[Congressional Record (Bound Edition), Volume 147 (2001), Part 14]
[Senate]
[Pages 19484-19490]
[From the U.S. Government Publishing Office, www.gpo.gov]



                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

                                 ______
                                 

 NOMINATION OF BARRINGTON D. PARKER, JR., OF CONNECTICUT, TO BE UNITED 
              STATES CIRCUIT JUDGE FOR THE SECOND CIRCUIT

                                 ______
                                 

  NOMINATION OF MICHAEL P. MILLS, OF MISSISSIPPI, TO BE UNITED STATES 
        DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI

  Mr. LEAHY. Mr. President, when the Senate confirms Barrington Parker 
to the Second Circuit, we will have confirmed more Court of Appeals 
judges since July of this year than were confirmed in the entire first 
year of the Clinton administration. When the committee completes its 
consideration of Edith Brown Clement and she is confirmed to the Fifth 
Circuit, we will match the total confirmed Court of Appeals judges for 
the entire first year of the first Bush administration.
  When we confirmed Judge Roger Gregory to the Fourth Circuit on July 
20, the Senate had confirmed more Court of Appeals judges than a 
Republican-controlled Senate was willing to confirm in all of the 1996 
session--a year in which not a single nominee to the Courts of Appeals 
was confirmed, not one all session.
  Until I became chairman and began holding hearings in July, no 
judicial nominations had hearings or were confirmed by the Senate this 
year. We are now ahead of the pace of confirmations for judicial 
nominees in the first year of the Clinton administration and the pace 
in the first year of the first Bush administration.
  In the first year of the Clinton administration, 1993, without all 
the disruptions, distractions and shifts in Senate majority that we 
have experienced this year through July and without the terrorist 
attacks of September 11, the first Court of Appeals judge was not 
confirmed until September 30, the third was not confirmed until 
November and, as I have noted, the Senate never confirmed a fourth 
Court of Appeals nominee.
  In the entire first year of the first Bush administration, 1989, 
without all the disruptions, distractions and shifts of Senate majority 
that we have experienced this year through July and without the 
terrorist attacks of September 11, the fourth Court of Appeals nominee 
was not confirmed until November 8. Today, on October 11, the Senate 
will confirm its fourth Court of Appeals nominee since July 20 of this 
year. Thus, in spite of everything we are more than one month ahead of 
the pace in 1989.
  During the more than 6 years in which the Republicans most recently 
controlled the Senate schedule, there were 34 months with no hearing at 
all, 30 months with only one hearing and only 12 times in almost 6\1/2\ 
years did the Judiciary Committee hold as many as two hearings 
involving judicial nominations during a month. I held two hearings in 
July involving judicial nominations and two unprecedented hearings in 
August, during the traditional recess. I held a fifth hearing in 
September, the sixth last week, and have scheduled a seventh hearing 
and second for October for next week. Thus, during the 4 months that I 
have been chairman with a reconstituted Judiciary Committee we will 
have held seven hearings involving judicial nominees and held two 
hearings in three of those 4 months.
  A fair assessment of the circumstances of this year--in this 
shortened time frame of only a few months in session, with the 
obstruction in reorganization, the Republican objection that required 
all judicial nominations to be returned to the White House over the 
August recess, the President's unprecedented change in the process that 
shunted ABA peer review to the back end after the nomination, and now 
with the aftermath of the September 11

[[Page 19485]]

