[Congressional Record Volume 151, Number 60 (Tuesday, May 10, 2005)]
[Senate]
[Pages S4806-S4816]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT FOR DEFENSE, THE GLOBAL WAR
ON TERROR, AND TSUNAMI RELIEF ACT, 2005--CONFERENCE REPORT
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to the consideration of the conference report to
accompany H.R. 1268, which the clerk will report.
The assistant legislative clerk read as follows:
The committee of conference on the disagreeing votes of the
two Houses on the amendments of the Senate to the bill (H.R.
1268), making emergency supplemental appropriations for the
fiscal year ending September 30, 2005, to establish and
rapidly implement regulations for State driver's license and
identification document security standards, to prevent
terrorists from abusing the asylum laws of the United States,
to unify terrorism-related grounds for inadmissibility and
removal, to ensure expeditious construction of the San Diego
border fence, and for other purposes, having met, after full
and free conference, have agreed to recommend and do
recommend to their respective Houses this report, signed by a
majority of conferees on the part of both Houses.
The ACTING PRESIDENT pro tempore. The Senate will proceed to the
consideration of the conference report.
(The conference report is printed in the House proceedings of the
Record of May 3, 2005.)
The PRESIDING OFFICER (Mr. Sununu). The Senator from Mississippi is
recognized.
Mr. COCHRAN. Mr. President, the Senate now has under consideration
the conference report to accompany H.R. 1268, the fiscal year 2005
emergency supplemental appropriations bill. This bill was requested by
the President to carry forward the spending and accounts of the
Department of Defense, the Department of State, and other agencies and
departments of the Government through the remainder of this fiscal year
which will end on September 30.
The bill was passed in the Senate on April 21, and we began
conference discussions with our colleagues from the other body on April
27. A bipartisan majority of the conferees reconciled differences
between the two bills and reached agreement on the provisions of a
conference report on Tuesday, May 3.
The House approved the conference report on May 5 by a rollcall vote
of 368 to 58. The conference agreement provides a total of $82.041
billion, slightly less than the President's request of $82.042 billion.
Almost $76 billion in emergency supplemental appropriations is provided
to the Department of Defense to cover the costs of continuing the
operations in Iraq and Afghanistan.
Title II of the conference agreement provides $4.128 billion for
international programs and assistance for reconstruction and the war on
terror. Title III provides $1.184 billion for domestic programs in the
war on terror. And title IV provides $907 million in relief for the
Indian Ocean tsunami disaster.
[[Page S4807]]
Finally, division B of the conference agreement carries the House-
passed REAL ID Act and other provisions relating to immigration issues.
This conference agreement embodies a genuine compromise between the
two bodies on legislation that is of utmost importance to our troops
who are deployed in the war on terror and for our allies around the
world. It is supported by the administration, and I hope the bill, as
reflected in the conference report, will receive bipartisan support in
the Senate.
We are pleased to have the benefit of comments by other members of
the committee or Senate to explain specific provisions of this
conference agreement. We are prepared to try to respond to any
questions that any Senators may have about the provisions of the
conference report, and we will be hopeful, however, that the Senate
will proceed with some dispatch to the approval of the conference
report because it is an urgent supplemental appropriations conference
report. The funds provided in this conference report are urgently
needed by our forces in the field and by our State Department for
accounts that have been depleted in connection with programs
administered by that Department.
The administration is urging that we act quickly, and I hope we will
not unnecessarily prolong consideration of the conference agreement in
the Senate but respond enthusiastically with the challenge from the
administration to act with dispatch on this conference report.
Mr. President, before I yield the floor, if I may have one more
moment of indulgence from the Senator from California, on behalf of the
majority leader, I ask unanimous consent that there be 3 hours and 15
minutes of debate under the control of the ranking member and 1\1/2\
hours of debate under the control of the chairman; provided further
that following the use or yielding back of time, the Senate proceed to
a vote on adoption of the conference report, with no intervening action
or debate.
The PRESIDING OFFICER. Is there objection?
Mrs. FEINSTEIN. Reserving the right to object.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, the distinguished chairman of the
Appropriations Committee had indicated that I would be able to speak as
in morning business, that he would not object. My concern is, with the
time, if I will, in fact, have the time to complete my remarks.
Mr. COCHRAN. Mr. President, I have no objection to the Senator
speaking as in morning business.
Mrs. FEINSTEIN. For such time as I may consume.
Mr. COCHRAN. I do not want her to talk forever.
Mrs. FEINSTEIN. No, it will not be forever.
Mr. COCHRAN. How long does the Senator expect to talk?
Mrs. FEINSTEIN. Probably a half hour.
Mr. COCHRAN. I have no objection, and I have no objection with that
being done in spite of the agreement we have reached on the time for
debate of the supplemental.
The PRESIDING OFFICER. Is there objection to the request of the
Senator from Mississippi? Without objection, it is so ordered.
The Senator from California.
Mrs. FEINSTEIN. Mr. President, I thank the chairman of the
Appropriations Committee for his graciousness. I am pleased to serve on
that committee. He has been nothing but fair always. That is very much
appreciated. I would like to indicate my support for the supplemental
appropriations. I do have concerns about the inclusion of the REAL ID
Act in this bill, largely because it is the Judiciary Committee that is
the committee of jurisdiction, and this very complicated act has not
had the opportunity of a hearing or discussions or markup by members of
that committee. That having been said, it is my intent to vote for the
emergency supplemental.
I wish to speak during the remainder of my time on the so-called
nuclear option and the majority leader's intention to remove the
ability of the minority party to filibuster judicial nominations.
Judicial Nominations
Mr. President, I speak today as a member of the Judiciary Committee
for the past 12 years. In this capacity, I have worked with Members
from both sides of the aisle and on nominations from both Democratic
and Republican Presidents. In all, I voted to confirm 573 judges and
have voted no on the Senate floor on 5 and voted against cloture on 11.
I evaluate each candidate on a case-by-case basis and thoroughly
examine their writings, opinions, statements, temperament, and
character. The fact that Federal judges are lifetime appointments
weighs heavily. They do not come and go with an administration, as do
Cabinet appointments. Rather, they cannot be removed from the bench
except in extremely rare circumstances. In fact, in our Government's
over 200-year history, only 11 Federal judges have been impeached, and
of those, only 2 since 1936.
Over the years, we have had heated debates and strong disagreements
over judicial nominees; however, that debate is what ensures the Senate
confirms the best qualified candidates.
I am deeply troubled when our legitimate differences over an
individual's qualifications to be given a lifetime appointment to the
Federal bench become reduced to inflammatory rhetoric. I am even more
concerned when rhetoric turns into open discussion about breaking
Senate rules and turning the Senate into a body where might makes
right.
I am here today because some Members on the other side of the aisle
have decided that despite a constitution that is renowned worldwide and
used as a model for emergent democracies, despite a confirmation rate
of 95 percent of President Bush's judicial nominees, and despite the
other pressing priorities that the American people want us to address,
that the time has come to unravel our Government's fundamental
principle of checks and balances. The majority has decided the time has
come to unravel the Senate's traditional role of debate and that the
time has come to break the rules and discard Senate precedent.
I am very concerned about this strategy. It is important to remember
that once done, once broken, it will be hard to limit and hard to
reverse. In fact, just last month, Senator Coleman stated on CNN:
The President has a right to make appointments. They are
not to be filibustered. They deserve an up-or-down vote.
That's true for any kind of appointee, whether it's Under
Secretary of State or a judge.
And this is exactly my point. First, the rules would be broken with
regard to judicial nominees, then it is executive branch nominees, then
it is legislation, and then the Senate has no rules at all and simply
becomes a replication of the House of Representatives.
Every Thursday morning, I have a constituent breakfast, and at that
breakfast I describe the difference between the House and the Senate
based on something George Washington once said, that the House moves
rapidly, is controlled totally by the party in power, and is akin to a
cup of coffee. You drink your coffee out of the cup, but if it is too
hot, you pour it into the saucer to cool it. And that is the Senate,
the greatest so-called deliberative body on Earth, a place that fosters
debate, often unlimited, and is basically based on the fact that no
legislation is better than bad legislation. So the Senate by design was
created to be a very different house than is the House of
Representatives.
