[Congressional Record (Bound Edition), Volume 147 (2001), Part 14]
[Senate]
[Pages 19824-19828]
[From the U.S. Government Publishing Office, www.gpo.gov]



      FOREIGN OPERATIONS, EXPORT FINANCING, AND RELATED PROGRAMS 
              APPROPRIATIONS ACT, 2002--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of the motion to proceed to H.R. 2506, which the 
clerk will report.
  The legislative clerk read as follows:

       A motion to proceed to the bill (H.R. 2506) making 
     appropriations for foreign operations, export financing, and 
     related programs for the fiscal year ending September 30, 
     2002, and for other purposes.

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, I am not going to speak at great length 
about why we are in the position we are. I have already spoken. As I 
have said, Senator Leahy has a hearing scheduled this week. He is going 
to have some hearings next week. The report I received recently is that 
we have not done any U.S. marshals because we do not have them. They 
have not been sent to the committee. We cannot do it.
  We approved 14 U.S. attorneys last Thursday. We are moving these 
nominations along just as quickly as we can.
  The Senator from Wyoming is absolutely right we need to do; an energy 
bill, but we cannot do an energy bill. We have had 2 weeks where we 
have done nothing. We still have five appropriations bills to handle, 
plus all the conferences, and they are not letting us move to them.
  Sure, we can do two things on the floor at once; we agree. But they 
are not letting us do one thing on the floor. The leader has said that 
we will get to energy as soon as we can, and that means we have to get 
rid of all these other items first.
  We are approaching Thanksgiving. We have already had two continuing 
resolutions. This is not the time to dillydally. We have very important 
things we need to do for this country, and we are in quicksand on 
judges. We are going to go forward the best we can and jump through all 
the procedural hoops they are making us jump through. I would think 
sometime in the near future the administration might get involved. The 
administration has more to lose than anyone else. This is the 
minority's side.
  No one can criticize the Democratic majority in working with the 
President. We have worked hand in hand with him. He and the majority 
leader speak three times a day on issues relating to this country and 
the world. The minority is making a real mistake holding up this 
legislation. That is a decision they have made, and they are going to 
have to live with it. We are going to do the best we can, I repeat, 
jumping through all these hurdles.
  In the process, we are going to use up 3 or 4 weeks of time that we 
could be doing other bills. We have a bioterrorism bill on which 
Senators Kennedy and Frist have worked. I do not know if they will let 
us go to it when the committee reports it out. We hope the committee 
can report it out as early as Thursday. In the meantime, all the other 
legislation is being held up.
  People think we can waltz through the rest of these appropriations 
bills in a matter of a day or two. It has never happened, and it never 
will happen. These bills take a lot of time even though we agree on the 
numbers.
  We need to do a bioterrorism bill. We have a bipartisan bill we 
should bring up. We had airline safety. They would not let us bring 
that up.
  I repeat, when it comes down to the end of this year and people are 
saying where is the energy bill and other bills, remember last week and 
this week: We have done nothing. Most of it has been procedural in 
nature.
  We were fortunate last week to finally, getting through all the 
procedural hoops, get airline security passed, and with a lot of 
cooperation we were able to do the counterterrorism legislation, but it 
has been a struggle. We should be further through the appropriations 
process more than we are.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. THOMAS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMAS. Madam President, I ask unanimous consent that I be 
allowed to speak 10 minutes as in morning business.

[[Page 19825]]

