[Congressional Record (Bound Edition), Volume 149 (2003), Part 8]
[Senate]
[Pages 10805-10811]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

                                 ______
                                 

  NOMINATION OF PRISCILLA RICHMAN OWEN, OF TEXAS, TO BE UNITED STATES 
              CIRCUIT JUDGE FOR THE FIFTH CIRCUIT--Resumed

  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. There will be a cloture vote on the Estrada 
nomination at 1:45.
  Mr. LEAHY. I thank the distinguished occupant of the Chair.
  Mr. President, it is unfortunate, I believe--and I say this as one 
who has been here with six different Presidential administrations of 
both parties--that rather than work with the Senate and Senators from 
both parties to identify consensus nominees who would get the 
overwhelming bipartisan support of the Senate for prompt confirmation, 
the administration seems to insist only on partisanship and strong-arm 
tactics.
  Rather than ideological court packing and political intimidation on 
which the other side is insistent, I continue to urge the 
administration to work with us to take the appointment of Federal 
judges out of politics. If we do that, we can ensure the independence 
and fairness of the Federal judiciary.
  Everybody, whether they are Republican or Democrat, has a stake in 
having an independent Federal judiciary. None of us want this country--
which is rightly praised for having the most independent Federal 
judiciary in the world--none of us want to see it become a partisan 
judiciary.
  Now, today we are going to be asked to vote on two cloture motions--
one on the Estrada nomination and one on the Owen nomination. I think 
the last time the Senate was called upon to vote on two cloture motions 
for nominations on the same day was when Republicans were filibustering 
the nominations of Richard Paez and Marsha Berzon in the year 2000. 
Three years ago, numerous Republicans voted against cloture on those 
nominees, even though Judge Paez had been pending for more than 4 
years. +
  I worry that the Republicans spend all this time talking about how we 
are blocking judges. As a matter of fact, we are not. Out of 125 
judicial nominees the Senate has considered, we have confirmed 123 of 
them. We have held up two. Two out of 125 is not bad. In fact, 
President Clinton would have loved to have had that kind of a record 
when he was President, but the Republicans stopped more than 50 of his 
judges--not merely two as we are asking to be reconsidered. They 
blocked 50.
  Under Republican control, there were not a whole lot of votes on the 
floor. Basically, they had a routine that if one Republican Senator 
objected, then the nominee never got a hearing and never got a vote. 
The Republicans never faced having to debate the nominees on the floor. 
The nominees were just never given a hearing in committee. They were 
never given a vote on the floor.
  We had several Senators, many serving now, who just refused to return 
their blue slips. In fact, we had a definite rule by the chairman of 
the Judiciary Committee at the time that said that if you had a 
Senator, for example, from the home State who objected, that person 
would not go forward.
  We had this once where the Senator from North Carolina objected to a 
circuit court judge, so, of course, we never had a hearing or a vote on 
that nominee. The Senator from Texas objected to several courts of 
appeals nominees. Distinguished Hispanic nominees were never given a 
hearing and never given a vote, because, as the chairman said, if both 
Senators from the State objected, of course, you could not go forward.
  I know the Republicans now intend to go forward with at least one 
judge where both Senators from that State object--apparently it makes a 
difference who is President. When they blocked 50 or 60, some by a one-
person objection, that was considered following the constitutional 
responsibility of advice and consent. When we ask to hold up two of the 
most controversial, divisive nominees--2 out of 125 nominations--we are 
suddenly obstructionists. But 50 or 60 on the other side is ``good 
government.''
  Now, a lot of us have worked hard to repair the damage done during 
that time, from 1995 through the early part of 2001. But again, I find, 
unlike the other administrations I have served with here--President 
Ford, President Carter, President Reagan, former President Bush, 
President Clinton; all Presidents who would work with Senators of both 
parties to try to get a consensus on their nominees--this White House 
shows no interest in that.
  There has been little acknowledgment of our efforts. The current 
administration continues down the strident path of confrontation and 
court packing rather than working with Senators. Well, court packing 
and politicizing of the Federal judiciary should never be allowed under 
any President.
  One of my heroes is Franklin Roosevelt. When Franklin Roosevelt tried 
to pack the courts, tried to politicize the appellate courts, the 
Senate stopped him. And the Senate should always do that--no matter who 
the President is.
  I am not concerned that the President nominates conservative 
Republicans--and I voted for hundreds of them over the years--but I am 
not going to vote for somebody who seems to be nominated solely for the 
purpose of politicizing the Federal bench.
  When I was chairman of the committee, we worked hard to hold hearings 
and confirm nominees, in order to lower the number of vacancies--which 
had increased because of the refusal of Republicans to allow many 
nominations to go forward during the Clinton years. We had a very high 
number of vacancies. After I became chairman, we cut that number of 
vacancies virtually in half. Now the vacancy rate is down to about 5\1/
2\ percent.
  Now, people seem to talk about two judges not going forward, two 
judges for well-paid lifetime jobs. I wish, having gotten the judiciary 
vacancy rate down to 5\1/2\ percent, we would look at the fact that the 
Nation's unemployment rate is 6 percent. The number of private-sector 
jobs lost since the beginning of the Bush administration is 2.7 
million. Almost 9 million Americans are now out of work. Unemployment 
has risen by more than 45 percent.
  The Democrats in the Senate have moved forward to confirm 123 of this 
President's judicial nominees. But the Republican-led Senate seems 
obsessed with trying to force through the most divisive of this 
President's controversial, ideologically chosen nominees.
  During the Clinton administration, President Clinton's administration

