[Congressional Record Volume 153, Number 76 (Wednesday, May 9, 2007)]
[Senate]
[Pages S5825-S5835]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
National Guard Equipment Stocks
Mr. LEAHY. Mr. President, earlier today, we had a meeting of the
Senate Appropriations Committee. Defense Secretary Gates and Chairman
of the Joint Chiefs of Staff General Pace were there. I was at that
meeting. I had questions that I asked. I have been bothered since the
meeting, not so much by what they said, but by what has happened in the
last few days.
Every one of us, when we turn on our television set, sees the
devastation in Kansas by a tornado--something we would not see in my
State of Vermont. But even in a State where these are not unusual
things, the devastation of this tornado was unique. I thought yesterday
about how the President of the United States, through his spokesperson,
blatantly dismissed the all too real concerns of the Governor of
Kansas, Governor Sebelius, about the equipment levels available to our
National Guard for dealing with such emergencies at home as this
horrible disaster I spoke of that befell Greensburg, KS.
The White House spokesperson, sitting comfortably at the White House,
said: Well, you know, there is no problem. The Guard has considerable
equipment stocks still available.
Everybody who has studied the situation with our National Guard
around this country knows that assertion is absurd on a number of
levels. Maybe they felt they could make a political statement because
the Governor is of another party. But the reality is, the Governor
spoke the truth. She knows the Guard faces real, incontrovertible
shortfalls in vital equipment.
Contrary to what the White House has said, the Governors--I am
talking about the Governors; Republican, Democratic Governors alike--
and their adjutant generals--those who are the heads of the National
Guard in their respective States--are reporting something quite
different than the blase attitude of the White House.
State after State reports missing humvees, medium-sized trucks,
generators, dump trucks, communications systems. These are not claims
from just any observer of Guard issues; these are the leaders who have
been elected by the people to provide for their security and deal with
these sometimes terrifying State emergencies.
As the Presiding Officer knows, the Governors command the Guard when
operating in a State, and we have to give special credence to what they
say. The idea that there is no problem--this kind of dismissive ``there
is no problem''--is equally ridiculous because it has been clearly
documented there is a very real $24 billion equipment shortfall in Army
National Guard equipment alone. Now, those are reports that do not take
into consideration the shortfalls within the Air National Guard. But
both the Active Army and the National Guard agree on this figure. It
was developed together with the National Guard Bureau working closely
with the Army staff.
To say there is no problem, on the one hand, and have an arm of the
administration, on the other hand, say there is a $24 billion
shortfall--to me, that is a problem.
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What is a greater problem is there are no plans to address this
shortfall in the long-range budget. There are no plans to buy the
18,000 needed humvees, no plans to obtain the 30,000 medium-sized
trucks, no plans to purchase the 12,000 required generators, no plans
to purchase the 62,000 communications sets--the list goes on and on.
Another reason the White House's assessment of Guard equipment issues
is so flawed is that everyone--from the Guard leadership to the Army
leadership to Members here on the Hill--knows that, very frequently,
that equipment slated for the Guard never actually makes it to the
Guard because it is diverted, transferred to the Active Force before it
gets into Guard stocks.
Even when the Guard equipment makes it into the Guard stocks, it is
often quickly turned around and sent right back off to Iraq, along with
deploying Guard units, many of which now face their second Iraq
deployment.
It is passing strange to me that while this administration asks for a
blank check to resupply the Iraqi National Guard, they do not have 1
cent in their long-range budget to resupply the American National
Guard. Now, whether someone is for or against the war in Iraq, you
would think our own forces--our own American national guard--could be
treated at least on par with the Iraqi national guard, especially as we
see the brave men and women of our National Guard not only answering
the call in Iraq and Afghanistan, but answering the call when there are
dangers here at home. We do not see them, as we have seen in units of
the Iraqi national guard, setting out to kill each other or forming
death squads. So why do we write blank checks for the Iraqi national
guard when we can't take care of our own? I wish the President and the
White House would come to fully realize this reality. Here is the real
situation when it comes to National Guard equipment: The Guard does not
have adequate stocks to deal with emergencies where they can maximize
their full potential. In a smaller scale disaster, they cannot respond
as quickly to support first responders and local law enforcement.
That is what we saw recently in Kansas. Now, suppose you have another
emergency in Kansas or a larger scale emergency or something like
Hurricane Katrina or, God forbid, two simultaneous disasters. The Guard
is going to be hard pressed to respond as well as it did along the gulf
coast almost 2 years ago.