  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Economic Stimulus

  Mr. THOMAS. Madam President, one of the items, of course, that is 
being considered and has, in fact, been considered and passed in the 
House is the economic stimulus--doing some things now that will 
encourage and get more activity in our economy.
  We, of course, through the last couple of years have seen some 
decline in the economy, and now with the September 11 attacks, we have 
seen substantial change. We are faced with the challenge to do that 
which will have an impact--hopefully an immediate impact--on the 
economy.
  It has been very difficult to define exactly what is best to do. We 
have met several times with Chairman Greenspan and Bob Rubin, the 
former Secretary of the Treasury, to talk about what would have the 
most impact on the economy in the short term. There are very many ideas 
out there.
  Quite frankly, among professional economists there is not unanimity 
as to what would have the most impact. Certainly, most people agree 
that it needs to be a large movement. Some think it ought to be $100 
billion, which is a huge amount--however, a relatively small amount of 
the gross national product. It is difficult to know.
  This Congress has already passed $50 billion or more that has to do 
with defense and with repair in New York City. I question, of course, 
whether those expenditures will be made soon enough to have an impact 
on the economy and whether they, indeed, fit in as part of the economic 
package. I, frankly, am inclined to think they do.
  Then we are faced with what should be the additional effort. It is my 
understanding the House-passed bill was nearly $100 billion in addition 
to what we spent, which is more than the President has suggested, I 
believe, which is $50 billion to $75 billion. We have that decision to 
make and, of course, what will most quickly and efficiently affect the 
economy. I believe we should have some parameters to decide in general 
what we want to do and then see how these individual items fit into it. 
One ought to be those things that we know will have an impact on the 
economy and do it in the short run.
  Another is, since we are talking about shortrun remedies, we ought to 
be picking solutions that are not long term so we will have another 
opportunity after this economy has gathered some strength to take a 
look at them and see if they should be in place long term.
  Obviously, when Members have tax issues and have been looking for a 
vehicle to put them on, they will be interested in putting them on a 
stimulus bill. We have to be careful this does not become a Christmas 
tree.
  What do we do? There is the question of how much of this stimulus 
ought to be done in terms of the consumers' ability to purchase. What 
can we do about moving more money into the hands of consumers so they 
can do a redistribution of income?
  On the other hand, how much of this package should be in the form of 
incentives for business, such as deferred taxes, or reducing the time 
for appreciation?
  These are the issues we will have to decide. Many are interested in 
doing something with the corporate alternative minimum tax put in about 
1985 as a reaction to some of the tax reductions that were made prior 
to that time, which have the effect, of course, of causing certain 
levels of income tax to have to be paid, regardless of whether there 
are tax breaks that can be taken advantage of otherwise.
  So very many people in the business sector believe that could be 
changed. It would encourage the purchase of new equipment.
  Some suggest a 5-year carryback of net operating expenses as another 
way to put money in the hands of business to create jobs and move 
forward. Accelerated appreciation is another area discussed. The House 
provision has a 30-percent reduction in the first year--again, to 
encourage businesses to invest in their equipment and in their 
inventory.
  There are issues on foreign trade to make it more competitive for 
businesses. For individuals, there is talk about making tax reductions 
we put into place earlier this year more permanent, to not expire at a 
certain length of time. That has to be discussed. Capital gains 
reductions are quite often talked about. Some wonder if capital gains 
reductions will, again, have that short-term impact. Others have 
suggested the capital gains ought to be limited only to those purchases 
after September 11 to encourage purchases rather than sales. Any 
payroll tax deduction will provide an opportunity to put money into the 
hands of citizens, including those who are not paying income tax.
  There are recommended vacation tax credits to get people on the move: 
To fly, to stay in hotels. The industry is suffering a good deal.
  There are lots of opportunities. I am hopeful as we draw it up in the 
Finance Committee we have parameters to make sure they comply with our 
goals and our purpose and our motives. I think we can do that. It ought 
to be confined to short-term activities so we can review them again in 
the future. These are some of the things being discussed. They are very 
important.
  Now we find ourselves faced with three different challenges: One is 
the war on terrorism; another is the economy, which has been impacted; 
and doing the things we do in everyday life and continue to deal with 
government operations. These are the challenges. I believe we will meet 
the challenges. We need to move forward.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Would the Chair explain the parliamentary matter now before 
the Senate?
  The PRESIDING OFFICER. The Senate is now considering the motion to 
proceed to H.R. 2506.
  Mr. REID. Potentially, if I am not mistaken, there is as much as 30 
hours available under that motion to proceed; is that right, 
postcloture?
  The PRESIDING OFFICER. We are not on a postcloture situation. There 
is no time limit.
  Mr. REID. I say to the Chair, cloture was not invoked yesterday, so 
we are not bound by the 30 hours; is that right?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. REID. Unless something happens, we are on this bill forever; is 
that right? There is no time limit.
  The PRESIDING OFFICER. We are on the motion to proceed.
  Mr. REID. There is no time limit?
  The PRESIDING OFFICER. That is correct.
  Mr. REID. Is it possible to move to some other matter?
  The PRESIDING OFFICER. Not while the motion is pending.
  Mr. REID. Only by unanimous consent, is that right?
  The PRESIDING OFFICER. The Senator is right.
  Mr. REID. Unless the minority agrees to move to an appropriations 
bill or move to this appropriations bill or move to bioterrorism, it 
cannot be done without their consent; is that right?
  The PRESIDING OFFICER. The Senator is correct.
  The Senator from North Dakota.
  Mr. DORGAN. Madam President, I say to my colleague from Nevada, as he 
knows, we had a cloture vote on this appropriations bill, and we did 
not invoke cloture. We have what is known as a filibuster--not on an 
appropriations bill but even on the motion to proceed to the 
appropriations bill.
  There is a time and a place for everything. I certainly would never 
abridge the right of any Member of the Senate to use the rules in any 
manner they prescribe for themselves or their constituents. It is in my 
judgment rather unseemly at this moment, given what is happening in 
this country, for this Senate effectively to be at parade rest--
standing, sitting, waiting, doing