[[Page 10806]]

added a million people--a million new jobs--every year. We are losing 
well over a million jobs a year since this administration came in.
  I would suggest that if they really want to find some way to fix the 
unemployment, don't talk about two people getting extremely high-paying 
lifetime jobs, talk about the 9 million or so out of work.
  What bothers me in the Estrada matter, is that the administration and 
the Republican leadership have shown no willingness to be reasonable to 
accommodate the Democratic Senators' request for additional information 
as shared with the Senate by past administrations. We have endured 
numerous cloture votes as an indication of Republican intransigence in 
this matter. It is nothing more.
  What bothers me, again, is that there has been no effort--no effort 
made, as there always has been in past administrations--to work through 
these matters. It just does not happen.
  I mention this more in sadness than anything else. But it is almost 
as though this administration plays by different rules than any other.
  I suggest to the administration, they were not given a mandate to 
politicize our Federal judiciary.
  They were not given a mandate for court packing. They were not given 
a mandate to take the independent Federal judiciary and turn it into a 
very narrow branch of the narrowest part of the Republican Party. 
Nobody is given such a mandate. Just as Franklin Roosevelt found when 
he wanted to pack the courts from the liberal side and the Senate said 
no, by the same token, President Bush has to be told no now that he 
wants to pack the courts on the other side. We do not want a political 
bench. Anyone ought to be able to come into a court and say, it makes 
no difference whether I am Republican, Democrat, rich, poor, White, 
Black, Independent, no matter what my background, I will be treated 
fairly by that judge.
  This is the standard I have always held for the judiciary and for 
each judge--fairness. I voted for hundreds of Republicans. I voted for 
them in every single State of the Nation. But I am not going to vote 
for people who seem to be sent there simply to politicize and polarize 
the Federal courts.
  When I was chairman, I moved faster on nominations of President Bush 
than the Republican Party ever did on nominations of President Clinton. 
I stopped the anonymous holds. Dozens upon dozens of President 
Clinton's nominations were held up by a single Republican putting an 
anonymous hold. I did away with that when I was chairman. We brought 
people up, we had hearings, and we voted. As I said before, it is, of 
course, a fact that we have confirmed 123 of the President's nominees.
  We hear all of a sudden that this is so unprecedented. Yes, it is 
unprecedented. We have held up two. They held up 60. Maybe it is 
unprecedented that we did not do the same thing.
  I believe filibusters should be rare. I said on the floor that I was 
opposed to them but that statement has now been taken out of context by 
some on the other side of the aisle. If you read the whole quote, you 
will see that I was referring to a filibuster by anonymous hold, 
something I did stop when I became chairman. But the administration 
holds the key to the Estrada nomination. If they want to make it go 
forward, we could.
  Today the Republican leadership is insisting on two more cloture 
votes on the Estrada and Owen nominations. These will be the sixth vote 
on a cloture petition on the Estrada nomination and the second on the 
Owen nomination. The last time the Senate was called upon to vote on 
two clotures for nominations that I can recall is when Republicans were 
filibustering the nominations of Richard Paez and Marsha Berzon in 
2000. Three years ago today, on March 8, 2000, numerous Republicans 
voted against cloture on those nominees, respectively, even though 
Judge Paez' nomination had been pending for more than four years at 
that point. Those Republican Senators included nine who are still 
serving today, including majority leader Bill Frist and Senators 
Allard, Brownback, Bunning, Craig, DeWine, Enzi, Inhofe, and Shelby, as 
well as Senators Gramm, Helms, Hutchinson, Murkowski, and Smith, who 
led the filibuster of these two nominees. In fact, after Republicans 
failed to keep cloture from being invoked, Senator Sessions moved to 
indefinitely postpone the Paez nominations, and 31 Republicans voted in 
favor of that motion to stop a vote on Paez's nomination to the Ninth 
Circuit. Those Republican Senators included 22 who still serve in the 
Senate, including majority leader Frist as well as Senators Allard, 
Bond, Brownback, Burns, Cochran, Craig, Crapo, DeWine, Fitzgerald, 
Grassley, Gregg, Inhofe, Kyl, Lott, McConnell, Nickles, Santorum, 
Sessions, Shelby, Thomas, and Warner.
  Since July 2001, a number of us have worked very hard to repair the 
damage done during the years 1995 through the early part of 2001. We 
have made significant progress. Unfortunately our efforts have received 
little acknowledgment and the current administration continues down the 
strident path of confrontation and court packing rather than working 
with Senators of both parties to identify and nominate consensus, 
mainstream nominees.
  While the Nation's unemployment rate rose last month to 6 percent, 
the vacancy rate on the Federal judiciary has been lowered to 5.45 
percent. While the number of private sector jobs lost since the 
beginning of the Bush administration is 2.7 million, almost 9 million 
Americans are now out of work, and unemployment has risen by more than 
45 percent, Democrats in the Senate have moved forward to confirm 123 
of this President's judicial nominees, reduced judicial vacancies to 
the lowest level in two decades, by almost 60 percent. Yet the 
Republican-led Senate remains obsessed with seeking to force through 
the most divisive of this President's controversial, ideologically-
chosen nominees.
  The President promised to be a uniter not a divider, but he has 
continued to send us judicial nominees that divide our Nation and, in 
the case of Miguel Estrada, he has even managed to divide Hispanics 
across the country. The nomination and confirmation process begins with 
the President, and I urge him to work with us to find a way forward to 
unite, instead of divide, the nation on these issues.
  Republican talking points will likely focus on the impasse on two of 
the most extreme of the President's nominations rather than the 123 
confirmations and the lowest judicial vacancy rate in 13 years. They 
will ignore their own recent filibusters against President Clinton's 
executive and judicial nominees in so doing.
  What is unprecedented about the Estrada matter is that the 
administration and Republican leadership have shown no willingness to 
be reasonable and accommodate Democratic Senators' request for 
information traditionally shared with the Senate by past 
administrations. That we have endured numerous cloture votes is an 
indictment of Republican intransigence on this matter, nothing more. 
What is unprecedented is that there has been no effort on the 
Republican side to work this matter out, as these matters have always 
been worked out in the past. What is unprecedented is the Republican 
insistence to schedule cloture vote after cloture vote without first 
resolving the underlying problem caused by the administration's 
inflexibility.
  What is unprecedented about the Owen nomination is that it was made 
at all. Judge Owen had a fair hearing and was given fair and extensive 
consideration before the Judiciary Committee last year. We proceeded is 
spite of the fact that the Republican majority had refused to proceed 
with any of President Clinton's Fifth Circuit nominees during his last 
four-year term. Never before in our history has a President renominated 
for the same vacancy someone voted down by the Judiciary Committee, but 
that is what this President proceeded to do with this divisive and 
controversial nominee.
  Senator Hatch used to say, when President Clinton was nominating 
moderates to more than 100 vacancies on our Federal courts, that there 
was no vacancy crisis. He used to say that he considered 67 vacancies 
to be ``full employment'' on the Federal judiciary.

