[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 4954-4957]
[From the U.S. Government Publishing Office, www.gpo.gov]




   NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES 
     CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT--Continued

  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I have heard some of the remarks made on 
the floor today. I thought I would clarify them, clarify the reality of 
what really happened. I have had a little bit of criticism by my 
colleagues from the other side of the floor because we actually had the 
committee vote last week when it should have voted. So I took the 
liberty of writing a detailed letter to the distinguished Senator from 
South Dakota, the distinguished minority leader, who is a dear friend. 
I know he has been concerned that maybe there was some breach of the 
rules. So I would like to read this letter into the Record so that 
everybody will understand that there was no breach of the rules last 
Thursday. Anybody who says there was really doesn't understand the 
rules, does not understand the obligations of the chairman.

       I am writing in response to your comments on the Senate 
     floor concerning the Judiciary Committee's executive business 
     meeting this past Thursday. I know you are a person of the 
     highest principles who would never intentionally misrepresent 
     the actions of a Committee Chairman, particularly when the 
     action involves an interpretation of that committee's 
     particular rules. I think you may have been provided with 
     some incorrect information, and I would like you to know the 
     truth.
       As you know, the Judiciary Committee met at 9:30 a.m. last 
     Thursday to consider several nominations and some 
     legislation. Although the Democrats were cooperative about 
     voting out a few widely-supported District Court nominations 
     and some other nominations, they made it clear that they 
     would attempt to filibuster at least two of the three 
     nominees for the Circuit Courts of Appeal, Deborah Cook, John 
     Roberts and Jay Bybee.
       It is important to note that the nominations of Mr. Roberts 
     and Justice Cook had been filibustered in Committee during 
     our last meeting two weeks ago, and had been on the agenda 
     but held over the week before that. I could have forced a 
     vote two weeks ago, but I declined to do so out of deference 
     to my Democratic colleagues, who had assured me that we would 
     vote on the nominations at the next meeting, meaning last 
     Thursday.
       From 9:30 a.m. to approximately 12:30 p.m. yesterday, 
     Committee Members engaged in a thorough debate on the three 
     Circuit Court nominations. I allowed every member to talk as 
     long as they wanted. Everyone was allowed to say his or her 
     piece [even though we could have limited debate].
       When the speeches ran out at 12:30 or so, I announced it 
     was time for a vote. Senator Kennedy objected. I overruled 
     the objection, and then all of the Democratic Members walked 
     out of the hearing room in order to deny the Committee a 
     quorum. A few minutes later, Senator Specter returned to the 
     Committee room, making a total of nine Republicans present, 
     and then a couple of the Democrats returned and demanded to 
     continue the filibuster even though every democrat who wanted 
     to speak had already done so. As support for their 
     filibuster, they relied upon Rule 4 of the Judiciary 
     Committee rules. That rule allows any Member to move to have 
     an item on the Agenda voted upon. In this case, the 
     nomination on the Agenda was brought to a vote.
       As background, you know well that Senate Committee Chairmen 
     have a number of inherent powers that are not expressly 
     stated in Committee rules. For example, the Judiciary 
     Committee Chairman has the power to call and set the agendas 
     for hearings and mark-ups even though those powers are not 
     explicitly granted by Committee Rules. The Chairman also has 
     the inherent power to bring a matter to a vote. The Chairman 
     also has the power to interpret the rules of the Committee, 
     as Senator Leahy has done in the past. The Parliamentarians 
     assured me of this on Wednesday.
       Rule 4 of the Judiciary Committee Rules is not the 
     authority by which the Chairman calls for a vote. On the 
     contrary, the clear text of Rule 4 gives a majority of the 
     Committee (which must include Members of both parties) a 
     mechanism to force a vote, presumably when the Chairman does 
     not want to call one. In other words, it ensures that the 
     majority will is not thwarted by an obstreperous Chairman who 
     refuses to allow a vote on an item on the Agenda.
       Rule 4 works like this: When a Member wants to end debate 
     and bring a matter to a vote, he or she is entitled to make a 
     motion to hold a vote and the Chairman must entertain it. If 
     anyone objects, then the Committee must vote on the motion 
     (the motion is not debatable). The motion carried only if a 
     majority of the Committee, including at least one Member of 
     the minority party, votes in favor. If the motion carries, 
     the Committee proceeds to a vote on the underlying matter.
       The Democrats who raised Rule 4 at the mark-up [last 
     Thursday] turned Rule 4 on its head. They tried to use it to 
     deny a vote, not to force one. Their argument ignores the 
     purpose of Rule 4, the inherent power of the Chairman to call 
     for a vote, the fact that the debate had already ended, and 
     the common sense idea that legislative bodies must have the 
     power to make decisions--even difficult ones. I do not 
     believe that Committee filibusters should be allowed, and I 
     think it is a good and healthy thing for the Committee to 
     have a rule that forces a vote.
       I understand your misperception given the fact that you may 
     not--and indeed have no reason to--be fully familiar with the 
     Judiciary Committee's rules, as you do not serve on the 
     Committee. But knowing you as a fair man, I thought my 
     explanation would help clear any misconceptions.
       It is unfortunate that I was forced to exercise the 
     Chairman's inherent power to force the Committee to act [last 
     Thursday]. I had given every fair consideration to my 
     Democratic colleagues for debating the nominations. The 
     nominees before the Committee were very well qualified, enjoy 
     home-state support (bipartisan, in the case of Bybee), and 
     were ultimately approved by substantial bipartisan majorities 
     of the Committee.
       I know it makes for popular speechmaking to accuse 
     politicians of abusing process and procedure. And as a former 
     Majority Leader of the body, you appreciate the difficult 
     decisions one must make in order to do the business of the 
     people and exercise our constitutional obligations, 
     particularly in the face of

