[Congressional Record Volume 151, Number 59 (Monday, May 9, 2005)]
[Senate]
[Pages S4612-S4614]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. REID. Mr. President, of the initial Bush nominees, the 10 or 11 
we are talking about today, 8 have been confirmed; only 3 were not. Of 
course, one of those, Miguel Estrada, has not been renominated. 
Another, Terrence Boyle, has never been reported by the Judiciary 
Committee, even after 4 years of Republican control. So only one of the 
initial nominees, Priscilla Owen, is currently on the calendar.
  I think the Democrats have been responsible and reasonable in 
exercising advice and consent regarding this initial nominee.
  Regarding Priscilla Owen, she served on the Texas Supreme Court with 
the President's lawyer, Alberto Gonzales, who is now the Attorney 
General. Judge Gonzales wrote that several of Judge Owen's opinions 
were acts of unconscionable activism.
  I am concerned the Senate is heading toward an unnecessary showdown 
over judicial nominations. One of the Hill newspapers recently reported 
that my distinguished friend, the majority leader, is under enormous 
pressure from right-wing groups to trigger the so-called nuclear 
option. So many of our colleagues, Democrats and Republicans, have 
contacted me and, I am sure, the majority leader, saying: Let's try to 
work something out. They want to avert this damaging confrontation 
because it would be bad for the Senate and bad for the country. So we 
need to take every step we can to avoid this confrontation.

  We are prepared to be reasonable even with respect to these 
controversial nominations that are now before the Senate. But it seems 
that the White House, and maybe the Senate leadership, will not give 
the Senate a chance to put this issue behind us.
  It is important to understand that this manufactured crisis has been 
forced upon the Senate by the White House. During President Bush's 
first term, the Senate confirmed 205 of his judicial nominations and 
turned back only 10. This is a significant, strong percentage--more 
than 95 percent.
  The President could have accepted that success and avoided 
confrontation by choosing not to resubmit the names of those who were 
rejected. Instead, the President sent back 7 of the 10 nominees the 
Senate declined to confirm, including: the very controversial 
nominations of Priscilla Owen, whom I briefly commented about; William 
Myers, who, by the way, is the first nominee to the Federal bench that 
American Indians have ever opposed; William Pryor; Janice Rogers Brown; 
and Henry Saad.
  In fact, this whole crisis is really about five people. I have 
mentioned the five. Of the 10 previously rejected nominees, 3 were not 
renominated, and 2 are tied up in a separate controversy over the Sixth 
Circuit involving procedural matters. So we are talking only, I repeat, 
about 5 judges, 5 out of the

[[Page S4613]]