The strategy of a nuclear option will turn the Senate into a body
that could have its rules broken or changed at any time by a majority
of Senators unhappy with any position taken by the minority. As I said,
this is not the Senate envisioned by our Founding Fathers, and it is
not the Senate in which I have been proud to serve for the past 12
years.
I think it is important to take a look at history, as others have
done, to understand the context of where this debate is rooted. The
Founding Fathers and our early Pilgrims were escaping a tyrannical
government where the average man, the common man, often did not have a
voice and was often left without any say in its laws that governed him
and his family. In response, these men specifically embedded language
in the Constitution to provide checks and balances so that inherent in
[[Page S4808]]
our Government's design would be conflict and compromise, and it is
precisely these checks and balances that have served to guarantee our
freedoms for over 200 years.
When you read the Federalist Papers, discussions at the
Constitutional Convention, and about the experience of America's first
President, it is clear the Senate was never intended to be a
rubberstamp. While it is often difficult to discern the original intent
of a constitutional provision, the records of the Convention address
the role of the Senate in the selection of Federal judges with unusual
clarity.
Both the text of the appointments clause of the Constitution and the
debates over its adoption strongly suggest that the Senate was expected
to play an active and independent role in determining who should sit on
the Nation's judiciary.
Throughout its deliberations, the Convention contemplated that the
National Legislature in some form or another would play a substantial
role in the selection of Federal judges. As a matter of fact, on May
29, 1787, the Convention began its work on the Constitution by taking
up the Virginia plan, which provided:
That a National Judiciary be established . . . to be chosen
by the National Legislature.
Under this plan, the President was to have no role at all. One week
later, James Madison modified the proposal so that the power of
appointing judges would be given exclusively to the Senate rather than
to the legislature as a whole. This motion was adopted without any
objection. So the Senate had the entire authority.
Then less than 2 weeks before the Convention's work was done, for the
first time the committee's draft provided that the President should
have a role in the selection of judges.
However, giving the President the power to nominate judges was not
seen as ousting the Senate from a central role. Governor Morris of
Pennsylvania paraphrased the new provision as one giving the Senate the
power to appoint judges nominated to them by the President. In other
words, it was considered the Senate was the nomination body and the
President simply recommended judges to the Senate.
The Convention, having repeatedly and decisively rejected the idea
that the President should have the exclusive power to select judges,
could not possibly have intended to reduce the Senate to a rubber
stamp, but rather it created a strong Senate role to protect the
independence of the judiciary. In fact, Alexander Hamilton, considered
the strongest defender of Presidential power, emphasized that the
President would be required to have his choice for the bench submitted
to an independent body for debate, a decision, and a vote, not simply
an affirmation. He clarified the necessary involvement of the Senate in
Federalist No. 77 by writing:
. . . if by influencing the President be meant restraining
him, this is precisely what must have been intended.
Here is the emergence of a check, a balance, a leveling impact on the
power of appointment, which is not to be unbridled.
In 1776, John Adams also wrote on the specific need for an
independent judiciary and checks and balances. He said:
The dignity and stability of government in all its
branches, the morals of the people and every blessing of
society, depends so much upon an upright and skillful
administration of justice, that the judicial power ought to
be distinct from both the legislative and executive, and
independent upon both, that so it may be a check upon both,
as both should be checked upon that . . . [The judges'] minds
should not be distracted with jarring interests; they should
not be dependent upon any man or body of men.
So it is clear, when examining the creation of our Constitution, that
the Federal judiciary was specifically designed to be an independent,
nonpartisan third branch, and the Senate was meant to play an active
role in the selection process.
In addition, the experience of President Washington in appointing
judges illustrates that from the outset the Senate took an active role
in evaluating judicial nominees. In 1795, President George Washington
nominated John Rutledge to be Chief Justice. Soon after his nomination,
Rutledge assailed the newly negotiated and popular Jay Treaty with
Britain. Even as Rutledge functioned as Acting Chief Justice, the
Senate debated his nomination for 5 months, and in December 1795 the
body rejected him 14 to 10, illustrating from the first administration
that the Senate has always enjoyed a strong prerogative to confirm or
reject nominees.
Now, use of procedural delays throughout history has prevented
nominees from receiving an up-or-down vote. The claim that it is
unprecedented to filibuster judicial nominations is simply untrue. In
1881, Republicans held a majority of seats in the Senate but were
unable to end a filibuster to preclude a floor vote on President
Rutherford B. Hayes's nomination of Senator Stanley Matthews to the
Supreme Court. Matthews was renominated by incoming President James
Garfield, and after a bitter debate in the Senate, was confirmed by a
vote of 24 to 23. This has been described as the first recorded
instance in which the filibuster was clearly and unambiguously deployed
to defeat a judicial nomination.
Then, as has been stated on the Senate floor, there was the 1968 GOP-
led filibuster against President Lyndon B. Johnson's nomination of Abe
Fortas to be Chief Justice of the United States. At the time, a page 1
Washington Post story declared: ``Fortas Debate Opens With a
Filibuster.''
The article read:
A full-dress Republican-led filibuster broke out in the
Senate yesterday against a motion to call up the nomination
of Justice Abe Fortas for Chief Justice.
So here are two specific examples of Republican-led filibusters
against judicial appointments.
Last Congress, the Congressional Research Service reported that
filibusters and cloture votes have been required to end debate on
numerous judicial appointments. CRS reported that since 1980, cloture
motions have been filed on 14 court of appeals and district court
nominations. We all know a cloture vote is another kind of filibuster.
It is the kind of filibuster where one does not have to stand up on the
floor, but it takes the same 60 votes to close off debate. Moreover,
cloture petitions were necessary in 2000 to obtain votes on the
nominations of both Richard Paez and Marsha Berzon to the Ninth Circuit
after Republican opponents repeatedly delayed action on them, for over
4 years in the case of Paez.
In fact, at the time, Republican Senator Bob Smith openly declared he
was leading a filibuster against Richard Paez and he described Senator
Sessions as a member of his filibuster coalition.
In addition to using the filibuster and other procedural delays,
Republicans have publicly pronounced the importance of these rules and
their own desire to delay or block the confirmation of judges. As
recently as 1996, Senator Lott stated:
The reason for the lack of action on the backlog of Clinton
nominations was his steadily ringing office phone saying ``No
more Clinton Federal judges.''
In 1996, Senator Craig said:
There is a general feeling . . . that no more nominations
should move. I think you'll see a progressive shutdown.
In 1994, Senator Hatch stated that the filibuster is ``one of the few
tools that the minority has to protect itself and those the minority
represents.''
How soon they forget. Recent Republican practices using anonymous
holds allowing a single Senator, not 41, to prevent a hearing or a vote
on a judicial nominee, in effect, has created a filibuster of one. All
told, during the last administration, more than 60 judicial nominees
suffered this fate. This practice was recently commented on in the
Chicago Tribune which said:
In addition, there are lots of congressional practices that
defy majority rule. Under President Clinton, when Republicans
controlled the Senate, they didn't have to use the filibuster
to bottle up judicial nominations. The Judiciary Committee
simply refused to send them to the floor for a vote.
That is true. I know. I was there. Remembering this history is
important, not to point fingers or justify a tit-for-tat policy;
instead, it is important to recall that Senate rules have been used
throughout our history by both parties to implement a strong Senate
role and ensure that Presidents do not attempt to weaken the
independence of the judiciary.
[[Page S4809]]
The history is not new, and these examples have been cited by my
colleagues in other contexts, and therefore, those on the other side
have responded to the history. I believe it is important to address the
differences that the other side is trying to draw.
Some have argued that the nomination by President Hayes of Senator
Matthews of Ohio was not a filibuster because there was no cloture
vote. This is true, however, a procedural delay denying a nominee
confirmation to a court still has the result blocking a nomination.
Trying to make a distinction about the procedures used to deny a
nominee confirmation is a distinction without a difference.
As for the nomination of Abe Fortas--colleagues on the other side of
the aisle have made various arguments including: that's only one
isolated example; it was a Supreme Court, not a Circuit Court nominee;
or Fortas' nomination was withdrawn after a failed cloture vote showed
he did not have majority support and therefore its not the same
situation.