[[Page 10807]]

Today we are well short of 100 vacancies and well beyond what he used 
to term ``full employment'' with 47 vacancies. The committee continues 
to report nominations to fill additional vacancies, as well.
  From 1995 through the summer of 2001, the Republican majority 
averaged only 38 confirmations a year with only seven to the Courts of 
Appeals. That explains why Federal judicial vacancies rose from 63 to 
110 on the Republican watch and circuit vacancies more than doubled 
from 16 to 33. Of course, during those years there were no Republican-
led hearings calling for prompt action or fair consideration of 
President Clinton's moderate judicial nominees. To the contrary, 
Senator Ashcroft held hearings designed to justify the slowdown. 
Senator Ashcroft and others perfected the practice of using anonymous 
holds both in committee and on the floor so that judicial nominees were 
stalled for months and years without consideration. Scores of nominees 
never received hearings, at least 10 who received hearings never 
received committee consideration and those who were ultimately 
considered often were delayed months and years through holds and 
filibusters.
  Beginning in July 2001, Democrats started bringing accountability and 
openness to the process. In the 17 months of the Democratic Senate 
majority we held more hearings on more judicial nominees, more 
committee votes and more Senate votes than before. We were able 
virtually to double the pace and productivity of the process. We did 
away with the secrecy of the ``blue slip'' and the anonymous hold. We 
considered President Bush's nominees fairly, responsibly and in those 
17 months confirmed 100 of this President's nominees. We reversed the 
destructive trends with respect to the numbers of vacancies and length 
of time that nominees had to wait to be considered. While we could not 
consider all nominations simultaneously, we considered more, more 
quickly than in the preceding years. The Democratic majority inherited 
110 judicial vacancies including a record 33 to the circuit courts. By 
December 2002, we were able, through hard work to outpace the 40 
additional vacancies that had arisen and reduce the remaining vacancies 
to 60, including 25 to the circuit courts. We have continued to 
cooperate and today the remaining vacancies number 47, including 20 on 
the circuit courts. This is the lowest vacancy number and lowest 
vacancy rate in 13 years.
  This is not to say that our work is done. Last week, with the help 
and hard work of the Senate leadership we were able to make additional 
progress. Last Wednesday, majority leader Frist used the word 
``progress'' to describe how we have been able to resolve complications 
caused by the manner in which nominations were forced through the 
Judiciary Committee early this year. Last Thursday, I thanked the 
majority leader and the Democratic leader and others for their efforts 
in this regard and for working with us to bring the nomination of Judge 
Edward Prado to a vote without further, unnecessary delay.
  This Tuesday the Senate debated and voted on the nomination of 
Deborah Cook to the Sixth Circuit. She is the fourth nominee of 
President Bush to be confirmed to the Sixth Circuit in less than two 
years. During the entire second term of President Clinton, the 
Republican majority would not hold hearings or consider a single one of 
President Clinton's nominees to the Sixth Circuit--not Judge Helene 
White, not Kathleen McCree Lewis, not Professor Kent Markus. 
Nonetheless, while I was chair of the Judiciary Committee we proceeded 
to consider and confirm two conservative nominees of President Bush to 
the Sixth Circuit and this year the Senate has proceeded to confirm two 
more.
  The work of the Senate would be more productive if this 
administration were more interested in filling vacancies with 
qualified, consensus nominees rather than packing the Federal courts 
with activist judges. The nominations and confirmation process begins 
with the President. Far from being someone who has sought consensus and 
unity on judicial nominees, this President has used judicial nominees 
as a partisan weapon and sought sharply to tilt the courts 
ideologically. That is unfortunate. Some of us have urged another 
course, a course of cooperation and conciliation, but that is not the 
path this administration has chosen. Yet, in spite of the historically 
low level of cooperation from the White House, the Senate has already 
confirmed 123 of President Bush's judicial nominees, including some of 
the most divisive and controversial sent by any President.
  Last week the Senate proceeded to a vote on the nomination of Jeffrey 
Sutton to the Sixth Circuit. He received the fewest number of favorable 
votes of any nominee in almost 20 years with 52. He is the third 
controversial judicial nominee of this President against whom more than 
40 negative votes were cast, yet those three nominees were not stalled 
and not subjected to a filibuster.
  In just the last 2 years, 123 of the President's judicial nominees 
have been confirmed. One hundred of those confirmations came during the 
17 months of Democratic leadership of the Senate. No fair-minded 
observer could term that obstructionism. By contrast, during the 6\1/2\ 
years during which Republicans controlled the Senate and President 
Clinton's nominations were being considered, they averaged only 38 
confirmations a year. During the last 2 years of the Clinton 
administration, the Senate confirmed only 73 Federal judges. Combining 
the 1996 and 1997 sessions, Republicans in the Senate allowed only 53 
judges to be confirmed in 2 years, including only 7 new judges to the 
circuit courts. One entire congressional session, the Republican-led 
Senate confirmed only 17 judges all year and none at all to the circuit 
courts. The Senate confirmed 72 judges nominated by President Bush last 
year alone under Democratic leadership.
  By Republican standards, the 123 judges confirmed so far is more than 
they averaged for President Clinton over 3 years. If the Senate shut 
down today and did not consider another judicial nominee we would have 
already exceeded the total needed to best Republican efforts over an 
entire 3-year period. At the present rate, President Bush would not 
just exceed the number of judges appointed by prior presidents, he 
would shatter all appointment records.
  This year, in spite of the lack of cooperation by the administration 
and the overbearing exercise of power by the majority, we have 
cooperated with committee action on 26 judicial nominees during the 
first 3 months of this year. We have proceeded in the Senate to vote on 
the confirmations of 23 judicial nominees this year, including four 
extremely controversial nominees to the circuit courts, which makes 123 
of this President's judges confirmed overall. That compares most 
favorably to how Republicans treated President Clinton's nominees. In 
the 1996 session, for example, the Senate did not confirm a single 
circuit judge all year and confirmed only 17 judges that entire year. 
In 1999, the third year of that Presidential term, and in 1997, the 
Senate did not reach the level we have already attained until October. 
We are well ahead of the pace in every year in which Republicans were 
obstructing consideration of President Clinton's nominees.
  A good way to see how much faster this chairman is processing 
nominations for a Republican President is to compare this year's pace 
to a comparable year in the last Democratic administration. In 1997, 
when Bill Clinton was President, the Republican-controlled Judiciary 
Committee was just holding its second judicial nominations hearing of 
the year--compared to the ninth hearing that we held this week and was 
considering its first two circuit court nominees of the year--rather 
than its tenth. This chairman has moved five times more quickly for 
President Bush's circuit court nominees than for President Clinton's, 
and vacancies in the courts are nearly half of what they were in 1997. 
Even more noteworthy, by this point in 1999, the third year of the last 
presidential term, the committee had not held or scheduled a single 
judicial nominations hearing. In fact, no hearing for a judicial 
nominee was held until June of that year.

[[Page 10808]]