terrorist attacks--the committee and the Senate should be commended, 
not criticized, for our efforts to out pace the confirmations in the 
first years of the Clinton administration and the first year of the 
first Bush administration. Although we have redirected much of the 
committee work and attention to hearings and a legislative response 
following the terrible terrorist attacks on September 11, I have 
continued to hold confirmation hearings for judicial nominations at a 
pace far in excess of that maintained by my Republican predecessor.
  In spite of unfair and unfounded criticism, I have continued to 
proceed with additional hearings and press onward as best I can to have 
the committee work to fulfil its role in the confirmation process. With 
cooperation from the White House and all Senators, both Republican and 
Democratic, I have no doubt that we can match and likely better the 
confirmation totals for the first year of the first Bush administration 
in 1989 by the end of the month.
  I was encouraged to hear the White House sound a different tune 
recently when its spokesperson suggested that the point at which to 
assess our progress on judicial nominations will be at the end of the 
session. That is a far cry from the predictions earlier that there 
would be no confirmations by the Democratic majority and the subsequent 
White House prediction, which we have already topped, that there would 
be only five confirmations all year. I think that is a sensible thought 
and that we would be in position to compare apples with apples at the 
end of the first year of this administration.
  Some Republican Senators have worked with me to expedite 
consideration of judicial nominees needed for their States and I 
appreciate their courtesy and have tried to accommodate them and the 
needs of the Federal courts in their States at the earliest 
opportunity. Others will carp and criticize no matter what we are able 
to achieve. I only wish those who now are rushing forward in the first 
weeks of my chairmanship to ``champion'' the cause of the Federal 
judiciary and see the current vacancies as a crisis would have sounded 
the call during the slowdown over the last 7 years. Had they joined 
with me in my efforts when they were in the majority, we would not have 
the vacancies we have now around the country. Many more would have been 
filled more quickly. I welcome them to the cause of the administration 
of justice but have to wonder whether their conversion is one of 
principle or partisanship. With few exceptions--Senator Specter comes 
to mind as someone who urged prompt action on nominees over the course 
of his Senate career including during the last several years--today's 
critics were comfortable defenders of slower confirmation hearings, 
long-delayed action on scores of nominees and no action on many others. 
Given that none of the current critics has yet admitted that 
Republicans did anything wrong over the last 7 years and has 
steadfastly defended the pace at which the Republican majority chose to 
act then, I would think they would be praising our current efforts that 
exceed the confirmation pace and hearing schedule that Republicans 
maintained when they held the Senate majority.
  When I became chairman in June, I expressed my commitment to 
improving upon the inefficiency and lack of bipartisanship displayed by 
the committee in recent years. With respect to judicial nominations, 
our first hearing was noticed within 10 minutes of the adoption of the 
reorganization resolution and within a day of the committee's 
membership being set on July 10. I have alluded to the two 
unprecedented August recess hearings I chaired last month involving 
judicial nominations.
  Indeed, at the first on August 22, no Republican member of the 
committee even attended. In addition to taking place during the August 
recess, those August hearings were unusual in that they were held 
without having nominations pending before the committee.
  Just before the Senate recessed in early August, the Senate 
leadership requested that nominations, including all pending 
nominations for judicial appointment, be retained through the August 
recess. This proposal was made by the Democratic leadership 
notwithstanding the Senate rule that nominations should be returned to 
the President when the Senate recesses for a period of more than 30 
days.
  It was the objection of the Republican leader to that unanimous 
consent request that resulted in the return of all nominations, 
including all judicial nominations, to the President in early August. 
That Republican objection has resulted in the strict application of the 
Senate rules which has required needless paperwork and occasioned more 
unnecessary delay.
  Given the objection by the Republican leader, no nominations were 
pending before the Senate or the Judiciary Committee on August 22 or 
August 27 when we convened our recess hearings. In order to proceed 
last month, we did so in a highly unusual manner. I did so with a high 
level of concern about that unusual procedure and noting the 
exceptional nature of those hearings.
  Like the month-long delay in reorganizing the Senate, the objection 
of the Republican leader to the Senate retaining pending nominations 
through the August recess served to complicate and delay consideration 
of nominations. The bumps in the road created by the other side are 
especially frustrating. Similarly, President Bush's decision to delay 
the American Bar Association's evaluation of a judicial nominee's 
qualifications until the nomination is made public, has forced delays 
in the rest of the process as well.
  As a result of this administration's break with the 50-year-old 
precedent established under President Eisenhower, the confirmation 
process of even the least controversial and most qualified candidates 
is necessarily delayed by several weeks after nominations are received 
by the Senate. There were no District Court nominees who had been 
evaluated in time for the confirmation hearing I convened on July 24.
  With the return to the President of the District Court nominees the 
President sent to the Senate in early August and the delay in ABA peer 
review that results from the White House's decision to change the 
process that had worked for more than 50 years for Republican and 
Democratic Presidents alike, we have continued to have a limited pool 
of District Court nominees available for consideration at hearings.
  Likewise, this administration's failures early on to consult with 
Senators from both parties and to seek nominees who would enjoy broad 
bipartisan support remains a source of concern. We have nominees 
pending whom the home State Senators do not know, and with whom they 
are not familiar and have never met.
  In spite of these difficulties, we continue to move forward and 
exceed the pace set by both the Bush administration in 1989 and the 
Clinton administration in 1993. Under Democratic leadership, the 
Judiciary Committee is making important strides toward replenishing our 
Federal judiciary. I have adhered, and will continue to adhere, to a 
rigorous schedule, despite the terrorist attacks of September 11, and 
despite the limited opportunities provided by my not assuming the 
chairmanship until mid-session.
  The Federal courts remain a symbol of justice to our citizens and to 
believers in peace and democracy throughout the world, and therefore, I 
will work diligently to keep the judicial nominations process on track.
  Judge Parker will be a good addition to the Second Circuit. He is 
universally praised by the Senators from New York and Connecticut. He 
has been an outstanding District Court Judge. He is another from among 
the first group of nominees sent to the Senate by President Bush in May 
and resubmitted in September. He was reported unanimously by the 
Judiciary Committee, received the highest possible review from the ABA, 
and comes from a distinguished family of jurists.
  Justice Mills is strongly supported by his home State Senators. He 
literally went the extra mile and drove from Mississippi to his 
confirmation hearing on September 13 when the air

