Congressional Record, Volume 154 Issue 91 (Wednesday, June 4, 2008)

[Congressional Record Volume 154, Number 91 (Wednesday, June 4, 2008)]
[Senate]
[Pages S5020-S5024]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

UNANIMOUS-CONSENT AGREEMENT--H.R. 6124

Mr. REID. Mr. President, I ask unanimous consent that at 4 p.m. on
Thursday, June 5--that is tomorrow--the Senate proceed to the
consideration of

[[Page S5021]]

Calendar No. 753, H.R. 6124; that there be 60 minutes of debate divided
in the following manner, and upon the use or yielding back of the time,
the Senate vote on passage of the bill: Senator DeMint, 30 minutes;
Senator Coburn, 20 minutes; 10 minutes total to be controlled by the
bill managers, Senator Harkin and Senator Chambliss; further, that no
amendments be in order to the bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, let me explain, this is the never-ending
farm bill. We are going to try it again. Tomorrow we hope we can pass
it and send it to the President quickly. We hope to send it to the
White House in the next day or so. The House has already approved it.
This will take care of the clerical error we had previously.
The PRESIDING OFFICER. The Republican leader.
Mr. McCONNELL. Mr. President, I hardly know where to start, but let
me start with the issue of judges.
The reason it was necessary to make our hard-working and dedicated
clerical staff here read the amendment today was to make the Senate
understand that commitments are important. The most important thing
Senators have--the currency of the realm, if you will, in the Senate--
is their word. When you give your word, you are supposed to keep your
word.
On the issue of judicial confirmations, my good friend the majority
leader and I discussed this matter publicly at the beginning of this
Congress, and we agreed that President Bush, in the last 2 years of his
term, should be treated as well as President Reagan, Bush 41, and
President Clinton were treated in the last 2 years of their tenures in
office because there was one common thread, and that was that the
Senate was controlled by the opposition party.
What has become contentious around here in recent years is the
confirmation of circuit judges. So we agreed we ought to try to hit the
average for each of those Presidents in the last 2 years of their
terms, and the average was 17. The low number was President Clinton,
with 15. That was the goal. It was clear by April of this year that
there was no intent to meet that goal, and so we had a skirmish here on
the floor over going to a bill. We reached an agreement. The majority
leader indicated we would do three circuit judges before the Memorial
Day recess. We did one. That commitment was not kept.
Now, the Senate is not the House. The minority does have rights in
the Senate. Most things that are accomplished in the Senate are
accomplished on a bipartisan, cooperative basis. Members of the
Republican conference believe strongly that commitments ought to be
kept. So by the reading of the amendment today, people got a chance to
think about the importance of commitments in this body that can only
function when our word is kept. Other efforts will be made to drive
that point home.
And just keeping the commitment that was made for May--that was not
kept--is not enough. We are seven judges away from equaling President
Clinton in the last 2 years of his term--15. Time is ticking away. That
commitment should be kept for the good of this institution.
I think it is important to remind our good friends on the other side
of the aisle that the shoe might be on the other foot. They might be
making the nominations. Why would they want to set a precedent such as
this that could come back to bite them so quickly? There is a growing
sense of anger on this side of the aisle over this issue, and what
tends to go around comes around in the Senate. This is a precedent we
ought not to set, and I think the adults on the other side of the aisle
understand that this is a precedent that ought not to be set for the
good of either party. So we will be continuing to look for
opportunities to make the point that commitments ought to be kept.
Now, with regard to the underlying bill, let me disabuse our
colleagues or anyone else who may be listening of the notion that
members of the Republican conference are not interested in having