[[Page 19826]]

nothing. We have appropriations bills that need to come to the floor of 
the Senate. They have been through the Appropriations Committee, but we 
cannot get them to the floor of the Senate because we have people 
objecting.
  The other side says they don't want the Senate to do its business at 
this point, so they object. This appropriations bill is foreign 
operations. It is a critically important piece of legislation dealing 
with issues such as the security of our Embassies. Does anyone wonder 
at this moment and at this time, given the security threats we face at 
virtually every Embassy around the world, staffed by American citizens, 
whether we ought to wait to pass legislation dealing with Embassy 
security? I don't think there is not great cause for me to wonder. Of 
course we should. We ought to move this appropriations bill to the 
floor of the Senate, debate it, and pass it.
  Let me go back for a moment to describe why I believe this should not 
be business as usual and why I believe it is unseemly for some simply 
to plant themselves at this moment and say: We are not going to allow 
the Senate to do anything. September 11 changed a lot of things in our 
lives. The heinous act of mass murder by perverted people changed a lot 
in the lives of all of us. This attack against our country, but 
basically an attack against freedom, makes everyone feel less secure. 
We have resolved from that moment to do things differently.
  One of the things that happened almost immediately following the 
President's speech to a joint session of Congress was a new attitude 
and a new spirit in the Congress. All of a sudden, those who previously 
had been Democrats and Republicans, conservatives and liberals, were 
standing during debate, proclaiming themselves so described, all of a 
sudden those labels were gone. There did not seem to be any longer an 
``our'' side and a ``your'' side or a ``your'' side and ``my'' side. 
There was only in this Chamber, and only in the House of 
Representatives, and only between us and the President, one side. It 
was our side. Just our side. We were all in on the same side, 
determined to try to deal with these cowardly acts of terrorism.
  That, regrettably, has changed some. There is now a different 
attitude in recent days. Folks decided we shouldn't work together, that 
we shouldn't do the Senate's business, that we shouldn't pass 
appropriations bills, that we should essentially stall and stop. It 
doesn't make any sense to me. It doesn't serve anybody's interests. It 
doesn't serve the interests of the United States, and it certainly 
doesn't serve the interests of the American people.
  I mentioned this appropriations bill has money for the security of 
our embassies all around the world. Is what we really want to do at 
this moment to slow down this process, to say embassy security somehow 
is not very important, that there is no urgency here? I don't think so.
  I think our job ought to be to say these are important issues for the 
Senate to address--not tomorrow, not next week, but now. It is not just 
this bill. It is especially this bill today because that is what we are 
talking about, the motion to proceed to this bill, but it is so many 
other appropriations bills and so much additional work that we and the 
House must do together.
  Aviation security, we did that bill. Antiterrorism, we did that bill. 
Neither has been done in a satisfactory way by the other body. So we 
need to resolve those differences, and that is critically important.
  But most especially the business of the Senate is to take up 
important issues, including this bill from the Appropriations 
Subcommittee on Foreign Operations, debate it, and pass it. If someone 
here has heartaches about what is in it, offer amendments and have 
votes. God bless you; you have every opportunity in the Senate to do 
that. The rules allow you to do that. But it is not appropriate, in my 
judgment, to shut this place down because someone got cranky about 
something else. If you are in a bad mood, find another room, but at 
least here on the floor of the Senate let's try to do the Senate's 
business.
  If there was ever an opportunity and requirement to demonstrate to 
the American people this is a new time and new day and we are facing 
threats in a new way together, this is the time to do it. Let's adopt 
these motions to proceed, pass these bills, and provide for the 
security of American embassies included in this bill.
  Madam President, Senator Daschle, the majority leader, is present. I 
will yield the floor and allow him to proceed.
  Mr. DASCHLE. Madam President, I compliment the Senator from North 
Dakota for his excellent statement. I don't think I could have said it 
as well. But I really appreciate the passion with which he has 
expressed himself.
  These are important bills. We are going through international crises 
that demand leadership, demand responsiveness, demand that these bills 
get done. He said it so well. I hope our colleagues have the 
opportunity to hear him as I just did.
  The PRESIDING OFFICER. The Senator from Alabama.