Miguel Estrada and Carolyn Kuhl both withdrew their nominations after
failed cloture votes, however both were used as examples of filibusters
by Democrats.
Our colleagues have argued that the delays to the nominations of
Richard Paez and Marsha Bershon do not count because in the end they
were confirmed. This ignores that it took over four years to confirm
both nominees. In addition, if a party attempts to filibuster a
nomination, or legislation, and it is eventually passed that does not
mean it is not a filibuster. It simply means that the filibuster or
refusal to grant cloture cannot be sustained. That has happened to both
parties in a variety of situations. However, failure does not undo the
effort.
Finally, as to the other Clinton Administration nominees--the
response given is that their nominations weren't defeated by a cloture
vote on the floor. In essence the argument is because different
procedural rules were used to defeat a nomination, it doesn't count. On
its face, this argument doesn't hold water. To the nominee whether
their confirmation failed because of a ``hold'' in Committee, or a
failed cloture vote, the result is the same--they are not sitting on
the bench.
Dozens of Clinton's nominees were ``pocket filibustered'' by as
little as one Senator who, in secret, prevented the nominees from
receiving a hearing in Committee, or a mark-up, or a floor vote. One
Senator without debate or reason has stopped many Clinton nominees.
The question I have is whether the public interest is better served
by one hidden filibuster without explanation, or 41 Senators debating
publicly and refusing publicly to confirm the nominee. Clearly, it is
the later.
I would like to go over a few nominees from the last administration
who have been filibustered by Republicans, and filibustered
successfully on many occasions by as little a number as one Republican;
filibustered in a way that it was secret; filibustered in a way that
the individual never received a hearing or a markup in Judiciary or a
vote on the Senate floor. Then I would like an answer to the question,
which is better, a filibuster by 40 Members on the floor openly
declared, publicly debating, discussing an individual's past speeches,
an individual's temperament, character, opinions, or a filibuster in
secret when one does not know who or why?
I begin with Clarence Sundram. Clarence Sundram was the chairman of
the New York Commission for the Mentally Disabled. He was nominated on
September 29, 1995. He had hearings on July 31, 1996, and June 25,
1997. There was no committee vote. There was no floor vote. His
nomination was simply killed in committee by a filibuster of one or
two, or the chairman's decision not to bring the nomination to the
floor. He was supported by both home State Senators Moynihan and
D'Amato. On seven occasions, Senator Leahy spoke on the Senate floor
urging that a vote be taken on Sundram, but no vote was ever taken.
James A. Beaty, Jr., was nominated to the U.S. Court of Appeals for
the Fourth Circuit on December 22, 1995, and renominated on January 7,
1997. He did not receive a hearing and was not voted on in committee.
His nomination languished for more than 1,000 days, almost 3 years
without any action being taken. He was nominated by President Clinton
to be a judge on the U.S. District Court for the Middle District of
North Carolina. He was finally confirmed by the Senate in 1994.
Before that, he spent 13 years as a judge in the North Carolina
Superior Court. He was blocked by Senator Helms. On November 21, 1998,
National Journal reported that Senator Helms wanted President Clinton
to name to the Fourth Circuit one of the Senator's proteges, Terrence
W. Boyle, whose nomination to that bench was killed when the Democrats
ruled the Senate and George Bush was President, but the Clinton White
House refused and Senator Helms made it clear that President Clinton
would not get Beaty confirmed until he nominated Boyle.
Then Senator Helms supported Beaty when he was nominated for his
current position as a U.S. district court judge. But this shows how
things worked, where one person could deny a nomination.
Then there is Helene White from the State of Michigan. She was
nominated to the U.S. Court of Appeals for the Sixth Circuit on January
7, 1997, and renominated on January 26, 1999, and renominated for a
third time on January 3, 2001. She did not receive a hearing or a
committee vote during the pendency of her nomination. She had waited
for a Senate Judiciary Committee hearing for 4 years, longer than any
other judicial nominee in history, according to the Associated Press.
She had been a judge on the Michigan Court of Appeals. She served as a
Wayne County circuit judge for nearly 10 years. She sat on the Common
Pleas Court for the city of Detroit and served on the board of
directors of the Michigan legal services. President Clinton thanked her
for hanging in there through an ordeal that no one should have to
endure. It is my understanding Senator Levin, one of the Michigan
Senators, supported her. Senator Abraham waited 2 years before turning
in his blue slip, and after turning in the blue slip did not endorse
Ms. White. That, again, is how things worked. One person--not 41 people
on the floor debating but 1 person--in secret holding up a nominee.
That is just as much a filibuster, and even more effective a
filibuster.
Jorge Rangel was nominated to the U.S. Court of Appeals for the Fifth
Circuit on July 24, 1997. He did not receive a hearing or a vote in
committee. He was a partner in Rangel & Chriss, a Corpus Christi law
firm, and specialized in personal injury, libel, and general media
litigation. He was presiding judge of the 347th District Court in
Nueces County from October of 1983 to June of 1985, and a former
assistant professor of law at the University of Houston. He was
originally recommended to the White House by Senator Bob Krueger, but
removed his name from consideration because, according to a July 25,
1997 Dallas Morning News article, he was then a member of the American
Bar Association Panel that reviews federal court nominees, which made
him ineligible. He was subsequently nominated after he was no longer on
the ABA panel, at which time, Texas Monthly has reported, he was
blocked by his two home state Senators. So, two persons there.
Barry Goode was nominated to the U.S. Court of Appeals for the Ninth
Circuit in 1998, renominated January 26, 1999, and renominated a third
time on January 3, 2001, just before President Clinton left office--
three tries. He waited for 2\1/2\ years without a hearing or a vote in
committee. He was a partner at the time at the San Francisco law firm
of McCutchen, Doyle, Brown & Enersen. He had practiced law since 1974.
He was an adjunct professor of environmental law at the University of
San Francisco and served 2 years as special assistant to Senator Adlai
E. Stevenson III. The ABA rated him as qualified. He was supported by
both myself and Senator Boxer. The reason for the block was an
anonymous Republican who, to this day, is not known. Senator Leahy
spoke at least eight times on the Senate floor, urging that Goode's
nomination be considered, but a filibuster of one, hidden, in secret,
nobody knowing who it was, essentially killed this nomination.
Legrome Davis was nominated to the U.S. District Court for the
Eastern District of Pennsylvania on July 30, 1998, and renominated on
January 26, 1999. He did not receive a hearing or a vote
[[Page S4810]]
from the Judiciary Committee during the nearly 2\1/2\ years his
nomination was pending. President Bush renominated Davis to the same
court at Senator Specter's request on January 23, 2002, and he was
finally confirmed by a unanimous vote of the Senate on April 18, 2002.
But the point was he was stopped for nearly 2\1/2\ years by an unknown
individual.
Lynnette Norton was nominated to the U.S. District Court for the
Western District of Pennsylvania on April 29, 1998, and renominated on
January 26, 1999. She did not receive a hearing or a vote in committee
during the more than 2\1/2\ years her nomination was pending. She died
suddenly in March 2002 of a cerebral aneurysm. It is my understanding
Senator Specter supported Norton. Senator Santorum, I believe, did not
return the blue slip. According to a November 18, 1999 article in the
Philadelphia Inquirer, a hold was placed on Ms. Norton's nomination.
H. Alston Johnson was nominated to the U.S. Court of Appeals for the
Fifth Circuit on April 22, 1999, and renominated on January 4, 2001.
Despite waiting over a year and a half, he did not receive a hearing or
a vote in committee. His nomination was withdrawn by President Bush on
March 19, 2001. He was supported by both home State Senators, Senators
Breaux and Landrieu. According to articles in the Baton Rouge Advocate
on July 10, 2000, and January 8, 2001, it is my understanding an
individual Senator blocked his nomination from proceeding, even though
both Republicans and Democrats appeared willing to confirm him.
James E. Duffy, Jr. was nominated to the U.S. Court of Appeals for
the Ninth Circuit on June 17, 1999, and renominated on January 3, 2001.
