[Congressional Record (Bound Edition), Volume 149 (2003), Part 14]
[Senate]
[Pages 19604-19606]
[From the U.S. Government Publishing Office, www.gpo.gov]




         FAIRNESS IN THE CONSIDERATION OF JUDICIAL NOMINATIONS

  Mr. HATCH. Mr. President, on Wednesday the Judiciary Committee 
favorably reported to the full Senate the nomination of Alabama 
Attorney General William Pryor for the Eleventh Circuit Court of 
Appeals. It has been more than 6 weeks since General Pryor's 
confirmation hearing, and I am pleased that the full Senate will now 
have the opportunity to consider his nomination.
  Nevertheless, we will no doubt hear over the course of this debate 
many allegations from some of our Democratic colleagues as to why they 
believe that Bill Pryor's nomination does not deserve an up or down 
vote by the full Senate. I want to make perfectly clear right now that 
there is no valid reason to delay this body's consideration of the 
Pryor nomination.
  All we ask is that there be an up-or-down vote. Vote against him if 
you don't like the man personally--although there is little room to 
vote against him because of his record.
  Despite these efforts by committee Democrats to erect a procedural 
roadblock to voting on the Pryor nomination in spite of fact that I had 
set five markups, I finally was able to have a markup on his 
nomination. They wanted to revive a debate over the interpretation of 
committee rule IV. This rule, entitled ``Bringing a Matter to a Vote'', 
was clearly intended to serve as a tool by which a determined majority 
of the committee could force a recalcitrant chairman to bring a matter 
to vote. In fact, the rule provides, ``The Chairman shall entertain a 
non-debatable motion to bring a matter before the Committee to a 
vote.''
  Clearly, it was a rule by which you could force a chairman to have a 
vote. All you had to do was get a majority of the Senators on the 
committee with one from the minority side and you could force a 
chairman to call for a vote.
  On Wednesday there was no motion to bring the matter before the 
committee to a vote. In fact, there was an objection to voting, which I 
overruled. Thus, on its face, rule IV was inapplicable to the Pryor 
nomination.
  Despite claims to the contrary, there has been no inconsistency in my 
interpretation of this rule. First of all, I have checked with two 
Parliamentarians, and both said I could interpret the rule. I believe I 
have interpreted it correctly.
  During the Clinton administration, in an effort to prevent the defeat 
in committee of a controversial Justice Department nominee, I was 
chairman and I wanted to bring the nomination to a vote. We had enough 
votes to defeat the nominee in committee. It would have been a 9-9 tie, 
and the nominee would have gone down to defeat. The Democrats then 
started to filibuster their own nominee. In deference to them, I chose 
not to exercise the inherent powers I and all committee chairmen have 
to bring a matter to a vote.
  I have been condemned for that ever since as though I acknowledged 
that you should just have filibusters in the committee any time you 
want to. President Clinton ultimately made a recess appointment of 
their nominee. In retrospect, my reliance on rule IV to accomplish this 
was admittedly not the best course of action. I was wrong to say they 
could filibuster. But I was trying to be gracious to my colleagues on 
the other side who clearly did not want to vote on the record defeating 
their nominee. Since I respected and liked the nominee himself, but not 
for the particular position he was nominated for, I would have 
supported him for any other position. And I had good reason to be 
against him for this position. I agreed to allow their filibuster to 
cause me to pull down his nomination rather than to have a vote that 
would have been embarrassing to him and to the Democrats. And that is 
why they were filibustering their own nominee. Now they cite that as 
the reason why I am wrong here. But there is no reason for that.
  I nevertheless believed then, and I do now, that I had the power to 
bring that matter to a vote, and that I used the discretion of the 
chairman to decide not to do so. It was a matter of showing decency and 
kindness to my colleagues on the other side and to the nominee so he 
would not have a vote that defeated him in committee.
  The fact of the matter is I don't believe there should be filibusters 
in the Judiciary Committee. We have had at least two instances now 
where my colleagues on the other side have tried to filibuster. In 
addition, the Democrats now complain they weren't given enough time to 
do an investigation. We have given them all kinds of time to do an 
investigation. Since their investigation was proving to be fruitless 
because they couldn't find one thing to criticize Attorney General 
Pryor on, they wanted to have a fishing expedition to do further 
investigation.
  I want to make clear that at no time did I agree to modify my 
interpretation of rule IV in connection with the Cook, Roberts, or 
Sutton nominations, which is the last context in which this debate 
arose. I did agree to bring Roberts back in to the committee and have 
one more day of hearing. I did not agree to bring Cook back or Sutton 
back. But at no time did I agree my interpretation of rule IV which I 
made at that time was in error. It certainly was not.
  I can't imagine any committee chairman agreeing to give up his or her 
right to call for a vote in committee after there has been a sufficient 
debate. No chairman is going to give up that right because that means 
the minority could control the committee any time they wanted to. The 
argument which they make on this is ridiculous.
  But, be that as may, at no time did I agree to modify my 
interpretation of rule IV in connection with the Cook, Roberts, or 
Sutton nominations, which is the last context in which this debate 
arose. To have adopted the interpretation my Democratic colleagues 
advanced both then and now would have constituted an unprecedented 
curtailment of the chairman's inherent authority to bring a matter to 
vote, and would have given the authority to control the committee to 
the minority. I don't think they would want that when they are in the 
majority, and I certainly don't want it now that we are in the 
majority. No other chairman I know of who has any brains at all would 
have allowed that type of interpretation. Yet you hear all of the 
screaming and shouting that they were mistreated.
  In short, there was no violation of committee rules or process in 
bringing the Pryor nomination to a vote on