[[Page 4955]]

     obstruction by a few. But you and I have worked well together 
     over the years, and I know that you would never make those 
     accusations about me unless you had somehow received 
     inaccurate information.
       Unfortunately, that is what seems to have occurred in this 
     case. I appreciate you and your consideration of this letter.
           Sincerely,
                                                   Orrin G. Hatch,
                                                         Chairman.

  That letter makes it very clear that not only were the rules not 
abused, there was an abuse by the other side in trying to not live up 
to the rule we have in the committee that any item on the agenda can be 
put over for a week, and that in the next week there is a vote on that 
item, unless the chairman and the ranking member agree. In this case, 
we not only put over Roberts and Cook for a week, we put them over for 
2 weeks, because my colleagues asked for it. I agreed to do that in 
deference to them.
  Then, when it came time to vote for them, I walked into the committee 
room and I was told by the ranking member that they weren't going to 
vote on Roberts and Cook that day. I said: Oh, no, we are going to vote 
on them because that is what we agreed to. We are going to vote on them 
because that is what the rules agree to. So I waited for all Senators 
to make their comments.
  We took 3 hours to hear rather long statements. I think we were very 
patient with those statements because at least one of them hardly 
talked about the nominees but talked about a whole raft of other issues 
involving the committee, which is a right of a Senator. Other Senators 
gave long statements on the nominees themselves, which was their right 
to do. But when the statements wound down and there were no further 
statements to be given, I said: We are going to vote. And that is when 
people got mad and demanded that we not vote.
  At that point, I had to make a decision as committee chairman--which 
is a legitimate decision--that we are going to vote, that filibusters 
are not proper in committee, and that we had people on both sides who 
were willing to vote for these nominees. We had people from the 
minority and from the majority. All three of them passed out with 
substantial votes. So there is hardly room here to criticize what was 
done. Any committee chairman worth his or her salt has to ultimately 
bring the matters before the committee to a vote. That is what I did. 
In the case of judicial nominations, I don't believe there should be 
filibusters under any circumstances against Presidential judicial 
nominees. I think they should be voted up or down--not only in 
committee but on the floor of the Senate as well.
  These are important positions. We should not treat them as though 
they are just regular legislative items that can be kicked around at 
will. These are important positions that literally must be given their 
chance for a vote. Not only were the rules followed, but we were very 
gracious and considerate in allowing my colleagues on the other side to 
make whatever statements they wanted to. I cannot say we have to do 
that every time. If people are going to come in and make hour-long 
statements in the future, and do it solely for the purpose of 
obstruction, then I think there comes a time when a chairman has to 
exercise his or her prerogative and call for a vote.
  If the Democrats don't like the nominees, they should vote them down. 
I hope the only negative votes will be those that were well considered, 
decent, honorable, by those who literally had good reason behind a 
negative vote. But even if they didn't have these good reasons, then 
they have a right to vote them down. Others have a right to vote them 
up. If a nominee passes, then the nominee should pass out of committee 
and come to the floor. Hopefully, we will have a debate for a 
reasonable length of time and we will vote on nominees, as we should, 
on the floor of the Senate.
  Let no one be deceived; the rules were followed. I chatted with the 
Parliamentarians beforehand to make sure I was on a good track here and 
that I was following the best standards of the Senate, even though I 
certainly had to put my foot down as the chairman. I acted in 
accordance thereto.
  With that, I understand the Senator from New York would like to make 
a statement.
  I yield the floor.


