[Congressional Record (Bound Edition), Volume 145 (1999), Part 15]
[Senate]
[Pages 21848-21851]
[From the U.S. Government Publishing Office, www.gpo.gov]





   NOMINATION OF BRIAN T. STEWART TO BE U.S. DISTRICT JUDGE FOR THE 
                            DISTRICT OF UTAH

  Mr. LOTT. Mr. President, in an effort to continue to move forward on 
judicial nominations, I ask unanimous consent that the Senate 
immediately proceed to executive session to consider the nomination of 
Brian Theadore Stewart to be a U.S. District Judge for the District of 
Utah.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. No objection to going to the measure.
  Mr. LOTT. The Chair notes there was no objection to that?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. Mr. President, I further ask unanimous consent that there 
be a time agreement on the pending nomination of not to exceed 2 hours 
under the control of Senator Leahy and 30 minutes under the control of 
Senator Hatch.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Reserving the right to object, we have spent a lot of time 
talking about this issue.
  I spoke to the chairman of the committee today. We really want to try 
to 

[[Page 21849]]

be helpful and move along these judicial appointments, including the 
one that is so important to the Senator from Utah, Mr. Hatch.
  But we would ask the majority leader if he would modify his request 
to provide for the same time limitation for those nominees: Berzon, 
White, and Paez. Maybe having made this suggestion, modification of the 
time agreement, we could have all these done. We could do it probably 
in a morning or certainly with a little added time. In fact, we would 
even be willing to cut down the time or add to the time if the majority 
leader would agree.
  Mr. LOTT. Mr. President, if I could respond to the Senator from 
Nevada on his proposal. If he can get this agreement I have just 
propounded worked out, we will be able to move not only this nomination 
of Mr. Stewart, we will also be able to move tonight the nominees, M. 
James Lorenz, of California, for the Southern District of California, 
and Victor Marrero, of New York, for the Southern District of New York.
  With regard to the nomination of Ronnie L. White, of Missouri, for 
the Eastern District of Missouri, we do have a time agreement we had 
worked out earlier. I think it was for only 35 minutes. It might 
require more time than that since a lot of time has lapsed, but I am 
satisfied we will get a time agreement on that, and we will have a vote 
on that one.
  I think there is a possibility we could get some sort of a time 
agreement to consider also the nominee, Raymond C. Fisher, of 
California, for the Ninth Circuit, which is a very controversial 
circuit. But I have not had an opportunity to check on the time on that 
one.