[[Page 19486]]

travel system in the country was still recovering from the terrorist 
hijackings of September 11. I was gratified to hear Justice Mills 
testify that he will follow the time-honored principles of stare 
decisis and respect the settled law establishing a woman's right to 
choose.
  I had been concerned about his interpretation of binding precedent 
and the law given his dissent in McMillan v. City of Jackson. In his 
dissent he concluded that a protester convicted of trespassing at a 
family planning clinic should have been permitted to present a defense 
of necessity--in other words to justify his unlawful conduct by arguing 
that the protester had a reasonable belief that such action was 
necessary to prevent a significant evil.
  Having heard Justice Mills state at his hearing that he will have the 
utmost respect for judicial precedent as a judge on the federal bench, 
I am prepared to support his nomination in spite of his dissent in 
McMillan and out of respect for Senator Cochran and Senator Lott.
  In addition to the judicial nominees the Senate is considering, we 
are also considering the nominations of 14 men and women to become 
United States Attorneys across the country, as well as the nomination 
of Benigno Reyna to be the Director of the United States Marshals 
Service.
  Earlier this year I raised the problem created by the administration 
being so slow to nominate United States Attorneys after calling upon 
those holding those critical law enforcement posts to tender their 
resignations. I am glad that the White House took those observations to 
heart and began sending us nominees to be the Justice Department 
representatives in districts in each of our States all across the 
country.
  The President did not nominate anyone to be a United States Attorney 
until July 31, just before the August recess. Unfortunately, due to the 
objection of the Republican leader even those few nominations were 
required under Senate rules to be returned to the White House during 
the recess. In essence, we are working through nominees effectively 
received on September 5 and thereafter.
  Since that time the Judiciary Committee has already reported almost 
half of the nominations received between September 5 and September 19 
and will continue to press the administration to complete the paperwork 
requirements on these nominations as soon as possible. The paperwork on 
the first group of nominees was not completed until the second week of 
September. They were then reported out and confirmed.
  This second large group of 14 United States Attorneys will bring to 
26 the United States Attorneys confirmed in the period between 
September 14 and October 11. I am proud of our record. We have managed 
to work through almost half of the 54 nominations for United States 
Attorney in a short period. Of course, the President has yet to 
nominate as many as 40 United States Attorneys. We will continue to try 
to work with the administration to make progress on these nominations.
  I remain disturbed that the administration has yet to nominate a 
single United States Marshal for the 95 Districts across the country. 
The Marshals Service is older than the Department of Justice itself and 
has long been an essential component in Federal law enforcement. Yet 
here we are in mid-October without a single nominee. It was created by 
the first Congress in the Judiciary Act of 1789.
  When we are calling upon the Marshal Offices and their deputies to 
help with security at airports, to contribute to the sky marshal 
program, to provide security at Federal buildings and for the Federal 
courts and to protect us in so many ways, we need to take these matters 
seriously and move forward.
  I know that Deputy Marshals from Vermont, for example, are helping 
with operations in Vermont and in other parts of New England to ensure 
airport security and to protect government operations and all 
Americans. Senators can be helpful to the administration in the 
selection of United States Marshals and trust that the administration 
will begin consulting with Senators so that we can move forward to fill 
these vital positions.
  Today the Senate does have before it the nomination of Benigno Reyna 
to head the United States Marshals Service as its new Director. He will 
direct a crucial component of our Federal law enforcement family, the 
United States Marshals Service. In this difficult time for America in 
the wake of the attacks on September 11, I am pleased that we have been 
able to expedite his consideration by the Senate.
  Having received his nomination on September 12, we proceeded to 
include him in a confirmation hearing on September. Even though we did 
not receive his nomination until September 12, we were able to move him 
quickly to a hearing within a week and he is being considered by the 
Senate less than one month after his nomination.
  I thank the Acting Director of the United States Marshals Service, 
Louie T. McKinney, and all of the acting United States Marshals and 
Deputy Marshals from around the country for their service in the past 
difficult days and for their continuing dedication and sacrifice.
  I wish Director Reyna, as well as the 14 new United States Attorneys 
around the country success in their new challenges.
  I am proud of the hard work the Judiciary Committee has been doing to 
confirm these and others of the President's nominees to the Department 
of Justice. Since the committee was reassigned members on July 10, we 
have held ten nomination hearings for executive branch nominees.
  We have proceeded expeditiously with hearings for the FBI Director, 
the Administrator of the Drug Enforcement Administration, the 
Commissioner of the Immigration and Naturalization Service, the 
Assistant Attorney General for the Tax Division, the Assistant Attorney 
General for the Office of Justice Programs, the Director of the 
National Institute of Justice, the Director of the Bureau of Justice 
Assistance, the Director of the Office for Victims of Crime, the 
Director of the United States Marshals Service, the Associate Attorney 
General, and the Assistant Attorney General for the Office of Legal 
Counsel.
  Further, we have proceeded to confirm Assistant Attorneys General to 
head the Civil Rights, Antitrust, Civil and Tax Divisions.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, let me just say, if I may, in the first 
year of the Clinton administration the committee was controlled by 
Democrats. In the last year of the Bush administration the committee 
was controlled by Democrats. I have to say--when the all-time champion, 
with 382 confirmed judges, was Ronald Reagan--that it seems to me the 
moaning should quit at this point because we confirmed 377, 5 fewer 
than Reagan, including the time Senator Biden was chairman; and he did 
a good job. There were five fewer than Reagan during the Clinton years. 
In my opinion, they would have had at least three more than Reagan, had 
it not been for Democratic holds and objections to their own nominees.
  So let's just understand something: We are not putting these judges 
through anywhere near as fast as we should be putting them through. 
Most of the statistics show that the judges who were nominated in the 
first year of a President, up to August 1st, basically went through.
  When we have had confirmation of these two judges, there will be 
eight who will have gone through, three of whom are Democrats, whom I 
support. I think we have to do a better job because the Federal 
judiciary is one-third of the separated powers of this country. We now 
have 110 vacancies. With these 2, it will be 108. We have 51 judges, 
nominees, sitting here, not getting hearings.