amendments on this bill. This is the most massive reorganization of the
American economy since the 1930s--some believe a $6.7 trillion tax
increase. Looking at Kentucky alone, it could mean up to $6,000 a year
for my people, and the GAO says a 53-cents-a-gallon gas tax increase
over the next 20 years.
No matter how you look at this--my good friend the majority leader
says this is necessary to save the planet--no matter how you look at
it, it is an important bill. This is an important bill. This is no
small bill, and we are being put in the position, with the tree being
filled tonight and with cloture being filed, to have this massive,
significant bill in effect voted on without any amendments.
An interesting parallel--and I see my good friend the Senator from
Virginia, who is actually a supporter of this bill and a cosponsor of
it, sitting here in the Chamber. He and I were here in 1990, as was the
majority leader, when we did the clean air amendments, which was a
major piece of legislation. It was not as big as this bill but a big,
important bill. The Democrats were in control of the House and Senate.
There was a Republican in the White House. How did we handle the clean
air amendments of 1990 under George Mitchell, then the Democratic
leader? We had 5 weeks of debate on the floor of the Senate and we had
180 amendments. Everybody knew it was an important measure. It deserved
the attention and the participation of 100 Members of the Senate, not 1
Member--the majority leader--determining which amendments would get to
be offered and in the end asking the Senate to accept a procedure under
which no amendments would be offered. Now, Mr. President, by any
objective standard, that is not a serious effort to legislate. You
can't cram a measure of this magnitude down the throat of the Senate or
the American people with that little scrutiny or observation.
With regard to the notion that somehow everybody had a chance to look
at this bill, we got it at 11:15 this morning--the substitute at 11:15
this morning. You could argue that the vast majority of the Members on
this side of the aisle were reading it for the first time along with
the clerks. So this hasn't been laying around for months. The idea that
we would go to such a measure may have been around for a while, and it
was--and the majority leader did indicate we would go to this bill
after the Memorial Day recess, but what was going to be in it? We
learned about that this morning.
Thirdly, with regard to nominations, we were prepared to move a
nominations package tonight, but the nominations package that was
presented was basically negotiated between the Democratic majority and
the White House. There is another entity, and that is the Republicans
in the Senate. We sought to make some adjustments to the nominations
package, which, interestingly enough, included some district judges who
are on the Executive Calendar. Now, district judges have not typically
been controversial. Are we now to believe that even district judges who
have come out of the committee and are on the calendar are a matter of
controversy? Is there nothing on which we can agree? Is that the Senate
today?
Somebody needs to--and I think it is incumbent upon the majority
leader and myself--to restore a certain level of comity around here so
we can function. How in the world did the situation deteriorate to the
point where district judges who have been reported out of the committee
and are sitting here on the calendar are a matter of controversy?
That is where we are as of the evening of June 4, and I think we need
to have some serious discussions off the floor of the Senate as to how
we can unravel the problems that have been created by the mistreatment
of the circuit judge nominations of the President of the United States.
I think we need to remind ourselves that when we make commitments to
our colleagues here in the Senate, they need to be kept. And it is time
to stop this sort of spiral downward that has developed as a result of
the apparent refusal to make any serious effort to keep commitments
which have been made, which colleagues depend on, and which are
essential to the Senate functioning the way it needs to function.
Mr. President, one final observation about the underlying bill. We
have enjoined the debate on this bill and would love to be able to
amend it. We think it is not a 1-week bill; we think it is