Let me show you some photographs. You can see from these photographs,
these are things our Guard does. You see this capsized tanker, and
helicopters trying to rescue the people. Those are National Guard
helicopters.
Here we have a forest fire close to an urban area, where homes are in
danger. You can see an airplane putting down a fire retardant. That is
a National Guard airplane.
Here you see a little child being rescued, carried up to a helicopter
in the arms--the embracing arms, the safety of the arms--of a National
Guard member.
Here you see the rescue of somebody who was in an accident.
Here you see National Guard in armored personnel carriers in a
flooded area. In case you are wondering where that area is, look at the
sign in the background that says ``Welcome to New Orleans.'' Much of
that sign is under water. First responders--the police, fire
departments--in New Orleans were totally overwhelmed, figuratively and
literally. The Guard responded.
Look at these firefighters, trudging through a forest, at risk to
their own lives, to put out a forest fire. Who are they? National Guard
members.
The Secretary of Defense maintained this morning in his appearance
before the Defense Appropriations Subcommittee that the Guard has 56
percent of its equipment stocks available. Well, that figure
contradicts everything I have heard from other responsible officials,
who put the figure closer to 35 percent. Frankly, 35 percent or 56
percent is not adequate, by any means.
In the latest supplemental spending bill, which the President seemed
happy to veto, I worked with my colleague on the National Guard Caucus,
Senator Bond. We cochair the National Guard Caucus. We also serve on
the Defense Appropriations Subcommittee. We added $1 billion for Army
Guard equipment purchases. That $1 billion was not requested by the
administration. We had virtually unanimous support, Republicans and
Democrats, in this body for it. It would go directly for dealing with
that $24 billion shortfall. Now, that has been vetoed. We are going to
work together in a bipartisan fashion to get it back into whatever
spending bill we pass.
We cannot do that unless we work together--unless we work together.
This is a case where it almost becomes a cliche to say: We cannot
afford to let our Guard down--but we cannot. We do not have tornadoes
in Vermont, but we have had some pretty vicious floods--one that nearly
wiped out my hometown of Montpelier, VT, the capital. We have had some
pretty vicious ice storms--one that almost removed the agricultural
sector of a major part of our State.
In each case--as hard working as the local responders were, and they
were, the police and the fire departments--the first call of the
Governor went to the Guard, the National Guard. And they came. They
rescued people. They kept people going.
When you have an ice storm, and it is 10 degrees below zero in your
State, you can't wait for them to say: Well, we have 56 percent or we
have 35 percent of your equipment. The other equipment you need is in
Los Angeles, and we will ship it to you as quickly as we can. That is
the old ``check is in the mail.'' If it is 10 degrees below zero, and
you have an ice storm, with all the power lines that come down, people
are going to die--people are going to die--if they can't get power
within a matter of, really, minutes. The Guard can do that.
We know what a fiasco it was with our still dysfunctional Department
of Homeland Security after Katrina. We have seen how the Department of
Homeland Security and its FEMA division have still not responded to
that. But we did respond when the Governors called out the National
Guard.
So I rarely ever respond to comments made by the White House and
their press operation, even when they take gratuitous swipes at me, but
this one, I couldn't pass up. They know what the numbers are. They know
the Governor of Kansas was speaking the truth. They know the Guard is
woefully undersupplied. They know they have been diverting money to pay
for the Iraqi National Guard from our Guard. So I think it would be
really helpful for the White House to stop showing contempt for the
views of our Nation's elected Governors. Take and consider their input,
respect their thoughts about the Guard given their places with the
National Guard in their States.
Let's turn the situation around. Let's come up with a new plan to
replenish depleted Guard equipment stocks. We can't afford to continue
to let our Guard down.
Mr. President, I ask unanimous consent to have printed in the Record
the appropriate charts on this matter.
There being no objection, the material was ordered to be printed in
the Record, as follows:
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Mr. LEAHY. Mr. President, I suggest the absence of a quorum, with the
time to be charged to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I ask for the yeas and nays on the pending
judicial nomination.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The yeas and nays are ordered.
Mr. LEAHY. Mr. President, the Senate continues to make significant
progress today with another confirmation of another lifetime
appointment to the Federal bench. The judicial nomination we consider
is Debra Ann Livingston of New York, who has been nominated to the
United States Court of Appeals for the Second Circuit. That is the
circuit for New York, Connecticut and, of course, Vermont. Professor
Livingston has the support of both her home State Senators. I thank
Senator Schumer for chairing the confirmation hearing at which she
appeared.
