[Congressional Record (Bound Edition), Volume 148 (2002), Part 14]
[Senate]
[Pages 18880-18882]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    THE SENATE'S UNFINISHED BUSINESS

  Mr. NICKLES. Mr. President, today is October 2, the second day of the 
new fiscal year, and this Congress has not passed any appropriations 
bills. We have passed a continuing resolution that takes us to next 
Friday, and I guess we will pass another one that takes us into the 
following Friday, October 11. This may be one of the poorest records we 
have ever had.
  We do only a few things in the Senate. We pass bills, changing some 
laws. We may occasionally do something very important such as a war 
authorization or resolution dealing with Iraq. Every once in a while we 
might create a new Cabinet-level department. We have the Department of 
Homeland Defense that has been before this body for the last 4 or 5 
weeks, but we have not been able to draw it to a conclusion.
  Then we spend money and occasionally we change the tax laws. We spend 
a lot of money. That is something we do every year, but we have not 
gotten it done this year. We have not passed our appropriations bills. 
As a matter of fact, this year for the first time since 1974 we have 
not passed a budget.
  The House has passed a budget. We did not pass a budget. Because we 
did not pass a budget, we have had differences with the House. The 
House has passed a few more appropriations bills than we have. We have 
only passed three. Three out of 13 is not a very good record, and none 
have passed conference. I hope, and I would expect, that we would be 
successful in passing the Department of Defense appropriations bill 
next week. We certainly should. I think it would be grossly 
irresponsible of us to leave without passing the Department of Defense 
appropriations bill, but we actually should have done a lot more. I 
believe the reason we did not is because we did not pass a budget, so 
we did not get that done.
  Something else we did not get done is we did not confirm enough 
judges. We now have the Department of Justice reauthorization bill. It 
is the first time we have reauthorized the Department of Justice in 20 
years. I have been in the Senate for 22 years, so I guess we did it 
back in 1982 or 1983. So maybe it is long overdue.
  When I look at the conference report--and it is a fairly extensive 
conference report--it creates 20 new judge positions through permanent 
and temporary judgeships. Now, that is well and good, but we have a lot 
of judges who have been nominated for existing positions who have yet 
to be confirmed--in many cases yet to be considered. I notice we are 
going to set up several permanent and several temporary positions in 
this bill.
  I do not doubt that in many cases along the border, particularly in 
southern California, Texas, Arizona, and others, there is a demand for 
new judges with the caseloads they have. So I am not disputing the fact 
that either permanent or temporary judges who are called for in this 
bill are needed, but I find it ironic when I look at the current status 
of judges. There are 47 judges who are now pending, many of whom have 
been nominated for over a year, and we are in the process of creating 
an additional 20 new judgeships.
  Some of these people I mentioned have been nominated for over a year, 
many of whom were nominated on May 9, and they have yet to have a 
hearing. Several of these nominations are outstanding individuals, and 
I will mention a couple. John Roberts has been nominated for the DC 
Circuit. He has argued 37 cases before the United States Supreme Court. 
He was nominated 510 days ago, on May 9. He has yet to have a hearing.
  If this is an individual who has argued 37 cases before the Supreme 
Court, somebody thinks he is well qualified. As a matter of fact, he 
has been rated well qualified by the ABA.

[[Page 18881]]

