[Congressional Record Volume 152, Number 135 (Friday, December 8, 2006)]
[Senate]
[Pages S11557-S11561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of Kent A. Jordan, of Delaware, to be United States Circuit 
     Judge for the Third Circuit.
         Bill Frist, Robert Bennett, Arlen Specter, Tom Coburn, 
           Kit Bond, George Allen, Lindsey Graham, Trent Lott, Mel 
           Martinez, Gordon Smith, Sam Brownback, Rick Santorum, 
           Richard Burr, Hillary Clinton, Johnny Isakson, Jim 
           DeMint.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 924, the nomination of Kent A. Jordan, of 
Delaware, to be United States Circuit Judge for the Third Circuit, 
shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from South Carolina (Mr. Graham), the Senator from Utah (Mr. 
Hatch), the Senator from Arizona (Mr. McCain), the Senator from 
Missouri (Mr. Talent), and the Senator from Virginia (Mr. Warner).
  Further, if present and voting, the Senator from Utah (Mr. Hatch) and 
the Senator from Virginia (Mr. Warner) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden) and 
the Senator from Connecticut (Mr. Dodd) are necessarily absent.
  The yeas and nays resulted--yeas 93, nays 0, as follows:

                      [Rollcall Vote No. 275 Ex.]

                                YEAS--93

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Grassley
     Gregg
     Hagel
     Harkin
     Hutchison
     Inhofe
     Inouye
     Isakson
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Thomas
     Thune
     Vitter
     Voinovich
     Wyden

                             NOT VOTING--7

     Biden
     Dodd
     Graham
     Hatch
     McCain
     Talent
     Warner
  The PRESIDING OFFICER. On this vote, the yeas are 93, nays are 0. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  There are 2 hours of debate equally divided.
  The Senator from Vermont.
  Mr. GREGG. Mr. President, parliamentary inquiry: Will the Senator 
yield for a question?
  Mr. LEAHY. Without losing my right to the floor, yes.

[[Page S11558]]