Professor Livingston is the Paul J. Kellner Professor of Law and vice
dean of the Columbia Law School, where she has been a professor for 13
years, teaching criminal procedure, evidence, and national security
law. She previously taught at the University of Michigan Law School.
Prior to her academic career, Professor Livingston served as a Federal
prosecutor and deputy chief of appeals for the U.S. Attorney's Office
for the Southern District of New York and worked in private practice
for the Wall Street law firm of Paul, Weiss, Rifkind, Wharton &
Garrison. I congratulate Professor Livingston and her family on what I
am sure will be her confirmation today.
Coincidentally, this is the anniversary of the date 6 years ago, in
2001, on which this President began his assault upon the courts by
announcing his first list of nominees. With the help of Senate
Republicans, this President has sought to pack the courts and tilt them
decidedly in one direction. To a great extent, he has succeeded. After
Republican Senators stalled President Clinton's nominees to the Fourth,
Fifth, Sixth, D.C., and other circuits, the Senate proceeded to confirm
this President's nominees to the very vacancies that had previously
been maintained by pocket filibuster in the Senate.
In my time as chairman from mid-2001 to the end of 2002, I worked
hard to reach out to this President and tried hard to change the tone
and get the confirmation process back on track. We succeeded in
confirming 100 nominees in 17 months, including 17 to the circuit
courts. But I could not change the tone alone. This White House chose,
instead, to use judicial nominations to divide and to seek political
gain in the ensuing confrontations.
I have tried, again, this year to restore order and civility to the
process. In spite of all our progress and all our efforts, we are still
confronted by shrill complaints. More ominous are the signals and
rumors that the White House is, again, gearing up to nominate more
extreme nominees and more who do not have the support of their home
State Senators. That is wrong. It may be the good politics to appeal to
the Republican base, but it is wrong to use our courts in that way--
just as it is wrong to corrupt the law enforcement responsibilities of
the Department of Justice.
Some will undoubtedly repeat the current Republican ``talking point''
that the Senate must confirm 15 circuit judges this Congress, this year
and next, because that is a ``statistical average'' of selected years.
Well, during the 1996 session the Republican-led Senate refused to
confirm a single circuit court nominee, not one. That meant that in the
104th Congress, in 1995 and 1996 combined, only 11 circuit nominees
were confirmed.
It is true that during the last 2 years of this President's father's
term, a Democratic-led Senate confirmed an extraordinary number of
circuit nominees--20--in fact. That action was not reciprocated by the
Republican majority during the Clinton years.
It is true that during the last 2 years of the Reagan administration,
a Democratic-led Senate confirmed 17 circuit court nominees. That
action was not reciprocated by the Republican majority during the
Clinton years.
Instead, the last 2 years of President Clinton's two terms witnessed
a Republican-led Senate confirming only 11 circuit nominees and then,
with vacancies skyrocketing to historic highs, 15 circuit nominees in
the 106th Congress.
Thus, to get to the supposed ``historical average'' that Republicans
like to talk about, they take advantage of the high confirmation
numbers during Democratic-led Senates and thereby inflate and excuse
their own actions from the Clinton years.
There are three more factors that the Republican talking point
ignores: The first is the number of vacancies. The second is adding
additional judgeships by congressional action. The third is the number
of qualified circuit nominees.
The last Congress of the Reagan administration, the one in which a
Democratic-led Senate confirmed 17 circuit nominees, the circuit court
vacancies went down from 13 to 8 during the course of the Congress.
Seven circuit nominations were returned to the President without
action. In fact, in addition to filling vacancies that were arising in
the regular course, the Democratic-led Senate was working to fill many
of the 24 additional circuit judgeships created in 1984. By the end of
the Reagan Presidency all circuit vacancies, those from existing
judgeships and those created during his Presidency, were reduced from a
high of 25 down to 8.
During the last Congress of the first Bush administration, the one in
which a Democratic-led Senate confirmed 20 circuit judges, the circuit
vacancies again went down, from 18 to 16. Again, the Senate was filling
both existing and newly created vacancies. In 1990, during President
Bush's term, Congress authorized an additional 11 circuit judgeships.
That was why vacancies at the beginning of the 102nd Congress rose to
18.