[[Page S5022]]

clearly a multiweek bill. If the Clean Air Act of 1990 was a 5-week
bill, this is certainly at least a month bill. And at whatever point
the majority gets serious about climate change legislation, then we
need to set aside enough time to give the entire Senate an opportunity
first of all to read it and, second, to offer serious amendments to the
measure.
I think probably enough has been said today about where we are.
Hopefully, tomorrow, after a good night's sleep, we can take a look at
all these matters and see if we can get the Senate back on track to
develop a level of comity necessary for us to function in the way in
which the Senate has historically functioned.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, I would hope my friend the distinguished
Republican leader would stay on the floor a brief time. The chairman of
the Judiciary Committee is here, the Democratic assistant leader is
here, and they have a few things to say and I have a few things to say.
Mr. President, let me say, first of all, with all due respect to my
friend the distinguished Republican leader, the substitute has been
around for 2 weeks. The summary has been around. Anyone who had a
question about this, all they had to do was call Senator Boxer, Senator
Lieberman, or Senator Warner. They know this bill upside and downside.
So to say they just got it today, that is how we do things here; the
summary has been around a couple of weeks. Anyone who wanted to see the
guts of the bill could look at it.
Mr. McCONNELL. Would the leader yield just for an observation?
Mr. REID. I will in a short time, but let me also say this. I only
point this out to show how Orwellian my friend's statements are. They
wish they could offer amendments on the bill? Now, think about that for
a minute. Why aren't we offering amendments on the bill? Because they
won't let us. We have tried working, as I have indicated, in every
possible way--two amendments, germane, relevant, five amendments. No.
So I would also say, with judges, let the world understand that there
is no crisis in the judiciary. The Federal judiciary vacancy rate is
the lowest it has been in decades--not a few days, weeks, months,
years--decades.
I, with the consent and understanding of my friend, Pat Leahy, the
chairman of the Judiciary Committee, pledged that I would use my good
faith to have the Senate consider three court of appeals nominees
before the Memorial Day recess. I didn't say who they would be. And we
tried very hard.
I stated explicitly that we couldn't guarantee--and that is in the
record--I couldn't guarantee the outcome because it depended on factors
beyond my control. The Senate did in fact confirm Virginia Supreme
Court Judge Steven Agee to the Fourth Circuit Court of Appeals in May.
In addition, Chairman Leahy expedited Judiciary Committee consideration
of two seats to the Michigan Sixth Circuit Court of Appeals in light of
the pledge I made. These nominations were the result of many years of
negotiations between the White House and Michigan Senators. This has
been going on for 6 years.
Unfortunately, Republicans on the Judiciary Committee objected to
expedited consideration of the Michigan nominees. One of them had
already been approved to be a Federal district court judge. This is now
to be a circuit court judge. He already had an ABA approval of high
ranking, high approval. They said: No, we want the ABA findings again
before we are allowed to do anything. As a result, it was impossible to
have the Senate consider these two additional nominees before the
recess, despite my best efforts.
We have treated President Bush's judicial nominations with far
greater deference than President Clinton was afforded by a Republican-
controlled Senate. Mr. President, 70 Clinton nominees were denied
hearings or floor consideration. Three-quarters of President Bush's
court of appeals nominees have been confirmed while only half of
President Clinton's appellate nominations were confirmed. My friend
says what goes around comes around. We are not following that because
we believe we should not treat them like they treated us. I said that a
long time ago, and we have not. We have been generous in what we have
done. The lowest vacancy rate in the Federal system for decades is what
we now have.
Last year the Senate confirmed 40 judges, more than during any of the
three previous years with Republicans in charge. Let me say to my
friend, and I am going to yield to the chairman of the Judiciary
Committee--let me say to my friend, the distinguished Republican
leader: Everyone knows, even though it sometimes has been painful for
all of us, that the chairman of the Judiciary Committee wants a
recorded vote on these judges. That has been a standard rule that we
have had.
We have three on the calendar, and I understand two more you reported
out today, or very recently. We have five district court judges. I say
to my friend, the Judiciary Committee member who takes as much guff as
any Member of the Senate because of this committee, he has the most
sensitive issues that come before this body, and he holds up very well
and is a patient man. But as I say, I ask the question through the
Chair to my friend: Has anyone come to you in the last week and said
they wanted to do a district court judge?
Mr. LEAHY. If the Senator will yield without losing his right to the
floor, nobody has. In fact, as I listen to this colloquy, I was
wondering what was going on until I read in the Washington Times the
Republican fixation on judges is part of an effort to bolster Senator
John McCain's standing among conservatives--which is unfortunate; to
bring in the judiciary, the independent Federal judiciary, and make
them a political tool.
I was reminded once when my children were young, one of them asked
me, they said: Dad, what is the expression ``crocodile tears''? I tried
to explain to them what crocodile tears are, and I couldn't help but
think tonight, listening to our good friends on the other side--if my
children were still young, I would say: There, now you understand what
crocodile tears are.
We had, last year--and the distinguished leader has referred to this;
the Democrats were in charge, me as chairman, Senator Reid as majority
leader--we reported 40 judicial nominations to the Senate, and all 40
were confirmed each of the 3 years prior, with a Republican majority,
Republican chairman. That is more than they did.
It is interesting, in fact, since President Bush has been in office
this is the third time we have been in the majority--one of those times
very briefly. Republicans have been in the majority three times. Guess
who moved----
Mr. McCONNELL. Did the majority leader yield for a question?
Mr. LEAHY. If I can answer my question----
Mr. McCONNELL. Parliamentary inquiry: Is it permissible to yield for
a statement?
Mr. LEAHY. To further answer the question.
Mr. McCONNELL. Is it permissible to yield----
The PRESIDING OFFICER. The Senator may only yield for a question.
Mr. McCONNELL. Is a question being asked by the Senator from Vermont?
Mr. LEAHY. Mr. President, I will not ask how the distinguished
Senator from Kentucky would define crocodile tears, but I ask this
question of the distinguished majority leader: Was he aware that during
the time when Democrats have been in charge, during President Bush's
tenure, we have confirmed judges at a faster pace than when the
Republicans were in charge? Was the distinguished majority leader aware
of that?
Mr. REID. There is no question about that.
Mr. LEAHY. Mr. President, just one other point, if I might. Was the
majority leader aware that on at least a couple of occasions, for
circuit court of appeals judges, when I came back from Vermont during a
recess to hold a hearing at the request of Republicans because they
were anxious to get these court of appeals judges through, that the
Republicans then criticized me for coming back and holding the hearings
and getting them confirmed? Is the leader aware of that?
Mr. REID. I very definitely am.
Mr. President, let me say this. I would say through the Chair to my
friend, the distinguished Republican leader, the district court judges,
the