  So I think if we could get an understanding, an agreement with regard 
to Mr. Stewart, we could, as a matter of fact, move as many as five 
judges--two in wrapup and three with time agreements and recorded 
votes. The other two--Berzon and Paez--I will have to go to all of my 
colleagues to check and see how we can handle those. I have not been 
able to get a time agreement as yet. I have to confess that I have not 
tried it lately because I have been trying to move the other judges 
where there was either not an objection or there were limited 
objections or we could get time agreements.
  So I think this is a way to keep moving the process forward. I remind 
the Senate that we have moved six Federal judicial nominations over the 
last 2 weeks and that we have the opportunity tonight to move three 
more. We have the opportunity, within the next 2 weeks, to move three 
more. That is pretty good progress. I understand the Judiciary 
Committee is moving toward, reporting out a number of other 
nominations.
  So I hope we will find a way to work through all this. Everybody 
knows that this nominee, Stewart, is important to the chairman of the 
Judiciary Committee. If we get into a situation where we are not going 
to move him until we get agreement on all others, then we will wind up 
with an all stop. I have been through that before. I wish we wouldn't 
do that. I don't think it is good for the people who have been 
nominated. Why hold up those who can be cleared or voted on and 
probably approved because we want to get others who are a major problem 
and we haven't been able to get cleared?
  I will have to object at this time because I haven't had a chance to 
do a hotline to see how we could handle Raymond Fisher--I would have to 
check on all three of those. Having said that, I will have to object to 
that change.
  Mr. REID. I say to the majority leader, I think this dialogue on the 
floor is constructive. I think the suggestion of the leader that we 
move some of these other people is something we need to do. We, of 
course, need to have more hearings. I see the ranking member of the 
Judiciary Committee, who has certainly been engaged in this and has 
spoken with the Senator from Utah, much more than either you or I, 
about this issue.
  Mr. LOTT. I wish they would work this out, frankly. Then you and I 
wouldn't have to worry with it.
  I did object. The Chair has heard objection?
  The PRESIDING OFFICER. Objection was heard.
  Mr. REID. We still have the leader's unanimous consent request 
pending though.
  Mr. LOTT. I could make another one, but before I do, I am glad to 
yield the floor to the Senator.
  Mr. LEAHY. If the distinguished majority leader will yield, the 
distinguished senior Senator from Utah and I have been in discussion 
within the last 2 or 3 minutes. We are trying to move this along and 
work it out. I understand the concerns the majority leader has.
  As he knows, both the two times I have served here with the Democrats 
in the majority and the two times I have served with Republicans in the 
majority, I have always respected the majority leader's prerogatives in 
bringing things up.
  My concern is not that this be a lockstep matter, but I say to my 
friend from Mississippi--and this is one of the things that concerns 
many people on this side of the aisle--there were 30 pending judicial 
nominations that were received by the Senate prior to the Stewart 
nomination coming, and they deserve our attention, too.
  Obviously, I understand the special circumstances of the Stewart 
nomination. If we work out some of these other things, I expect to be 
voting for him. But there were 30 ahead of it, not all of which are on 
the calendar, but were received ahead of it and 6 in front of him on 
the Senate Executive Calendar. We have concern that they are



going to get consideration, that each of them will be accorded a Senate 
vote. People should be fair to them all. Some of them have been there 
for 2 or 3 years, some for a matter of months. What I am trying to do 
with the distinguished Senator from Utah is work out some kind of 
understanding where we have Senate votes on the nominations on the 
Executive Calendar, will have the hearings that are needed to move 
others along. I was hoping we could work out some kind of a package 
that the distinguished Republican leader and the distinguished 
Democratic leader could agree to today, but I don't think we can.
  Mr. LOTT. I just offered basically a package that could involve five 
judges.
  Mr. LEAHY. I understand.
  Mr. LOTT. I do want to make the point that, as the majority leader, I 
can nudge a chairman and/or his ranking member, but I am not chairman 
or ranking of Judiciary. The majority leader can only deal with the 
nominations that hit the calendar. With the proposal I just made, two 
would be on the calendar, at which point I would then have the time to 
see how those might be dealt with.
  Mr. LEAHY. With all due respect, the last few years the Senate has 
moved slower on judicial nominations than any time I think I can 
remember in my time here. I have attended more judiciary hearings, 
voted on more judicial nominations, than virtually anybody in this 
body, with the exception of the distinguished President pro tem, who 
tells me he may have been doing them in Thomas Jefferson's time. But 
for the rest of us, I have. I have never seen it go quite so slowly. In 
1996, 1997 and again this year the Senate has been moving slowly with 
respect to a number of judicial nominees.
  We are trying to work that out. Obviously, it is not going to get 
solved today. I do not want to get having to invoke cloture on judicial 
nominations. I think it is a bad precedent. That may be necessary.
  Mr. LOTT. If I could reclaim my time, I agree with you on that. I 
don't want to do that. I have discouraged it ever since I have been the 
majority leader. I don't believe we have had cloture on a Federal judge 
since I have been majority leader. The idea that we would begin 
defeating Federal judicial nominations with 41 of the 100 Senators' 
votes, that is a bad thing to start. I hope we will not do it.
  I have to try to find a way to force us to some agreements and to 
force us into some action. I would be inclined to file cloture today. I 
want to emphasize, I would prefer to vitiate and not do that. I will go 
ahead and put it in place tonight, but if Senator Hatch and Senator 
Leahy will come to me and say, 


[[Page 21850]]

we have something worked out here, or if 
we can work it out to move these five judges, I will be delighted to 
move to vitiate that and not go forward with it. Then we can keep this 
process moving.