By contrast, during the last Congress of the Clinton administration,
the one in which a Republican-led Senate confirmed 15 circuit judges,
circuit court vacancies skyrocketed from 17 to 26. This rise in circuit
vacancies had nothing to do with Congress creating additional circuit
judgeships, however. Unlike during the Reagan administration and during
the Bush administration, during the Clinton administration the
Republican-led Congress refused to act in accordance with the previous
6-year cycle for reviewing needed judgeships. Not a single new circuit
judgeship was created during the Clinton administration that I can
recall. Instead, the Republican-led Senate engaged in strenuous efforts
to keep circuit judgeships vacant in anticipation of a Republican
President. Indeed, at the end of the 106th Congress, the last in the
Clinton Presidency, 17 circuit court nominees were returned to
President Clinton without action. More circuit nominees were returned
without action that Congress than were acted upon by the Senate for the
first time in modern history.
Likewise, during the last Congress of the first term of President
Clinton, the one in which a Republican-led Senate confirmed only 11
circuit judges, circuit court vacancies went up, from 16 to 19. Again,
this was without the addition of new circuit judgeships.
Despite the carping and the clamor, the vacancies on the circuit
courts have gone from 26--where a Republican-led Senate forced the
circuit vacancies at the end of the Clinton administration--steadily
downward during the Bush administration. With the confirmation of Judge
Livingston, circuit vacancies will be at half that amount today 13--and
approaching a historic low.
Judge Livingston will be the third circuit court nomination confirmed
this year. It is only May, but we have already equaled the total
circuit nominees confirmed in the entire year of 1993. We have far
surpassed the total confirmed during the entire 1996 session when the
Republican majority would not consider or confirm a single circuit
nomination of President Clinton's.
This will be the 20th circuit court nomination confirmed while I
presided as Judiciary chairman. It is a little
[[Page S5833]]
known fact that during the more than 6 years of the Bush Presidency,
more circuit judges, more district judges and more total judges have
been confirmed while I served as Judiciary chairman than during either
of the two Republican chairmen working with Republican Senate
majorities.
This will be the 18th judicial confirmation this year. It is spring
and we have already confirmed more judges than were confirmed during
the entire 1996 session when President Clinton's nominees were being
reviewed by a Republican Senate majority. This is the 118th judicial
confirmation while I have served as Judiciary chairman. That exceeds by
more than a dozen the confirmations Senator Hatch presided over during
the more than 2 years he was Judiciary chairman.
The Administrative Office of the U.S. Courts lists 47 judicial
vacancies, yet the President has sent us only 24 nominations for these
vacancies. Twenty-three of these vacancies--almost half--have no
nominee. Of the 15 vacancies deemed by the Administrative Office to be
judicial emergencies, the President has yet to send us nominees for six
of them. That means more than a third of the judicial emergency
vacancies are without a nominee.
This is the third factor I mentioned above, the lack of nominees.
This President has shown that he would rather pick politic fights
than good judges. I was encouraged at the beginning of this Congress
that a few of the most controversial nominees from the last Congress
were not renominated. That sensible approach seems to have ended,
however, and this White House seems to be returning to its old, bad
habits.
Despite the harping and the criticism, the Judiciary Committee has
been working hard to make progress on those nominations the President
has sent to us. Of course, when he sends nominees that he knows are
unacceptable to home State Senators, it is not a formula for success.
Sadly, that is what appears to be happening, again.
Before the consideration of the Second Circuit nominee today, we had
already proceeded with committee and Senate consideration of the
nominations of Randy Smith and Thomas Hardiman. They were confirmed to
the Ninth and Third Circuits, respectively.
Some may recall that I had been working for more than a year to make
progress on the Smith nomination. When the President finally
renominated Judge Smith for an Idaho vacancy, we were able to make
quick progress with that nomination.
Our circuit court confirmations so far this year are in addition to
the 15 lifetime appointments to the Federal district courts we have
proceeded to confirm. During the entire 1996 session only 17 judges
were confirmed. We are doing pretty well with 18 confirmations before
the middle of May.
With respect to circuit nominees, after this confirmation there will
be only 13 vacancies. Eight of those are without a nomination. Of the
five remaining current circuit nominees, one was only nominated a few
weeks ago. Having consulted with the home State Senators from
Mississippi, I have scheduled our next judicial confirmation hearing to
be held tomorrow to include Judge Leslie Southwick of Mississippi.