  I happen to appreciate the work the distinguished Senator from 
Vermont has done with the ones who have gone through, but we have not 
done nearly what we should do before the end of this particular session 
of Congress. I hope we can do a better job in the last week or so of 
this Congress to get more judges confirmed.
  It isn't a matter of politics; it is a matter of doing what is right 
for a

[[Page 19487]]

third of the separated powers of our Government. I have to say, I do 
get a little tired of hearing that we put through as many as the first 
year of the Clinton administration and the last year of the Bush 
administration, both of which were controlled by Democrats.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. LOTT. Thank you, Mr. President.
  First, let me say to Senator Leahy from Vermont, for those who have 
been confirmed and those who are going to be reported out, I say thank 
you very much. We do appreciate that sincerely. I am convinced that 
Senator Leahy, as chairman of the Judiciary Committee, and the 
Judiciary Committee, working with the leadership, will be having more 
hearings and will be reporting out additional judges. I certainly hope 
that is the case.
  Our concern, though, is some of the statistics that I think are not 
disputable. For instance, since the August recess, I believe we have 
only confirmed two judges--one circuit, one district. I understand 
there have been two more reported, and we will be voting on those two. 
So that is four.
  I understand there has been a hearing, and maybe five more may be 
reported out this week, and then that they would be voted on, I assume, 
next week. But it is a fact that there are 110 vacancies, and there are 
49 nominees pending before the committee. I believe that is right.
  Mr. HATCH. Fifty-three.
  Mr. LOTT. Well, I keep hearing different numbers. The fact is, there 
is a large number pending. But here is what really does concern me. Of 
the judges whose names were submitted as far back as May and June, of 
that group of circuit judges, which included 19 of them, and including 
Judge Gregory, who clearly is a Democratic nominee, only 3 have been 
confirmed. One more has been reported. And there has been 1 hearing, 
leaving 14 of the 19 circuit judges' names submitted in May or early 
June. I understand the ABA reports are completed. They have had no 
hearing and have not been reported.
  On the circuit judges, of those who were reported in May and June, 
three have been confirmed. None is on the calendar. Two hearings have 
been completed. And there are two on which there has been no action.
  So there are 16 judges--circuit and district--who have been there 
since May and June.
  Having said that, I know the chairmanship changed in June, and it 
took time to get organized in July, and we were out in August, and we 
had an incident on September 11 that affected our schedule, and the 
Senator from Vermont and the committee have been involved in the 
counterterrorism.
  But that is as it is.
  What I have asked Senator Daschle and Senator Leahy is to give me 
some indication of how the hearings will proceed, how the reports will 
proceed throughout the rest of October and into November.
  You know, it is so funny. One final point.
  Mr. LEAHY. Would the Senator like an answer?
  Mr. LOTT. I would. One final point: It is amazing how history repeats 
itself. What you were saying last year we are saying this year. I guess 
before that, we were saying it or you were saying it.
  So I would like to submit for the Record--and I ask unanimous consent 
to have this printed in the Record--quotes that were being offered just 
1 year ago on this same subject. There were complaints from me that the 
intelligence authorization bill was being held up, appropriations bills 
were being delayed, not enough judges were being moved. So this is not 
new. But I just ask that we continue to work together to try to move 
the judicial nominations forward.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    A Year Ago, It Was Democrats Pushing For Judicial Confirmations