He did not receive a hearing or vote in committee. He is from Honolulu,
had been a litigator for his entire legal career, been a partner in the
Honolulu law firm of Fujiyama, Duffy, and Fujiyama since 1975. He was
former president of both the Hawaii State Bar and the Hawaii Trial
Lawyers Association. He would have been the first active Hawaii member
of the Ninth Circuit Court of Appeals in 15 years, despite rules that
at least 1 judge must sit in each of the States within the Ninth
Circuit. He was unanimously rated as well qualified. He was supported
by both Hawaii Senators. There has been no explanation forthcoming of
who blocked his progress. Again, a secret hold, one person. Two home
State Senators supporting this individual and the individual does not
go forward. That is as much a filibuster as anything going on on the
floor at this time.
Elena Kagan was nominated to the U.S. District Court of Appeals for
the District of Columbia on June 17, 1999. She did not receive a vote
or a hearing in committee. She is currently the dean of Harvard Law
School. She was a visiting professor at Harvard Law School, former
domestic adviser to President Bill Clinton when she was nominated. She
was special counsel to the Senate Judiciary Committee during the
confirmation hearings of Ruth Bader Ginsburg. She served as Associate
Counsel to the President from 1995 to 1996, and Deputy Assistant to the
President for Domestic Policy, and Deputy Director of the Domestic
Policy Council from 1997 to 1999. Prior to that she was professor of
law at the University of Chicago, tenured. She worked at the
Washington, DC, law firm of Williams and Connolly, and she clerked for
U.S. Supreme Court Justice Thurgood Marshall. A substantial majority of
the ABA rated her qualified. A minority rated her well qualified. It is
my understanding three Senators argued that the DC Circuit did not need
any more judges, an argument that had been used to delay the
confirmation of Judge Merrick Garland between 1995 and 1997.
See, this was another thing that was happening during that time. Let
me just say it like it was. Vacancies on the DC Circuit--a critical and
important circuit because it reviews all of the administrative
appeals--were purposely kept open, preventing President Clinton from
filling that circuit, to have more openings for the next President.
Here three Senators kept this very qualified and very distinguished
nominee from receiving a vote or a hearing on the committee. Again, a
secret, hidden filibuster.
And, nevertheless, Senate Republicans supported the nomination by
President Bush of Miguel Estrada to the same circuit court in 2002.
James Wynn was nominated to the U.S. Court of Appeals for the Fourth
Circuit on August 5, 1999, and renominated on January 3, 2001. As you
can see, President Clinton made one last try before he left office. He
did not receive a hearing or a vote in committee. President Bush
withdrew Judge Wynn's nomination on March 19, 2001. He was a judge on
the North Carolina Court of Appeals and had previously served on the
North Carolina Supreme Court. When nominated, he was a Navy reservist
in the JAG corps of the U.S. Navy with the rank of captain. He served
as the ABA's first African-American chair of the Appellate Judges
Conference whose membership includes over 600 Federal and State
appellate judges. He was on the board of governors of the American
Judicature Society and was a vice president of the North Carolina Bar
Association. He was an executive board member of the Uniform State Laws
Commission and a drafter of the Revised Uniform Arbitration Act,
Uniform Tort Apportionment Act, and proposed Genetic Discrimination
Act. He was rated qualified by the ABA screening committee. Senator
Edwards supported him. The Associated Press, on December 29, 2000,
reported that Senator Helms blocked Judge Wynn. One person blocks a
distinguished jurist, a filibuster of one, and not a word said.
Kathleen McCree-Lewis was nominated to the U.S. Court of Appeals for
the Sixth Circuit Court on September 16, 1999, and renominated on
January 3, 2001. She did not receive a hearing or a vote in committee
during the more than a year her nomination was pending. She was a
distinguished appellate attorney with Dykema Gossett, one of the
largest law firms in Michigan. She had been active in the Michigan bar
from 1996 to 1999. She chaired the rules advisory committee of the U.S.
Court of Appeals for the Sixth Circuit. From 1992 to 1995, she
cochaired the appellate practice committee of the ABA section of
litigation. From 1987 to 1998, she was editor of the Sixth Circuit
section of the Appellate Practice Journal and is a life member of the
Sixth Circuit Judicial Conference. She was president of the American
Academy of Appellate Lawyers. She would have been the first African-
American woman to serve on the Sixth U.S. Circuit Court of Appeals. She
was rated by the ABA as well qualified. On March 21, 2001, the Detroit
Free Press reported that she was blocked by one of her home State
Senators, namely Senator Abraham. Let me quote the Detroit Free Press.
McCree-Lewis never ``got a hearing in the Senate, thanks to Abraham's
epic obstructionism.''
Now on January 8, 2001, the Detroit Free Press reported:
The Senate has been obscenely obstructionist in blocking
President Bill Clinton's judicial nominations. Former Senator
Spencer Abraham did nothing to help shepherd Michigan Court
of Appeals Judge Helene White and Detroit attorney Kathleen
McCree Lewis through the system.
Again, filibuster of one, in secret, with no floor debate.
Enrique Moreno was nominated to the U.S. District Court of Appeals
for the Fifth Circuit on September 16, 1999, and renominated January 3,
2001.
He did not receive a hearing or a vote in committee. At the time of
his nomination, Moreno had a longstanding and diverse legal practice in
El Paso, working on both civil and criminal law. In the civil area, he
represented both plaintiffs and defendants, representing both large
business clients and also individuals, advocating their civil rights.
In a survey of State judges, he was rated as one of the top trial
attorneys in El Paso. A native of Chihuahua, he came to El Paso as a
small child, son of a retired carpenter and a seamstress.
The ABA committee unanimously rated him as well qualified.
In November of 2000, Texas Monthly reported that he was blocked by
both home State Senators, again without a hearing or a vote in the
Judiciary Committee.
Allen Snyder was nominated to the U.S. Court of Appeals for the DC
Circuit on September 22, 1999. He did receive a committee hearing on
May 10, 2000. His nomination, though, was not voted on by the
committee.
At the time of his nomination, he was a longtime partner and chairman
[[Page S4811]]
of litigation practice at the DC law firm Hogan & Hartson. At Hogan &
Hartson, he represented Netscape Communications Corporation in the
landmark Microsoft antitrust case.
He was a former law clerk to Chief Justice William Rehnquist. The ABA
unanimously rated him well qualified. He served as chair of the
Committee on Admissions and Grievances of the U.S. Court of Appeals for
the District of Columbia, as secretary and executive committee member
of the Board of Governors of the District of Columbia Bar, and on the
board of the Washington Council of Lawyers. It is my understanding his
nomination was blocked by two Judiciary Committee Senators. No reason
was given.
Kent Markus was nominated to the U.S. Court of Appeals for the Sixth
Circuit on February 9, 2000. He did not receive a hearing or a vote in
committee. He was the director of the Dave Thomas Center for Adoption
Law and visiting professor at Capital University Law School at the time
of his nomination. He served in numerous high-level legal positions
within the Department of Justice, including counselor to the Attorney
General, Deputy Chief of Staff for the Office of the Attorney General,
and Acting Assistant Attorney General for the Office of Legislative
Affairs.
He also served as first assistant attorney general and chief of staff
for the Ohio Attorney General's Office.
His nomination was supported by 14 past presidents of the Ohio State
Bar Association, including Democrats, Republicans, and Independents;
more than 80 Ohio law school deans; prominent Ohio Republicans; the
National District Attorneys Association; and the National Fraternal
Order of Police.
The ABA unanimously rated him as qualified.
Both Senators DeWine and Voinovich returned blue slips. He was
blocked by one Senator--a filibuster of one, all hidden, all quiet.
Bonnie Campbell was nominated to the U.S. Court of Appeals for the
Eighth Circuit on March 2, 2000, and renominated on January 3, 2001.
Her hearing was on May 25, 2000. The nomination was never voted on by
the Judiciary Committee.
She served for 4 years as Iowa's Attorney General. She is the only
woman to have held that office in her State, and she wrote what became
a model statute on antistalking for States around the country.
She was selected by President Clinton in 1995 to head the Justice
Department's newly created Violence Against Women Office. She emerged
as a national leader for her work to bring victims' rights reforms to
the country's criminal justice system.