  The fact is that when Democrats became the Senate majority in the 
summer of 2001, we inherited 110 judicial vacancies. Over the next 17 
months, despite constant criticism from the administration, the Senate 
proceeded to confirm 100 of President Bush's nominees, including 
several who were divisive and controversial, several who had mixed peer 
review ratings from the ABA and at least one who had been rated not 
qualified. Despite the additional 40 vacancies that arose, we reduced 
judicial vacancies to 60, a level below that termed ``full employment'' 
on the Federal judiciary by Senator Hatch.
  During the 17 months I chaired the Judiciary Committee, I worked hard 
to ensure that women and minorities were considered for the federal 
bench, and I am proud of that record. Many Hispanics and women 
nominated by President Clinton were blocked or delayed by the 
Republican majority, and I did not want to see that repeated.
  Fine nominees such as Christine Arguello, Jorge Rangel, Enrique 
Moreno and Ricardo Morado and dozens of other Clinton nominees were 
never allowed hearings by Republicans, and others, such as Bonnie 
Campbell and Anabelle Rodriguez, received hearings but no votes in 
Committee. Others, including Judge Richard Paez, Judge Hilda Tagle, 
Judge Sonia Sotomayor, and Judge Rosemary Barkett, and dozens of other 
Clinton nominees were stalled for no good reason. Many of Clinton's 
nominees were not confirmed the first Congress they were nominated, 
including Judge Paez, who waited 1,520 days to be confirmed, as well as 
Judge Tagle, who waited 943 days to be confirmed. Cloture was also 
sought to bring the nominations of Judge Paez and Judge Barkett and 
others to vote, although scores of others were never allowed hearings 
due to secret Republican holds.
  I am proud that did not happen on my watch. I am glad to say that we 
quickly considered and confirmed nominees such as Christina Armijo to 
the District Court in New Mexico, Philip Martinez and Randy Crane to 
the District Courts in Texas, Jose Martinez to the District Court in 
Florida, Alia Ludlum to the District Court in Texas, and Jose Linares 
to the District Court in New Jersey. In addition, this year we have 
pressed for expedited consideration of Judge Prado of Texas to the 
Fifth Circuit, as well as Judge Otero of California and Judge Altonaga 
of Florida to the Federal district courts. This week the Committee 
included Judge Consuelo Callahan of California in a hearing and I 
expect her nomination to the Ninth Circuit to be confirmed promptly 
with strong Democratic support, as well.
  The Senate has this week reduced the number of Federal judicial 
vacancies to the lowest level it has been in 13 years. The 110 
vacancies I inherited in the summer of 2001, vacancies that rose by 65 
percent under Senate Republican control, have been more than cut in 
half. In the 17 months I chaired the Judiciary Committee we not only 
kept up with extraordinary attrition in the form of an additional 40 
vacancies, but reduced all those vacancies from the 160 there would 
have been had we done nothing, down to 60 by last December. Senator 
Hatch used to argue when President Clinton was in office that 67 
vacancies on the Federal courts amounted to ``full employment''. We 
reached Senator Hatch's standard for a full Federal bench during the 17 
months in which the Democrats led the Senate.
  We have continued our efforts this year and this week we reached the 
lowest level of judicial vacancies in 13 years--the lowest level since 
judgeships were significantly expanded in 1990. We now are working to 
reduce the remaining 47 vacancies even further.
  Since the beginning of this year, in spite of the fixation of the 
Republican majority on the President's most controversial nominations, 
we have worked hard to reduce judicial vacancies even further. As of 
today, the number of judicial vacancies is at 47. That is the lowest it 
has been in two decades. That is lower than it ever was allowed to go 
at any time during the entire eight years of the Clinton 
