[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
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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.
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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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