[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.

[[Page S5826]]

  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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[[Page S5832]]

  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.

[[Page S5834]]

  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.