He was managing editor of the Harvard Law Review. He is a Harvard law 
graduate, magna cum laude; unanimously rated well qualified by the ABA; 
law clerk to Supreme Court Justice Rehnquist; principal Deputy 
Solicitor General between 1989 and 1993.
  I have requested that John Roberts have a hearing and be voted on in 
the Judiciary Committee, and I have not been successful. I think it is 
hardly fair to him, an outstanding attorney, more than well qualified, 
to not have even had as yet a hearing before the Judiciary Committee.
  Miguel Estrada just had a hearing before the committee. I thank the 
chairman of the Judiciary Committee for finally having a hearing on 
Miguel Estrada. This is a young man who has argued 15 cases before the 
Supreme Court. He was unanimously rated well qualified by the ABA. He 
immigrated from Honduras as a teenager, could hardly speak English, and 
he graduated at the top of his class from Harvard Law School. He was a 
law clerk to Justice Kennedy. He is a former Solicitor General and 
assistant U.S. attorney.
  He had a hearing. As of yet--maybe this will change and I hope it 
will change--he has not had a vote in the Judiciary Committee. Some 
people said they want more information from Mr. Estrada. Frankly, they 
are just running out the clock because they do not want to vote on him. 
Miguel Estrada is more than qualified. He should be confirmed. Even a 
``conservative newspaper'' such as the Washington Post says he should 
be confirmed, and we have yet to get a vote on him in committee. I hope 
we will.
  Michael McConnell was nominated for the Tenth Circuit. He is a 
professor of law at the University of Utah, unanimously rated well 
qualified by the ABA. He is one of the country's leading constitutional 
law experts. He has argued 11 cases before the United States Supreme 
Court. He graduated the top of his class from the Chicago Law School. 
He was a law clerk for Justice Brennan. Prior to that, he was Assistant 
Solicitor General. Again, he is eminently well qualified.
  The committee held a hearing on Mr. McConnell on September 18. I ask 
the committee to please put him on the calendar and on the agenda for 
the next business meeting, which is next Tuesday. I urge the committee 
to do so, and I hope vote affirmatively for Michael McConnell to be on 
the Tenth Circuit Court.
  Jeffrey Sutton was nominated for the sixth circuit, which is half 
vacant today. It needs judges to fill the vacancies. He is rated well-
qualified by ABA and qualified by ABA majority. He graduated first in 
his class at Ohio University College of Law. He law-clerked for 
Justices Powell and Scalia and argued nine cases and 50 merits amicus 
briefs before the Supreme Court. Prior to that, he was State Solicitor 
in the State of Ohio, he clerked for Supreme Court Justices and is very 
well qualified. Nominated 510 days ago, and has yet to get a hearing 
before the Judiciary Committee.
  Deborah Cook, also from Ohio, also on the sixth circuit. Unanimously 
rated well-qualified by the ABA. She has been a Justice of the Supreme 
Court of the State of Ohio since 1994. She sat on the Ohio District 
Court of Appeals from 1991 to 1995 and chaired the Commission on Public 
Legal Education. She is a member of the Ohio Commission on Dispute 
Resolution. Again, I remind Members, the sixth circuit is almost half 
vacant: Seven out of the 16 spots are vacant. I urge the committee to 
move forward. Deborah Cook was nominated May 9, 2001, and has yet to 
have a hearing.
  Terrence Boyle was nominated for the fourth circuit. He presently is 
a chief judge on the U.S. District Court in the Eastern District of 
North Carolina. He has held that position since 1997. He was rated 
unanimously well-qualified by ABA. He went to American University, 
Washington College of Law; was minority counsel, House Banking 
subcommittee; also legislative assistant to Senator Helms; and a 
partner in a North Carolina law firm, and a prior district court judge. 
He has been a sitting judge on the U.S. District Court in North 
Carolina since 1997, and was nominated on May 9, 2001. He has yet to 
have a hearing before the Judiciary Committee.
  I mention these, and urge the committee--it is not too late to move 
forward with some of the well-qualified people. Hearings have been held 
on Miguel Estrada and Michael McConnell. They can be voted on next 
week. I urge them to do so. I plead with them to do so.
  I like to cooperate with my colleagues, and I look at the conference 
report on reauthorizing the Department of Justice. There are a lot of 
things in this bill a lot of Members would favor, and some things 
perhaps some have reservations about. The majority of this bill never 
passed by either the House or the Senate. Now I mention that to let my 
colleagues know there are rules against doing that in the Senate, rules 
to protect Members. You do not have the House pass a bill, the Senate 
pass a bill, and have totally extraneous measures put in a bill in 
conference and say: Take it or leave it. It is called rule XXVIII.
  I mention to my colleagues, this is a rule to protect Members of both 
parties in both bodies, to make sure we follow the proper legislative 
process. Usually in Politics 101, we learn you pass a bill, the bill 
passes the House or passes the Senate, you go to conference and work 
out the differences, but the bill has to pass one of the Houses to go 
to conference. The majority of this bill did not pass either House; the 
majority of the bill--whole sections of the bill. I am not saying I 
have objections to many pieces of the bill. I don't doubt I would not 
vote for a lot of it.
  Included in this bill are intellectual property rights. Again, never 
passed the House or the Senate, but it is in this bill. There is a 
juvenile justice section, an entire new section, there is criminal 
justice, civil justice, and immigration changes, improvements of 
criminal justice, intellectual property, all of which never passed the 
House or the Senate, and would be subject to rule XXVIII if the rule 
was invoked.
  I bring this to my colleagues' attention, knowing this rule is there 
and that at least this Senator, for one, realizes we have an 
opportunity and an obligation to legislate correctly. This Senate is 
becoming more and more willing to bypass committees, bypass legislative 
process, report bills, take up bills directly to the floor without ever 
going through committee, not giving committee Members the opportunity 
to have amendments, to have discussion, to have vetting, offer 
alternatives, or come up with bipartisan approaches.
  I found this year very frustrating in both the Energy and Natural 
Resources Committees on which I serve. We had the most significant 
piece of legislation in the energy bill since I have been a Member, and 
it was not even marked up in committee. Yet we spent 7 weeks on the 
floor of the Senate marking it up. Not a good way to legislate. That 
bill is in conference. I hope we can come up with a conference report 
that is a good piece of legislation. That remains questionable.
  We had prescription drugs many wanted to mark up in the Finance 
Committee. We did not do that. We bypassed the Finance Committee. The 
Finance Committee never had a markup on the most expensive expansion of 
Medicare since its creation in 1965. We had a debate on prescription 
drugs with several alternatives, some of which, in my opinion, were 
fatally flawed. Part of that is because they were not vetted. We did 
not have a thorough discussion in committee. If some of the obvious 
flaws were introduced on the floor, they would have been exposed and 
probably corrected, and we probably would have passed a bipartisan bill 
that would have had enough momentum to not only get through the Senate 
but be a strong force in conference, and thereby provide prescription 
benefits for Seniors. We did not do that because we did not go through 
the committee. We are breaking the process.
  I did homework on the Finance Committee. In every major expansion in 
Medicare for the last 22 years, almost every one except one went 
through the committee process and ended up with a bipartisan majority 
on the floor of the Senate and helped become law. Usually, the Senate 
markup vehicle that