[[Page 19605]]

Wednesday, and any argument to the contrary is merely a last-ditch 
effort to prevent the full Senate from considering that nomination.
  Another complaint we will hear is there was an open investigation 
into General Pryor's activities on behalf of the Republican Attorneys 
General Association at the time of the vote. Here are the facts:
  When our Democratic colleagues brought to our attention documents 
they obtained pertaining to RAGA, we joined with them to conduct a 
bipartisan investigation to determine the authenticity of the 
documents, whether they reflected any wrongdoing on the part of General 
Pryor. Committee staff interviewed several witnesses in connection with 
this investigation, with two notable exceptions. First, the Democrats' 
source of these documents has not answered key questions about when the 
documents were drafted, who drafted them, and who has had access to 
them. Second, Democratic staff asked General Pryor no questions about 
the documents, despite his willingness to answer whatever questions 
they may have had.
  Nevertheless, our Democratic colleagues have insisted on pressing 
forward with an investigation, over Republican objection, based on 
unauthenticated and unreliable documents provided to them by a source 
who refuses to talk to Republican staff, whose former employer stated 
under oath that she stole the documents, and who has yet to disclose 
the details of when and how she first provided the documents to 
Democratic staff.
  Some on our side wanted the committee to conduct an investigation of 
Democratic staff. I am certainly not going to do that. Frankly, 
Democratic staff, I think, have an obligation if they get documents to 
look at them and to present them to us. However, these documents 
weren't presented to us until the last minute.
  Frankly, it is just another pattern of practice of delaying as long 
as they can and making it miserable for people like Bill Pryor to get a 
vote up or down. All we want is a vote up and down.
  Democratic staffers have interviewed 20 persons but have found 
nothing inconsistent with General Pryor's testimony. There is simply 
nothing to indicate General Pryor was anything less than truthful about 
the material facts of his participation in the Republican Attorneys 
General Association. What is going on here is a classic game of 
``beltway gotcha.'' That is no reason to delay consideration of General 
Pryor's nomination.
  We even had members say we want to have another hearing for General 
Pryor after all that we have had. His was one of the longest hearings I 
can recall having in my 27 years on the Judiciary Committee. It was a 
very difficult hearing with a lot of moaning and groaning and screaming 
and shouting. Frankly, it was one in which I don't think he was treated 
as fairly as he should have been treated, nor do I think he has been 
treated fairly since. I think there are reasons for that. One of them 
is he is so forthright about his testimony and that he has conservative 
beliefs that I think some on the other side are afraid that even though 
his whole record is one of following the law, he might not follow the 
law if he gets on the Eleventh Circuit Court of Appeals--even though he 
is an honest man and said he will follow the law regardless of his 
personal viewpoint.
  That is all you can ask of these people. When you have a person of 
the integrity and the ability and the capacity of William Pryor who 
says he will follow the law, you had better believe it, in my opinion. 
If we get to the point where we have to second-guess people who have an 
impeccably honest reputation around here, it is going to get to where 
nobody who has any views is going to be able to serve on the Federal 
courts of this land. That is wrong.
  I felt like I needed to come here today and say some of these things, 
because in all honesty I think we have had too many of these type of 
ridiculous battles in the Senate Judiciary Committee.
  I am trying to bring some decency to the committee. I have tried to 
work as closely with my colleagues who differ with us on our side as I 
possibly can, and I am going to continue to do that, and try to work in 
