[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 5525-5526]
[From the U.S. Government Publishing Office, www.gpo.gov]




 SENATE CONFIRMATION OF ADDITIONAL PRESIDENTIAL EXECUTIVE AND JUDICIAL 
                              NOMINATIONS

  Mr. LEAHY. Mr. President, today we have proceeded with the 
President's nominations to the U.S. Parole Commission, among others. 
These individuals were the selections of the White House without 
consultation with the Democratic leader or with me or other Democratic 
Senators interested in these matters. We have proceeded on the 
President's nominees expeditiously and in good faith trusting that the 
White House will follow through expeditiously to nominate those members 
to the U.S. Parole Commission that the Democratic leader is 
recommending to fill the seats allocated to Democrats on what should be 
a bipartisan commission.
  This President has too often in the past proceeded unilaterally on 
what have traditionally been bipartisan boards and commissions. Last 
year the White House caused significant problems for all nominations 
when it failed to follow through in a timely way on a commitment made 
to Senator McCain. That led to objections and cloture votes being 
required on a series of the President's judicial nominations and 
unnecessary delays with respect to both judicial and executive 
nominations because of objections from the Republican side.
  With respect to all nominations, I urge the President to begin to 
work with us. Just as this White House has failed to work with Senate 
Democrats on judicial nominees, it has often failed to work with us on 
nominations to bipartisan boards and commissions. We would appreciate 
this White House beginning to work with us rather than dictate to us.
  Just this week Thomas E. Mann, a distinguished scholar and senior 
fellow in governance studies at The Brookings Institution, wrote a 
column about the deteriorating relations between the White House and 
the Congress with respect to the nomination and confirmation process. 
While I do not agree with all of his observations, I note that he 
correctly observed that after the President's campaign as a uniter not 
a divider, we did expect more cooperation. And after the attack of 
September 11, when Democrats sought to close ranks and forego 
partisanship, we were disappointed by the continuing partisanship of 
the White House. Mr. Mann wrote: ``After the 2000 election and then 
again after Sept. 11, 2001, Democrats expected something akin to a 
government of national unity. Instead, they encountered a president who 
seemed determined to wage institutional, ideological and partisan 
war.''
  Mr. Mann concluded by suggesting: ``The only way to break this cycle 
of escalation is for Bush to take pre-emptive action by submitting a 
more balanced ticket of judicial nominees and engaging in genuine 
negotiations and compromise with both parties in Congress.'' I agree, 
that would be a useful development. I add that it would be long 
overdue.
  Today, on the day the Senate has moved off the Estrada nomination 
because of the lack of cooperation by the administration, the Senate is 
with the consent of every Democratic Senators agreeing to the 
confirmation of another judicial nominee, the 104th for this President, 
and several executive branch nominees.
  I ask consent to print Thomas E. Mann's column in the Record.
       There being no objection, the material was ordered to be 
     printed in the Record, as follows:

                   [From the RollCall, Mar. 5, 2003]

                             Guest Observer

                          (by Thomas E. Mann)