                          Judicial Nominations

  Mr. SESSIONS. Madam President, I would like to share a few thoughts 
with regard to the process of nominating and confirming Federal judges. 
We have had a problem, as I have seen it, in recent months, leaving us 
with an ever-growing backlog, one of the largest backlogs of judicial 
vacancies we have ever had. I would like to share a few thoughts about 
that.
  One of the bases for rationalizing this apparent slowdown is the view 
that President Clinton's judges were not treated fairly. Many of you 
have heard that. I think we ought to talk about that straight up.
  President Clinton nominated and got confirmed 377 Federal judges, 
almost exactly the number President Reagan had in his 8 years in 
office. They both had 8 years in office. He had one of his nominees, 
only one, who was voted down by this Senate. The rest we either 
confirmed or were pending when he left office.
  When President Clinton left office, he had 41 nominees pending before 
this Senate, nominees who had not been acted upon. Historically, that 
is a low number. Under the leadership of Chairman Orrin Hatch, the 
Senator from Utah, the chairman of the Judiciary Committee at that 
time, a Republican, he moved President Clinton's nominees effectively 
and gave them fair hearings, and for the most part they were promptly 
confirmed if they were deserving. That 41 nominees were unconfirmed is 
a rather low number, in my view. Really, 67 vacancies were in existence 
at that time in the Federal judiciary. We have over 800 Federal judges, 
and 60-some judges has generally been considered a normal vacancy rate. 
It just about takes that much time for the names to go up to the 
President, for him to consider them, an FBI background check to be 
done, to submit the nominee's name, they answer all the questionnaires 
we demand of them, ABA does a background check--and it just takes some 
time. So you seldom will be below 50 vacancies in the Federal 
judiciary.
  However, we begin to see the numbers increase dramatically. Just a 
few days ago we had 110 vacancies in the Federal judiciary. Now I think 
it is 108 after the confirmation of the 2.
  To me, this is too large a vacancy. Let me tell you why I am 
concerned about it. I will be frank with you about it. The reason I am 
concerned is that there is a sense in which this slowdown in 
confirmations is a part of a plan to block President Bush's nominees in 
an unusual and special way. Unlike anything we have seen before.
  There was a report in the New York Times on April 30 of this year 
reporting about the private retreat the Democratic Members of this body 
had. The Republicans have those retreats, too. At that retreat, 
Professor Laurence Tribe, who is well known, Cass Sunstein, and Marcia 
Greenberger discussed with the Democratic Senators their idea to 
develop a ``unified party strategy to combat the White House on 
judicial nominees.'' That was the New York Times reporting on that 
conference.
  Professor Tribe and the others apparently advocated scrutinizing 
nominees

[[Page 19827]]

more closely than ever in order to slow down the nomination process, 
stating that it was:

       . . . important for the Senate to change the ground rules 
     and there was no obligation to confirm someone just because 
     they are scholarly and erudite.

