[Congressional Record (Bound Edition), Volume 149 (2003), Part 8]
[Senate]
[Pages 10990-10991]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. DASCHLE. Mr. President, I came to the floor earlier today to 
respond to the distinguished majority leader. I just had the 
opportunity to hear the President's remarks with regard to judicial 
nominations. I felt it was important to come back to the floor for just 
a couple of minutes to respond and to make sure the American people are 
clear and the record is clear with regard to judicial nominations and 
what I would view to be the rest of the story.
  The rest of the story can be found on three charts. We have heard a 
lot this morning about the intransigence of the Senate, about how much 
the Senate is in crisis because we haven't confirmed nominations; about 
how the system is broken. In South Dakota, we like to say, If it ain't 
broke, don't fix it.
  I have three charts to prove that it ``ain't broke.'' One-hundred and 
twenty-four is the first chart. One-hundred and twenty-four judicial 
nominees have been confirmed in this administration. That is a record. 
There is no administration we can find that has had a better record 
than this. One-hundred and twenty-four circuit and district court 
nominees have been confirmed since this President has taken office. 
Here is the number that have not: That is right--2; 124 to 2.
  We have done a little math. Here is the third chart. That is a 98.4-
percent approval rate. I don't know of a business, or a sports figure, 
or a politician who gets 98.4 percent of what they ask. But that is the 
record. That is exactly the success level of this administration when 
it comes to judicial nominees--98.4 percent.
  ``If it ain't broke, don't fix it.''
  I find it particularly interesting that over the course of the 8 
years of the Clinton administration, we had 50 judicial nominations 
that didn't get a hearing.

[[Page 10991]]

  You talk about a filibuster. What about the fact that a person can't 
even get a hearing in the committee? Ten judicial nominees got a 
hearing but no vote. Sixty-five nominees never got to the Senate floor 
over the course of 8 years during the 1990s. I will tell you that there 
was no 98.4-percent approval rate then. But that is the record.
  To reiterate--just to be sure everybody understands, I will do this 
one more time--one-hundred and twenty-four nominees were confirmed in 
2\1/2\ years, circuit and district court nominees approved in the 
Senate--a record. Two nominees have not: Mr. Estrada because he has 
refused to fill out his job application, and Ms. Owen in large measure 
because she puts her own views ahead of the law. Those are the two.
  One-hundred and twenty-four to two, that comes out to 98.4 percent of 
all Bush nominees confirmed to date.
  I will end where I began. ``If it ain't broke, don't fix it''.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Kyl). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Mr. President, we are dealing with the energy bill on the 
floor of the Senate, and specifically we are considering an amendment 
that has been offered dealing with renewable fuels, or ethanol. I want 
to talk a bit about that subject, but I think it is important that 
perhaps I first comment on the discussion just preceding when Senator 
Daschle came to the floor to talk about judgeships.
  Let me reiterate for a moment something that I think is very 
important for people to understand. I know the majority leader and the 
President today have talked about some collapse in the system and some 
great concern about the fact that judges aren't getting confirmed.
  Let's understand something. We have the lowest number of vacancies on 
the Federal bench we have had in a decade and a half. Why is that the 
case? It is because we have been approving nominations sent to this 
Senate by the President day after day--124 of them. I voted for all but 
3 of them--124.
  The reason the majority leader and others say the system has 
collapsed is that there are two nominees who haven't gotten through the 
Senate. They are upset about that. Well, there is nothing in the U.S. 
Constitution that says there is a requirement for the Senate to be a 
rubberstamp for any President, Republican or Democrat. The fact is that 
most of President Bush's nominees are going to be approved by the 
Senate--and have been, 98.4 percent. If the President sends us a 
nominee who aspires to be put on the Federal circuit court for an 
entire lifetime and that nominee says, You have no right to the 
information you requested from me, then I say you have no right to 
expect that the Senate will approve you for a lifetime appointment on 
the Federal bench.
  Mr. Estrada has been told that he is to provide information to the 
Senate in order that we may evaluate it.
  He has been unwilling to do that. So has the Bush administration. In 
fact, until Mr. Estrada provides that information to the Senate, he is 
not going to get a final vote on his nomination. If he decides never to 
provide that information to the Senate, in my judgment, he is not going 
to be a circuit court judge; the Senate is not going to approve his 
nomination.
  Let's understand the facts. There is a lot of hyperbole used here in 
politics. The facts are these: This Senate has done a masterful job, in 
my judgment, of moving through the nominations sent to us by President 
Bush. Day after day and time after time, we have done that. In my 
State, we had two judgeships open. Both Federal judgeships were filled 
by Republicans nominated by President Bush--one in Fargo and one in 
Bismarck. I am a Democrat, but I was proud to support both of the 
nominees. I came to the floor and spoke in support of both Republican 
nominees, who I think will make outstanding Federal judges. They are 
now both on the bench.
  That is the way the system should work, and it is the way it has 
worked in almost every circumstance--except for two. Because of those 
two, we have the majority leader and the President of the United States 
say the sky is falling. Nonsense, what sheer, utter nonsense. The sky 
is not falling.
  What has happened is, we have a couple of nominees with whom this 
Senate has decided it does not want to proceed--until we get certain 
information from Mr. Estrada; and the other nomination, Judge Owen, was 
turned down last year by the Senate Judiciary Committee.
  I wish to make this point: I know these days, with the 24/7 news 
cycle, there are some who believe if you say something and it gets 
repeated often enough--over and over and over again--that it will 
become fact. Well, it is not a fact for the President, and it is not a 
fact for the majority leader, to be able to say to the American people 
that we are somehow obstructing the nominations of Federal judges. That 
is simply not the case. It is demonstrably not the case, and there 
isn't any way they can make that case because the record is clear and 
the facts are in: 124 Federal judges have been confirmed, 125 if you 
consider the other judge which is a special judgeship for a 15-year 
appointment, but out of those 124, 125, all but 2 have moved here in 
the Senate.
  I do not know of another time when the minority has been as 
cooperative and done as much to make sure we have filled these 
judgeships. In fact, when President Bush took office, and going back a 
year and a half ago, when my colleague, Senator Leahy, inherited the 
chairmanship of the Judiciary Committee, we had a substantial number of 
openings on the Federal bench that had not been resolved and that had 
not been filled, and we have now moved very quickly, with the 
President, to resolve that, and we have the lowest number of vacancies 
on the Federal bench for the past decade and a half.
  Let me be clear that there is not a circumstance here where there has 
been obstruction in the Senate. We have approved most of this 
President's nominees, and likely will continue to do so; and I will 
likely continue to vote for nearly all of them. But there will be 
circumstances in which a specific nominee will not get through this 
Senate for a number of reasons, and when that is the case, it is not 
appropriate and not factual for someone to get on a microphone and tell 
us: The sky is falling. That is total, sheer nonsense.

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