administration. We have reduced the vacancy rate from 12.8 percent to 
5.45 percent, the lowest it has been since 1990. With some cooperation 
from the administration think of the additional progress we could be 
making.
  Our Senate leadership, both Republican and Democratic, have worked to 
correct some of the problems that arose from some of the earlier 
hearings and actions of the Judiciary Committee this year. Last week we 
were able to hold a hearing on the nomination of John Roberts to the 
District of Columbia Circuit. We are all working hard to complete 
Committee consideration of that nomination at the earliest opportunity. 
Thus, a number of additional, controversial nominations are in the 
process of being considered and will be considered by the Senate in due 
course.
  My point is to underscore that we have made and are making real 
progress from the thoroughgoing obstruction from 1996 until 2001. While 
``the glass is not full,'' it is more full than empty and more has been 
achieved than some want to acknowledge. One hundred and twenty-three 
lifetime confirmations in less than two years is better than any 2-year 
period from 1995 through 2000. We have reduced judicial vacancies to 
47, which is the lowest number and lowest vacancy percentage in 13 
years. During the entire 8-year term of President Clinton it was never 
allowed by Republicans to get that low. We have made tremendous 
progress. These achievements have not been easy.
  The administration has chosen confrontation with the Congress, with 
the Senate and with this committee. We are now proceeding at three to 
four times the pace Republicans maintained in reviewing President 
Clinton's judicial nominees. We have reached the point where the 
Judiciary Committee and the Senate are often moving too fast on some 
nominations and we risk becoming a racing conveyor belt that rubber 
stamps rather than examines these lifetime appointments. Democrats have 
worked hard to repair the damage to the confirmation process and 
achieved significant results. Republicans seem merely results oriented 
and interested in ideological domination of the Federal courts.
  As Republicans turn their sights on the propriety of the filibuster 
in connection with judicial nominations and speculate about changing 
the rules and suing the Senate, I trust the Republican majority will 
not overlook the precedent on this question. Republicans not only 
joined in the filibuster of Abe Fortas to be Chief Justice of the 
United States Supreme Court, they organized the filibuster of Stephen 
Breyer to the 1st Circuit, Judge Rosemary Barkett to the 11th Circuit, 
Judge H. Lee Sarokin to the 3rd Circuit, and Judge Richard Paez and 
Judge Marsha Berzon to the 9th Circuit. The truth is that filibusters 
on nominations and legislative matters and extended debate on judicial 
nominations, including circuit court nominations, have become more and 
more common on the initiative of Republicans working against Democratic 
nominees. Now that a Republican President, intent on packing the courts 
with ideologues, has seen two nominees delayed by filibusters, and even 
though the other 123 judges he nominated have been confirmed, partisans 
want to change the rules to make it easier for this President to get 
his way.
  Of course, when they are in the majority Republicans have more 
successfully defeated nominees of a Democratic President by refusing to 
proceed on them and have not publicly explained their actions, 
preferring to act in secret under the cloak of anonymity. From 1995 
through 2001, when Republicans previously controlled the Senate 
majority, Republican efforts to defeat President Clinton's judicial 
nominees most often took place through inaction and anonymous holds for 
which no Republican Senator could be held accountable. Republicans held 
up almost 80 judicial nominees who were not acted upon during the 
Congress in which President Clinton first nominated them and eventually 
defeated more than 50 judicial nominees without a recorded Senate vote 
of any kind, just by refusing to proceed with