  Mr. GREGG. I was wondering if the Senator will allow us to set up a 
sequence of speakers after the Senator speaks.
  Mr. LEAHY. I will do anything to accommodate my neighbor from New 
Hampshire, as he knows.
  Mr. GREGG. I ask unanimous consent that at the conclusion of the 
statement of the Senator from Vermont, the Senator from North Dakota be 
recognized for 5 minutes and then that I be recognized for 15 minutes. 
Does the Senator from Ohio seek recognition, also?
  Mr. DeWINE. I do, but not on this topic.
  Mr. GREGG. It doesn't matter. Then the Senator from Ohio be 
recognized after I complete my remarks.
  Mr. LEAHY. Mr. President, if the Senator would amend that to add the 
Senator from Delaware. The judge is from Delaware. I ask that Senator 
Carper be recognized for up to 10 minutes following that.
  Mr. GREGG. At the conclusion of the remarks of the Senator from Ohio.
  Mr. LEAHY. Yes.
  The PRESIDING OFFICER. Following the Senator from Vermont, the 
Senator from North Dakota be recognized for 5 minutes, then the Senator 
from New Hampshire for 15 minutes, then the Senator from Ohio for 15 
minutes, and the Senator from Delaware for 10 minutes. Is there 
objection?
  Mr. LEAHY. I have no objection.
  Mr. GREGG. I thank the Senator from Vermont for his courtesy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I am pleased the Senate finally has an 
opportunity to consider the nomination of Kent Jordan of Delaware for a 
lifetime appointment to the U.S. Court of Appeals for the Third 
Circuit. Judge Jordan is a well-qualified nominee with the support of 
both home State Democratic Senators, as well as that of the chairman of 
the Judiciary Committee, whose State is within the Third Circuit. I 
support this nomination, and I will vote to confirm him.
  I regret that the Republican leadership chose to eschew bipartisan 
discussion of nominations and unilaterally filed an unnecessary cloture 
vote on Judge Jordan's nomination, especially after we worked so hard 
to expedite it in September. We could very easily have voted on this in 
September instead of having this folderol of urgency now. Most of us 
wanted to vote on this weeks ago, and I am not sure what political last 
gasp is involved in saying we have to have cloture. That was never 
necessary.
  I wish, instead, the leadership had followed the customary practice 
in the Senate of the Republican and Democratic leaders to have sat down 
with the chairman and ranking member of the Judiciary Committee and 
worked out a process to conclude the consideration of judicial 
nominations for this session. Had they done so, we could have 
capitalized on the hard work done by the chairman and the Judiciary 
Democrats to report consensus nominations. Instead--and I mention this 
to those from States such as Georgia and elsewhere--this is the only 
judicial nomination the Republican leadership has scheduled for 
consideration in months.
  I mention this for my colleagues who might be from States that have 
some of these judicial nominees--apparently those from those States do 
not particularly care. I mention it in case anybody is reading the 
Record later on. I was going to suggest a way to get some of them, but 
there does not seem to be an interest in it, so I will not.
  What they have left unexplained is why they refuse to go forward with 
the President's nomination of Judge Janet Neff from Michigan. The 
Federal court serving the Western District of Michigan has three 
Federal trial court vacancies that are judicial emergency vacancies 
three in one district. The Senators from Michigan have worked with the 
White House on the President's nomination of three nominees to fill 
these emergency vacancies. The Judiciary Committee has proceeded 
unanimously on all three.
  Working with Chairman Specter, the Democratic members of the 
committee cooperated to expedite their consideration.
  On September 16 we held a confirmation hearing for those three 
nominees on an expedited basis. Regrettably, the President waited until 
July to make these nominations. Had he acted sooner, as some of us 
suggested earlier this year, we would not be in this situation. From 
the beginning I have urged the President to work with us on consensus 
nominations, and I have worked hard to proceed. I continue to do so 
even at this late date in the session, in spite of the pocket 
filibusters employed by Republicans to stall and block more than 60 of 
President Clinton's qualified judicial nominees.
  Democrats cooperated to expedite consideration of a number of matters 
and reported the three judicial nominees to fill the emergency 
vacancies in the Western District of Michigan on September 29. 
Regrettably the White House, Republican leadership, and objections by 
Republican Senators continued to undermine this process. Instead of 
focusing on consensus nominees, the President sent back to the Senate 
in September and, again, following the November election, highly 
controversial nominees who had been returned to the White House in the 
hope that the President would work with us on a bipartisan basis.
  We have been accommodating, and we will continue to be. I urge all 
Democrats to vote for confirmation of Judge Jordan, as I will. But 
neither the Judiciary Committee nor the Senate should be a rubberstamp 
for this President or any President. We should be taking our 
constitutional responsibility to advise and consent seriously. These 
are the only lifetime appointments in the Federal Government, and they 
will have an enormous impact on the lives, the rights, and future of 
Americans.
  We were accommodating when Judge Jordan was pending before the 
Judiciary Committee. I knew this nomination was from Chairman Specter's 
circuit, and I cooperated with his request for a special executive 
business meeting. We came to the meeting and made sure we had a quorum, 
even though the meeting was out of the normal course.
  The chairman said that the meeting would be held to expedite 
consideration of noncontroversial nominees. I agreed to let the 
majority meet to hold over the nomination of Judge Jordan in order to 
expedite its consideration at our next meeting. In order to be more 
accommodating, I went further and continued to meet so that nominees of 
interest to Senator Grassley and Senator DeWine could be moved forward 
in the process as well.
  The Democratic Senators on the Judiciary Committee and our staffs 
worked especially hard as time ran down in this Congress to be 
accommodating on judicial nominations. The chairman held four 
nomination hearings in September. Three of these hearings were for four 
nominees, an extraordinary number in one hearing, and the fourth was an 
unprecedented hearing for two nominees who had received ``not 
qualified'' ratings from the American Bar Association. This was a 
faster pace than is traditional for the committee so late in the 
session, particularly in an election year. It was a much faster pace 
than is ideal for careful consideration of lifetime appointments to the 
Nation's courts. But we nonetheless cleared nominees at this pace to be 
accommodating and to keep the nominations moving forward.
  Sadly, rather than meet to work out a process to conclude the 
consideration of judicial nominations for this session, the Republican 
leadership has apparently made the unilateral decision to stall certain 
of these nominations, including those for the judicial emergencies in 
the Western District of Michigan, and particularly the President's 
nomination of Judge Janet Neff.
  This fall, an editorial in the Richmond Times-Dispatch entitled ``No 
Vacancies,'' highlighted the administration's counterproductive 
approach to judicial nominations. The editorial criticized the 
administration before the November elections and before the President 
renominated those controversial choices, for failing to turn vacancies 
into judges and instead pursuing political fights. According to the 
Richmond Times-Dispatch:

       The president erred by renominating . . . [Haynes] and may 
     be squandering his opportunity to fill numerous other 
     vacancies with judges of right reason.