a decent, honorable, good way with my colleagues. But I do personally 
resent some of the accusations that have been made, some of the 
mischaracterizations that have been made, some of the things that have 
been done to besmirch some of these excellent people whom the President 
of the United States has nominated, and a continuation of filibustering 
on the floor of the Senate.
  Having said that, I am going to conclude with these remarks: Never in 
the history of the Senate--before Miguel Estrada, Priscilla Owen; and 
now there is some indication there is going to be a filibuster of 
William Pryor, the attorney general of the State of Alabama--never has 
there been a filibuster, a true filibuster against anyone.
  Now, I thought--and I have said it on the floor--I thought there was 
a filibuster of the Fortas nomination, but I was corrected by none 
other than the Senator who led the fight against Fortas--and that was 
Robert Griffin of Michigan--in a Republican policy meeting, where he 
said: I only need to correct Senator Hatch on one statement that he 
made; and that is, that having led the fight against Fortas--for a 
variety of what he believed were appropriate reasons; and apparently a 
majority of the Senate did--he said: We were never filibustering Abe 
Fortas. And the reason we were not is because we had the votes to 
defeat him up and down.
  But the Democrats called for a cloture vote, which was narrowly won 
by Fortas, with 12 Members absent at the time, many of whom would have 
voted against Abe Fortas.
  So never in the history of this body has there been a filibuster 
against any Federal judicial nominees until this year. And now we have 
two--and a potential of three. And I hope they are not going to 
filibuster Kuhl. And I hope they are not going to filibuster Holmes. 
And I hope they are not going to filibuster Judge Pickering when he 
comes out of the committee, and others.
  It is a dangerous thing to do. It is a wrong thing to do. It flies in 
the face of senatorial history. In the end, this body is going to be 
very saddened if that is the way all of these nominations wind up, 
without an up-and-down vote on the floor of the Senate.
  What is wrong with having up-and-down votes on the floor of the 
Senate for these nominees? Whether it is a Democrat President or a 
Republican President, once they are brought to the Senate floor, they 
deserve an up-and-down vote. That is all we are asking for.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Nevada.
  Mr. REID. Madam President, I am not going to speak at any great 
length regarding the statement made by my friend, the distinguished 
senior Senator from Utah, regarding this particular judge, Judge Pryor. 
I don't know much about him, but I am sure in the near future we will 
learn more about him because, as indicated by my distinguished friend 
from Utah, the chairman of the Judiciary Committee, the nomination, at 
the time of the hearing, was very disputed and it took a long time. So 
I am sure I will learn more about this man.
  But the one statement I want to comment on, made by my friend from 
Utah, is that the Democrats are looking for ways to oppose President 
Bush's judicial appointments.
  Madam President, there is an order in effect that on Monday night we 
will vote on two judges, a man by the name of Earl Leroy Yeakel of 
Texas and a woman by the name of Kathleen Cardone of Texas, both to be 
Federal District Judges for the United States. Both of those judges 
will be approved by large margins.
  These 2 judges will bring the total to 140 judges who will have been 
approved by this Senate during the administration of this President--
140. How many have we turned down? How many have the Democrats--who, as 
my friend indicated, are looking for ways to oppose President Bush's 
judicial nominees--turned down? We have turned down two. The count on 
Monday night will be 140 to 2.

[[Page 19606]]

  Does it mean that it has to be every judge he gives us? I think not. 
Any reasonable person, looking at these numbers, would acknowledge 
there has been no witch hunt by the Democrats. Madam President, 140 to 
2 is a pretty good average.

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