[[Page 10809]]

hearings and Committee votes. These are just the sorts of stealth 
tactics Democrats have rejected.
  Beyond judicial nominees, Republicans also filibustered the 
nomination of executive branch nominees. They successfully filibustered 
the nomination of Dr. Henry Foster to become Surgeon General of the 
United States in spite of two cloture votes in 1995. Dr. David 
Satcher's subsequent nomination to be Surgeon General also required 
cloture but he was successfully confirmed.
  Other executive branch nominees who were filibustered by Republicans 
included Walter Dellinger's nomination to be Assistant Attorney 
General. Two cloture petitions were required to be filed on that 
nomination and both were rejected by Republicans. We were able finally 
to obtain a confirmation vote for Professor Walter Dellinger after 
significant efforts and he was confirmed to be Assistant Attorney 
General with 34 votes against him. He was never confirmed to his 
position as Solicitor General because Republicans had made clear their 
opposition to him. In addition, in 1993, Republicans objected to a 
number of State Department nominations and even the nomination of Janet 
Napolitano to serve as the U.S. Attorney for Arizona, resulting in more 
cloture petitions. In 1994, Republicans successfully filibustered the 
nomination of Sam Brown to be an Ambassador. After three cloture 
petitions were filed, his nomination was returned to President Clinton 
without Senate action. Also in 1994, two cloture petitions were 
required to get a vote on the nomination of Derek Shearer to be an 
Ambassador. And it likewise took two cloture petitions to get a vote on 
the nomination of Ricki Tigert to chair the FDIC. So when Republican 
Senators now talk about the Senate Executive Calendar and presidential 
nominees, they must be reminded that they recently filibustered many, 
many qualified nominees.
  Filibusters should be and are rare. That there are two this year is a 
direct result of the strategy of confrontation sought by the White 
House and Senate Republicans. The administration holds the key to 
ending the Estrada impasse, as it has for the last year. It should 
cooperate with the Senate and provide access to his work papers, 
following the example set by all previous Republican and Democratic 
administrations.
  The renomination of Judge Owen was most ill-advised and 
unprecedented. Her nomination had already been rejected after fair 
hearings and thorough debate and a committee vote last year. Some 
apparently want to rewrite the rules so that this President can have 
every nominee confirmed, no matter how divisive and controversial, by 
the Republican Senate majority.
  Recently, I heard a respected Republican and senior advisor to the 
majority leader describe cloture as ``the fulcrum on which you balance 
the rights of the individual and the rights of the institution.'' He 
explained how important the rights of the minority party are in the 
Senate and how Senate rules are deliberately constructed to reflect 
that and protect the minority. That Republicans are now intent on 
rewriting longstanding Senate rules shows just how partisan and ends-
oriented they have become.
  The President promised to be a uniter not a divider, but he has 
continued to send us judicial nominees that divide our nation. He has 
even managed to divide Hispanics across the country with the nomination 
of Mr. Estrada. He has managed to outrage disabled individuals by his 
nomination of Jeffrey Sutton. The nomination and confirmation process 
begins with the President. I, again, urge him to work with us to 
identify and nominate qualified, consensus, mainstream nominees who all 
Americans can be confident will be fair and impartial and to abandon 
his ideological court packing scheme.
  Just yesterday an editorial appeared in the Rutland Herald noting: 
``[P]acking the court with right-wing ideologues is a program that 
Democrats may legitimately question. The Senate is required to consent 
to the president's judicial nominees because of the checks and balances 
created by the Constitution to restrain presidential power. The right 
wing now chafes under that restraint, but [Senators] have every reason 
to stand firm in order to bring balance to the judiciary.'' I ask 
unanimous consent that the full editorial be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Rutland Herald, May 7, 2003]