  The Richmond Times-Dispatch focused on the renomination of William 
James Haynes II to the Fourth Circuit. Of course Mr. Haynes has yet to 
fulfill the pledge he made to me under oath

[[Page S11559]]

 at his hearing to supply the materials he discussed in his opening 
statement regarding his role in developing the legal justifications and 
policies having to do with torture, detention and other matters.
  The Richmond Times-Dispatch editorial could just as easily have been 
written about Judge Terrence Boyle, whom the President also renominated 
again to a seat on the Fourth Circuit. He did so despite the fact that 
as a sitting U.S. district judge and while a circuit court nominee, the 
President's nominee, Judge Boyle, ruled on multiple cases involving 
corporations in which he held investments. The President should have 
heeded the call of the North Carolina Police Benevolent Association or 
the North Carolina Troopers Association or the Police Benevolent 
Associations themselves from South Carolina and Virginia or the 
National Association of Police Organizations or the Professional 
Firefighters and Paramedics of North Carolina, as well as the advice of 
our former colleague, Senator John Edwards, to withdraw this ill-
advised nomination and not renominate him. Law enforcement officers 
from North Carolina and across the country oppose the nomination. Civil 
rights groups oppose the nomination. Those knowledgeable and respectful 
of judicial ethics oppose this nomination. This nomination has been 
pending on the floor calendar in a Republican-controlled Senate for 
more than a year after being forced out of the committee on a solid 
party-line vote. The Senate actually did the President a favor by 
returning this nomination to the White House before the summer recess 
and again before the election. Republican Senators tell me they don't 
want to vote on this nomination, but the White House keeps sending it 
back up.
  The President also squandered an opportunity to fill Idaho's vacancy 
in the Ninth Circuit by renominating William Gerry Myers III for that 
seat again in September and again after the November elections. This is 
another administration insider and lobbyist whose record has raised 
very serious questions about his ability to be a fair and impartial 
judge. I opposed this nomination when it was before the Judiciary 
Committee in March 2005. Actually, this was a nomination which the so-
called Gang of 14 expressly listed as someone for whom they made no 
commitment to vote for cloture, and with good reason.
  Mr. Myers' record as Solicitor General for the Department of the 
Interior suggests that he was part of a culture of corruption 
documented in the testimony of the Interior Department's inspector 
general, Earl Devaney, at a hearing of the House Government Reform 
Subcommittee on Energy. Listen to what the Inspector General in the 
Bush administration says about this Bush nominee. Mr. Devaney testified 
about a ``culture of managerial irresponsibility and lack of 
accountability'' at the upper levels of the Interior Department in 
which, ``[s]imply stated, short of a crime, anything goes at the 
highest levels of the Department of the Interior.'' He also testified, 
``I have observed one instance after another when the good work of my 
office has been disregarded by the Department. Ethics failures on the 
part of senior Department officials--taking the form of the appearances 
of impropriety, favoritism and bias--have been routinely dismissed with 
a promise `not to do it again.''' Apparently, reading this record, it 
was done again and again.
  While Mr. Myers' anti-environmental record is reason enough to oppose 
his confirmation, his connection to the ``culture of managerial 
irresponsibility and lack of accountability'' raises further concerns. 
But these are the kinds of judges who keep getting sent back to the 
White House when even a Republican-controlled Senate won't bring them 
up for a vote. You would think somebody at the White House would be 
listening when they say: We are trying to send you a signal. Don't keep 
sending them back.
  In particular, questions remain about his role in authorizing a 
lawyer who worked for him, Bob Comer, to arrange a sweetheart 
settlement agreement for a politically well-connected rancher, Frank 
Robbins. Mr. Comer was found, in an investigation by the Department of 