       ``I was in the Minority for a number of years in my present 
     position and . . . I worked very hard in moving legislation, 
     and we did not hold up legislation based on judges. We did 
     not do that. . . . We did not hold up legislation based upon 
     judges . . . we had a right to do so, but I felt, and Senator 
     Daschle felt as minority leader that we had an obligation to 
     move legislation. . . .''--Senator Harry Reid, Congressional 
     Record, 10/10/2001, S10405
       Compare the Majority Whip's remarks yesterday with the 
     following statements he and the then Minority Leader made a 
     year ago when they were in the minority and their party's 
     president was in the White House.
       Exhibit No. 1: On July 21, 2000, while objecting to 
     Majority Leader Lott's attempt to proceed to S. 2507, the 
     Intelligence Authorization Bill, Minority Leader Daschle 
     stated: ``I hope we can accommodate this unanimous consent 
     request for the intelligence authorization. As [does] Senator 
     Lott, I recognize that it is important, and I hope we can 
     address it. I also hope we can address the additional 
     appropriations bills. There is no reason we can't. We can 
     find a compromise if there is a will, and I am sure there is. 
     But we also want to see the list of what we expect will 
     probably be the final list of judicial nominees to be 
     considered for hearings in the Judicial Committee this year. 
     I am anxious to talk with him and work with him on that 
     issue. All of this is interrelated, as he said, and because 
     of that, we take it slowly.'' [Congressional Record, S7426]
       Exhibit No. 2: On July 24, 2000, while objecting to Senator 
     Lott's repeated attempt to proceed to S. 2507, the 
     Intelligence Authorization Bill, Minority Whip Reid stated: 
     ``I think it is unfortunate that we have been unable today to 
     deal with [Judiciary Committee Chairman] Hatch. . . . I hope 
     this evening or tomorrow we can sit down and talk. For 
     example, I believe the judge's name is White . . . who has 
     been before the committee and has not had a hearing. . . . In 
     short, we hope in the meeting with Senator Hatch, either 
     tonight or tomorrow, we will be in a position where we can 
     expedite the rest of the work this week and move on to other 
     things.'' [Congressional Record, S7469]
       Exhibit No. 3: On July 25, 2000, while discussing with 
     Senator Domenici the delays in proceeding to the Energy and 
     Water Appropriations Bill, Senator Reid stated: ``We believe 
     there should be certain rights protected. Also under [the] 
     Constitution, we have a situation that was developed by our 
     Founding Fathers in which Senators would give the executive 
     branch--the President--recommendations for people to serve in 
     the judiciary. Once these recommendations were given, the 
     President would send the names back to the Senate and we 
     would confirm or approve those names. One of the problems we 
     are having here is it is very difficult to get people 
     approved, confirmed. This has nothing to do with the energy 
     and water bill. It does, however, have something to do with 
     the other bills. We could have moved forward on the energy 
     and water bill on Friday until this glitch came up.'' 
     [Congressional Record, S7525]
       Exhibit No. 4: On July 25, 2000, while discussing with 
     Senator Wellstone the need to ``do the Senate's business'' 
     and the then-current status of bills under the Republican-
     lead Senate, Senator Reid stated: ``We have a very simple 
     situation here. We in the minority believe we have had the 
     right to have a few judges approved by the Senate. . . . We 
     also believe we have some appropriation bills that need to 
     move forward, and there are some strings on that. We want to 
     work, but there are some things that we think, in fairness, 
     we deserve. As a result of that, things have slowed down, 
     which is too bad.'' [Congressional Record, S7504]

  Mr. LOTT. Mr. President, I understand that a judge whose name was 
submitted in June, and had his ABA rating of ``excellent'' in July, has 
not had a hearing. But, as a matter of fact, he is going to have one 
next week. So the process is moving. I hope we will continue to get 
that done. But we have a lot of them who have been here since May and 
June on whom we do need action. I hope we can get a commitment to get 
that action soon.
  With that, I yield for a question or comment.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. The distinguished Republican leader and I have been 
friends for over 20 years. He is a year younger, so I think of him as 
still a good friend. I must admit that he is ahead of me in one area, 
especially: He has two grandchildren now, and will be happy to show any 
Senators pictures. I only have one.
  But he asked where we are going to go. I will tell him there is a 
couple things we will not do. We had 34 months the Republicans 
controlled the Senate during the Clinton years where there were no 
hearings at all. I have no idea how many months or years I might be 
chairman of this committee, but I have no intention of having a record 
like that.
  In fact, when we reorganized committees, we actually had a committee