  This is the same Laurence Tribe who was very active in the Bork 
nomination and Thomas nomination fight and actually wrote a book in 
1985 titled ``God Save This Honorable Court'' in which he talked about 
the strategy of blocking judicial nominations.
  Before we had gotten started in this process, those of us on this 
side had cause for concern because there was a stated policy of 
changing the ground rules or to block President Bush's constitutional 
ability to have his nominees treated fairly and confirmed, if fit and 
qualified.
  Subsequent to that, we began to have a number of hearings in the 
courts subcommittee, of which I am the ranking Republican member. The 
first hearing dealt with a suggested change in how we ought to do 
nominations. The change and question was whether or not ideology should 
be considered in the judicial process. That has been generally rejected 
consistently.
  Invited to testify on that panel were Cass Sunstein, Laurence Tribe, 
and Marcia Greenberger--surprise, surprise. Also invited to testify was 
Lloyd Cutler, former White House counsel to a Democratic President, and 
a man of great respect in the community.
  In his remarks, he differed with those other professors, however, and 
made clear that he opposed--and quoted a commission of which he was a 
member--making politics and ideology a factor in the confirmation 
process.
  If someone has an obsessive political or personal or ideological view 
that would keep them from being objective in analyzing facts and law, 
they ought not to be confirmed. But just to say that you are a liberal 
Democrat--as overwhelmingly the 377 judges confirmed by President 
Clinton were--that you are, therefore, not qualified, or if you are a 
conservative Republican you are not qualified to serve on the bench 
would be a historic change in the ground rules all right--not a change 
they suggested ought to be done before President Bush took office but a 
change they suggest only after their President left office. We have a 
new President. So we are concerned about this.
  The first hearing was suggesting that we ought to have a higher role 
of politics in the judiciary. Lloyd Cutler, to his credit, and other 
professors who were members of that panel, also to their credit, were 
firmly opposed to politicizing the judiciary. It is a dangerous thing.
  I was a U.S. attorney for 12 years and assistant U.S. attorney for 2. 
Almost 15 years of my life was spent practicing law and trying cases 
full time before Federal judges. I didn't always agree with them, but I 
will say with great conviction that they were wonderful judges--men and 
women of integrity and ability who did things right. If you had the law 
on your side, you could be expected to prevail. If you went to court 
and said: I have cases that say this evidence is admissible, Your 
Honor; I have evidence that says their document is not required to be 
produced in this hearing, Your Honor, and if you could show the judge 
that, you could almost always count on them to rule correctly according 
to the law, whether they were Republicans or Democrats.
  This idea that somehow, if you are a liberal or a conservative, you 
are therefore going to allow that to affect your ability to control a 
courtroom and do justice to people is wrong and dangerous. And I am 
nervous that we would suggest to the American people that this is so. I 
do not believe it is.
  At one of our hearings recently, when I asked Senator Fred Thompson 
from Tennessee, a skilled lawyer, if he believed in his experience as a 
litigator that he could expect unfairness or a difference of views on 
issues simply because of who appointed the judge to the bench, he said 
he did not. His experience as a judge was normally expected to rule 
correctly on the law and the facts. Certainly that has been my 
experience over the years.
  Actually, I would add parenthetically that is one of the great 
reasons for our strength and health and economic prosperity as a 