the Interior's inspector general, to have been responsible for 
arranging the deal. Documents have come to light recently showing that 
Mr. Myers had been given materials about the deal, which certainly 
undermine his assertions made under oath that he was merely misled by 
Mr. Comer. If anyone sought to proceed to this nomination, then we 
would want to know a lot more about these new documents, and we would 
need to explore any connections to the lobbying scandals associated 
with the Interior Department and Republican lobbyist Jack Abramoff. 
Recent reports in the Denver Post raise additional questions about the 
thoroughness of what Mr. Myers told us since the report that Mr. Myers 
and Mr. Abramoff attended at least one party together has gone 
unrefuted and unexplained.
  So it is particularly troubling to see Mr. Myers be nominated because 
the President squandered yet another opportunity to fill a vacancy. I 
had suggested he renominate Norman Randy Smith, a Republican nominee, 
for the vacancy created by the retirement of Judge Thomas Nelson from 
Idaho. Instead, the President has again nominated Judge Smith, but not 
to this seat. He has nominated him to a California seat of the Ninth 
Circuit, effectively stealing California's seat. That is wrong. I 
support the California Senators in their opposition to this. I had 
urged President Bush to resolve this impasse and turn Idaho's vacancy 
into a judge by withdrawing the controversial and tainted Myers 
nomination--tainted Myers nomination--and instead nominate Judge Smith 
for the Idaho vacancy to which he could be easily confirmed. 
Alternatively, he could have renominated them both but merely switched 
the vacancies for which they were nominated, thereby allowing the Smith 
nomination an opportunity to proceed.
  In addition, the President has renominated, again, Michael Wallace to 
the vacant seat on the Fifth Circuit even though he received the first 
ABA rating of unanimously ``not qualified'' that I have seen for a 
circuit court nominee in a quarter of a century, from Republican and 
Democratic administrations. That in itself should have been enough of 
an embarrassment not to send the name back, especially when a 
Republican-controlled Senate did not bring it forth. Committee 
proceedings on this nomination detailed the significant concern raised 
by numerous jurists around the country regarding Mr. Wallace's judicial 
temperament, his lack of commitment to equal justice to the poor and 
minorities, his lack of tolerance, and his closemindedness. It detailed 
concerns from judges and lawyers that Mr. Wallace may not follow the 
law and is driven by his ``personal agenda.''
  Of course, the troubling issues raised in the ABA's testimony echo 
significant concerns about Mr. Wallace's record on civil rights, his 
opposition to the Voting Rights Act, his support for tax exemptions for 
Bob Jones University, his opposition to prison safety regulations, and 
his attempt, as President Reagan's director of the board of the Legal 
Services Corporation, to undermine efforts to provide legal services to 
low-income clients. Don't they understand that even a rubberstamp 
Republican Senate which has gone along with just about everything this 
Bush administration has done had something in mind when they sent this 
nomination back to the White House? Instead, the White House sent it 
back.
  Months ago--months--ago before the last recess, I was urging Senate 
action on nominees such as the Michigan District Court nominees and 
Judge Jordan, whom we have before us now. What little progress we might 
have made has been undone by some on the Republican side. I have been 
here 32 years. I have never seen anything with either Republican 
leadership or Democratic leadership with a judge like this who could 
have been easily passed--Democrats and Republicans supported him--
months ago, and here we are stalled because nobody can figure out what 
to do the last few days of a session. Suddenly, it is like, My God, we 
have to have a cloture vote on him. We could have had 30 hours of 
debate afterwards, which I said let's not do, and we have a unanimous 
consent agreement that we would not. But to have gotten to a cloture 
vote on somebody who would have passed on a bed check vote months ago--
well, if this is theater, it is theater of the absurd. If this is 
theater, it would close after opening night on Broadway or anywhere 
else.