In 1997, Time magazine named her one of the 25 most influential
people in America. Praising her for bringing ``rock-solid credibility''
to her job, Time called Campbell the ``force behind a grass-roots shift
in the way Americans view the victims--and perhaps more important, the
perpetrators--of crimes against women.''
She oversaw a $1.6 billion program to provide resources to
communities for training judges, prosecutors, and police. She was
chosen to serve on the President's Interagency Council on Women,
chaired by former First Lady Hillary Rodham Clinton. She also headed
the Justice Department's Working Group on Trafficking.
According to a statement given by Senator Leahy to the Judiciary
Committee on January 22, 2004, she was blocked by a secret Republican
hold from ever getting committee or Senate consideration. Apparently,
just one Senator. She had a hearing, as I said, but she never had a
vote.
Roger Gregory was nominated to the U.S. Court of Appeals for the
Fourth Circuit on June 30, 2000, and was renominated on January 3,
2001. He was a recess appointee of President Clinton at the end of the
106th Congress. He did not receive a hearing or a vote.
On March 19, 2001, President Bush withdrew his nomination. He was
subsequently renominated by President Bush on May 9, 2001, and
confirmed July 20, 2001, by a 93-to-1 vote.
According to former Senator Chuck Robb, on October 3, 2000:
Despite the well-documented need for another judge on this
court, and despite Mr. Gregory's stellar qualifications, the
Judiciary Committee has stubbornly refused to even grant Mr.
Gregory the courtesy of a hearing.
I know Senator Warner supported this judge.
Again, this just goes to show that we are having a major flap because
41 people feel strongly, are willing to come to the floor, and willing
to debate a nominee, and all of a sudden the world is going to come to
an end, when for years and years and years one or two or three Members
of the Senate could prevent a hearing or a markup in the Judiciary
Committee or an individual even being brought to the floor.
Which would the public prefer? I would hope it would be a discussion
on the floor of the Senate. I would hope it would be laying out the
case against the individual, as has been done with every one of the
ten--only ten; in all of President Bush's terms, only ten--when in
President Clinton's term there were 60, and one or two, in secret, kept
that individual from being brought to the floor of the Senate and voted
on.
Well, let me continue. John Bingler was nominated to the U.S.
District Court for the Western District of Pennsylvania on July 21,
1995, and renominated on July 31, 1997. He did not receive a hearing or
a vote either time he was nominated.
After waiting more than 2 years without any action on his nomination,
he withdrew on February 12, 1998.
Since 1971, he has practiced law with the Pittsburgh firm of Thorp,
Reed & Armstrong. He served for 6 years as chair of the firm's
litigation department.
From 1970 to 1971, he was the public safety director for the city of
Pittsburgh. He served for 3 years as an assistant U.S. attorney in
Pittsburgh where he prosecuted Federal criminal cases, and for 2 years
he was an attorney for the Civil Rights Division of the Department of
Justice. He served a 3-year tour of duty in the U.S. Navy. He was rated
unanimously as well qualified by the ABA.
On October 16, 1997, the Pittsburgh-Post Gazette reported that one of
the two home State Senators held up his nomination for 2 years,
allowing neither a hearing nor a vote, and I do not believe it was the
chairman of the committee.
Bruce Greer was nominated to the U.S. District Court for the Southern
District of Florida on August 1, 1995. He did not receive a hearing and
he was never voted on by the committee. His nomination was withdrawn on
May 13, 1996. At the time of his nomination, he was the president of
the Miami law firm of Greer, Homer & Bonner, where he has a civil
litigation practice.
Senator Bob Graham supported him. Senator Connie Mack's position is
not known. It is my understanding the Wall Street Journal published a
lengthy editorial on July 17, 1996, that made no direct allegations
against Greer, but made a case for guilt by association implying that,
because Mr. Greer represented unsavory defendants, he was soft on
crime.
The Columbia Journalism Review reported that the day after the
editorial appeared, the chairman came to the floor to denounce judges
who are soft on crime and, shortly afterward, Mr. Greer received word
that he would not be receiving a hearing. So Bruce Greer was denied
even a hearing to see if the allegations were true.
That is what has happened, ladies and gentlemen.
Leland Shurin was nominated to the U.S. District Court for the
Western District of Missouri on April 4, 1995. He did not receive a
hearing and was never voted on in committee. His nomination was
withdrawn at his request, because of inaction, on September 5, 1995.
He was an executive committee member and partner at the law firm of
McDowell, Rice & Smith, in Kansas City, where he maintained a general
practice doing plaintiff and defense litigation. He was very active in
the community.
He was rated as qualified by the ABA committee. He told the Kansas
City Star:
I had the sense that my confirmation is being delayed. No
one could give me a clear date when anything could be done.
I've sat around for two years. I can't keep doing it.
One has to come to grips with whether this was a fair process,
whether this was even as fair as what is happening today. I believe no
way, no how was this a fair process. I have been one who has believed
that the blue slip should be done away with, that there should be no
anonymous holds, and that every
[[Page S4812]]
appointee should be given a hearing and a vote in the committee. That
does not mean that we should change the rules of the Senate to prevent,
in extreme cases, the ability of the minority to register a strong
point of view, when the minority of one has historically been allowed
to register a strong point of view secretly and, in fact, kill a
nominee.
Sue Ellen Myerscough was nominated to the U.S. District Court for the
Central District of Illinois on October 11, 1995. She did not receive a
hearing or a vote in committee. She was an Illinois State circuit court
judge. She was an associate circuit court judge. She worked in law
firms in Springfield. She formerly clerked for U.S. District Judge
Harold Baker. A substantial majority of the ABA committee rated her as
well qualified, while a minority rated her as qualified.
She was supported by both Senator Paul Simon and Senator Carol
Moseley-Braun at the time. In 1997, Senator Dick Durbin stated in the
State Journal-Register that he believed ``Judge Myerscough was caught
up in a Federal stall.''
On September 27, 1996, the State Journal-Register reported that
Senator Simon said he believed the reason was a matter of partisanship,
not because of any controversy or problems with her qualifications.
Senator Simon said he escorted Myerscough for individual meetings with
Senator Hatch and other members of the panel but had ``not had a single
member of the committee tell me he or she couldn't vote for her.''
This is what has happened. So I have a hard time understanding why we
are where we are today.
Charles Stack was nominated to the U.S. Court of Appeals for the
Eleventh Circuit on October 27, 1995. He received a hearing before the
committee on February 28, 1996, but did not receive a vote in
committee.
According to the May 11, 1996, Miami Herald, he came under intense
attack from then-Presidential candidate Bob Dole, and he withdrew his
nomination on May 13, 1996.
Cheryl Wattley, nominated to the U.S. District Court for the Northern
District of Texas on December 12, 1995, did not receive a hearing or
vote in committee. The Dallas Morning News reported in 1996 that she
was supported by both home State Senators. Again, no reason--probably
filibustered because one or two or three didn't like her for one reason
or another.
Michael Schattman, nominated to the U.S. District Court for the
Northern District of Texas, December 19, 1995, and renominated on March
21, 1997, did not receive a hearing, was not voted on in committee. His
nomination at his request was withdrawn on July 1998 after 2\1/2\ years
of inaction by the committee. This man was a Texas State district court
judge in Fort Worth. He had previously been a county court judge. And
to add insult to injury, because of the lengthy delay in the nomination
process, the February 11, 1998 edition of the NewsHour with Jim Lehrer
reported that he lost his State court judgeship. He was unanimously
rated as qualified. Again, this is the hidden filibuster of this body.
J. Rich Leonard, was nominated to the U.S. Court of Appeals for the
Fourth Circuit, on December 22, 1995, did not receive a hearing or a
vote in committee. Subsequently, he was nominated to the District Court
for the Eastern District of North Carolina on March 24, 1999. Again, he
did not receive a hearing or a vote. In total, this gentleman waited
over 2.5 years before the committee for the two nominations without
ever receiving a hearing or a vote. He was a judge on the U.S.
Bankruptcy Court for the Eastern District of North Carolina at the time
of his nomination by President Clinton. He was rated as well qualified.
Again, my information is that one Senator blocked both of his
nominations.
I see there are others waiting. I will be brief. But let me list some
of the others.