All three of the other circuit nominations are renominations that
were not considered last Congress with a Republican majority. Two are
renominations that the White House made knowing full well that they did
not yet have the support of their home State Senators. When I
previously chaired the committee, I was able to break the blockade of
Sixth Circuit nominations that was established by the Republican
majority when it pocket filibustered several of President Clinton's
outstanding nominations to the Sixth Circuit. Once we broke through
with two Sixth Circuit confirmations in 2002, President Bush was left
with seven appointments to the Sixth Circuit during his term in office.
Given the White House's unwillingness to work with the home State
Senators of the two current nominees, however, it will be very
difficult to make more progress.
With respect to the nomination of Peter Keisler, that renomination is
controversial. He was previously nominated in June of 2006 but was not
considered by the Republican majority then in control. The Republican
majority did not seek to proceed with this controversial nomination at
that time. In fact, the President and the Republican Senate majority
insisted, instead, to proceed over the last several years on other
nominations to the important D.C. Circuit, which were, themselves,
highly controversial. The nominations of Janice Rogers Brown, Thomas
Griffith and Brett Kavanaugh were each apparently a higher priority for
this White House and the Republican majority than the nomination of Mr.
Keisler. The others have each been confirmed to lifetime appointments
on this very important court. At the end of the last Congress, the
Keisler nomination was returned to the President without action in
accordance with Senate Rules.
The Republican Senate majority pocket filibustered more than 60 of
President Clinton's qualified and moderate judicial nominees. I have
proceeded on more judicial nominees far faster than Republicans did on
President Clinton's nominees.
With the cooperation of the President, with his working with Senators
from both parties in making his nominations, with the cooperation of
the committee and the Senate, we can continue to make progress.
I will yield the floor and reserve the remainder of my time.
Mr. SPECTER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CORNYN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Who yields time?
Mr. SPECTER. Mr. President, I yield the Senator from Texas 10
minutes.
The ACTING PRESIDENT pro tempore. The Senator from Texas is
recognized for 10 minutes.
Mr. CORNYN. Mr. President, we are into the fifth month of the 110th
Congress. Even before this Congress convened in January, observers were
predicting that judicial nominations would be one of the most
contentious issues that we face. But I think by taking a forward-
looking approach, the Senate managed to avoid an unnecessary
confrontation. I think, by and large, we have started off on the right
foot.
Earlier this year, the Washington Post and the Los Angeles Times both
applauded the President for the difficult concessions he made in not
choosing to renominate certain previous nominees who generated intense
opposition. While I thought some of that opposition was mostly unfair
and unwarranted, I respect the President's decision to extend an olive
branch to the new Democratic majority in the Senate. Those two
newspapers also encouraged the new Democratic majority to reciprocate
with cooperation and fairness.
In that spirit of cooperation, Senate Republicans received assurances
earlier this year from the Democratic majority of a fair and reasonable
pace for the confirmation of nominees to the U.S. courts of appeals. I
was pleased to hear the majority leader pledge his cooperation and
leadership to help this Congress ``at least meet the standards of
Congresses similarly situated as ours.'' We saw progress in the first
couple of months of this year, with the confirmation of two circuit
court nominees.
Today, the Senate will vote to confirm a Third Circuit judge. I
welcome today's vote and hope it will be an indication of the
majority's intent to keep working with us on the pace necessary to meet
the historical average that the majority leader has endorsed.
Yesterday, the distinguished chairman of the Judiciary Committee
commented on how he views this progress. I would like to briefly
discuss the historical analogy he cited. First, I should note I am
proud to continue to closely work on several significant pieces of
legislation with the senior Senator from Vermont, Mr. Leahy. He and I
have found common ground on, among other things, historic changes to
the Freedom of Information Act and much needed reforms to the U.S.
patent system. I look forward to working with the chairman to help make
these important bills become law.
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The chairman and I tend to part ways on some issues related to
judges. I just want to take a moment to comment on the remarks he
delivered yesterday on the pace of judicial confirmations. In
particular, I am wondering why he chose the year 1996 as the
appropriate measuring stick for progress on judges made by this
Congress. Of course, there is one obvious parallel between 1996 and the
present year, and that parallel is divided government.
In 1996, President Clinton, a Democrat, sat in the White House, and
the Senate majority was held by Republicans. But I submit we ought to
be in the business of comparing apples with apples. We must look at
Congresses similarly situated to this Congress. Point in fact: Looking
to ``similarly situated'' Congresses is the very comparison cited by
the majority leader.