218. But this historically high percentage the President has obtained, 
creating one of the lowest vacancy rates in the entire history of the 
Federal judiciary, is not good enough for some. They have to have it 
all.
  Meanwhile, the President has failed to send us new nominations. In 
the more than 4 months since he was sworn in to a second term, the 
President has sent the Senate only one new judicial nomination. Other 
than that one nominee to the District Court of Nevada, Brian Sandoval, 
every single one of the President's judicial nominees has been here 
before. I have said to everyone who will listen that Senate Democrats 
will be careful and judicious in the use of our procedural rights. I 
have said that judicial filibusters will continue to be rare. So why 
doesn't the White House test our willingness to be reasonable by 
sending new nominees who we can consider anew and fresh, instead of old 
nominees who have run into trouble before?
  It is clear that the White House would rather pick fights than pick 
judges. One reason the White House will not send new judges to the 
Senate is that they do not want to give Senate Democrats a chance to 
show we are reasonable. They do not want the confirmation rate to 
increase from 95 percent to 96 or 98 percent. They want to paint us as 
obstructionists. But the facts are that the judicial confirmation rate 
this year is 100 percent and that there has not been a single 
filibuster of the four nominees the majority leader has brought before 
the Senate this year. But the radicals on the far right do not want to 
give us an opportunity to continue that cooperation because it would 
undercut their argument justifying the nuclear option. Maybe the White 
House wants to force the nuclear option on the Senate because it wants 
to clear the way for a Supreme Court nominee, because they are afraid 
the person they will submit is not going to be reasonable.
  There are lots of reasonable people around. There are Members sitting 
in this Senate today who could be a Supreme Court nominee of President 
Bush. They do not want a David Souter, a Republican, or an Anthony 
Kennedy, a Republican, or a Sandra Day O'Connor, a Republican, or a 
Ruth Bader Ginsberg, or a Stephen Breyer.
  So, Mr. President, I want a chance to prove that Senate Democrats are 
reasonable. There is a nominee on the Executive Calendar named Thomas 
Griffith. Mr. Griffith is a controversial nominee to an important 
appellate court. But if he is brought before the Senate, I believe he 
will be confirmed. He is the former Senate legal counsel. He was here 
during the impeachment proceedings. His nomination to the DC Circuit 
was reported from the Judiciary Committee by a 14-to-4 vote. Ranking 
Member Leahy and other Senators who opposed Griffith were concerned, 
among other things, that he had failed to obtain a license to practice 
law in either the District of Columbia or Utah during the time he was 
working as a lawyer in those jurisdictions.
  A number of Democrats will vote against confirmation on the floor, 
for these reasons and other reasons. But we on this side know the 
difference between opposing nominees and blocking nominees. We will 
oppose bad nominees, but we will only block unacceptable nominees. 
Democrats will use extended debate responsibly, and there is no cause 
for the majority to break the rules and 217 years of Senate traditions 
to take that right away. Mr. Smith should still be able to come to 
Washington, with either a Democratic or Republican Senate.
  I emphasize that Mr. Griffith is nominated to the DC Circuit Court of 
Appeals. This is the most important appellate court, separate and apart 
from the Supreme Court. Republicans say that our 95-percent 
confirmation rate is not relevant because many of the 208 judges we 
have confirmed are district court nominees--trial court judges, not 
appellate court judges. Well, here is a nominee to the most important 
Federal appellate court in the country, with the exception of the 
Supreme Court, and we are prepared to move forward. So I ask, do we get 
extra credit that this nominee is to the DC Court of Appeals?
  Let me note that this same courtesy was not extended to President 
Clinton's nominees to the DC Circuit. Republicans held up the 
nomination of Justice Department official Merrick Garland for years 
before finally confirming him.
  President Clinton then nominated two distinguished lawyers to the 
court: Elena Kagan, now dean of the Harvard Law School, and Allen 
Snyder, a partner in the law firm of Hogan & Hartson and a former clerk 
to Chief Justice Rehnquist. Both of these nominations were buried in 
the Judiciary Committee and were never given an up-or-down vote in 
committee or on the Senate floor.