Robert Freedberg was nominated to the U.S. District Court for the
Eastern District of Pennsylvania, April 23, 1998. He never received a
hearing. He was a judge on Northampton County's Court of Common Pleas.
He is a former prosecutor. The January 28, 1999 Allentown Morning Call
reported that he was blocked by one Senator.
Robert Raymar, nominated to the U.S. Court of Appeals for the Third
Circuit, did not receive a hearing. His nomination expired at the end
of the session. Former deputy attorney general for the State of New
Jersey, member of the New Jersey Executive Commission on Ethical
Standards. He was rated as qualified. He was supported by both State
Senators. One person filibustered this individual in committee. He
didn't receive a hearing or a vote.
James Lyons, nominated to the U.S. Court of Appeals for the Tenth
Circuit, did not receive a hearing or a vote, and withdrew after it
became clear he would not receive a hearing or a vote. He was a
longtime senior trial partner at the Denver law firm of Rothberger,
Johnson & Lyons, special advisor to the President of the United States
and the Secretary of State for economic initiatives in Ireland and
Northern Ireland. He couldn't get a hearing. He was adjudged well
qualified by the ABA.
I don't see where anybody is concerned about these injustices, and
that is what they were--real injustices.
John Snodgrass was nominated to the U.S. District Court, Northern
District of Alabama, September 22, 1994, renominated January 11, 1995.
He did not receive a hearing or a committee vote. His nomination was
withdrawn on September 5, 1995.
Anabelle Rodriguez was nominated to the U.S. District Court for the
District of Puerto Rico, January 26, 1996, renominated March 21, 1997.
A committee hearing was held on October 1 of 1998, but a vote was never
held on her nomination during the nearly 3 years her nomination was
pending. What were the reasons for this block? On October 8, 1998, the
Associated Press reported that her supporters said she was opposed by
Puerto Rico's prostatehood Governor and congressional representative
because she is a backer of the island's current status as a U.S.
commonwealth, and there was apparently some overwhelming bipartisan
opposition.
Why not vote? If what is being said now has been true and par for the
course, why not vote?
Lynne Lasry was nominated for the Southern District of California but
did not receive a hearing or a vote. After one year of inaction, the
nomination was withdrawn in 1998.
James Klein was nominated to the U.S. District Court for the District
of Columbia, January 27, 1998, renominated March 25, 1999, and did not
receive a hearing or committee vote during the 3 years that he was
pending.
Patricia Coan was nominated to the U.S. District Court for the
District of Colorado, May 27, 1999. She did not receive a hearing or
committee vote in the year and a half that her nomination was pending.
The May 21, 2000 Denver Post reported that one Senator blocked her
nomination.
Dolly Gee was nominated to the District Court for the Central
District of California, May 22, 1999. She did not receive a hearing or
committee vote in the year and a half that her nomination was pending.
Fred Woocher was nominated to the U.S. District Court for the Central
District of California, received a hearing on November 10, 1999, but
was not voted on by the committee despite waiting for a year after his
hearing.
Steven Bell was nominated to the U.S. District Court for the Northern
District of Ohio but did not receive a hearing or vote in committee for
more than a year that his nomination was pending.
Rhonda Fields was nominated to District Court for the District of
Columbia on November 17, 1999, no hearing, no vote.
Robert Cindrich was nominated to the U.S. Court of Appeals, Third
Circuit, February 9, 2000, no hearing, no vote.
David Fineman was nominated to the U.S. District for the Eastern
District of Pennsylvania on March 9, 2000, no hearing, no vote.
Linda Riegle was nominated to the U.S. District for the District of
Nevada on April 25, 2000, no hearing, no vote in committee.
Ricardo Morado was nominated to the U.S. District for the Southern
District of Texas on May 11, 2000, no hearing, no vote.
Stephen Orlofsky was nominated to the U.S. Court of Appeals, Third
Circuit, May 25, 2000, no hearing, no vote.
Gary Sebelius was nominated to the U.S. District for the District of
Kansas on June 6, 2000, no hearing, no vote.
[[Page S4813]]
Kenneth Simon was nominated to the U.S. District for the Northern
District of Alabama on June 6, 2000, no hearing, no vote.
John S.W. Lim was nominated to the U.S. District for the District of
Hawaii on June 8, 2000, no hearing, no vote.
And there are those, you might say, that came under the Thurmond
rule. There is sort of an informal practice that in the last few months
of a President's tenure, the hearings do not go forward. Again, that is
not a rule; it is a practice.
Christine Arguello, nominated to the U.S. Court of Appeals, Tenth
Circuit, on July 27, 2000.
Andre Davis, nominated to the U.S. Court of Appeals, Fourth Circuit,
on October 6, 2000.
Elizabeth Gibson, nominated to the U.S. Court of Appeals, Fourth
Circuit, on October 26, 2000.
David Cercone, nominated to the U.S. District Court for the Western
District of Pennsylvania on July 27, 2000.
Harry Litman, nominated to the U.S. District Court for the Western
District of Pennsylvania on July 27, 2000.
Valerie Couch, nominated to the U.S. District Court for the Western
District of Oklahoma on September 7, 2000.
Marian Johnston, nominated to the U.S. District Court for the Eastern
District of California on September 7, 2000.
Steve Achelpohl, nominated to the U.S. District Court for the
District of Nebraska on September 12, 2000.
Richard Anderson nominated to the U.S. District Court for the
District of Montana on September 13, 2000.
Stephen Lieberman, nominated to the U.S. District Court for the
Eastern District of Pennsylvania on September 14, 2000.
And, Melvin Hall, nominated to the U.S. District Court for the
Western District of Oklahoma on October 3, 2000.
What I have tried to show today is that there is a certain amount of
hypocrisy in what is going on today. The opposition cannot have any
concern about one Clinton nominee or dozens of Clinton nominees who
received no hearing, no markup, no floor vote, but suddenly they are
upset because 41 of us in public, eight of us in committee, vote no and
believe that our views are strong enough and substantive enough to
warrant a debate on the floor of the Senate in the true tradition of
the Senate. And bingo, we are going to have a change in the rules to
prevent that from happening. Nobody is talking about changing the rules
so one person can't filibuster; one person can't, on a pique or because
they don't like the individual, condemn that individual.
I can tell you, because I have been on this committee for 12 years, I
have had people call me and say: Look, I have three children. I have to
know what is going to happen to me. I try to get information, can't get
that information.
I ask the majority of this body, is that fair? Do you not feel
aggrieved? Or is that OK because it was a different President of a
different party? I don't think so. I think what is sauce for the goose
is sauce for the gander. I pointed out two uses of filibusters for
judicial appointments by Republicans, one in 1881 and one in 1968.
Mr. COCHRAN. Mr. President, will the Senator yield for a question?
Mrs. FEINSTEIN. I certainly will.
Mr. COCHRAN. Mr. President, I am curious to know when the Senator
plans to complete her remarks. At the beginning of her remarks, she
assured the Senate that she would take about 30 minutes. We are on the
conference report on the supplemental appropriations bill which is an
urgent supplemental bill. We have about 4 hours divided among Senators
on both sides to complete debate. I don't want to push the Senate into
the evening hours, if we are going to have a prolonged discussion of
this issue when we thought it was going to be 30 minutes. It is almost
an hour now.
Mrs. FEINSTEIN. I appreciate the Senator's forbearance. He is a true
gentleman. Out of respect for him and for the institution, I will
conclude my remarks.
During the reorganization of the Senate in 2000, Senators Daschle and
Leahy worked to make the nominations process more fair and public. This
refining forced Senators opposed to a nomination to be held accountable
for their positions. They could not hide behind a cloak of secrecy.
This step also wiped out many of the procedural hurdles that have been
used to defeat nominations. So many of the tools used by Republicans in
the past, and referred to as a way to draw distinctions with a public
cloture vote are no longer available. This historical record is
important, yet it is too often lost in our debates.
I also believe it is useful to examine the current state of judicial
nominations, and what has actually occurred in this body during
President Bush's tenure: 208 judges confirmed out of 218; 95 percent of
President Bush's judges have been confirmed; the Senate has confirmed
35 circuit court nominees; recently, the Judiciary Committee reported
out 2 District Court and 1 Circuit Court nominees; today, there are
only 4 judicial nominations on the Senate calendar waiting for a vote;
and there are only 45 total vacancies, both district and circuit
courts, and 29 do not have nominations submitted.