       A Senate Judiciary subcommittee held a hearing Tuesday to 
     highlight what Republicans claim is an abuse of the Senate 
     rules by Democrats seeking to hold up President Bush's 
     judicial nominees.
       The subcommittee hearing was described by one Democratic 
     aide as a ``dog and pony show.'' It is part of the 
     ideological warfare unleashed by the right wing to intimidate 
     and destroy its opposition. The Republicans' complaint abouut 
     Democratic obstructionism with regard to judicial nominees 
     makes a villain out of Sen. Patrick Leahy, but their case is 
     bogus and based on a foundation of hypocrisy.
       The Democrats have kindled Republican wrath because the 
     Democrats have had the temerity to block two nominees. Two. 
     In the meantime, the Senate has confirmed 123 Bush nominees. 
     The vacancy rate in the judiciary is at a 13-year low. When 
     the Democrats took control of the Senate in 2001, the 
     Republicans had left open 111 judicial vacancies. Now there 
     are 43.
       Members of the judiciary have remarked on how the Bush 
     administration has staffed the Justice Department with 
     fiercely uncompromising ideologues intent, not just on 
     dealing with the opposition, but on destroying it. How else 
     can one account for the war declared by Republicans over two 
     judicial nominees who failed to pass muster?
       The subcommittee hearing is ostensibly meant to examine the 
     question of whether the Democrats' use of the filibuster to 
     block judicial nominees is constitutional. The filibuster is 
     a delaying tactic in which one side refuses to end debate on 
     a particular question. According to Senate rules, the Senate 
     can end a filibuster with 60 out of 100 votes. Certainly, the 
     filibuster is anti-majoritarian, but over the years it has 
     been used effectively by both Republicans and Democrats.
       Now that the Democrats have shown they are adept at using 
     the filibuster, the Republicans have begun to froth that it 
     is unconstitutional. They are even claiming there is some 
     kind of exception to the filibuster rule for judicial 
     nominees, though it is a claim without any basis in law that 
     the Republicans would quickly abandon as soon as they found 
     themselves in the minority.
       It is hard to defend the filibuster as a democratic method. 
     But for the Republicans suddenly to wax indignant about the 
     filibuster now that it has been turned against them is 
     hypocrisy enough to shock and awe. From 1995 to 2000 
     Republicans blocked one-third of President Clinton's judicial 
     nominees by a variety of methods that were as anti-
     majoritarian as the filibuster, including the failure of the 
     Judiciary Committee even to schedule hearings and including 
     the secret hold, by which a senator can block a nominee 
     merely on his or her say-so.
       If anger and self-righteousness signify the rightness of 
     one's cause, the Republicans are making a good show of it. 
     But packing the court with right-wing ideologues is a program 
     that Democrats may legitimately question. The Senate is 
     required to consent to the president's judicial nominees 
     because of the checks and balances created by the 
     Constitution to restrain presidential power. The right wing 
     now chafes under that restraint, but Leahy and his allies 
     have every reason to stand firm in order to bring balance to 
     the judiciary.

  Mr. LEAHY. The vote is scheduled for what time?
  The PRESIDING OFFICER. The time for the vote is 1:45.
  Mr. LEAHY. Have we reached that time?
  The PRESIDING OFFICER. We have about a minute and a half.
  Mr. LEAHY. I can understand the confusion. We seem to have a number 
of clocks facing different places.
  I tell the distinguished occupant of the chair that I have been 
around here long enough to recall a time when we were going to end at a 
certain time in a very late session, and the time stood still. We were 
very close to finishing. I think the time we had to finish was at 
midnight. I remember the clock getting all the way up there to 3 
minutes to midnight. For the next hour, the clock was there at 3 
minutes to midnight. Suddenly we worked out the last thing, the clock 
magically sprung forward--not totally magically, somebody pulled it 
forward. We were at midnight and, with a sigh of relief, we went out. 
Now I believe we are at the time.
  I yield the floor.
  Mr. HATCH. Mr. President, tomorrow is the 9th of May, which marks the 
beginning of the third year that the

[[Page 10810]]

nominations of Miguel Estrada to the DC Circuit and Priscilla Owen to 
the Fifth Circuit have been sitting in the Senate. This truly is not a 
good record for the Senate.
  On May 9, 2001, the President sent to the Senate 11 nominations, 
including those of Miguel Estrada and Priscilla Owen. I regret that a 
minority of Senators in this body continue to deny a final vote on the 
confirmation of these nominees. It is troubling that we have not yet 
been able to confirm these nominees who now are facing unprecedented 
filibusters in the Senate.
  Let me again quote a recent editorial, published in the Atlanta 
Journal-Constitution, which discusses the filibusters of Priscilla Owen 
and Miguel Estrada, noting ``the first time simultaneous filibusters 
against judicial nominees have occurred in the U.S. Senate.'' The 
editorial continues:

       Both Owen and Estrada are superbly qualified in every 
     respect. Yet on Owen, those who complain that a ``glass 
     ceiling'' exists for women of achievement are busily 
     constructing one to keep her in her place. And those who 
     complain that the federal bench lacks ``diversity'' find 
     Estrada to be too much diversity for their taste. He is 
     considered to be a conservative, and the interest groups that 
     drive the Democratic Party nationally fear Owen is, too, at 
     least on their abortion litmus test.
       The fear with Owen and Estrada is that one or both will be 
     nominated to the U.S. Supreme Court should a vacancy occur. 
     Senate Democrats are determined to keep off the Circuit Court 
     bench any perceived conservative who has the credentials to 
     serve on the U.S. Supreme Court.