[[Page 18882]]

came out of committee was strongly supported on the floor and strongly 
supported in conference, and was close to being the vehicle to become 
law. Sometimes it is adjusted with our friends and colleagues in the 
House.
  When you take a bill directly to the floor, and I note now there are 
a couple of other packages that some say, rule XIV--in other words, 
take directly to the Calendar a provision dealing with give-backs, 
additional money for Medicare, some for rural hospitals, some for 
doctors, some for other providers. Let's bypass the committee and go 
directly to the floor and, yes, we will spend $40 or $50 billion in 
doing so, most of which will be spent the first year or two.
  What happened to the committee process? Shouldn't every member of the 
Finance Committee have a chance to say, I think we can do a better job? 
Maybe we can do it more efficiently or better. No, we bypass the 
committee and take it directly to the floor.
  Now I understand we are going to bypass the Finance Committee on a 
small business package. I used to be a small businessman. I have ideas 
what should be in that package. I would like a say-so in the amendment. 
We will not get a vote. No Finance Committee Member--maybe one or two 
that are putting the package together, but the rest of us on that 
committee do not get to vote. We did not get to offer an amendment. We 
did not get to say, we do not think that should be in, maybe something 
else should be in.
  Should we have ``pay-fors''? What should they be? Do we have tax cuts 
and tax increases? What should they be? How can we best stimulate the 
economy? Some of us think we have something to offer in that debate, 
not if you bypass the committee and go straight to the floor. I object 
to that process. That is a process at least this Senator is going to be 
very reluctant to support. I don't like bypassing the committee 
process. I don't like introducing things that are totally extraneous to 
the House bill or the Senate bill and putting them in conference. I may 
support those provisions, but I don't think that is a good way to 
legislate.
  I am bothered by the fact the Senate is not working. I am bothered by 
the fact we did not pass a budget this year for the first time since 
1974. I am bothered by the fact that we are yet to pass and send to the 
President any appropriations bills other than a 1-week continuing 
resolution. I am bothered by the fact we didn't do the energy bill 
right. We didn't do prescription drugs right. We didn't get it done. 
And I am bothered by the fact I look at two-thirds of this bill and I 
say: Wait a minute, where did this come from, even though they may be 
perfectly acceptable provisions.
  Some might say we have done it before. That is true. But we also have 
rules against doing it. I believe the rule would be upheld. I believe 
these were extraneous to the conference. So I think rule XXVIII would 
by upheld. We may find out. I haven't decided to make that point of 
order. I am letting my colleagues know the rule is on there for a 
purpose. We should follow legislative procedure. We should abide by the 
rules. Unfortunately, we have not done so.
  I see we are going to create 20 new judgeships. I guess I am all for 
that, but I look at several outstanding judges, 47 of whom are yet to 
be voted on, 7 of whom--I just mention 7--have waited for a year and 
haven't even had a hearing, 2 of whom have had a hearing, Miguel 
Estrada and Michael McConnell, and we don't know if they are going to 
get a vote in the committee or not.
  I think every one of the 12, I believe--or the 11 that were nominated 
on May 9 are entitled to a vote. People can vote up or they can vote 
down, they have that right. But I think to deny them even a hearing 
after 510 days is not fair, especially when you look at the 
qualifications of somebody like John Roberts, who has argued 37 cases 
before the Supreme Court, and he is yet to have a hearing; or Miguel 
Estrada, who has argued 15 cases before the Supreme Court, yet to have 
a hearing. Michael McConnell argued 10 cases--I take it back. Miguel 
Estrada has had a hearing, so has McConnell. They just have not been 
voted on in the committee. It is not too late. We may only have a week 
and a half left in the session, so I urge the Judiciary Committee to 
move forward on Mr. McConnell and Mr. Estrada and give these fine 
individuals, who have very distinguished reputations, distinguished 
legal careers, give them a vote in the Judiciary Committee and on the 
floor of the Senate.
  I am confident both would be confirmed, both would be confirmed 
overwhelmingly and would make outstanding jurists for many years to 
come. I urge the Judiciary Committee to do that. I hope it will happen 
in the next few days.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.

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