                   Unanimous Consent Request--S. 414

  Mrs. CLINTON. Mr. President, I ask unanimous consent that the Senate 
proceed to legislative session and begin the consideration of Calendar 
No. 21, S. 414, a bill to provide an economic stimulus package.
  The PRESIDING OFFICER. Is there objection?
  Mr. HATCH. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, it seems very interesting to me that this 
request would be made when our friends on the other side, last year, 
did not even pass a budget, for the first time since the Budget Act was 
enacted, and did not pass the appropriations bills, by and large.
  Mr. REID. Regular order, Mr. President.
  Mr. HATCH. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. CLINTON. Mr. President, I appreciate the remarks of my good 
friend from Utah. I do not agree with them, but he is always someone 
who is ready to express his heartfelt convictions about any matter. I 
believe, having now traveled and talked with and heard from so many of 
my constituents, that it is time for us to face the real issues that 
are on the minds of the American people.
  Obviously, we know Americans today are quite concerned and worried 
about the continuing defiance of the United Nations by Saddam Hussein 
and the amassing of 200,000 of our men and women in uniform in the gulf 
in the event the President must order military action to fulfill the 
requirements not only of Resolution 1441 but of all the resolutions 
that Saddam Hussein has defied for over a decade.
  I know many of the people I represent are deeply concerned that in 
the last week we have not been able to get any information from the 
administration about their projected costs of the military action 
should it occur in Iraq, and the follow-on costs that would be required 
for the pacification and rebuilding of Iraq, the efforts to try to 
create a set of conditions that could provide a better opportunity for 
a brighter future for the people of Iraq.
  Many of my constituents have said: Senator, how much is it going to 
cost? How long is it going to take? How many of our people will be put 
at risk? We do not know the answers. I think that is something on which 
we should be focused.
  Certainly, I hear quite a bit of concern about how well prepared we 
are to defend ourselves at home. Have we put the amount of resources 
strategically deployed on defense that we have done on offense? As many 
of my colleagues know, I have been coming to the Chamber now for, I 
guess, 16 months expressing my deep concerns that the answer to those 
questions is no; that we have not done for defense what we have done 
for offense.
  I am proud of the extraordinary capacity that our military has, by 
far the most ready, the most powerful in the history of the world. That 
is a great comfort and point of pride for every American.
  I was up at one of those facilities just today, the Watervliet 
Arsenal in Albany. It dates back to the War of 1812. It has been 
producing guns and tubes, mortars and tank equipment for decades. I am 
very proud it is in a State I represent that has such a tradition of 
patriotism where the Revolutionary War was largely fought and won.
  I am very grateful we have this level of commitment to our military, 
but I do not hear the same from our mayors, our police chiefs, and our 
fire chiefs, and I do not think we can honestly say we have done 
everything we need to do to provide for hometown security, to make sure 
we get the people on the streets we require.
  I met today with three mayors from cities I represent: Mayor Jerry 
Jennings from Albany, Tony Masiello from Buffalo, and Matt Driscoll 
from Syracuse. They came to talk about their

