges are not political, that they are independent, 
that they wear that robe to distinguish themselves from the normal 
person, that they isolate themselves from politics, and that they study 
the law and rule on the law?

[[Page S8528]]

That is what I believe a judge ought to do. That is the ideal of 
American law. It is very important that we maintain that.
  When we have nominees held up explicitly to affect the outcome of a 
case that might come before them, a very important and famous case, 
indeed perhaps the most significant case that year--maybe even in the 
last half- dozen years--to be shaped and blocked simply because of that 
case is bad. In fact, after the case was over, Judge Gibbons was 
confirmed 95-0 by this body. There never was any objection to her other 
than they were afraid it would affect the outcome of the case.
  There are vacancies on the Sixth Circuit. The President is empowered 
to make the appointments. He is empowered to make the appointments 
according to the legal philosophies and principles he announced to the 
American people when he ran for office. President Bush declared that he 
was going to nominate and fight for judges who would follow the law, 
not make law, who would show restraint, who would be true to the 
legitimate interpretation of the statutes and the Constitution, not 
using that document to further promote their own personal agendas. That 
is what he has done, and that is what Judge Saad's record is. He is not 
going to impose his values on the people of the Sixth Circuit. That is 
not his philosophy of judging. His philosophy is to follow the law, not 
to make the law. We have no fear of that kind of judge. We ought to 
confirm him.
  The people of this Nation need to know that the Democratic leader, 
Senator Daschle, and the Democratic machine is time after time 
mustering 40 votes to block these nominees from even getting an up-or-
down vote. In fact, when we vote on cloture to shut off debate and we 
have to have 60 votes, we are constantly getting 53, 54, 55 votes for 
these nominees, which is more than enough to confirm them, but we 
cannot shut off the debate and get an up-or-down vote. So by the 
unprecedented use of the filibuster, these judges are not getting an 
up-or-down vote. I say to the American people, they need to understand 
this. I believe the rule of law in this country is jeopardized by the 
politicization of the courts. We must not allow that to happen. I 
believe the collegiality and traditions of this Senate are being 
altered. There is no doubt we have not had filibusters of judges 
before. In fact, about 4 years ago, Senator Leahy was denouncing 
filibusters when President Clinton was in office, and now he is leading 
it. The ranking member of the Judiciary Committee is leading a host of 
filibusters. It is an unprincipled thing.

  I remember Senator Hatch, as chairman of the Judiciary Committee and 
a guardian of the principles and integrity of the Senate, on many 
occasions told Republicans when they said, Well, we do not like this 
judge, we ought to filibuster him, why do we not filibuster him, and he 
said, You do not filibuster judges; we have never filibustered judges; 
that is the wrong thing to do. And we never filibustered President 
Clinton's judges.
  I voted to bring several of them up for a vote and cut off debate 
even though I voted against those judges because they should not be on 
the bench. I did not vote to filibuster the judge, and I think that is 
the basic philosophy of this Senate.
  I hope we will look at this carefully. These nominees are highly 
qualified. They are highly principled. Many of them have extraordinary 
reputations, like Miguel Estrada, Judge Pickering, Bill Pryor, and 
Priscilla Owen from Texas, a justice on the Texas Supreme Court who 
made the highest possible score on the Texas bar exam. These are highly 
qualified people who ought to be given an up-or-down vote. If they were 
given an up-or-down vote, they would be confirmed just like that.
  Unfortunately, we are having a slowdown, unprecedented in its nature. 
If this does not end and we cannot get an up-or-down vote on these 
judges, those of us on this side need to take other steps. And we will 
take other steps. We need to fight to make sure that the traditions of 
this Senate and the constitutional understanding of the confirmation 
process are affirmed and defeat the political attempts to preserve an 
activist judiciary that our colleagues, it appears, want to keep in 
power so that they can further their political agenda, an agenda they 
cannot win at the ballot box.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BYRD. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.