         Estrada Caught in ``Poisonous War'' Based on Ideology

       The extended Senate debate on the nomination of Miguel 
     Estrada to the U.S. Court of Appeals for the D.C. Circuit has 
     generated pitched battles between party activists around the 
     country and increasingly shrill commentary from pundits. Some 
     claim we are on the verge of a constitutional coup that 
     effectively nullifies a president's power over judicial 
     appointments. Others respond that we are witnessing a 
     legitimate effort by the Senate minority to prevent the 
     packing of the federal judiciary with right-wing jurists.
       How unprecedented is the tactic embraced by Senate 
     Democrats? What accounts for the partisan struggle now 
     playing out on the Senate floor? Is there any way out?
       Filibusters have been a prominent feature of the Senate 
     since the early 19th century. While the constitutional 
     framers built no supermajority requirements for the passage 
     of legislation or the confirmation of appointees, the early 
     Senate, unlike the House, did away with its motion on the 
     previous question that would have allowed a majority to cut 
     off debate and proceed with a vote. As a consequence, for 
     virtually all of their chamber's history Senators have been 
     able to postpone or prevent floor action by talking at 
     length.
       Under pressure from President Woodrow Wilson, the Senate 
     adopted a cloture provision in its rules that allowed a 
     supermajority to cut off debate. For much of the 20th century 
     the filibuster was mostly reserved for issues of great 
     national moment. In the past several decades, the Senate has 
     seen the routinization of the filibuster, to the point where 
     it is commonly accepted by both parties that with limited 
     exceptions, 60 votes are needed to pass controversial 
     matters. Some exceptions are built into the rules. The budget 
     process provides for limited debate on budget resolutions and 
     reconciliation bills, thereby empowering a majority of 
     Senators. Other exceptions flow from informal understandings 
     or norms. One of those norms is that the minority party does 
     not use extended debate to kill judicial nominations favored 
     by a majority of Senators.
       During periods of divided party government, the Senate 
     majority can frustrate the president's ability to fill 
     judicial vacancies simply by refusing to schedule committee 
     hearings or votes on nominees. Between 1995 and 2000, roughly 
     a third of President Bill Clinton's circuit court appointees 
     were killed in this manner by the Republican majority, 
     holding open judgeships that President Bush now seeks to 
     fill. The Democrats responded in kind to a number of 
     President Bush's nominees during their brief time in the 
     majority.
       The crunch comes when one party controls both the White 
     House and Senate. Minority Members can try to delay action on 
     judicial nominees with holds and procedural moves in 
     committee. But their doomsday weapon is the filibuster. The 
     norms of the Senate mitigate against firing that weapon as 
     part of an explicit party strategy. Nonetheless, groups of 
     Senators have engaged in extended floor debate to try to 
     defeat judicial nominations. More than a dozen cloture 
     motions were filed to end filibusters on judicial nominations 
     between 1980 and 2000. But only one judicial nominee was 
     successfully blocked by a filibuster. In 1968 Republicans and 
     Southern

[[Page 5526]]

     Democrats used a filibuster to defeat President Lyndon 
     Johnson's effort to elevate Justice Abe Fortas to chief 
     justice.
       So the Senate Democrats' resort to a filibuster on the 
     Estrada nomination is not unprecedented but it is highly 
     unusual and extreme by Senate conventions. It is the latest 
     escalation in what has been an intensifying ``War of the 
     Roses'' between the parties in Washington. Earlier episodes 
     included divisive battles over the Supreme Court nominations 
     of Robert Bork and Clarence Thomas; the winter 1995-96 budget 
     fights that led to government shutdowns; and the long-running 
     independent counsel investigations of Clinton, leading to his 
     impeachment by the Republican House.
       That war is partly a consequence of razor-thin majorities 
     in the Congress, the increasing ideological polarization 
     between the parties, and the extension of the permanent 
     campaign to the Congress. It has intensified as a result of 
     the circumstances and leadership style of George W. Bush's 
     presidency.
       Bush was elected in 2000 in the closest and arguably most 
     controversial presidential election in U.S. history. He lost 
     the popular vote but won a bare majority of the electoral 
     vote thanks to flawed ballot designs in two Florida counties 
     and to an audacious 5-4 Supreme Court decision to halt a 
     statewide recount.
       Yet he has governed with great ambition and confidence, 
     asserting presidential prerogatives and advancing a bold 
     conservative agenda through policy proposals and nominations. 
     He has played hardball with Democrats, in D.C. and on the 
     2002 campaign trail, while providing regular sustenance to 
     his conservative base. After the 2000 election and then again 
     after Sept. 11, 2001, Democrats expected something akin to a 
     government of national unity. Instead, they encountered a 
     president who seemed determined to wage institutional, 
     ideological and partisan war. They have decided to 
     reciprocate. The atmosphere is poisonous. Miguel Estrada is 
     now a part of that war.
       The only way to break this cycle of escalation is for Bush 
     to take pre-emptive action by submitting a more balanced 
     ticket of judicial nominees and engaging in genuine 
     negotiation and compromise with both parties in Congress. 
     That seems most unlikely.

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