[[Page S11560]]

  This goes beyond a farce. And it is particularly ironic that after 
months of Republicans repeating a new mantra that every one of the 
President's nominees, whether qualified or not, whether engaged in 
conflicts of interest or not, whether found by their own peers to be 
not qualified or not, whether they are supported by home State senators 
or not, is entitled to a swift up-or-down vote, after we heard this 
over and over--guess what--it was Republican objections that stalled 
more than a dozen judicial nominees.
  After the last working session in October, I learned that several 
Republicans were objecting to Senate votes on some of President Bush's 
own judicial nominees. This is theater of the absurd. You had 
Republicans on the campaign trail saying: Oh, my, God, those Democrats 
are holding up President Bush's poor nominees for these highly paid 
lifetime appointments. They are holding them up. And guess what 
happened. All these nominees of President Bush, we said: Fine, let's 
just pass them. We were told: Oh, can't do it. Can't do it because we 
have Republicans who put holds on them. Talk about having it both ways. 
Republicans hold up the judges so they can go on the campaign trail and 
say: Oh these terrible Democrats. They are holding up our judges. Oh, 
my heart cries for them.
  In fact, according to press accounts, Senator Brownback had placed a 
hold on Judge Neff's nomination even though he raised no objection to 
the nomination when she was unanimously reported out of the Judiciary 
Committee. Later, without going through the committee, Senator 
Brownback sent questions to Judge Neff about her attendance at a 
commitment ceremony held by some family friends several years ago in 
Massachusetts. Senator Brownback spoke of these matters and his 
concerns on one of the Sunday morning talk shows.
  So where is the consultation about this with the leaders of the 
committee? Where is the cooperation? Where is the working together? 
Where is the attempt to be uniters and not dividers? Where is the 
wonderful statement by the President, after he got shellacked in the 
last election, saying: We are going to work together. Where is the 
explanation why the Republican leadership has chosen not to proceed 
with the Neff nomination to a judicial emergency vacancy? Can it really 
be that her attendance at a commitment ceremony of a family friend 
failed some Republican litmus test of ideological purity, that her 
lifetime of achievement and qualifications are to be ignored and that 
her nomination is to be pocket-filibustered by Republicans like the 60 
they pocket-filibustered of President Clinton's? Oh, goodness gracious.
  The Republican approach to nominations, of using nominations to score 
political points rather than filling vacancies and administering 
justice, has led to a dire situation in the Western District of 
Michigan. Judge Robert Holmes Bell, Chief Judge of the Western 
District, wrote to me and to others about the situation in that 
district where several judges on senior status--one is over 90 years 
old--continue to carry heavy caseloads to ensure justice is 
administered in that district. In fact, Judge Bell is the only active 
judge. If it had not been for Republicans blocking President Bush's 
nominations, those vacancies would be filled.

  Of course, this is not the first time Republicans objected to an up-
or-down vote on judicial nominees. They objected and stopped up-or-down 
votes on more than 60 of President Clinton's judicial nominees. Last 
year, the President's nomination of Harriet Miers to a vacancy on the 
Supreme Court was stalled and withdrawn, not because a single Democrat 
in this body objected but because Republicans objected. Republicans 
questioned her qualifications, demanded answers about her work in the 
White House and her legal philosophy and, although Democrats said go 
ahead and give her a hearing, they then defeated her nomination without 
allowing a hearing.
  With regard to judicial nominations, I do want to acknowledge the 
kind words of the majority leader, who noted before the October recess 
that we made ``tremendous progress'' in confirming qualified judicial 
nominees. By Senator Frist's count, the Senate ``has confirmed 88 
percent of President Bush's judicial nominees, giving him the highest 
confirmation rate since President Reagan.'' He calculates that ``95 
percent of all judgeships are filled, including more than 92 percent of 
all circuit court judgeships and more than 95 percent of all district 
court judgeships.'' He notes that the Senate has confirmed ``[n]early 
160 nominees'' for judgeships under the 46 months of his leadership--
160 in just 46 months. He leaves out the fact that 100 of the 
President's judicial nominees were confirmed during 17 months when the 
Democrats were in charge. Senator Daschle was leader, I was chairman of 
the committee, and ironically--I guess it is something that got 
overlooked because it doesn't fit in the campaign slogans--President 
Bush's judges moved much faster under Democratic leadership than they 
have under Republican leadership.
  Likewise, Chairman Specter acknowledged before the recess that 
Democrats on the Judiciary Committee in the Senate have been extremely 
accommodating. I hope he doesn't get in trouble for that because his 
statements sharply diverged from the vitriolic attack the Republican 
National Committee made on me, personally. It went way beyond campaign 
rhetoric to flatout lies.
  This year we have confirmed 31 judicial nominees so far. That far 
surpasses the total number of judges confirmed in the 1996 
Congressional session, when Republicans controlled the Senate and 
pocket filibustered President Clinton's nominees. In that session, 
Republicans would not confirm a single appellate court judge--not one--
and moved forward on only 17 district court judges all session. That 
was the only session of the Senate I can remember, in my 32 years, in 
which the Senate simply refused to consider appellate court 
nominations. That was part of their pocket filibuster strategy to stall 
and maintain vacancies so that a Republican President could pack the 
courts and tilt them decidedly to the right. In confirming eight 
circuit court judges so far this year, we have already confirmed more 
circuit judges than in 1996, 1997, 1999, and 2000.
  We could have accomplished a lot more this year if the White House 
had sent over consensus nominations earlier in the year. Regrettably 
the administration concentrated on a few highly controversial nominees 
and delayed until recently sending other nominations and thereby 
prevented us from having the time to do any meaningful review. As I 
said before, we could have done the Jordan nomination before us now 
back in September instead of having this high drama.
  If I were at all cynical--and we Vermonters are not, by nature--I 
would almost think this vote had been set up to distract the people 
from the fact that the Senate and House leadership have failed to 
figure out a way to get us out of this morass, after they failed to 
follow the law and pass a budget this year. They broke the law, didn't 
follow it, to pass a budget this year, even though they control both 
bodies of the Congress. Then they failed to pass our appropriations 
bills by the end of September, even though they are required to do so. 
Could it be that this nomination, this high drama of something that is 
going to pass unanimously, was brought up so maybe the press would be 
fooled into thinking that this was so important it might distract them 
from the fiasco from the fiscal train wreck they have got us into?
  Even though this Republican controlled Congress has sent back a few 
of the most controversial nominations, the administration keeps sending 
them back. By contrast, there are six judicial emergencies still that 
have no nominee at all. Nor has President Bush fulfilled his solemn 
pledge to make a nomination for every vacancy within 180 days. Of the 
vacancies currently without a nominee, seven have been vacant for more 
than 180 days. An additional 14 of the pending nominees were nominated 
only after their vacancies had occurred for more than 180 days.
  I want to note, again, so nobody will think that we even had to be 
taking the time here now: I support the confirmation of Judge Jordan. I 
helped expedite his consideration by the committee so we could vote on 
him nearly 3 months ago, in September. But we didn't in September. Of 
course, we didn't in October. We didn't in November. Here we are in 
December. But even

