[Congressional Record (Bound Edition), Volume 148 (2002), Part 15]
[Senate]
[Pages 20947-20948]
[From the U.S. Government Publishing Office, www.gpo.gov]




           AUTHORIZING REPRESENTATION BY SENATE LEGAL COUNSEL

  Mr. REID. Mr. President, I ask unanimous consent the Senate proceed 
to S. Res. 344.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The legislative clerk read as follows:

       A resolution (S. Res. 344) to authorize representation by 
     the Senate Legal Counsel in Manshardt v. Federal Judicial 
     Qualifications Committee, et al.

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. DASCHLE. Mr. President, an unsuccessful applicant for U.S. 
Attorney in Los Angeles has commenced a civil action in Federal court 
in California against Senator Feinstein, Senator Boxer, a prominent 
Republican businessman and political leader in California, and a 
judicial screening panel set up by these defendants, to challenge the 
use of this screening panel to identify potential nominees for Federal 
District Court judgeships in California. Specifically, the plaintiff 
alleges that the use of informal screening panels to develop lists of 
potential judicial nominees violates the Federal Advisory Committee 
Act, the Government in the Sunshine Act, and the separation of powers.
  The laws underlying this suite do not apply to the Senate, and the 
Speech or

[[Page 20948]]

Debate Clause bars suits against legislators for the performance of 
their duties under the Constitution. Thus, there is no legal basis for 
suing Senators for their role in forming, appointing, or relying on 
judicial screening panels.
  Further, the use of informal judicial selection panels to identify 
potential judicial nominees as a part of the advice and consent 
function has a long and respected history. Also, the Supreme Court's 
holding in Public Citizen versus U.S. Department of Justice that the 
Federal Advisory Committee Act does not apply to the longstanding 
practice of soliciting views on prospective judicial nominees from an 
American Bar Association committee provides ample support for the 
challenged practice.
  This resolution would authorize the Senate legal counsel to represent 
the Senators sued in this action to protect their role in the advice 
and consent process by which the President and the Senate share 
responsibility for the appointment of Federal judges under the 
Constitution.
  Mr. REID. Mr. President, I ask unanimous consent the resolution and 
preamble be agreed to, the motion to reconsider be laid on the table, 
and that any statements in relation thereto be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 344) was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, reads as follows:

                              S. Res. 344

       Whereas, Senators Dianne Feinstein and Barbara Boxer have 
     been named as defendants in the case of Manshardt v. Federal 
     Judicial Qualifications Committee, et al., Case No. 02-4484 
     AHM, now pending in the United States District Court for the 
     Central District of California; and
       Whereas, pursuant to sections 703(a) and 704(a)(1) of the 
     Ethics in Government Act of 1978, 2 U.S.C. Sec. Sec. 288b(a) 
     and 288c(a)(1), the Senate may direct its counsel to 
     represent Members of the Senate in civil actions with respect 
     to their official responsibilities: Now, therefore, be it
       Resolved, That the Senate Legal Counsel is authorized to 
     represent Senators Dianne Feinstein and Barbara Boxer in the 
     case of Manshardt v. Federal Judicial Qualifications 
     Committee, et al.

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