nation. We have a rule of law. Whether you are a British corporation or 
a corporation from any nation in the world or a domestic corporation or 
an individual or a poor person or a rich person, we believe in the 
ideal and in the reality that person would receive equal justice under 
law. Indeed, those are the words chiseled and engraved into the front 
of the Supreme Court building across the street--``Equal Justice Under 
Law.'' That is the American-British--Anglo-American--legal ideal that 
we have adhered to effectively. Nations where that rule of law has been 
commonplace and followed have prospered. I have come to believe in 
recent years as I have gotten older that if you examine nations that 
are not doing well economically, that do not have freedom and the 
things we have, it is fundamentally because they lack a rule of law. 
You can't invest, you can't plan, and you can't develop a long-term 
goal for the future and save money today in order to expand your 
business tomorrow if everything is unstable, and if you have to pay off 
politicians and never know what the law is going to be.
  We are blessed with a rich heritage of law that is so valuable that 
we should never see it undermined. We must protect it. The last line of 
the great hymn is our liberty and respect of the law. The American 
people respect law. We must do that. We must further that, and not 
create this image by a bunch of politicians in a committee room 
suggesting that what goes on in courtrooms throughout America is 
political and not based on law and fact. That would undermine public 
respect for law. I believe that very deeply.
  I was sorry that we went off on that tack. It was a good hearing. The 
chairman was very fair and everybody got their say. It was probably a 
good thing to talk about it and get it out in the open. I don't dispute 
that. But I think it is important that we in this body do not suggest 
to the American people that politics affects the law out in the field 
in the courtrooms all over America because it, in my view, does not.
  The second hearing we had was on the burden of proof. It was 
suggested in these hearings that the burden of proof is on the nominees 
to prove somehow that they ought to be confirmed. That would be a big 
change in policy. I do not know what you are supposed to do. Are you 
supposed to come to a judiciary hearing with 100 of your best friends? 
What are you supposed to do?
  What we do know is that the process has served us pretty well over 
the years. The President of the United States gets to nominate Federal 
judges under the Constitution. He solicits information back from the 
district involved or the circuit that is involved. Names come up to the 
President. He evaluates them and decides whom he is going to nominate.
  They do a pretty good job, frankly, of asking around, finding out if 
there is any trouble in the person's background, would they make a good 
nominee. In my view, as the years have gone by, the President has been 
even more intent on getting people who will be good judges than people 
who might be political friends or things of that nature. So that goes 
up.
  The President tentatively selects a nominee. This is the person they 
would like to submit. They do their own checking around. Then they give 
it to the FBI, and they do an intensive, full field investigation. The 
agents interview anybody with whom that person has worked. They 
interview people who have litigated against them. They interview judges 
before whom they have practiced. Then they come back with an FBI 
report. They find out whether or not they have been arrested, whether 
or not they have had drug abuse problems, or any other problem they 
might have in their background. They will interview an ex-wife, people 
who may have a basis to complain, and they put that in the report.
  So the President has that report. Then he decides whether or not to 
submit the name. And that report is available to all of us in the 
Senate--only