[[Page 19488]]

within 10 minutes of the time--10 minutes--and the notice of the first 
hearing in a matter of days. When Senators have told me there was a 
problem--the Senator from Mississippi had no problem getting his judges 
up. We are going to vote on one in just a few minutes. There were 
earlier objections because of rulings that judge made. I helped clear 
those objections. I believe the Senator from Mississippi has another 
judge up for a hearing next week.
  So, one, I will not go 34 months; two, I have been trying to 
accommodate Senators when they have told me they have had a problem. I 
even had hearings in the August recess to help out with this.
  Now the Republicans did control the Senate for a while this year. 
They did not have any hearings. I had 2 days of hearings during the 
August recess. Ironically enough, no Republican even showed up for one 
of them, for judges; and one Republican member of the committee 
issued--actually two members criticized us for even holding the 
hearings in August on President Bush's nominees.
  So I think you are kind of in a ``damned if you do, damned if you 
don't'' situation. One Republican Senator announced to the whole Senate 
that I had announced in the press that one of these nominees would 
never get a hearing. When I asked him where that was in the press, he 
said, well, maybe somebody else said it; but he did nothing to retract 
that, of course.
  So it is kind of a difficult thing, I tell my good friend. But I am 
not going to do as the Republicans did in 1996, where we had no courts 
of appeals hearings. I do recognize there are some vacancies. Of 
course, there were nominees for those vacancies. Some sat here for 3 or 
4 years without having any hearing or vote under the Republican 
administration of the Senate; 3 or 4 years unable to even get a hearing 
or vote.
  We are moving. We will have more hearings next week. I will probably 
continue to have hearings during recesses. I will probably continue to 
have complaints from Republican Senators or their offices when I have 
those hearings during a recess, and some will probably not bother to 
show up. But because I have told my friend from Mississippi we will 
keep moving, we will. He should rest assured that, as tonight, when his 
judge is here, in a couple more weeks, his judge will be here again. I 
don't know if that helps as an answer to him.
  I also suspect, I say to my friend from Mississippi, we have a 
terrorism bill to go to tonight. He would probably like us to get to 
votes on his judge and another judge so we can get to terrorism.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I will take another couple minutes. I want 
to set the record straight. During the first year of the Clinton 
administration, only five court of appeals nominees were nominated 
during the first year. Of those five nominees, three were reported out 
the same year. That is 60 percent of President Clinton's court of 
appeals nominees in his first year that were reported. In contrast, 
President Bush has nominated 25 circuit court nominees, and the 
committee has reported 4. That is 16 percent. There were only two 
circuit court nominees at the end of President Clinton's first year 
left in the committee. There are currently 21 of President Bush's 
circuit court nominees pending in committee and who will be left at the 
end of his first year if the committee does not act soon.
  It is an unfair comparison when you take into account the fact that 
President Bush has chosen to nominate 20 more circuit court nominees 
than President Clinton did in his first year.
  The fact is, most of these circuit court nominees have well-qualified 
ratings, meaning they have the highest ratings the American Bar 
Association can give. I can point to a lot of instances where the ABA 
has not done a fair job. You have to presume they really have to be 
good to get well-qualified ratings. It is absolutely wrong that we are 
not moving on those circuit court nominees as well as the district 
court nominees. I hope we can get that done in the near future.
  I will work with Senator Leahy to try to get it done. We have to do 
better than we are doing.
  Mr. LEAHY. Mr. President, I agree, we want to do better than we did 
in the last 6 years. I will certainly try to move faster on these than 
the Senator from Utah did when he was chairman.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Mr. President, in light of the conversations just 
ensued, I say to the Senator from Vermont that he has done an 
absolutely superb job over the last month since September 11 in being 
able to put together the antiterrorism bill we will be considering 
later this evening. I, for one, think this should have been clearly the 
first and only priority of the committee over that period of time.
  We have had this long discussion. Certainly for the period since 
September 11, the accomplishments of the chairman of the Judiciary 
Committee and his colleagues on that committee in shaping that 
legislation and getting it before us tonight were splendid.
  I yield the floor.
  Mr. DODD. Mr. President, I rise in support of the nomination of Judge 
Barrington Parker to be United States Circuit Judge for the Second 
Circuit. It is a distinct pleasure for me to recommend Judge Parker to 
the Senate.
  I would like to point out that this is not the first time that the 
Senate has been called upon to confirm Judge Parker. On September 14, 
1994, he was unanimously confirmed by the Senate to serve as judge for 
the United States District Court for the Southern District of New York.
  Judge Parker is a distinguished jurist. He has proven that the 
Senate's trust in his abilities were well placed. He has accumulated a 
superb record as a Federal jurist. His career on the bench has been 
marked by the same character of excellence and the same principled work 
ethic that marked his career as a lawyer first at the New York law firm 
of Sullivan & Cromwell, Parker Auspitz Neesemann & Delehanty and 
finally at the firm of Morrison & Foerster.
  I suppose we shouldn't be surprised that Judge Parker has made such 
great contributions to the legal community in New York and to the 
Federal bench. After all, he was educated at an extraordinary college 
and law school in the great state of Connecticut. The time he spent at 
Yale equipped him to serve with distinction. And incidentally, his 
choice of residence in the State of Connecticut further demonstrates, 
at least to me, that he possesses excellence judgement.
  Members of law enforcement sometimes refer to themselves as the 
``thin blue line.'' In a similar way, members of the judicial branch 
can be considered the ``thin black line.'' Judges stand as the critical 
bulwarks in our society against forces that can break down a society, 
against injustice, against prejudice and against the neglect of 
individual rights. They take the high and lofty principles upon which 
our republic is founded and hand them down to all, the rich and the 
poor, the high and the low, all alike.
  It has been said that the Constitution and the laws that are enacted 
under the Constitution comprise living, breathing documents. That is, 
of course, true. But it's also true that it is the labor of people who 
live, professionally speaking, in the law, the students, the 
practitioners, and especially the adjudicators of the law, that 
constantly breath new life into what would otherwise be fine but 
ineffectual words on a page.
  The rights and freedoms that we each enjoy as Americans are an 
inheritance, not an entitlement. They exist for us only to the degree 
that we are willing to struggle to retain them and to constantly define 
what they mean for our times.
  Judges are indispensable actors in this struggle. In Judge Parker I 
believe we have a jurist whose experience and temperament will prove a 
valuable asset to the Second Circuit and the great and enduring cause 
of equal justice under law. Especially now, when that cause has come 
under unprecedented attack from acts of terror, our nation needs the 
commitment and