[[Page 4956]]

unmet needs. When the alert goes up and the phone calls start coming in 
and they are expected to respond, they are not given the tools and 
resources that high level of responsibility demands.
  I know we are in difficult economic times, but I do not think that 
can stand in the way of the Federal Government fulfilling its 
responsibility to the mayors, police chiefs, fire chiefs, emergency 
responders, hospital administrators, and others who make up our front 
line defense at home. In fact, I think it is imperative that we give 
the same attention to hometown security that we have been giving to 
national security because the two are absolutely inextricably linked.
  There is no front over there. We do not put people on boats, on troop 
ships, and send them off somewhere far away. We do not wave goodbye to 
them at airports as they travel halfway around the world to defend 
freedom and America's vital interests. When we see a police officer 
standing on the street, when we go by a firehouse, those are the 
frontline soldiers. Those are the people who have to respond to 
whatever happens.
  It has been troubling to me that this administration repeatedly has 
talked about the need for security but time and again has not been 
willing to give support with the dollars that are desperately required.
  I have spoken with people throughout my State. I want to take a 
moment to share the comments and concerns of just one of the cities and 
counties I represent. It happens to be the county in which I live, West 
Chester County in another community, the city of New Rochelle, with a 
very dedicated group of leaders, Mayor Idoni and others who are totally 
committed to building New Rochelle and protecting New Rochelle. They 
have gone to briefings and training sessions to find out what they need 
to do.

  Unfortunately, when I asked if their city had incurred any additional 
costs due to the recent code orange, this was their response:

       Unfortunately the city of New Rochelle is nowhere able to 
     prepare for or respond to homeland security alert level 
     orange than we are for alert green. Incurring personnel 
     expenses, i.e., overtime, is not fiscally possible. 
     Additionally, all that we would have accomplished would have 
     been to put more people on the street with limited training 
     and virtually no equipment.