Mr. President, you will recall the majority leader's commitment to
judicial nominations--in his own words--to ``at least meet the
standards of Congresses similarly situated as ours.''
Mr. President, by any reasonable measure, the proper comparison--and
the one the majority leader has apparently endorsed--is not with a
single year but with an entire Congress; specifically, with a Congress
the final 2 years of a Presidency and a Senate majority of the opposing
party. In fact, we are fortunate to be able to look to historical
parallels during the last three Presidencies, not just one.
The landscape we face in the 110th Congress was similarly faced by
President Clinton in 1999 and 2000, during the 106th Congress.
President Clinton worked with the Republican-controlled Senate during
the final 2 years of his Presidency to confirm 15 circuit court judges.
In 1991 and 1992, the 102d Congress, President George Herbert Walker
Bush worked with a Democrat-controlled Senate during the final 2 years
of his Presidency. President Bush and the Democrat-controlled Senate
confirmed 20 circuit court judges in 1991 and 1992.
Finally, in 1987 and 1988, President Reagan finished out his
Presidency opposite a Democrat-controlled majority in the Senate.
President Reagan and the Democrat-controlled Senate worked together to
confirm 17 circuit court judges.
Again, I submit we have to compare apples to apples. When we do that,
we see somewhere between 15 and 20 circuit court judges were confirmed
during each of those final two years of our last three Presidents. That
is the standard that is relevant to this discussion.
The facts are what they are. This Congress has confirmed two circuit
court nominees. We will shortly confirm our third, and that is a good
thing. But the fact is, we are not yet back on pace to reach the output
of the last 2 years of the Clinton Presidency--when a 55-member
Republican majority in the Senate confirmed 15 circuit court nominees.
There is no satisfactory reason I have heard as to why no circuit
court nominees were confirmed in April, or even reported out of
committee. The reasons that have been offered--the vacancy rate is not
that bad, the President needs to nominate more circuit court judges,
and President Clinton was treated worse--are all irrelevant to the
majority leader's representations on the Senate floor that this Senate
will ``at least'' hit the historical average.
I urge my colleagues on the other side of the aisle to work with us,
as we must, and work with the President to get back on track. That is
our constitutional duty.
I thank the Chair and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Vermont is
recognized.
Mr. LEAHY. Mr. President, while the Senator is still on the floor, I
wish he had heard my statement. I can assure him that neither the
chairman of the Judiciary Committee nor the majority leader intends to
emulate what the Republicans did, with a pocket filibuster of more than
60 of President Clinton's nominees. I know of nobody on this side of
the aisle who expects the Democrats to do a pocket filibuster of 60 of
President Bush's nominees, as the Republicans did of President
Clinton's.
It is interesting, when I hear this talk about historical averages,
they weren't only--when you bring up the number of times there was a
Democratic majority with a Republican President, a Republican President
was treated far better than the Republicans treated a Democratic
President. At no time were the Democrats ever pocket-filibustering 60
of the President's nominees.
There has been talk about President Bush withdrawing some of these
nominees he had last year. I point out he had a Republican majority
throughout the year, and they didn't pass through many. One was opposed
by organizations that had never taken a position on a judge before--the
Wildlife Federation--and all the Native American councils. Another one
was not only involved in running the torture memos, but after swearing
under oath and telling us information, he broke that oath by never
giving or bringing the information. That was a person who would not
have gotten a majority under a Republican-controlled committee. He
would not have gotten out of committee because both Republicans and
Democrats would have opposed him. So no big deal withdrawing people who
were not going to go forward. In fact, in one instance, because
somebody was nominated in the wrong State for a circuit court, that
person was withdrawn. We moved very quickly to put the next nominee in
that came from the right State.
I remember once that I got criticism from the White House, Karl Rove,
and Vice President Cheney for holding up because a person asked about a
nominee. I must admit, to their credit, they withdrew his name after he
was indicted and pled guilty to fraud. They are probably kind of happy
I didn't let him go forward.
The Senator from Texas says we should compare. I wish he would stay
with me one more moment. If the Senator from Texas doesn't want to
listen and we have closed minds, I can't do anything about it.
I will say this: I have been chairman for 21 months during President
Bush's Presidency. During that time, counting today's, we have
confirmed 20 circuit judges and 98 district judges. One of the other
chairmen was there for 2 years, there were 18 circuit judges. They were
there longer than I have been with less judges; 85 district judges
compared to my 98 in less time. Another chairman, 16 circuit judges
compared to my 20; 35 district judges compared to the 98 we put
through.
