[Congressional Record (Bound Edition), Volume 145 (1999), Part 15]
[Senate]
[Pages 22004-22006]
[From the U.S. Government Publishing Office, www.gpo.gov]



                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF BRIAN THEADORE STEWART, OF UTAH, TO BE UNITED STATES 
                DISTRICT JUDGE FOR THE DISTRICT OF UTAH


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  Mr. KENNEDY. Mr. President, I send an amendment to the desk on the 
minimum wage and ask for its immediate consideration.
  The PRESIDING OFFICER. The Senate is not on that bill.
  Mr. LEAHY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will report the motion to invoke 
cloture.
  Mr. LEAHY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll to ascertain the 
presence of a quorum.
  The legislative assistant proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The assistant legislative clerk read as follows:

                             Cloture Motion

  We the undersigned Senators, in accordance with the provisions of 
rule XXII of the Standing Rules of the Senate, do hereby move to bring 
to a close debate on Executive Calendar No. 215, the nomination of 
Brian Theadore Stewart, of Utah, to be United States district judge for 
the district of Utah vice J. Thomas Greene, retired:
  Trent Lott, Orrin Hatch, Mike Crapo, Wayne Allard, Ben Nighthorse 
Campbell, Charles Grassley, Peter G. Fitzgerald, Connie Mack, Chuck 
Hagel, Rod Grams, Pat Roberts, Conrad Burns, Judd Gregg, Larry E. 
Craig, Robert F. Bennett, and Mike DeWine.
  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call under rule XXII is waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Brian Theadore Stewart, of Utah, to be United States 
District Judge for the District of Utah, be brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain), 
is necessarily absent.
  The yeas and nays resulted--yeas 55, nays 44, as follows:

                      [Rollcall Vote No. 281 Ex.]

                                YEAS--55

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McConnell
     Moynihan
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--44

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--1

       
     McCain
       
  The PRESIDING OFFICER. On this vote, the yeas are 55, the nays are 
44.

[[Page 22005]]