  These words come from our frontline defenders. These are our 
generals, our colonels, and our captains. They are the people who are 
going to direct whatever response we need in the event of some kind of 
terrorist attack.
  Seventeen months have passed since that horrible day in September, 
and all the while the Federal Government has been asking our mayors to 
do more with less. According to the U.S. Conference of Mayors, cities 
have invested $2.6 billion of their own resources to protect our 
Nation.
  In November 2001, after visiting with the people in New York City, 
who know more about what is needed than literally anybody in our 
country, and going to Buffalo to meet with the mayor, police, fire 
officials there, I immediately called for $3.5 billion of direct 
funding for our first responders. I proposed the homeland security 
block grant in 2000 and 2002, and it was the first piece of legislation 
I filed again this year in 2003.
  Last week, the administration finally conceded what many of us, along 
with mayors, police commissioners, fire chiefs, emergency response 
teams, and others have been saying for the last 2 years: We need more 
resources at the local level to secure our homeland.
  In January, I released a report that showed how 70 percent of our 
local cities and counties had not received any Federal homeland 
security funding. I can go through chapter and verse talking about what 
each community has had to do.
  I recall a comment by the Director of the Office of Management and 
Budget who said in response to my criticism and others: There is not 
enough money in the galaxy to protect everyone and everybody.
  That may be objectively true, but I think we have to do more to try, 
and I sure think we have to recognize places of increased 
vulnerability, targets of opportunity.
  As we take great comfort in the capture of Khalid Sheik Mohammed in 
Pakistan, we cannot help but notice amongst the documents apparently 
recovered and the information that was used as a basis for this 
apprehension were concerns about additional attacks, I must say once 
again, focused primarily on New York City and Washington.
  I do not think for a minute these are the only targets in the United 
States. I do believe they are still the two most prominent areas of 
concern for us and, therefore, need more attention than most places do.
  Who would have guessed we would have found a terrorist cell in 
Lackawanna, NY, a few miles outside of downtown Buffalo? Who would have 
guessed that people accused of helping to finance terrorism would be 
arrested in Syracuse, NY? So we need a national plan for local 
response, and that is why on Friday I called for the establishment of a 
domestic defense fund within the Office of Domestic Preparedness in the 
Department of Homeland Security.
  Whether it is in New York City, where between February 7 through the 
20 the NYPD estimates it spent $1.1 million for personnel costs, or in 
Los Angeles where an additional $650,000 had to be used to put on 
personnel to search cars at the airport, or Wilmington, DE, which spent 
$25,000 a day for police overtime, we know these costs are building up. 
In this time of an ocean of red ink for our State and local budgets, 
there are no resources that can be dipped into to make up for these 
losses our cities and counties are experiencing.
  This domestic defense fund would provide direct funding for our local 
communities, for personnel costs, equipment, and other first responder 
needs. It would also include the covering of other emergency 
preparedness costs, whether it is high overtime costs as a result of 
code orange or extra security if there is a high profile trial like 
Zacarias Moussaoui, or to help local law enforcement cover the costs 
they incur if they arrest a sleeper cell such as they did in 
Lackawanna. We need to be ready to provide these additional funds.
  When the Presidents Day blizzard occurred up and down the east coast, 
cities and States knew that FEMA's disaster recovery fund was in place 
to help defray these costs. LIHEAP, the Low Income Heating Energy 
Assistance Program, is set up in the same spirit. When it gets colder 
and our citizens are at risk of exposure to dangerous temperatures, the 
Federal Government provides for home heating costs. Right now we have a 
national alert system and a local response system, but as the threat 
level approaches orange, our local governments have to dig deep to find 
the funds to respond. Therefore, we need to do better.
  Just as we have done for our men and women in uniform, we have to be 
willing to provide the funds our men and women on the front lines at 
home need and deserve.
  I understand the administration plans to come forward with a wartime 
supplemental appropriations bill. In the Senate, my colleagues and I 
will be pushing also for an emergency supplemental to address our unmet 
domestic security needs. That should include direct funding for local 
communities, and it should include the domestic defense fund.
  I do not see any way to avoid the necessity of providing the funds 
that are needed for our homeland-hometown security, and I hope this 
body, and our colleagues across the Capitol, as well as the 
administration, will cross party lines and in a bipartisan manner make 
sure we do everything possible to prepare. We can always hope for the 
best, but we have to prepare for the worst, and that means we have to 
pay attention to what we are being told by local first responders. They 
are the experts. They know what they need. We have to stand ready to 
assist them, and I hope as we move forward over the next month we will 
do that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.

[[Page 4957]]


  Mr. HATCH. Mr. President, I have enjoyed my colleague's remarks, and 
although we have our differences on some of them, I appreciate her 
diligence and effort. I have a lot of respect for her.
  I will say that continually asking to go off the Estrada matter for 
other matters really concerns me, because I think it is a failure to 
recognize that this is one of the most important nominees and one of 
the most important positions in the country. There is one way to get 
off of this nomination, and that is to vote up or down, instead of 
filibustering. Do what has always been done in the past in these 
matters and bring this issue to a vote. Then we can go to these 
important economic matters and other matters as well.
  I have been concerned, because I remember when the minority leader 
and the minority whip came on the floor last week and basically said: 
Why are we not on economic issues?
  I did get very upset because I thought that is nice for them to say 
that, but they were not even willing to do a budget last year because 
it takes a lot of guts to do a budget. We always did. Last year was the 
first time in the history of the Budget Act that the majority party 
refused to do a budget. We know why. Because they made a lot of cheap 
shots against us when we had to make those tough decisions on the 
budget. Then all of a sudden they found they were in a position where 
shots could be taken against them, cheap or otherwise, and they were 
not able to get together on their side because they had so many 
factions on their side that did not agree.
  So it is easy to criticize, but you better have a better standing to 
criticize than what I think they have.
  Also, the reason we had to have this omnibus appropriations bill 
after the first of the year is because our colleagues on the other side 
could not pass the appropriations bills. We did it in a matter of weeks 
after we came into power this year. I think that is something the 
Republicans deserve a great deal of credit for. Our colleagues on the 
other side deserve some criticism for it.

                          ____________________