  As the editorial points out, some Senate Democrats appear willing to 
use whatever obstructionist tactics it takes, based on any convenient 
rationale, to defeat the President's nominees. While the rationales may 
be different, the motivation in both cases is the same--it is to block 
this Senate from expressing the will of the majority with regard to 
these nominations.
  I have already pointed out the double standard being applied against 
Miguel Estrada and Priscilla Owen. However, it may be more than a so-
called double standard. I am beginning to conclude that no standards 
are being applied, only political tactics. This game plan of delay and 
obstructionism that some Democratic Senators are following is no longer 
surprising, but it is getting somewhat contradictory. In the case of 
Mr. Estrada, Democrats say they can't vote for the nominee because they 
don't know enough about him. They allege he didn't answer their 
questions and therefore they must have Department of Justice 
confidential memoranda he wrote while he was a line attorney in the 
Solicitor General's office.
  There are no such claims about Justice Owen. Democrat opponents admit 
they know enough about her, that she did answer the questions, and that 
she has a record they can review. There are no phony excuses. They 
simply oppose her on philosophical grounds namely, her interpretation 
of the Texas parental notification statute that applies to minor girls 
seeking an abortion.
  We hear over and over that Justice Owen is a controversial or 
extremist nominee. Those seem to be the standard shorthand descriptions 
of a nominee who doesn't toe the line drawn by the abortion-rights and 
trial lawyer interest groups.
  In truth, Justice Owen is a consensus nominee. A bipartisan majority 
of the Senate supports her confirmation. The American Bar Association 
has awarded her a unanimous well qualified rating, their highest 
rating, and the gold standard formerly used by many of my Democratic 
colleagues. She is a well educated, highly experienced, and respected 
jurist.
  Now, some critics of Justice Owen have fixated on a few rulings made 
by Justice Owen in some parental notification cases and allege that she 
is out of the mainstream on her court or that she is a regular 
dissenter in such cases. The facts show Justice Owen has been well 
within the mainstream of her court in the 14 decided notification cases 
in Texas, joining the majority judgment in 11 of those cases. The fact 
of the matter is that the liberal interest groups will find any excuse 
to employ an abortion litmus test, and they have used it with reckless 
abandon against Justice Owen, but that doesn't change the facts. In 
fact, we don't even know Justice Owen's views on abortion and it is 
improper to make assumptions.
  Justice Owen has done what a nominee must do--commit to following the 
law, including Roe v. Wade. And that is all we ask of nominees.
  Turning to Mr. Estrada, the real rationale for opposing him has 
nothing to do with access to confidential Justice Department documents. 
It has nothing to do with allegations that Mr. Estrada did not answer 
the questions. But it has everything to do with attempts to prevent a 
Republican President from appointing the first Hispanic to the DC 
Circuit.
  What the filibusters of Miguel Estrada and Priscilla Owen have in 
common is that they are preventing well qualified nominees from getting 
an up or down vote before the full Senate. They are tyranny of the 
minority at its worst. It is unfortunate that we must have these 
cloture votes at the end of this 2-year period since the nomination of 
Mr. Estrada and Justice Owen. There is simply no good reason to 
continue them. It is long past time for an up or down. I urge my 
colleagues to vote for cloture.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 21, the nomination of Miguel A. Estrada to be 
     United States Circuit Judge for the District of Columbia 
     Circuit.
         Bill Frist, Orrin Hatch, Judd Gregg, Norm Coleman, John 
           E. Sununu, John Cornyn, Larry E. Craig, Saxby 
           Chambliss, Lisa Murkowski, Jim Talent, Olympia Snowe, 
           Mike DeWine, Michael B. Enzi, Lindsey Graham, Jeff 
           Sessions, Wayne Allard, Mike Capo.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Miguel A. Estrada to be United States Circuit Judge for 
the District of Columbia Circuit shall be brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Alaska (Ms. 
Murkowski) is necessarily absent.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) and the Senator from Connecticut (Mr. Lieberman) are 
necessarily absent.
  The PRESIDING OFFICER (Mr. Alexander). Are there any other Senators 
in the Chamber desiring to vote?
  The yeas and nays resulted--yeas 54, nays 43, as follows:

                      [Rollcall Vote No. 143 Ex.]

                                YEAS--54

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Nelson (FL)
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--3

     Kennedy
     Lieberman
     Murkowski
  The PRESIDING OFFICER. On this vote, the yeas are 54, the nays are 
43.

[[Page 10811]]

 Three-fifths of the Senators duly chosen and sworn not having voted in 
the affirmative, the motion is rejected.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the cloture motion 
having been presented under rule XXII, the Chair directs the clerk to 
read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 86, the nomination of Priscilla R. Owen of Texas 
     to be United States Circuit Judge for the Fifth Circuit.
         Bill Frist, Orrin Hatch, John Cornyn, Michael B. Enzi, 
           Jim Talent, Judd Gregg, Jeff Sessions, Wayne Allard, 
           Mike Crapo, Thad Cochran, Mitch McConnell, Susan 
           Collins, Don Nickles, George Allen, Kay Bailey 
           Hutchison, Gordon H. Smith, John Warner.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Priscilla Richman Owen to be United States Circuit Judge 
for the Fifth Circuit shall be brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Alaska (Ms. 
Murkowski) is necessarily absent.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) and the Senator from Connecticut (Mr. Lieberman) are 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 52, nay 45, as follows:

                      [Rollcall Vote No. 144 Ex.]

                                YEAS--52

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--45

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--3

     Kennedy
     Lieberman
     Murkowski
  The PRESIDING OFFICER. On this vote the yeas are 52, the nays are 45. 
Three-fifths of the Senators duly chosen and sworn not having voted in 
the affirmative, the motion is rejected.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I ask unanimous consent the Senate now 
stand in recess until 3:20 p.m.
  Mr. CARPER. Reserving the right to object, if the Senator will defer 
for just a moment? I ask unanimous consent to make a brief statement, 
maybe 1 minute.
  Mr. HATCH. Of course.


                            Vote Explanation

  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, early this morning the train I was 
traveling on from Wilmington to Washington experienced mechanical 
difficulties causing us to arrive at Union Station more than one-half 
hour late. As a result, I missed maybe my second or third vote in the 
U.S. Senate. I missed the vote on the Resolution of Ratification of the 
NATO expansion treaty. Had I been here I would have voted yes.
  I ask unanimous consent the Record reflect my reasons for missing the 
vote and how I would have voted had I been here.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________