  Remember, right before the August recess, I was the one who tried to 
move judges. I would get an objection from the Democratic side, if I 
didn't include certain judges. Then, if I did it a different way, I 
would get objections from the Republican side because certain judges 
weren't included. The net result was, none of them were included.
  When I came back, I called Senator Daschle and I called Senator 
Hatch. I said: I am going to start at the beginning. I am going to 
start with the easiest ones to get done, and if people are going to 
object, then they will have to object to them one by one. As a result 
of that, everybody kind of relaxed and we moved six of them. We are now 
ready to move at least two more, and I thought we could move three 
more. If we keep this thing going, it has a lubricating effect. When 
you act, you tend to act.
  Let me say this about the vacancies, the number of judges appointed. 
This Sunday, I am going to be in Cleveland, MS, to attend the 
investiture of my college roommate, one of the finest men I have ever 
known in my life. He was nominated by President Clinton to be a Federal 
judge. He is going to be the North Mississippi Federal judge.
  I guess on paper he is a Democrat, but aside from that, he is a great 
guy and will make a wonderful, ethical judge. But when I attend this 
meeting, I am going to be basically saying: My good friend, Judge 
Pepper, goodbye. I hope to see you again some day. You are going to the 
Federal bench.
  I am glad he is going there. He is going to be a credit. But let me 
tell you, out there, there are not a lot of people saying: Give us more 
Federal judges. They just are not. For us to be pontificating about 
this and gnashing, how unfair, this appointment of more Federal judges, 
it is just not there.
  I am willing to do my job. I know they deal with a lot of important 
issues. I know there is a problem when we don't have a full complement. 
Some people might argue that we have plenty of Federal judges to do the 
job. I hope they will do that. I am saying to you, I am trying to help 
move this thing along, but getting more Federal judges is not what I 
came here to do.
  Mr. LEAHY. If the distinguished leader will yield on that point, I 
believe, of course, he is gaining himself a higher place in Heaven for 
the suffering he goes through with this--probably not made up by the 
office and the limo in the meantime. In Heaven, he will finally have 
his reward, I am sure.
  Mr. LOTT. I look forward to that great day.
  Mr. LEAHY. When you get there, you will be able to tell St. Peter 
that one of the trials you had on Earth was the senior Senator from 
Vermont, who is your friend, as you know. We have been friends for many 
years.
  On the number of Federal judges, though, I do get letters from 
lawyers all over the country, and I believe even from the State of 
Mississippi, from their trial bar, in several cases where, having paid 
all kinds of taxes, they now have to hire arbitrators to hear the cases 
because the dockets are too full. I am hearing from Federal prosecutors 
all over this country this is a matter of some concern, that because of 
the speedy trial rules under the Constitution and practice, they are 
concerned about their cases. There aren't enough judges to try them. So 
there are some areas where we do have some serious problems. We know 
that the Chief Justice of the United States has criticized the lack of 
enough judges to do the work of the courts and the time it takes to get 
vacancies filled.
  We have two judges we could voice vote right now--there would be no 
objection--James Lorenz and Victor Marrero, Calendar Nos. 213 and 214.
  Mr. LOTT. I would be glad to move those. If we can get an agreement 
on Stewart, they will be moved immediately.
  Mr. LEAHY. What I would suggest is this: Obviously, the distinguished 
leader can file cloture on any motion at any time. I think that is 
appropriate, and whoever is the majority leader should always have that 
right. I have always supported that. Such a vote would not ripen, it is 
my understanding, until Tuesday evening.