What do these numbers mean? There are more judges today sitting on
the federal bench than in any previous presidency. The Senate has
confirmed more judges for President Bush than in President Reagan's
first term, his father's only term, or President Clinton's second term.
The Senate confirmed more circuit court judicial nominees than in
Reagan's or Clinton's first term. When Democrats were in the majority
in 2001, there were 110 vacancies and by the end of the 108th Congress
and President Bush's first term, the number had plummeted to 27--the
lowest level of vacancies since the Reagan era.
Of the 8 nominees reported out of committee this year, four have
already been confirmed. One, Thomas Griffith, is waiting a vote, and
the remaining three are controversial nominees who were defeated last
Congress: William Myers, Priscilla Owen, and Janice Rogers Brown.
In addition, President Bush has sent the Senate but one new judicial
nomination this year. Brian Sandoval of Nevada is the only new judicial
nomination sent to the Senate in the first five months of this year. He
has bipartisan support from his home State Senators and appears to be a
consensus nominee.
Again, what do these numbers mean? They mean there is no crisis on
the federal bench that justifies the so-called nuclear option as some
of my Republican colleagues contend.
To me, the record I just described and the reasons for opposing these
limited number of nominees doesn't lead to the conclusion that the
Senate should be discussing breaking our own institutional rules and
unraveling the checks and balances established by our Constitution.
Some have described this debate as a strategy to change the rules.
Changing the rules is not only unacceptable, but in this case it is
inaccurate as well. The nuclear option is a strategy to break the
rules. This isn't just my assessment; it's the conclusion drawn by the
Senate Parliamentarian and the Congressional Research Service.
Last week, press reports reiterated that Senator Reid had been
assured by the Parliamentarian that if the Republicans go through with
this strategy they would ``have to overrule him, because what they are
doing is wrong.''
The Congressional Research Service concluded in a recent report that
to employ these tactics the Senate would have to ``overturn previous
precedent.'' ``Proceedings of this kind, it is argued, would both break
old precedent and establish new Senate precedents. Eventually such a
plan might even result in changes in Senate rules, while circumventing
the procedures prescribed by Senate rules.''
So, shortly, the Senate will likely be faced with a preemptive strike
to break the rules. The term preemptive strike seems appropriate when
there are only three controversial judges waiting for a vote--judges
who were previously defeated last Congress and have drawn strong
opposition.
This is a move to wipe out 200 years of precedent when this Senate
has only been in session for just over 4 months, when this President
has had over 200 judges confirmed, and when the Judiciary Committee
reported favorably a controversial circuit court judge who was not
voted on last Congress, but was renominated. This appears to me to be
an escalation that is unwarranted in the reality of what has actually
occurred and is happening in this session.
I find it ironic that while our country fights abroad to establish
democracy,
[[Page S4814]]
to promote checks and balances, and institute wide representation of
all people in government; here at home our leadership is attempting to
erode those very protections in our own government. What kind of
message are we sending? ``Do as I say, not as I do''?
This debate over judicial nominees is a debate about privacy, women's
rights, civil rights, clean environment, access to healthcare and
education; retirement security--we may not all agree, but the beauty of
our country is the freedom to disagree, to debate, and to require
compromise because no one party has the corner on the market of good
ideas and solutions--and no party has the corner on the market of
political power.
Democrats held the House majority for over 50 years, and now
Republicans have been in the majority for over a decade. Democrats held
the White House for eight years, now the Republicans will have occupied
the White House for eight years. Neither party will always be right
when it comes to the best policies for our country, and neither party
will always be in power.
There are many urgent problems the Senate needs to be focused on and
Americans' want us to focus on: the war in Iraq; protecting our
homeland; addressing the high cost of prescription drugs; alleviating
rising gas prices; ensuring our social security system is stable and
working; and reducing the federal deficit.
I am troubled that instead today we are spending much of our time on
political posturing gone too far--on a strategy to unravel our
constitutional checks and balances.
Cold War commentator Walter Lippman once said, ``In making the great
experiment of governing people by consent rather than by coercion, it
is not sufficient that the party in power should have a majority. It is
just as necessary that the party in power should never outrage the
minority.'' And today, we are outraged.
I would hope that the majority would not choose to unravel that
foundation over a small handful of nominees. I would hope we would
continue to honor the tradition of our democracy. I would hope the
President will urge others in his party to walk away from this nuclear
strategy. And I know if the shoe was on the other foot, I would not
advocate breaking Senate rules and precedent.
Regardless of how this debate continues to unfold, I remain committed
to evaluating each candidate on a case by case basis, and I will
continue to ensure that judicial nominees are treated fairly and even-
handedly, but I will not fail to raise concerns or objections when
there are legitimate issues that need to be discussed.
The PRESIDING OFFICER. The Senator from New York.
Mrs. CLINTON. Mr. President, before I make my remarks on the
supplemental appropriations conference report, I commend my friend and
colleague from California. As we have come to expect, her presentation
was thorough, comprehensive, factually and historically accurate. Much
in the debate that has occurred around the so-called nuclear option has
been heated. It has been rhetorical. It has been filled with opinion.
It has been, unfortunately, often devoid of either historical or
factual content. I personally appreciate greatly the Senator from
California putting into the Record these very carefully created remarks
based on facts. I hope no matter what happens with this debate--and
obviously, I hope the Senate comes to its senses and realizes that we
owe an obligation to the Constitution and the country--historians will
be able to look back and read the very impressive statement of the
Senator from California and know what the facts were. I personally
express my appreciation to her.
Mr. DORGAN. Will the Senator from New York yield for a question?
Mrs. CLINTON. Yes.
Mr. DORGAN. Mr. President, I ask unanimous consent that I be
recognized at 2:15 for 15 minutes to discuss the supplemental. Senator
Byrd is the ranking member on the Appropriations Committee. If he is
here and wishes to speak at that time, I will yield the floor to him.
In the absence of that, I ask consent.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from New York.
Mrs. CLINTON. Mr. President, I rise to address the emergency
supplemental appropriations conference report. When the vote occurs, it
is likely to be, if not unanimous, very close to being unanimous. And
why? Because this conference report contains the funding that is needed
by our brave troops in Iraq and Afghanistan. It contains funding to
provide necessary resources to equip our troops and to do the military
construction that is necessary. I will vote for this conference
report. But I want to record some serious reservations about this
process. First, the emergency supplemental appropriations process is
destined to be just that. It is a way to fund unforeseen emergencies
outside of the usual budgetary process.
Unfortunately, once again, we are funding the cost of the military in
Iraq, Afghanistan, and elsewhere, as well as a legitimate emergency,
such as the tsunami relief provisions in the bill, through an
emergency. I am privileged to sit on the Senate Armed Services
Committee, which is responsible for presenting the authorization for
the budget for the Department of Defense, and during several of our
hearings over the last several months, I, among a number of my
colleagues on both sides of the aisle, have asked our civilian and
military leadership from the Department of Defense how they explain the
fact that once again the costs for Iraq and Afghanistan are not in the
budget; they are in the emergency supplemental.
Many of these costs perhaps were genuine emergencies, but many others
are not. I would not argue with many of the decisions made because I am
well aware of the importance of recapitalizing our equipment, building
back up our stores of arms that have been decreased through necessary
action. But a good budgeting process would take all of that into
account. Having this supplemental, unfortunately, with the big title
``emergency'' over it appears to be an effort to rush things through to
avoid congressional oversight and scrutiny. Obviously, a bill that is
going to provide funding for the young men and women wearing the
uniform of our country, in harm's way every single hour of every day,
is going to command broad bipartisan and public support, as it should.
But that doesn't, in my opinion, in any way mitigate against what
should be the necessity of an orderly process, an appropriations
process subject to the give and take of opinion and fact, and argument
and reason and evidence, and then the presentation of a budget that
includes the expenses that are necessary for our military.
I regret deeply that we are, once again, seeing an emergency bill
being pushed through the Senate, as it was pushed through the House
last week, when instead we should be having an orderly process looking
at these matters within the budget and making decisions based on that
process.