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first I heard about them was tonight, whatever time it was--late this
evening. Senator Leahy and I are happy to take a look at these district
court judges. We will work together and see what can be done with them.
But I say to my friend, I would hope that you would reconsider taking
us at our word. We will take a look at the district court judges.
Senator Leahy has said he has never been talked to about it. I never
have been. We focused on the circuit court judges. I say to my friend,
you want to talk about ``let's get back to doing things the way we used
to,'' let's do the Executive Calendar. And the district court judges,
we will take a look at those.
Mr. McCONNELL. Will the majority leader yield for a question?
Mr. REID. I will be happy to.
Mr. McCONNELL. I am aware of the rules of the Senate. Three judges on
the calendar have been there since April 24. These are not people who
just popped out of the committee yesterday.
Mr. REID. Mr. President, I have been here for a long time--with
Senator Daschle, I was here on the floor for 6 years. I have been here
for almost 4 years now in my capacity as Democratic leader. The
standard operating procedure--and this is in the hearing range of the
distinguished chairman of the committee who was the ranking member
during part of that time--it always happened. Somebody brings to our
attention: We have a judge. Can you help me with it? We don't
automatically do the judges.
Nobody asked me. We never worked that way with the judges. We have a
very heavy calendar, and Senator Leahy--and I support it every step of
the way. We don't do it in wrap-up. We have votes on these judges.

I say to my friend, the Republican leader, we will be happy to look
at the district court judges. In the entire conversations we have had
dealing with circuit court judges--I understand why they are probably
more important than district court judges. They are all lifetime
appointments, a pretty good deal.

