[Congressional Record (Bound Edition), Volume 146 (2000), Part 2]
[Senate]
[Pages 2224-2225]
[From the U.S. Government Publishing Office, www.gpo.gov]



                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF MARSHA L. BERZON TO BE UNITED STATES CIRCUIT JUDGE FOR 
                           THE NINTH CIRCUIT

                                 ______
                                 

   NOMINATION OF RICHARD A. PAEZ, OF CALIFORNIA, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE NINTH CIRCUIT


                            CLOTURE MOTIONS

  The PRESIDING OFFICER. Under the previous order, the Chair lays 
before the Senate the pending cloture motion, which the clerk will 
report.
  The 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. 159, the nomination of Marsha L. Berzon, to be 
     United States Circuit Judge for the Ninth Circuit:
         Trent Lott, Orrin G. Hatch, Susan M. Collins, Arlen 
           Specter, Ted Stevens, Thad Cochran, James M. Jeffords, 
           Robert F. Bennett, Richard G. Lugar, Chuck Hagel, 
           Conrad Burns, John W. Warner, Patrick J. Leahy, Harry 
           Reid of Nevada, Charles E. Schumer, and Tom A. Daschle.

  The PRESIDING OFFICER. By unanimous consent, the quorum call has been 
waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Marsha L. Berzon to be United States Circuit Judge for 
the Ninth Circuit shall 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 PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The yeas and nays resulted--yeas 86, nays 13, as follows:

                       [Rollcall Vote No. 36 Ex.]

                                YEAS--86

     Abraham
     Akaka
     Ashcroft
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Bryan
     Burns
     Byrd
     Campbell
     Chafee, L.
     Cleland
     Cochran
     Collins
     Conrad
     Coverdell
     Crapo
     Daschle
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Gorton
     Graham
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Mack
     McConnell
     Mikulski
     Moynihan
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Schumer
     Sessions
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                                NAYS--13

     Allard
     Brownback
     Bunning
     Craig
     DeWine
     Enzi
     Gramm
     Helms
     Hutchinson
     Inhofe
     Murkowski
     Shelby
     Smith (NH)

                             NOT VOTING--1

       
     McCain
       
  The PRESIDING OFFICER. On this vote, the yeas are 86, the nays are 
13. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  Mr. VOINOVICH. Under the previous order, pursuant to rule XXII, the 
Chair lays before the Senate the pending cloture motion on the 
nomination, which the clerk will state.
  The 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. 208, the nomination of Richard A. Paez, to be 
     United States Circuit Judge for the Ninth Circuit.
         Trent Lott, Orrin G. Hatch, Susan M. Collins, Arlen 
           Specter, Ted Stevens, Thad Cochran, Robert F. Bennett, 
           Harry Reid, Richard G. Lugar, Chuck Hagel, Conrad 
           Burns, John Warner, Patrick Leahy, Charles E. Schumer, 
           Thomas A. Daschle, and Barbara Boxer.

  The PRESIDING OFFICER. By unanimous consent, the quorum call under 
the rule is waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Richard A. Paez, of California, to be United States 
Circuit Judge for the Ninth Circuit, shall be brought to a close?
  The yeas and nays are required under the rule. The clerk will call 
the roll.
  The assistant 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 85, nays 14, as follows:

                       [Rollcall Vote No. 37 Ex.]

                                YEAS--85

     Abraham
     Akaka
     Ashcroft
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Bryan
     Burns
     Byrd
     Campbell
     Chafee, L.
     Cleland
     Cochran
     Collins
     Conrad
     Coverdell
     Crapo
     Daschle
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Gorton
     Graham
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inouye

[[Page 2225]]


     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Mack
     McConnell
     Mikulski
     Moynihan
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Schumer
     Sessions
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                                NAYS--14

     Allard
     Brownback
     Bunning
     Craig
     DeWine
     Enzi
     Frist
     Gramm
     Helms
     Hutchinson
     Inhofe
     Murkowski
     Shelby
     Smith (NH)