[[Page 19828]]

the Senators--in confidential form. We can go and examine that report. 
If we see something we do not like, even though the President has 
approved that person, we can oppose a nominee on that basis. So that is 
the way the system works.
  After the nominee hits the Senate, the Senate sends a big 
questionnaire to the nominee. First the President submits a big 
questionnaire to the nominee, and depending on the investments and the 
career of the nominee, the questionnaire can have hundreds of pages of 
responses to all these questions. Then we have another one from the 
Senate. That one is done. Then the ABA, the American Bar Association, 
goes out and does their background check. They talk to judges. They 
talk to lawyers. They talk to the president of the local bar 
association, the president of the ABA, the members of the ABA from that 
community. They talk to people who have litigated in intense situations 
with the nominee. That is an important factor. In the pit, in the 
depth, in the intensity of a big-time lawsuit, if the person has 
character flaws, they will usually show up. Most lawyers are pretty 
objective. They will fairly evaluate a person they have litigated 
against, and they will tell the ABA and the FBI what they think about 
them.
  So then the ABA makes their recommendations as to whether or not this 
nominee is ``qualified'' or ``exceptionally well qualified.''
  I think that is a pretty good process. So I suggest it is not wise at 
that point to say: Mr. Nominee, after you have done all these things, 
it is your burden, as we sit up here as Senators, to convince us, after 
the tremendous career you may have had in the practice of law--maybe 
you have a well-qualified rating--you have to convince us to vote for 
you. I do not know how you do that.
  I think the record speaks for itself. Historically we have not had 
that as a standard. In fact, in the first 125 years of this country's 
existence we never even had hearings on the nominees. If something came 
up on a nominee that the Senate did not like, they could object, but 
they did not even have hearings on the nominee. I do not mind an 
objection to hearings; it is probably a healthy thing. The Senate 
should not be a rubber stamp. But also we should not put that burden on 
the nominee, after they have done all that, before they are confirmed.
  So, Madam President, we will also have another series of hearings 
that are designed to intensify a basis for opposition to President 
Bush's nominees, all of which I think is a dangerous direction. So I 
say all that as a matter of background. That is not myth. That is not 
an unfair characterization of where we are.
  There is a move, apparently, by some, to change the ground rules of 
confirmation. It has, apparently, already begun to infect our process.
  I have some charts in the Chamber I would like to show that depict 
where we are in terms of vacancies in the Federal courts today.
  In the 103rd Congress, there were 63 vacancies at this same time 
period. This was during a time when Senator Biden, a Democrat, chaired 
the Judiciary Committee.
  In the 104th Congress, there were 65 vacancies during this same time 
period. Senator Hatch was chairman of the Judiciary Committee. There 
were 65 vacancies. This was during President Clinton's administration.
  Then, with a Republican chairman, a Republican majority in the 
Senate, and a Democratic President, Chairman Hatch got the number down 
to 50 vacancies.
  Then in the 106th Congress, the last year of President Clinton's 
administration, there were 67 vacancies--just about the traditional 
average. In fact, historically they tend to be a little higher in the 
last year of an administration.
  But now, just a few months later, the vacancy rate has surged from 67 
to 110. Perhaps it is 108 today after those confirmations, but that is 
an unhealthy trend. I believe President Bush and those who want to see 
him have a fair day for his judges have a right to be concerned in 
light of particularly the statements that they want to change our 
ground rules.
  One of the things we have found, as we have looked at the process, is 
that the Senate, regardless of who is in the majority party, has done a 
good job of confirming judges who were nominated prior to August in 
that first year. In other words, from January through July, the 
President submits his nominees, as he can. It is a little difficult for 
him at first because he has a lot of people to appoint--he has a 
Cabinet to select, and new things are happening for the President in 
those first months--but, fundamentally, we have seen that the President 
has done very well with the nominees he has submitted.
  President Reagan, in his first year in office, was able to get every 
judge he nominated, prior to August, confirmed before the Senate 
recessed for the year in November or December. He had 100 percent 
confirmed.
  Former President Bush got 100 percent of his nominees confirmed 
during that time.
  President Clinton got 93 percent confirmed. I think there was one 
judge who did not get confirmed who was nominated before August. This 
was under President Clinton and a Republican Senate--well, maybe it was 
a Democrat Senate at that time. They did not confirm one, but all the 
rest were confirmed.
  But under this President, President Bush--and we are coming along to 
the end of this session; there are people saying we ought to be out of 
here in a month or less--has only gotten 18 percent of those judges 
confirmed.
  I know there have been some things that have happened that make it a 
little difficult, but, frankly, I think we ought to work a little 
harder. We have had a change of party, and we have had an attack on 
America that has disrupted us in many ways. But many of these nominees, 
you have to understand, are highly rated by the ABA. They are highly 
respected by their local men and women in the bar association, and no 
one objects to them. They have no objections against them. Republicans 
and Democrats back home support them.
  There is one from my district. She worked for me. She was hired as an 
assistant U.S. attorney under President Carter. She worked 12 years for 
me. Absolutely wonderful. She recently received a unanimous ``well 
qualified'' rating. She has no political agenda. A lot of these 
nominees are like that, just good lawyers, men and women of integrity 
and ability. They need to be moved forward. We could be a lot further 
along than we are today.
  One of the reasons we are behind is that we are not bringing enough 
of these noncontroversial judges, or any of the judges, forward at 
hearings on nominations.
  Under the heading ``judicial nominees per hearing,'' in 1998, they 
had 4.2 judges as the average number per hearing to be confirmed.
  We have a hearing in which the judge appears and answers any 
questions Senators might have. Later there is a vote within the 
committee whether or not to confirm.
  You can't have a vote in the committee until there has been a hearing 
to take information and question the nominee about anything anybody 
would like to ask. So the hearing is a critical step in getting 
confirmations. In 1999, it was 4.2. In 2000, it was 4.2.

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