I hope he would take us at our word, and we will work to try to move
through these at some reasonable fashion and get these done because if
we don't do it tonight, tomorrow somebody is going to object to
something else. I don't think you lose one----
Mr. McCONNELL. Can I further inquire of the majority leader, what
does ``take a look at'' mean?
Mr. REID. First of all, I literally mean that. I don't know what
States they are from. I don't know whether the Senators are Democrats,
Republicans, States with both. We have not let that stand in our way in
the past with district court judges, but there may be somebody who
doesn't like one of them for some reason. You know how things go around
here. I can't imagine it would be all of them.
Mr. McCONNELL. I would ask my friend further, are district judges now
controversial, too, particularly those who have been reported out of
the committee and been on the calendar for 6 weeks or so?
Mr. REID. Mr. President, it was just shown to me by my valiant
staff--we have a judge from Virginia. We have Warner and we have Webb
from Virginia. They get along very well. I am sure that is something we
will take a look at. Missouri, the Senators there work well together.
We have another Senator from Mississippi--these are things we can take
a look at. I can say--we are not here under oath, but I never heard of
these judges until just now. We will take a look at them. I can't see
why we can't work out something and get them approved in the next
little bit.
Mr. LEAHY. Will the distinguished majority leader yield for a
question?
Mr. REID. Yes.
Mr. LEAHY. Is the leader aware this is the first I heard that anybody
wanted to? Not a single member of the Senate Judiciary Committee on the
Republican side even raised to me that they wanted to move forward with
them. Is the distinguished majority leader aware that when the
Republicans were in the majority, when they had judges they wanted
moved they usually waited to put them on until after the request had
come from our side to put them on? Was the leader aware of that? Was
the leader aware of the fact that nobody--nobody--has raised this? In
fact, the first I heard about it was an hour ago.
Mr. REID. I say to my friend, the Republican leader, we have no
intention of stalling, not taking care of district court judges. But
let us take a look at them. I don't know if there is some--I don't
know. They are reported out of the committee, they are on the floor,
there should be no problems with them, and we will do our best to look
at them. But I say to my friend, these things I want to get done
tonight--this is a Cabinet officer. We have a man, Jim Glassman, Under
Secretary of State, who--the President's Chief of Staff says he is
going to withdraw his name. He is tired of waiting. He has to get a job
someplace. I want to get these done.
As I say, there are some 80 of them or more. We will work on these. I
tell you I would even give my friend, the Republican leader--Senator
Leahy and I will work on these three district court judges. I read the
names. We will try to do them in the next week or so. OK?
Mr. LEAHY. As I said, at least I would like to discuss them with the
ranking member.
Mr. McCONNELL. Will the leader yield for a question?
Mr. REID. Of course.
Mr. McCONNELL. My assumption is if they are on the calendar and made
it out of the committee, they are not controversial. How about
scheduling a vote? We don't have to do it tomorrow. Can we even
schedule one?
Mr. REID. The Republican leader said we want to work the way we used
to in the Senate. Take our word for it. We are not trying to deep six
these people. This is the first time I ever heard about it.
Mr. SESSIONS. Will the majority leader yield for a question?
Mr. REID. I will be happy to yield for a question.
Mr. SESSIONS. I appreciate the many challenges the majority leader
has, and a lot of difficult people. Sometimes cats are hard to herd, as
Trent Lott used to say. But the deal and the concern was so great--if I
could ask the majority leader--what about the understanding we thought
existed that there would be confirmed an average number of circuit
court of appeals judges this Congress, which would be 17 or so
nominees? Is that still afoot or is that somehow being forgotten? We
hear talk that maybe few if any more circuit judges will be confirmed.
That is what has caused a great deal of angst on this side of the
aisle.
Mr. REID. We committed to do the three judges. We got one done. We
will do our best to get two done. But we have been held up doing that
as the member of the Judiciary Committee understands. We had to wait
for the ABA report to come in again. I don't know where that stands,
but we are moving forward on those, and we are going to try to do our
very best to get those done as soon as we can.
Mr. SESSIONS. If the majority leader will yield, that wasn't
precisely my question. The overall question is--and there are quite a
number of judges pending, and more should be moved out of committee if
there is not a blockage going on. Are we going to reach--is it the
majority leader's intention to reach the average as we thought an
understanding existed to do?
Mr. REID. Mr. President, I try to be a very patient man. I know my
friend, whom I complimented publicly on the floor, didn't mean what he
said this morning about me.
I am sure if that were brought to his attention, he would ask that to
be taken from the Record because it is in violation of the rules;
basically, that I was clueless. I am sure he did not mean that, but
that is what he said. And people said it is a violation of rule XIX.
I say first to my friend from Alabama, he said that. Was it something
he did not really mean, that I was clueless? Because that is an insult.
I would ask my friend, did you really mean that I was clueless?
Mr. SESSIONS. If I was violating a rule or saying anything to insult
the majority leader, I would apologize because I do respect the
majority leader. He always treated me fairly, as I think he does most
people in the Senate. I think he is so recognized.
But we have a difficult challenge. But my response, the reason I was
a little bit aggressive on that was because the majority leader knows
that on Monday afternoon in his speech, he was very hard on the
Republican leader, Senator McConnell, and he said