What we have done, of course, is the distinguished ranking member, as
chairman, put together strenuous debate on two Supreme Court nominees.
I think he knows full well the Democrats cooperated with him, whether
they supported the nominee or not, to get them through.
Frankly, I am tired of misstatements of the record, and I will take
time--I probably will have to have time on every single judge that
comes up--to correct that. So people understand, we will not do as the
Republicans did and pocket filibuster 60 or more of President Bush's
nominees and, secondly, obviously we know when the Republican rule, the
Strom Thurmond rule, kicks in next April, that changes all the rules.
I will point out, the proof is in the pudding. In less than 2 years,
with the Democrats in control, we have moved faster on the President's
nominees than during comparable times with Republicans.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is
recognized.
Mr. SPECTER. Mr. President, the subject matter at hand is the
confirmation of Ms. Debra Ann Livingston for the U.S. Court of Appeals
for the Second Circuit, and I urge my colleagues to confirm her. She
has an excellent, outstanding academic and professional record.
She was a superb graduate of Princeton, magna cum laude, 1980, Phi
Beta Kappa; a graduate of the Harvard Law School in 1984, again, magna
cum laude. She was editor on the Harvard Law Review, a law clerk to
Judge Lumbard of the Court of Appeals for the Second Circuit. She
practiced law with the prestigious firm of Paul, Weiss, Rifkind,
Wharton and Garrison. She was an assistant U.S. attorney in the
Southern District of New York. She was a commissioner for the New York
City Civilian Complaint Review Board for some years, 1994 to 2003, and
has been on the Columbia Law School faculty since 1994 as an associate
professor, a professor in the year 2000, and
[[Page S5835]]
vice dean from 2005 to 2006. She has been rated unanimously well
qualified by the American Bar Association. I believe she is an
extraordinary prospect to go to the Court of Appeals for the Second
Circuit.
There has been conversation, discussion, about the confirmation
process. I commend the distinguished chairman for what he has done to
date. We work together very closely. In the 109th Congress, he was
ranking member. I liked it better when he was ranking member and I was
chairman, but we have had bipartisan teamwork.
The record for confirmations of circuit judges in the last 2 years of
a Presidential term, when the control of the Senate is in the opposite
party, has been in the 15 to 17 range. I am hopeful, perhaps even
optimistic, that we can get there this year.
A good bit remains to be done by the administration in submitting
nominations. We have some 8 vacancies on the court of appeals which do
not have nominations from the White House. Toward that end, there has
been a leadership meeting with the White House counsel. We have tried
to structure a plan which would enable us to go forward to confirm more
circuit judges and to fill the vacancies of district court judges.
Many of these courts are in the category of judicial emergencies. As
a practicing lawyer for many years, I can attest firsthand to the
importance of having judges on the bench so that litigants can have a
speedy disposition of their trials.
There is an adage: Justice delayed is justice denied. I think that is
very true.
I ask unanimous consent that the full text of a prepared statement be
printed in the Congressional Record following my extemporaneous remarks
and that the specific text of my introduction be printed in the Record.
Sometimes comments are made extemporaneous and then the written
statement appears in the Record. If anybody reads the Congressional
Record, they must wonder why there is so much repetition, so I would
like to have an explanation included.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement on the Nomination of Debra Livingston to the U.S. Court of
Appeals for the Second Circuit and Calling for a Fair Confirmation
Process
(Senator Arlen Specter)
Mr. President, I seek recognition today as the ranking
member on the judiciary committee to discuss the state of
judicial nominations in the 110th Congress and the nominee
pending before the Chamber today.
Today, the Senate will confirm Professor Debra Livingston
to the U.S. Court of Appeals for the Second Circuit. She was
first nominated over 300 days ago to a vacancy judged to be a
``judicial emergency'' by the nonpartisan Administrative
Office of the Courts. She is a very fine choice for this
important court and I am glad she will soon bring her much
needed skills to the Second Circuit.
Before discussing judicial nominations more generally, I
would like to say a few words about Professor Livingston's
impressive background as an accomplished attorney,
prosecutor, and legal scholar.
She graduated magna cum laude from both college and law
school: Princeton University in 1980 and Harvard Law School
in 1984. At Princeton, she was elected to Phi Beta Kappa. At
Harvard, she was the Editor for the Harvard Law Review.