During the Armed Services Committee hearing on this supplemental
request, a number of my colleagues asked why projects that ordinarily
are included in the regular Department of Defense budget were being
shifted to the supplemental. I really was quite taken aback when the
military leadership said they didn't know, that they were just told
they should put it out for the supplemental. The civilian leadership
present at the hearing could not offer a much better explanation. So it
is regrettable that we are making these important, literally life-and-
death decisions once again in an emergency supplemental as opposed to
the regular budget.
Also, it is regrettable that the administration is not providing a
proper accounting of how funds are being spent in Iraq. According to
recent reports, Government auditors found that American officials
rushed to start small building projects in a large area of Iraq during
2003 and 2004. They did not keep the required records that would tell
us how they spent $89.4 million in cash. They cannot account for at
least $7.2 million more. This is a very serious question. If we are
appropriating this money and we are sending it for both military and
reconstruction purposes to Iraq, we have a right to expect that records
will be kept so we can determine whether it is being spent in the
appropriate manner.
We have also heard that millions of dollars of Iraqi reconstruction
funds that have been appropriated have also
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not been spent. A large reason for that is security. But why come back
for more money when we cannot spend the money we have already
appropriated? It is heartbreaking to me that there is so little
oversight from this Congress with respect to this administration. There
are no rigorous hearings being held to determine whether we are
spending money correctly, how it is being spent, where all of the cash
is going. The first time I flew into Iraq, I flew from Kuwait to
Baghdad on a C-130. The back of it was loaded with cash--dollars. They
were being taken into Baghdad to be spent for God knows what, and there
is no accountability.
It is remarkable that this Congress, at this important moment in
American history, is not exercising its constitutional oversight
responsibilities. During the Second World War, Harry Truman, a
Democratic President, with a Democratic Congress, held hearings about
where money was going in World War II. In the 1960s, Senator Fulbright,
with a Democratic President and a Democratic Congress, held hearings
about our policies and actions in Vietnam. We have a Republican
President, a Republican Congress--hear no evil, see no evil, speak to
evil; we don't want to know. Questions are not asked--at least
publicly. People have no idea where this money is going, who is getting
it, and how it is being spent. These emergency supplementals have even
less oversight than the typical budget, which in this Congress is
practically nothing.
So while we continue to spend billions and billions of American
taxpayer dollars, we don't see the requisite accountability occurring
in this body to determine whether we are spending them appropriately.
I am also deeply concerned that on an emergency supplemental to fund
our troops and fund the relief disaster in southeast Asia because of
the tsunami, we are being asked to vote on something called ``REAL
ID.'' It is a provision meant to, in the supporters' argument, make our
country safer. How do we know? We haven't had hearings about it in the
Senate. We have not even had debate about it in the Senate. I joined
with Senator Feinstein to try to prevent immigration proposals from
being tacked onto the supplemental. But we all know why that happened--
because the administration backed up the House Republican leadership to
give them an opportunity to put the so-called REAL ID on a must-pass
piece of legislation; namely, legislation to fund our troops. So
without debate, without committee hearings, without process, we have
the so-called REAL ID in this emergency supplemental.
I am outraged that the Republican leadership, first in the House and
now, unfortunately, in the Senate, would put this seriously flawed act
into this emergency supplemental bill for our troops in Afghanistan and
Iraq. Emergency legislation designed to provide our troops the
resources they need to fight terrorism on the front lines is not the
place for broad, sweeping immigration reform. That is what REAL ID is.
There may be parts of it that we could agree on if we ever had a chance
to debate it. Other parts go too far and don't fulfill the purpose of
making our country more secure.
I am in total agreement with those who argue that we need to address
our immigration challenges, and we are still not doing what we should
to fulfill the demands of homeland security. I think they go hand-in-
hand. If we cannot secure our borders, we cannot secure our homeland.
Everybody knows we are not securing our borders. Who are we kidding? We
need a much tougher, smarter look at these issues. But instead we are
taking a piece of legislation passed by the House, jammed into
supplemental emergency appropriations for our troops, and we are going
to up-end the way we do driver's licenses throughout our country, and
we are going to claim we have now made America safer.
I think that is a false claim. I regret deeply that we are rushing to
pass this emergency bill with this so-called REAL ID in it. We need to
reform our immigration laws. We need to make our borders more secure.
But we need a debate about how we are going to do that. Isn't it
somewhat interesting to everyone in this Chamber that the richest,
smartest country with the best technology in the world cannot secure
its borders? Why would that be? Well, part of the reason is because
there are many people, particularly to our south, who are desperate for
a better chance. They literally risk their lives to come here. Part of
it is because we have a lot of employers who want to employ them. So
they know if they get here, they will have a job. We are not having a
public national debate about this because, if we were, we would have to
point fingers at these employers who pick up illegal immigrants every
single day on street corners throughout America, or who sign them up to
work in dangerous factories with very little health and safety
regulation.
So come on, let's not kid ourselves. We have a serious security and
immigration problem. But we are not addressing it by jamming this
provision about driver's licenses into our emergency appropriations. We
need to make our borders more secure. I have introduced legislation 3
years in a row to have a northern border coordinator. I met with both
Secretary Ridge and Secretary Chertoff. We don't know who is in charge
of the northern border. Trying to figure out who is responsible for the
northern border is like playing ``Where is Waldo.'' we cannot figure
that out. We are not taking simple steps to rationalize our bureaucracy
in Washington, to find out what our holes are and how they can be
plugged, what policies would work if we were actually serious about
improving security.
The REAL ID Act also gives total control to the Secretary of Homeland
Security to waive legal requirements that stand in the way of
constructing barriers and roads along the border. The only check is
limited judicial review. This is quite a tremendous grant of authority
to one person in our Government. I am sure there are some reasons why
we would want to expedite a process to try to have better security
along our borders. But to give this unchecked responsibility to the
Secretary, with limited judicial review--that is a slippery slope, my
friends. We are sliding further and further toward absolute power and
the removal of our checks and balances.
We also have to figure out how we are going to deal with the changes
in asylum rules that are in REAL ID. I am very proud of the fact that
our country has always welcomed asylum-seekers and refugees. There is a
city in New York, Utica, which is known as one of the most welcoming
places for refugees in the entire country. I am so proud of the people
of Utica. They have taken in Bosnians, Kosovars, Somalians, all kinds
of refugees--people who could not stay in their home country and were
desperate for some place of refuge. Under these new rules, we will see
whether America remains the place of welcome, whether we fulfill our
obligations to our fellow men and women.
I hope that the failure of having a process with respect to REAL ID,
the continuing use of the supplemental appropriations route for funding
our troops, which avoids the budget process, will at some point come to
an end because the majority will no longer tolerate it. This is not
good for any of us--to have these kinds of processes that really turn
our constitutional system upside down.
In the meantime, we need to send a message that we are able to have
national debates about sensitive issues, to debate judicial nominations
on the floor, using the rules that have really stood the test of time
and been good for the Senate and our country. We don't always win, but
the Senate was devised to protect minority rights. I represent a State
of 19 million people. The Presiding Officer represents a much smaller
State. He and I are equal. That is the whole idea behind the setup of
the Senate.
Finally, let's be sure that we do not piecemeal reform immigration--I
use the word ``reform'' advisedly--that we have the kind of debate and
comprehensive reform that is so needed. I bet every one of the offices
of my colleagues is faced with what my office confronts every single
day. We do lots of casework. There are a lot of people who came here
legally. They cannot get their relatives into this country. They cannot
reunite their families. I want to have a reform that really provides
benefits for legal immigrants.
Mr. President, I hope we can deal with these issues in a better way
that really reflects the best of the Senate going forward.
The PRESIDING OFFICER. The Senator from Mississippi.
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Unanimous consent request--committee meetings
Mr. COCHRAN. Mr. President, before the Chair announces the recess for
the policy luncheons, I have eight unanimous consent requests for
committees to meet during today's session of the Senate. They have the
approval of the majority and minority leaders. I ask unanimous consent
that these requests be agreed to and the requests be printed in the
Record.
The PRESIDING OFFICER. Is there objection?
Mr. GREGG. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
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