[[Page S5024]]

some things about him that I thought went too far because I guess we
were involved in some big important issues and we are all a little bit
tense about that.
Mr. REID. I want to be careful. It is late tonight. I certainly do
not want to get involved in any friction. I appreciate what my friend
said because even though he and I disagree on a lot of things, I do not
know of a Member of the Senate who is more sincere in what he does than
the Senator from Alabama.
Mr. McCONNELL. Can I ask a question, and maybe we can make some
progress here? If we can schedule some of these I think completely
noncontroversial district judges--the chairman of the Judiciary
Committee is here. We would like to move the nominations package.
Mr. REID. Let me say to my friend the Republican leader----
Mr. McCONNELL. We are not talking about clearing the judges in
connection with this package, we are talking about scheduling votes,
and the man you have to clear it with is right there.
Mr. REID. They are on the calendar. Let me say this one thing to my
friend. We have a Judiciary Committee member here. I pride myself in
not running my committees. Some leaders have tried to do that; I do not
do that. I want to do the best I can in moving circuit court judges,
and we have done fairly well in very trying circumstances.
So I say to my friend the Senator from Alabama, I have made a
commitment to do three circuit court judges. I will live up to that to
the best of my ability. I said prior to the May recess: I cannot
guarantee that, but I am going to do my best. I think that it is
something Senator Leahy and I have to move forward on.
I ask my friend and I say to the Republican leader, trust us on this.
I said publicly here that we will do something to try to schedule these
within the next week. We have a few important things, but that does not
take long to do that--an hour, an hour and a half.
I ask my friend the Judiciary Committee chairman whether we can work
to try to get some votes scheduled on these three whom I noted in the
next week.
Mr. LEAHY. Well, Mr. President, to answer the distinguished leader,
as I always assume the Republican leader to do because this has been
the practice, certainly as long as he has been in the Senate--perhaps
he has forgotten--is that the chairman of these committees sets a time
for a vote, and it is almost always, as a matter of courtesy, at least,
discussed with the ranking minority member. I realize the hour is late
and the Republican leader may have forgotten that. But it has been my
practice to always discuss the time of the vote with the ranking
member, as he did with me when he was chairman.
To answer the majority leader's question, of course I will be happy
to talk with the distinguished ranking member of the committee and find
time when they might be scheduled. I might point out, each one of those
was expedited.
I would ask two brief questions--and then I will leave--of the
distinguished majority leader. Was he aware that, when talking
statistics, I committed not to follow the precedent of the Republicans
when President Clinton was the President, their precedent of pocket
filibustering over 60 of President Clinton's nominees? Was the
distinguished majority leader aware that I will not follow that
precedent and we will not pocket filibuster 60 or anywhere near that?
Mr. REID. I would answer my friend in addition to that, the Thurmond
Rule is after June 1. There is no Thurmond Rule, is there?
Mr. LEAHY. He is right.
I ask the leader one last question on why I mentioned the Washington
Times story about the motivation for this. Was he aware that one of the
circuit court nominees whom we held up for a number of appropriate
reasons--that even after that nominee was convicted of criminal fraud
that occurred while his nomination was pending, we were still
criticized for holding up that nominee? It is kind of you are damned if
you do and damned if you don't.
Mr. REID. I say, we will get this done.
Mr. McCONNELL. I think we are close to an understanding here that
allows us to clear this nominations package. You have your chairman
here, and I am authorized to speak for the ranking member on this
issue.
Did the majority leader say, in consultation with his chairman, that
we could expect to schedule these votes within the next week or so on
these noncontroversial district court judges?
Mr. REID. That is what I said.
Mr. McCONNELL. Then I think we have reached an understanding that
would certainly lead me to think we ought to go forward with the
nominations package you have been working on with the administration.

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