[[Page S11561]]

with his confirmation, only 32 judicial nominees will have been 
confirmed in the last 12 months. Contrast that to the 17 months when 
Democrats were in charge of this body and I was chairman when we 
confirmed 100 judges. In the last two years of Republican control, with 
a Republican President and Republican Senate, we confirmed half of 
that, just 53 nominees. Think how much higher it could have been with 
some cooperation.
  We have been accommodating, and we will continue to be, as we vote 
for confirmation of Judge Jordan today. But neither the Judiciary 
Committee nor the Senate should be a rubberstamp for the President. In 
case anybody is wondering, the Senate Judiciary Committee will not be a 
rubberstamp for this President or any President. Our success in this 
process depends on the White House sending consensus nominees, as 
opposed to the highly controversial nominees it sent the Senate 
repeatedly. I was encouraged by President Bush's pledge after the 
election to work with Congress in a bipartisan and cooperative way. But 
I was disappointed barely a week later when he broke that pledge and 
renominated a slate of his most controversial nominees who had failed 
to win confirmation, even under a Republican-controlled Senate. If they 
could not win confirmation when the Republicans were in control, my 
guess--I can't speak for other Senators--but my guess, with a 
Democratic chairman and Democratic-controlled Senate, they probably 
will not win confirmation there either. If they weren't good enough for 
the Republicans, they probably won't be good enough for the Democrats.

  I am hopeful we can find a better approach in the 110th Congress. It 
starts with the President. If the President would consult with us and 
work with us to send consensus picks instead of failed controversial 
nominations for important lifetime appointments, we can make good 
progress filling vacancies.
  We owe it to the American people. The American people do not want 
nominations to be about partisan politics but about Government 
responsibility to provide justice. The American people expect the 
Federal courts to be fair forums, where justice is dispensed without 
favor to anybody based on their political philosophy.
  These are the only lifetime appointments in our entire Government. 
They matter a great deal to our future. Most of them will serve long 
after most of us in the Senate have left office; certainly after the 
President who nominates them has left office. I said over and over 
again, the Federal judiciary should not be an arm of the Democratic 
Party nor the Republican Party. Otherwise we lose all faith in the 
independence of the judiciary. Just as I have opposed those who call 
for the impeachment of judges when they disagree with a particular 
opinion or give speeches seemingly condoning violence against judges 
and their families, I, also, do not want to see a Federal judiciary 
politicized. I will continue, in the 110th Congress, to work with 
Senators from both sides of the aisle to ensure that the Federal 
judiciary remains independent and able to provide justice to all 
Americans.
  I congratulate Judge Jordan and his family because I know he will be 
confirmed today.
  I reserve the remainder of my time and I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.


                      Honoring Senatorial Service