Three-fifths of the Senators duly chosen and sworn not having voted in 
the affirmative, the motion is rejected.
  Mr. LEAHY. Mr. President, I deeply regret that we have reached this 
point in connection with the nomination of Brian Theadore Stewart to 
the District Court for Utah. Please understand that Democrats are 
prepared to vote on this nomination, as we are on all of the judicial 
nominations pending on the Senate Executive Calendar. This impasse is 
caused not by Democrats' refusals to vote on that nomination but by 
Republican refusals to allow a vote on the nominations of Judge Paez or 
Ms. Berzon. If we can vote on the Stewart nomination in less than 2 
months, we should be able to vote on the Paez nomination within 4 years 
and the Berzon nomination within 2 years.
  This debate is about fairness. The Senate needs to be fair to all 
people in this country. For too long nominees--judicial nominees like 
Judge Paez, Ms. Berzon and Justice Ronnie White of Missouri, and 
Executive Branch nominees like Bill Lann Lee-- have been opposed in 
anonymity through secret holds and delaying tactics. They have been 
forced to run a gauntlet of Senate confirmation. Those strong enough to 
survive are being dealt the final death blow not by being defeating in 
a fair up or down vote on the nomination but through a refusal of the 
Republican leadership to call them up for a vote. These nomination are 
being killed through neglect and silence, not defeated by a majority 
vote.
  Today we are not asking for any Senator's vote for any nomination. 
Instead, I am asking the Senate recognize that its responsibility is to 
vote on all the judicial nominations on the calendar. We can vote for 
them or against them, we can vote them up or vote them down, but after 
44 months or 27 months or 20 months, after completing every step in 
what is a long, tortuous confirmation process, the nominations of Judge 
Richard Paez, Justice Ronnie White and Marsha Berzon are as entitled to 
a Senate vote as the nomination of Ted Stewart.
  I do not begrudge Ted Stewart a Senate vote. Despite strong 
opposition from many quarters from Utah and around the country, from 
environmentalists and civil rights advocates alike, I did not oppose 
the Stewart nomination in Committee and I expect to vote for his final 
confirmation here on the floor of the United States Senate. I have been 
supportive of Chairman Hatch in his efforts to expedite Committee 
consideration of the Stewart nomination with the expectation that these 
other nominees who have been held up so long, nominees like Judge 
Richard Paez, Marsha Berzon and Justice White, were to be considered by 
the Senate and finally voted on, as well. The Chairman and I have both 
voted for Judge Paez and Justice White each time they were considered 
by the Committee and we both voted for and support Marsha Berzon.
  I have tried to work with the Chairman and with the Majority Leader 
on all these nominations. I would like to work with those whom the 
Majority Leader is protecting from having to vote on the Paez and 
Berzon nominations, but I do not know who there are. In spite of what 
was supposed to be a Senate policy that did away with anonymous holds, 
we remain in a situation where I do not even know who is objecting to 
proceeding to schedule a vote on the Paez and Berzon nominations, let 
alone why they are objecting. In this setting I have no ability to 
reason with them or address whatever their concerns are because I do 
not know their concerns. That is wrong and unfair to the nominees.
  I do not deny to any Senator his or her prerogatives as a member of 
the Senate. I have great respect for this institutions and its 
traditions. Still, I must say that this use of anonymous holds for 
extended periods that doom a nomination from ever being considered by 
the United States Senate is wrong and unfair.
  Again, I say that this debate is about fairness and about the Senate 
being fair to all nominees and to other Senators and to the American 
people. If we can vote on the Stewart nomination within 4 weeks in 
session, we can vote on the Paez nomination within 4 years and the 
Berzon nomination within 2 years. That is the point that the 
distinguished Democratic Leader was making by moving to proceed to 
consider those nominations this evening. The Republican majority has 
refused to debate those nominations and continues its steadfast refusal 
to vote on them after years of delay.
  I do not want to see any judicial nomination held up without a vote, 
but the Republican leadership is not being fair to the other judicial 
nominees on the calendar. We ask only for a firm commitment that they 
will each get an up or down vote, too. The Republican Majority refuses 
to make even that commitment to a vote before the end of the session on 
these qualified nominees.
  In my statement last week I detailed the path that each of these 
nominees has traveled to the Senate. All are now available for a vote 
on confirmation by the Senate. All should be accorded an up or down 
vote.
  Judge Richard Paez is an outstanding jurist and a source of great 
pride and inspiration to Hispanics in California and around the 
country. He served as a local judge before being confirmed to the 
federal court bench several years ago and is currently a Federal 
District Court Judge. He has twice been reported to the Senate by the 
Judiciary Committee and has spent a total of 9 months over the last 2 
years on the Senate Executive Calendar awaiting the opportunity for a 
final confirmation vote. His nomination was first received by the 
Senate in January 1996, 44 months ago.
  Justice Ronnie White is an outstanding member of the Missouri Supreme 
Court and has extensive experience in law and government. He is the 
first African American to serve on the Missouri Supreme Court. He has 
also been twice reported favorably to the Senate by the Judiciary 
Committee and has spent a total of 7 months on the floor calendar 
awaiting the opportunity for a final confirmation vote. His nomination 
was first received by the Senate in June 1997, 27 months ago.
  Marsha Berzon is one of the most qualified nominees I have seen in 25 
years. Her legal skills are outstanding, her practice and productivity 
have been extraordinary. Lawyers against whom she has litigated regard 
her as highly qualified for the bench. Nominated for a judgeship within 
the Circuit that saw this Senate hold up the nominations of other 
qualified women for months and years--people like Margaret Morrow, Ann 
Aiken, Margaret McKeown and Susan Oki Mollway--she, too, is listed 
ahead of the Stewart nomination on the floor calendar. Ms. Berzon was 
first nominated in January 1998, 20 months ago, and a year and one-half 
before Mr. Stewart.
  It is against this backdrop that we are asking the Senate to be fair 
to these judicial nominees and all nominees. I do not want to see votes 
delayed on any nominee. For the last few years the Senate has allowed 
one or two or three secret holds to stop judicial nominations from even 
getting a vote. That is wrong.
  The Chief Justice of the United States Supreme Court wrote in January 
last year:

       Some current nominees have been waiting a considerable time 
     for a Senate Judiciary Committee vote or a final floor vote. 
     . . . The Senate is surely under no obligation to confirm any 
     particular nominee, but after the necessary time for inquiry 
     it should vote him up or vote him down.

  Let us follow the advice of the Chief Justice. Let the Republican 
leadership schedule up or down votes on the nominations of Judge Paez, 
Justice White and Marsha Berzon so that we can vote them up or vote 
them down. And so that we can proceed on all the judicial nominations 
that our federal courts need to do their job of administering justice. 
Let us be fair to all.
  Mrs. BOXER. Mr. President, I voted against cloture on the Stewart 
nomination because the process that brought us to this vote has, to 
date, prevented the Senate from even considering the nominations of 
several other judicial nominees who have been waiting far longer than 
has Mr. Stewart.
  Richard Paez and Marsha Berzon, two nominees for the 9th Circuit, 
have both

[[Page 22006]]

been reported by the Judiciary Committee and have been on the Senate 
Executive Calendar since July. But, more important, their nominations 
have been pending in the Senate for years--2 years in the case of Ms. 
Berzon and three years for Judge Paez!
  It is patently unfair to ignore these fine nominations while moving 
forward on the Stewart nomination. I have no problem with Mr. Stewart, 
as far as I know. But this is an important process question, and I 
simply had no choice but to vote no on cloture on Stewart until we are 
assured of also moving ahead with those nominations which have been 
pending far longer.
  Mr. KOHL. Mr. President, Ted Stewart, as any other nominee, deserves 
a vote. And eventually, I expect to vote for him, because I respect the 
judgment of my friend Orrin Hatch and of the President. But there is a 
long line of qualified nominees ahead of him and, at least at this 
point, it's not right for him to ``cut'' in line.
  For example, just compare Mr. Stewart's path with that of another 
qualified candidate, Tim Dyk, a nominee for the Federal Circuit. Mr. 
Dyk was first nominated 18 months ago, came out of Committee with 
strong bipartisan support, then stalled on the floor in the last days 
of the session because of a ``secret'' hold. He was nominated again 
eight months ago, and he has still never been placed on the agenda.
  As for Mr. Stewart, he was nominated less than two months ago, and it 
took him just 48 hours to go from nomination, to hearing, to Committee 
approval. Now Mr. Stewart is up for a full Senate vote just 53 days 
after he was nominated. Meanwhile, five hundred and two days after Tim 
Dyk was nominated, he seems to be going nowhere fast.
  That makes no sense to me or, I suspect, to Chairman Hatch, who also 
supports this nominee.
  Mr. President, as with Mr. Stewart, Mr. Dyk will, I predict, be 
confirmed with bipartisan support. He's a first-rate intellect. He 
passed this Committee by a 14 to 4 vote last year, and all of us know 
that the Federal Circuit would be lucky to have someone of his caliber.
  Like Tim Dyk and Ted Stewart, there are many other deserving nominees 
out there. Let's not play favorites. These nominees, who have to put 
their lives on hold waiting for us to act, deserve an ``up or down'' 
vote. And, more importantly, the American people deserve prompt action, 
so that our courts can stay on top of their workload, and continue 
putting criminals behind bars.
  So, Mr. President, I expect to support Ted Stewart, but don't think 
he alone should get the timely consideration that all nominees--
including Tim Dyk, Marsha Berzon and Richard Paez--deserve. So I hope 
we can get an agreement to move forward not only Mr. Stewart, but also 
other deserving nominees. Thank you.

                          ____________________