  Mr. LOTT. Tuesday at 5:30. That would give you and us time to talk 
more tonight, or Tuesday.
  Mr. LEAHY. The Republicans will probably be having a caucus, as we 
will be, in the normal course of business. Might I suggest to the 
leader that might be the thing to do. We would have an objection today, 
he can file the cloture today if he chooses, and still Senator Hatch 
and I will continue our discussions. He and the distinguished 
Democratic leader would continue theirs. I think there have been a 
number of times when the 4 of us, in 5 minutes off the floor, have 
accomplished more than we could in 5 hours on the floor. Then we can 
see where we are at that time. We may be in a situation where having 
prayed about it over the weekend and thought about it--and you have had 
the great feeling of being in Cleveland, and I didn't know there was a 
Cleveland, Mississippi.
  Mr. LOTT. They don't have a professional football team, but they have 
an excellent college team, Delta State University.
  Mr. LEAHY. I have been in Mississippi a number of times. I have gone 
down with your distinguished colleague, Senator Cochran, in different 
hearings. I have always enjoyed it. I have always eaten too much, and I 
have always felt I understood what Southern hospitality means. I tried 
to reciprocate with his colleague on a visit to Vermont, and it dropped 
to 30 below zero. He didn't think it was very good reciprocation, so he 
came back in the summertime.
  Mr. LOTT. I would like to make one last point.
  Mr. REID. Mr. President, I ask the leader this. I have listened to 
the two



of you in your dialog. I have a different idea. I think that and I 
respectfully submit this--we would be better off if you did not file 
your motion for cloture. You can do that next week. I feel that, 
knowing the minority as well as I do, we would be better off. If things 
don't work out by Tuesday at this time, you can still file your motion 
to invoke cloture.
  I don't think we should be filing motions to invoke cloture on these 
judges. I don't think we need to do that. Give us a little time to work 
this out. I respectfully submit to my dear friend that I think we would 
be making a mistake procedurally. I have only been to Mississippi once, 
and that was when I went to Senator John Stennis' funeral, a man who I 
had the pleasure of serving with years ago. I had great respect for 
him. I feel that, in the Stennis way of doing business, we need to do a 
little more deliberating and less pushing people's backs to the wall. I 
feel this motion would be the wrong thing.
  As I say, I have spoken to the Senator from Utah. I know how badly he 
wants this judge to be approved. I think you have gone some way this 
evening in saying that you have mentioned four people that I think we 
can approve pretty quickly.
  Mr. LOTT. Possibly a fifth one. I would have to get clearance on it.
  Mr. REID. I say to my friend--and I am not begging; I don't want to 
do that--I think we would all be better off if the cloture motion were 
not filed today. If you need to do it, do it Tuesday. That is going to 
move along, and we are going to be around here next week and the week 
after. I think we would be better off. Let's not get into a motion to 
invoke cloture on judges. The big problem is with Ted Stewart from 
Utah. Let's see if we can work through that.
  Mr. LOTT. Is there any possibility that we can get a time agreement 
on Stewart? I know Senators would like to make themselves heard, 
perhaps, on that nomination, or perhaps as it relates to other 
nominees. I have no desire to cut Senators off at will. Maybe the time 
I asked for was too short, with 2 hours for Senator Leahy and only 30 
minutes for Senator Hatch, where the nominee is from. We can go to 4 
hours on each side.
  Mr. REID. I respectfully submit that I don't think the time is the 
issue. I think we have to work our way 


[[Page 21851]]

through a little bit of the 
politics of this judicial appointment stuff. In my opinion, I think we 
could do it much easier if there weren't that cloture motion filed.