                             NOT VOTING--1

       
     McCain
       
  The PRESIDING OFFICER (Mr. Smith of Oregon). On this vote, the yeas 
are 85, the nays are 14. Three-fifths of the Senators duly chosen and 
sworn having voted in the affirmative, the motion is agreed to.
  Mr. LEAHY. Mr. President, is the Senator from Vermont correct that we 
have now voted cloture on both the nominations before the Senate?
  The PRESIDING OFFICER. The Senator from Vermont is correct.
  Mr. LEAHY. Then what is the parliamentary situation, as regarding the 
two nominations?
  The PRESIDING OFFICER. There are 30 hours, evenly divided.
  The majority leader is recognized.
  Mr. LOTT. Mr. President, I have a unanimous consent request and 
closing script.
  As you know, cloture was just invoked on two Ninth Circuit judges. I 
still hope we have not set a precedent. I don't believe we have because 
it was such an overwhelming vote to invoke cloture and stop the 
filibuster. We should not be having filibusters on judicial nominations 
and having to move to cloture. But we had to, and it was an 
overwhelming vote of 86-13 on the first one, and I guess that was the 
vote on the second one, too. I intend to offer a time agreement between 
the proponents and opponents regarding postcloture debate.
  Mr. President, I ask unanimous consent that Senator Smith of New 
Hampshire be in control of up to 3 hours of total debate on both 
nominations, and that Senator Leahy, or his designee, be in control of 
up to 1 hour 30 minutes of total debate on both nominations; that 
following the conclusion or yielding back of the time, the Senate lay 
the nominations aside until 2 p.m., at which time the Senate would 
proceed to back-to-back votes on or in relation to the confirmations of 
Berzon and Paez. That would be at 2 p.m. tomorrow.
  Mr. LEAHY. Reserving the right to object, and I will not, I tell the 
distinguished leader I was struck by the comments of the distinguished 
leader in saying we should not have the precedents of filibusters and 
requiring cloture. I commend him for supporting the cloture motion and 
moving this forward so we would not have that precedent. I am 
concerned, though, because I have heard rumors that one of these votes 
may be on a motion to indefinitely postpone a vote on these nominees. I 
understand that while such a vote might be in order, there is no 
precedent for such a vote on a judicial nominee; am I correct on that? 
I mean in my lifetime, and I was born in 1940.
  The PRESIDING OFFICER. There is a precedent that a motion to postpone 
is in order after cloture is invoked.
  Mr. LEAHY. That was not my question, Mr. President. My question was 
very specific. In fact, I stated that I understand motions to postpone 
indefinitely, I believe, are always in order, as are filibusters. But 
as the distinguished leader said, we would not want to set a precedent 
of filibusters on judicial nominations. Am I correct that we have not 
used motions to postpone indefinitely on judicial nominations following 
cloture?
  The PRESIDING OFFICER. The precedent does not state what the item of 
cloture is on.
  Mr. LEAHY. Mr. President, if I understand, we have never had this 
circumstance. Certainly, I have not in my 25 years in the Senate. I do 
not believe ever having a circumstance where we have had cloture on two 
judicial nominations and then had a motion to postpone, in effect, 
killing the nominations.
  Mr. LOTT. Will the Senator yield?
  Mr. LEAHY. Yes.
  Mr. LOTT. I believe, traditionally, it is in order postcloture to 
have a motion to table or a motion to postpone indefinitely. I don't 
know the precedents in terms of that actually having been used. I am 
certainly not advocating it. But under the rules of the Senate, I am 
under the impression that it would be in order. I thought maybe I could 
answer it succinctly without getting into the precedents.
  Mr. President, has the request been----
  Mrs. BOXER. Reserving the right to object, and I will not object, I 
say, first, to the majority leader that I appreciate very much his 
effort to bring the nominations forward, and voting for cloture, 
because without that we would not be where we are. I want that 
understood.
  I state on the record today that this Senator believes if there is 
going to be a motion made--which there very well may be because that is 
the rumor that I hear--to indefinitely postpone a vote on one of these 
nominees, then I believe that kind of a motion is denying that nominee 
an up-or-down vote. You can argue that it is really like an up-or-down 
vote, but after we have gotten over 80 votes, with the help of the 
majority leader and Senator Hatch, in a bipartisan way--and Senator 
Leahy worked on that--you would think we could vote up or down. There 
is no precedent that I have gotten from the Parliamentarian up to this 
point where he has been able to show me this was done with a judicial 
nomination after cloture was invoked. I wish to make that point because 
I don't like to ever blindside my colleagues on anything.
  I think that if we go this route, it will be interpreted as a way to 
deny a vote on the nominee, and I hope this will not be the case. 
Surely, I hope, if it is offered, we will defeat it. But it seems to me 
a bad precedent. I hope we won't see this go in that fashion. I thank 
the Chair. I shall not object.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LOTT. Then the votes will occur back to back at 2 p.m. on 
Thursday. In light of this agreement, there will be no further votes 
this evening. I believe our staffs have probably put everybody on 
notice of that.

                          ____________________