Following law school, Professor Livingston worked as a law
clerk to the Honorable J. Edward Lumbard of the U.S. Court of
Appeals for the Second Circuit. In 1985, after her clerkship
with Judge Lumbard, she joined the firm of Paul, Weiss,
Rifkind, Wharton and Garrison as an associate, where she
worked on a variety of State and Federal litigation.
The following year, Professor Livingston joined the Office
of the U.S. Attorney for the Southern District of New York as
an Assistant U.S. Attorney. Her work in the U.S. Attorney's
Office focused on criminal trials and appeals. In 1990, she
was elevated to serve as Deputy Chief of Appeals, an
assignment that had her handling appeals before the Court to
which she is now nominated.
After a successful career in the public sector, she briefly
returned to Paul Weiss in 1991 before leaving the following
year to become a law professor. She worked as an assistant
professor at the University of Michigan Law School until
1994, when she joined the faculty of Columbia Law School as
an associate professor. She became a full professor in 2000
and in 2004 became the Paul J. Kellner Professor of Law. Her
principal areas of teaching at Columbia have been criminal
investigations and evidence and she has published numerous
articles in the area of criminal law and co-authored the
casebook Comprehensive Criminal Procedure.
Professor Livingston has received a unanimous ``well
qualified'' rating from the American Bar Association, the
highest rating that organization gives. I'm sure she will
enjoy a strong positive vote today.
Chairman Leahy must be commended for working with Senators
on both sides in order to get us off on the right foot during
this Congress. Professor Livingston will be the 18th judge,
and the third circuit court judge, confirmed this year. This
is, admittedly, a much more auspicious beginning than that
made by the Republican controlled Congress during President
Clinton's final 2 years in office. That said, much work
remains to be done.
The average for similarly situated Congresses in recent
times is 17 circuit court confirmations. Despite its slow
beginning, even the 106th Congress ultimately confirmed 15
men and women to the circuit courts and a total of 73 article
III judges. And this was a historical low point. At the very
least, the 110th Congress should meet or exceed this
standard.
On several occasions, members of the majority have
indicated that we can expect a dramatic slow down in
confirmations in the latter part of next year. While I do not
agree that historical record supports any kind of ``rule'' in
this regard, we do know that the press of a Presidential
election has a tendency of slowing down work in the
Senate. If nothing else, we can expect the Congress will
be in recess for a substantial portion of the second half
of next year.
Therefore, in order to meet the standards set by similar
Congresses in recent times, it will be necessary for us to
confirm approximately one circuit court judge for every month
we are in session.
There are five circuit court nominees currently pending
before the Judiciary Committee. Three of these nominees are
to vacancies designated as ``judicial emergencies'' by the
Administrative Office of the Courts. Some of these
nominations are being delayed by home state Senators who have
not returned blue slips. It has generally been the practice
of the Senate to not proceed without the consent of home
state Senators. I have urged these Senators to return these
blue slips and allow the process to go forward.
Although there is an understandable focus on the circuit
courts, it should also be noted that there are 18 district
court nominees pending in the Committee, eight of whom have
been pending over 120 days, and 14 of whom are awaiting a
hearing. These nominations also deserve prompt action.
I said before that Chairman Leahy deserves to be commended
for the progress made so far. The President also deserves to
be commended for acknowledging the reality of a Democratic
controlled Congress and withdrawing nominations that the
other side has adamantly opposed. This was a very productive
step that was rightly commended by Senators of both parties
and the editorial pages of major newspapers including the
Washington Post and the Los Angeles Times.
I have urged the President to build on this precedent by
consulting with Senators of both parties as he moves to fill
additional vacancies on the federal courts. As of today,
eight circuit court and fifteen district court vacancies
still do not have nominees. Three additional circuit court
vacancies are imminent. In addition, 15 district court
vacancies await nominees. The Senate cannot fulfill its duty
to provide advice and consent until the President first sends
us nominees. I am hopeful he will do so soon.
It will take both Republican and Democratic Senators, and
the White House, working together to ensure an orderly
confirmation process. Both sides have ample reason to
complain about past grievances over the last two decades. But
we cannot continue settling old scores. The partisan tit-for-
tat over judges got so bad that it virtually paralyzed this
body during the last Congress. This environment is
deleterious to the Senate, to the nominees, and ultimately to
litigants who wait for justice as judgeships go unfilled.
I believe the 110th Congress provides an opportunity to
turn the page. Today's confirmation is further evidence that
we are off to a good start. I look forward to working with
Chairman Leahy, and all my colleagues, in this effort.