[[Page 19489]]

service of people like Barrington Parker. Based on everything I know 
about Judge Parker, he meets the highest standards of judicial 
professionalism.
  I hope and trust that the Senate will reach the same conclusion that 
I have reached and will confirm Judge Parker as United States Circuit 
Judge for the Second Circuit.
  Mr. HATCH. Mr. President, I would like to respond to three points 
raised earlier this evening concerning judicial nominations. The first 
is the assertion that the Judiciary Committee has acted on as many 
nominations this year as it did during President Clinton's first year 
in office. That assertion is not only incorrect, but also ignores 
several important facts.
  President Clinton nominated 32 judges before October 31, 1993, his 
first year in office. Twenty-eight were confirmed that year. That's an 
88 percent confirmation rate. It's similar to the confirmation rate 
during the first year of President G.H.W. Bush's presidency--89 
percent--and compares to President Reagan's 100 percent rate of 
confirmation for nominees sent to the Senate before October 31, 1981.
  Compare these rates to where we are under President Bush and Chairman 
Leahy. President Bush has nominated 59 judicial nominees. Only eight 
have been confirmed--including the two the Senate confirmed tonight. 
That's a rate of 13.5 percent. If the Senate completes this session 
without raising this rate to the range of 88 to 100 percent, it will be 
a dramatic break with precedent and a great embarrassment to this 
entire body. This is especially true because today we have 108 
vacancies in the federal judiciary. That means that 12.6 percent of 
federal judgeships are unfilled. These empty seats should especially 
concern us in light of the enormous law enforcement effort underway to 
investigate the recent terrorist attacks and to prevent any future 
terrorist events.
  Today's 12.6 percent vacancy is atypical. Compare it to the rates at 
the conclusion of the three Congresses when Bill Clinton was President 
and I was Chairman of the Judiciary Committee. At the end of the 104th 
Congress, the vacancy rate was 7.7 percent. At the end of the 105th, it 
was 5.9 percent. And last year at the end of the 106th Congress, it was 
7.9 percent. Ironically, some of the same people who constantly 
bemoaned the judicial vacancies when Bill Clinton was President are 
silent today despite the much larger number of vacancies.
  Mr. President, the second point to which I want to respond is the 
implication that the lack of a Senate organizational resolution in June 
of this year precluded the Judiciary Committee from holding 
confirmation hearings on judicial nominees during the three weeks that 
elapsed between June 5, the date our Democratic colleagues assumed 
control of the Senate, and June 29, the date the Senate reached an 
agreement on reorganization. That implication arises from the statement 
that the Committee scheduled a hearing within minutes of the Senate 
reorganization. I am puzzled by these remarks, because I see no reason 
why the Committee could not have held confirmation hearings under 
Democratic control prior to reorganization.
  The lack of an organizational resolution did not stop other Senate 
committees from holding confirmation hearings. In fact, by my count, 
after the change in Senate control, nine different Senate Committee 
Chairmen held 16 different nomination hearings for 44 different 
nominees before reorganization. One of these committees--Veterans' 
Affairs--even held a mark-up on a pending nomination. But in the same 
period of time, the Judiciary Committee did not hold a single 
confirmation hearing for any of the then 39 judicial and executive 
branch nominees pending before us--despite the fact that some of those 
nominees had been waiting nearly two months.
  What's more, the lack of an organizational resolution did not prevent 
the Judiciary Committee from holding five hearings in three weeks on a 
variety of other issues besides pending nominations. Between June 5 and 
June 27, the Committee held hearings on the Federal Bureau of 
Investigation, the faith-based initiative, and death penalty cases. 
There were also subcommittee hearings on capital punishment and on 
injecting political ideology into the Committee's process of reviewing 
judicial nominations.
  Although several members were not technically on the Committee until 
the Senate reorganization was completed, there was no reason why 
Senators who were slated to become official members of the Committee 