  Mr. LOTT. I have a couple of problems: One, Senator Hatch, I think, 
feels that I embarked upon a strategy that has disadvantaged him 
because I started moving judges--6 of them. And now 2 more are ready to 
go. Then when we got to the ninth one, his judge, we are told, no. Even 
though you have 8 judges nominated by Democrats, we have one now that 
is supported by Senator Hatch, the chairman of the Judiciary Committee, 
and you can't do that unless we get an agreement to move 5 other 
judges.
  So I understand what you are saying. I really prefer not to do this. 
But the problem I have now is that I told Senators who have now left 
that I would do this, and I believe we have told Senators we will have 
two votes at 5:30 Tuesday. This is one of them. That is my problem. 
Another problem is time. We are getting to the end of the fiscal year. 
If we don't do this now and get closure on Judge Stewart, with next 
week being a four-day week--assuming we can get the Senators to work 4 
days--and with five the next week, which are the last 2 weeks of the 
fiscal year, we are not going to be able to get through any of these 
judges until October. I hope that we can go ahead and resolve the 
Stewart matter. I could vitiate the request, and then we could move 
five judges, I hope.
  Mr. REID. The problem that I have, though--and you already touched 
upon it--we know where the votes are on this issue. We don't need to 
have a Federal judge decided on less than a majority vote. So why can't 
we just wait and see if we can work this out? I think it would be 
better. I think we are going to be forced into a vote here.
  Mr. LOTT. Can you give me a commitment that we will get a vote next 
week on Judge Stewart?
  Mr. REID. Well, the only problem with that is, if we can't work 
things out, then you will be stuck with the cloture motion. I think it 
would be better if that were done after we really saw, based upon the 
feelings that the Judiciary Committee chairman has on this----
  Mr. LOTT. I want to pay a compliment to Senator Reid. As always, he 
is persistent, and he is trying to find a solution. That is the way we 
have to work around here. I appreciate that attitude. I appreciate the 
way he has done his job since he has been the assistant Democratic 
leader and whip. So I weigh that carefully.
  At this point, I think I will have to go forward with this. But I 
will be here tomorrow. I will be here all day Tuesday. Senator Hatch 
and Senator Leahy will be working together. I will not let this happen 
without personal conversation with Senator Daschle. I talked with him 
briefly about it this morning. He won't be here tomorrow, but he will 
be back next Tuesday. It is a high holy day for the Jewish community. I 
believe he will be around during the day. We will try to work this out. 
I want to work this out. ``I ain't got a dog in this fight,'' except 
I'm trying to do my job. So I want to do it in such a way that 
everybody is satisfied that we are being fair. I don't think it is fair 
that the nominees from California, New York, Utah, and Missouri all get 
balled up in this web. I hope we can avoid that.
  Mr. LEAHY. Touching on another subject--and obviously the two leaders 
can determine what they want as far as the cloture point is concerned--
on the timing on Mr. Stewart's nomination, in my experience and my 
judgment, I say to my friend from Mississippi that: If we had worked 
out an arrangement to vote on these judicial nominees on the calendar, 
the sort of thing we are talking about doing now, working out the 
amount of time to be taken on Stewart would be the least of our 
worries; it would be a relatively short time because it would be all 
part of the same package.
  We could spend more time talking about how much time there will be on 
the floor than probably what there would be at that time. That is going 
to be the least of our problems. If we get some of these judges worked 
out and some idea of when other judges are coming up, that is going to 
be the easy thing to do.
  Mr. LOTT. I may have an idea or the staff, as quite often is the 
case, may have come up with an idea.
  Mr. LEAHY. We have a constitutional impediment to the staff, I say to 
the leader.
  Mr. LOTT. Let me explain what it is. Then I will explain what it 
means.
  First of all, I ask unanimous consent that notwithstanding rule XXII, 
it be in order for the majority leader to file a cloture motion on the 
pending nomination at 5:30 p.m. on Tuesday, and if that motion is 
filed, that vote occur on Tuesday immediately following the 5:30 p.m. 
vote. Needless to say, this will give all Members until 5:30 on Tuesday 
to discuss the nomination.
  What I am asking for is an opportunity to not file it, but by getting 
this agreement, it will be the same as if I had filed it. If we get an 
agreement, no problem. If we don't, then there will be a vote at 5:30.
  Mr. LEAHY. That is OK with me.
  Mr. REID. No objection.
  The PRESIDING OFFICER. The majority has a previous unanimous consent 
request. Does he withdraw that?
  Mr. LOTT. I do, and I propound this one which I just read, and ask 
for its consideration.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LOTT. Mr. President, I thank Senator Reid and Senator Leahy very 
much for their cooperation.

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