  I have heard my Republican friends say so many times this year that 
nominees are entitled to an up-or-down vote. I would defy them to 
explain why Kagan and Snyder were denied votes on the Senate floor and 
why 69 Clinton nominees were buried and lost in the judiciary 
committee. But we want to move forward. To demonstrate our good will, 
we want to move forward on a controversial nominee to the DC Circuit. I 
want the majority leader to know that Democrats are prepared to enter 
into a unanimous consent agreement to move to the Griffith nomination. 
Under this unanimous consent agreement, we would proceed to the 
Griffith nomination immediately upon disposition of the supplemental 
appropriations bill. We would then have up to 10 hours of debate on 
that nomination, equally divided. Following that debate, we would be 
willing to have an up-or-down vote on this controversial nominee to the 
DC Circuit.
  Let's take a step away from the precipice. Let's arrive at this step 
and have a decision made on Griffith and then move on. Let's try 
cooperation rather than confrontation, which seems to be the hallmark 
of what we have been doing here lately.
  I just remind everyone: This has been a pretty good year for work 
being done in the Senate. My friend, the distinguished Presiding 
Officer, served in the House of Representatives where you can ram 
things through the House. If you are in the majority there, things go 
very quickly. But that is not how it works in the Senate. So we have 
been very fortunate this year to move legislation--important, landmark 
legislation, legislation that many of my colleagues on my side of the 
aisle did not especially like: class action legislation, bankruptcy 
legislation.
  We have done a lot of work here. We are going to do the supplemental 
appropriations bill. We have finished the budget. We have done a lot of 
work. We are on the highway bill. So I would think we should move 
forward. I say to those people who are interested in moving forward and 
who are interested in cooperation rather than confrontation, let us 
move forward on a unanimous consent request--which I would be happy to 
propound at a subsequent time, or the majority leader could do it--to 
move forward on Griffith. We want 5 hours on our side to talk about 
this man. They could have whatever time they want on their side. And we 
would move forward on an up-or-down vote on a DC Circuit Court of 
Appeals judge. I would think that would get us down the road to doing 
work that needs to be done in the Senate.
  Mr. LEAHY. Mr. President, will the Senator yield on that point?
  Mr. REID. I would be happy to yield to the distinguished ranking 
member of the Judiciary Committee.
  Mr. LEAHY. Is it my understanding, Mr. President, the distinguished 
Democratic leader is saying he is prepared to ask consent to move 
forward on the nomination of Tom Griffith to the DC Circuit?
  Mr. REID. I answer my friend: the answer is yes, even though this man 
is a controversial nominee. I know my distinguished friend, the senior 
Senator from Vermont, has on a number of occasions criticized this 
nomination. I have mentioned already a number of the reasons, including 
his practice of law without a license in a couple of different 
jurisdictions. But I have stated that I would be willing to move 
forward on this nomination. We would have adequate time on our side--up 
to 5 hours--to talk about the merits or demerits of this gentleman, and 
the majority could have whatever time they wanted. We would move to an 
up-or-down vote on this man. I think this would be an appropriate way 
to move forward and--again, I repeat for the third time--have in this 
body cooperation rather than confrontation.

[[Page S4614]]

  Mr. LEAHY. Mr. President, if the Senator will yield further for a 
question, the Senator has stated he realizes Mr. Griffith practiced law 
illegally, first in one jurisdiction for 3 or 4 years, then in a second 
jurisdiction for 3 or 4 years, but that he is the President's choice 
for going on the DC Circuit.
  I am sure the Senator is aware that during the last administration, 
several nominees for that same seat were blocked by pocket filibusters 
by the Republicans--one was Elana Kagan, who is now the dean of the 
Harvard Law School. Another was Allen Snyder, a former Supreme Court 
law clerk to Chief Justice Rehnquist.
  I voted against Mr. Griffith because I felt on the second highest 
court of the land it is not a good example to have a person, whatever 
his other qualifications might be, who was so cavalier as to practice 
law illegally in two different jurisdictions.