upon reorganization could not have been permitted to participate in any 
nomination hearings. This was successfully accomplished in the case of 
the confirmation hearing of Attorney General John Ashcroft, which was 
held when the Senate was similarly situated in January of this year. 
So, while I appreciate the Chairman's efforts, I am compelled to 
clarify that neither the lack of an organizational resolution nor any 
other factor prevented this Committee from holding confirmation 
hearings in June. Consequently, there is simply no significance to the 
fact that the scheduling of a hearing occurred in proximity to the 
adoption of the resolution.
  Mr. President, the third point to which I want to respond is the use 
of a statistic: the number of months during my chairmanship in which no 
nominations hearings were held. I am not going to quibble over that 
particular number here tonight because I disagree with the whole idea 
that such a statistic could be relevant to any analysis of whether the 
Senate is performing its constitutional advice and consent function 
sufficiently.
  Perhaps an analogy would help. Say you had a fire that is going to 
require 108 gallons of water to extinguish. And say that the person in 
charge of supplying you the water prefers to count in ``containers'' 
rather than gallons--but won't tell you how big the containers are or 
how much water is in them. Every time you say ``I need 108 gallons of 
water,'' he responds, ``I've already delivered several containers.''
  My point is that, with 108 judicial vacancies in our courts, and only 
8 of 59 nominees confirmed this year, it is not particularly useful to 
measure progress in terms of the number of hearings held. I suppose the 
Committee could hold 8 hearings to confirm 8 nominees if it wanted to, 
but the result would be no different than having a single hearing with 
8 nominees. Although we cannot have confirmations without hearings, 
hearings are not an end in themselves. What matters is the number of 
judges confirmed to the bench.
  The bottom line of the Chairmanship is that the Senate confirmed 
essentially the same number of judges for President Clinton as it did 
for President Reagan--only 5 fewer. This proves the Republicans were 
fair--especially because it was a six-year Republican-controlled Senate 
that confirmed 382 Reagan nominees, and a six-year Republican 
controlled Senate that confirmed 377 Clinton nominees. Some Democrats 
avoid discussing this bottom-line fairness because they know there is 
no partisan retort. So instead of working toward their own bottom-line 
number proving fairness to President Bush, some are focusing instead on 
the number of hearings held. In the end, the only statistic that 
matters is the number of confirmations. I urge the Democrats to get to 
work.
  Mr. GRAMM. Mr. President, I ask for the regular order.
  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the nomination of Barrington D. Parker, Jr.
  The legislative clerk read the nomination of Barrington D. Parker, 
Jr., of Connecticut, to be United States Circuit Judge for the Second 
Circuit.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Barrington D. Parker, Jr., of Connecticut, 
to be United States Circuit Judge for the Second District? On this 
question, the yeas and nays have been ordered. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 100, nays 0, as follows:

[[Page 19490]]



                      [Rollcall Vote No. 297 Ex.]

                              YEAS --- 100

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden
  The nomination was confirmed.


                 Vote on Nomination of Michael P. Mills

  The PRESIDING OFFICER. The clerk will report the nomination Michael 
P. Mills.
  The legislative clerk read the nomination of Michael P. Mills, of 
Mississippi, to be United States District Judge for the Northern 
District of Mississippi.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Michael P. Mills, of Mississippi, to be 
United States District Judge for the Northern District of Mississippi? 
On this question, the yeas and nays have been ordered, and the clerk 
will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Connecticut (Mr. Dodd) and 
the Senator from Vermont (Mr. Jeffords) was necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 298 Ex.]

                                YEAS--98

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--2

     Dodd
     Jeffords
       
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the President is 
notified of the Senate's actions.

                          ____________________