  I ask the Senator, is the Senator aware I did work with the 
distinguished Chairman of the committee, Senator Specter, to allow the 
hearing to go forward with Mr. Griffith and to allow a vote to go 
forward without delay in the committee? While I voted against Mr. 
Griffith because of the practice of law, primarily, and while, I felt 
concern that Chief Justice Rehnquist's former law clerk and Dean Kagan 
were blocked by the Republican pocket filibuster, I ask the leader if 
he understands that I will certainly have no objection nor do I know of 
any Democrat who would object to moving forward and having a real 
debate and the up-or-down vote that was denied to a Democratic 
President's nominees? Does the Senator understand that not withstanding 
the fact that I would vote against that nominee, I would support him 
bringing this nomination forward? I suspect he would get a majority of 
the votes in the Senate.
  Mr. REID. Let me say to my friend through the Chair, there is no 
question that Elana Kagan is qualified--she is the dean of the No. 1 
rated law school in the country, No. 1. Yale and Stanford come close, 
but Harvard is the No. 1 law school in the country. She is the dean of 
that school. But the Republicans controlled the Judiciary Committee, 
and they would not allow this woman to come to this floor.
  I would love to have had her on the floor so somebody could have 
filed a cloture motion. I would have loved to vote on that, but they 
would not even bring that nomination to the floor for a vote. They 
would not let it come to a vote in the committee, because this woman 
was eminently qualified, not only by her legal experience and her 
education, but by her demeanor and personal attitude toward the law. So 
she would have been really good for the second highest court in the 
land.
  And I say about the other person----
  Mr. LEAHY. Allen Snyder.
  Mr. REID. Allen Snyder, this man clerked for Chief Justice Rehnquist. 
Again, there was not even the courtesy of having a vote in the 
committee. They come to the floor and cry crocodile tears about up-or-
down votes. We would have taken a cloture vote on either one of these 
people. But they were unwilling to bring this person before the 
committee or the floor.
  So I say to my friend, you are absolutely right, there is a different 
standard now than there was. We are bringing people to the court. They 
say there has not been an up-or-down vote. There has been a vote. Every 
one of President Bush's nominees has come before the Senate for a vote. 
And I think it is on 69 different occasions that President Clinton had 
a nominee turned down on even a hearing in the Judiciary Committee, 
even a vote in the Judiciary Committee, let alone coming to the floor.
  So my distinguished friend is absolutely right.
  Mr. LEAHY. Mr. President, I ask the distinguished leader through the 
Chair----
  The ACTING PRESIDENT pro tempore. If the Senator from Vermont would 
suspend for a second. The Chair would remind both the Senators that 
Senators may yield time for the purposes of a question only.
  Mr. LEAHY. I am posing a question.
  Mr. REID. I am happy to yield to my friend for a question.
  Mr. LEAHY. I would ask if the Senator would yield for the purpose of 
a question. When we talk about votes, 40 is the threshold on 
filibusters. Of course, the Senate sets the rules. The Senate could 
say: You require 95 votes. Or it could say: You require 2 votes. There 
is nothing magic about 50, 40, 60, or anything else. But be that as it 
may, I would ask, through the Chair, whether the Senator from Nevada is 
aware of numerous instances in which Democrats have proceeded to debate 
and vote on the President's nominees against which there were more than 
40 negative votes--I can think of three significant judicial 
nominations where there were 41 Democratic votes against allowing them 
to go forward: Timothy Tymkovich was confirmed to the Eighth Circuit 
although 41 Senators voted against him; Jeffrey Sutton was confirmed to 
the Sixth Circuit although 41 Senators voted against him; J. Leon 
Holmes was confirmed to the district court in Arkansas although 46 
Senators from both parties voted against him. In addition, Senate 
Democrats proceeded to debate and vote on the controversial nomination 
of former Attorney General Ashcroft, who was confirmed although 42 
Senators voted against his confirmation; Ted Olson, who was confirmed 
to be Solicitor General although 47 Senators voted against his 
confirmation; Victor Wolski, who was confirmed to the Court of Claims 
although 43 Senators voted against his confirmation.

  Most recently, a number of us voted for cloture on the nomination of 
Stephen Johnson to head the EPA. He was confirmed with only 61 votes in 
support. I was one of those who voted for cloture so we could go 
forward with the President's nomination.
  Was the Senator from Nevada aware of all those?
  Mr. REID. Mr. President, the answer is yes. As I said earlier, we 
know the difference between opposing nominees and blocking nominees. I 
believe this is the time to put all of this behind us. Eight years of 
President Clinton, four years of President Bush, let's move forward. 
That is what this proposal is all about. Let's move forward. After we 
finish that, let's see where we are and see what else we can do. I 
think it is time to move forward. Again, I have no problem 
distinguishing between what happened to the 69 Clinton would-be judges 
who never showed up, never saw the light of day, and all those we have 
dealt with in the normal process in the 4 years President Bush has been 
President.
  We have been very selective in those we have opposed. We think we are 
right on every one of them. Hindsight will tell.
  This whole dispute is over 5 judges, 5 out of 218. It seems that 
people of goodwill can agree, as my distinguished friend from Nebraska 
Senator Hagel indicated this weekend on television, when he said: We 
should be able to work this out. We should. The world is watching us. 
We should not be changing the rules by breaking the rules. We should 
not do that. I hope the distinguished Senator from Tennessee, the 
majority leader, my friend, will accept the gesture of goodwill we have 
made. It is a step in the right direction. I hope we can let bygones be 
bygones and move forward.

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