[Congressional Record (Bound Edition), Volume 149 (2003), Part 9]
[Senate]
[Pages 12079-12082]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      PROPOSED SENATE RULES CHANGE

  Mr. LEAHY. Mr. President, Republican partisans are acting as if 
Senate Democrats were treating President Bush's judicial nominees the 
way Republicans treated President Clinton's. That is not the case. We 
have worked hard to repair much of the damage of Republican 
mistreatment of President Clinton's nominees. When we led the Senate we 
moved forward at twice the rate that Republicans had and during our 
leadership 100 of President Bush's judicial nominees were confirmed. 
This year we have proceeded to consider and confirm another 25 lifetime 
judicial appointments. I would understand the partisanship if Democrats 
had held up consideration of 125 judicial nominees and the Senate had 
only confirmed two, but just the opposite is true.
  I understand the frustration that Senator Frist feels regarding the 
continuing impasse over the nominations of Mr. Estrada and Judge Owen. 
I am sorry that the White House has chosen confrontation over 
cooperation with the Senate on these matters. It is too bad that this 
White House will not work with us, as Senator Bennett and others have 
indicated was reasonable, in order to provide access to the materials 
we requested from Mr. Estrada and the Justice Department one year ago 
today. With respect to the renomination of Judge Owen, I have said that 
unprecedented renomination of a judicial nominee rejected after a 
hearing and a fair debate and vote before the Judiciary Committee was 
ill advised. It remains so.
  Along with the other members of the Judiciary Committee, I have voted 
on the Estrada and Owen nominations. We have not taken the course of 
prior Republican leadership in which any Senator was allowed to block 
President Clinton's judicial nominees by use of a secret, anonymous 
hold. Instead, Democrats acted over the last few years to reform the 
confirmation process. We have added openness and accountability. What 
we have not been able to do is obtain a fair level of consultation and 
cooperation from this White House. We made home State Senators' ``blue 
slips'' matters of public record. When Republican Senators stymied 
Judiciary Committee consideration of President Clinton's judicial 
nominations, they were permitted to do so under the cloak of 
confidentiality. I changed that in 2001.
  The Republican myth of a ``crisis'' in the Senate is punctured by the 
facts, which show the lowest judicial vacancy rate in 13 years--lower 
than the national jobless rate of 6 percent.
  Court-packing by Presidents of either party is harmful, and I have 
spoken out often about the need to preserve the independence of our 
Federal judiciary. The world's emerging democracies envy the judicial 
independence in the American system, and we should make every effort to 
defend it, not to undermine it, as the escalating tactics of this 
administration would do. Just last month the administration and 
congressional Republicans turned a deaf ear when Chief Justice 
Rehnquist warned against the assault on the independence of the 
judiciary when so-called sentencing ``reforms'' were tacked on to a 
popular bill without hearings or careful consideration.
  The White House says it opposes judicial activism, but the President 
sends the Senate activist nominees. The White House itself pushes 
results-oriented changes in the rules of the Senate, which is a 
separate branch of Government. This White House is not satisfied with 
its subjugation of the House and Senate to its will and removing 
Congress as a check on the Executive. They also want to pack the 
independent Federal courts. Republicans are not satisfied with means 
undermining the independence of the Senate, they are embarked on a 
course to undermine the independence of the Federal judiciary, as well. 
They already have convinced Senate Republicans to bend and even break 
the Judiciary Committee's rules in the handling of judicial nominees. 
Now they want to change the rules of the Senate itself in a raw bid for 
unitary government, directed by the White House. The American people 
and their representatives in the Senate should not let the Senate or 
the Federal judiciary become mere arms of any political party or any 
President.
  The President's charges about obstruction would be easier to 
understand if the numbers themselves did not disprove them. The 
President and some Republicans in the Senate seem to be suffering from 
confirmation amnesia. The Democratic-led Senate confirmed 100 of his 
judicial nominees, acting far faster than Republicans did with 
President Clinton's nominees. We have confirmed another 24 this year 
for a total so far of 125 and achieved the lowest judicial vacancy rate 
in 13 years. The vacancy rate on the Federal bench today is 5.3 
percent, which is lower than the national jobless rate of 6 percent. 
Unemployment has soared, the deficit has soared, crime is on the rise 
for the first time in a decade--about the only thing that has gone down 
significantly over the last 2 years is Federal judicial vacancies. Yet 
the White House complains that it has not been able to bully the Senate 
into rubber-stamping every one of the White House's ideological 
choices. Democratic Senators have cooperated to improve the process so 
that it has worked much more smoothly for President Bush's nominees 
than Republicans allowed for President Clinton's nominees.
  The fact is that 125 have been confirmed, and two have been held 
back.

[[Page 12080]]

You would not know that by listening to the President's remarks last 
Friday or to Republican talking points or various attack ads now being 
broadcast around the country in a partisan effort to intimidate 
Senators.
  Democrats held hearings on more nominees faster than Republicans had 
and proceeded on controversial nominations. We have cooperated this 
year in bringing many controversial nominations to the floor for votes. 
When Republicans controlled the Senate during the last Democratic 
administration, they blocked more than 60 judicial nominees. And they 
were blocked not with cloture votes in the light of day, but sometimes 
by a single, anonymous Republican objection. And yes, there were also 
Republican filibusters of President Clinton's nominees.
  The answer for handling the remaining controversial nominees is not 
reckless rhetoric or undermining the Senate's independence by changing 
its rules so that the independence of the Federal judiciary can become 
a victim to partisan court-packing. The answer has to start with the 
President, where the process begins. Despite his earlier promises, the 
President has been a divider and not a uniter in choosing many of his 
nominees, who would roll back the hard-won rights of workers, women, 
minorities and consumers, and who would side with the big polluters 
over communities when it comes to clean air and water. Several of his 
choices have divided the American people, and they have divided the 
Senate. We have drawn a line with a few of his most extreme choices. 
Drawing that line has been the responsible response to this President's 
divisive nominations for lifetime positions on the Federal courts.
  This President campaigned saying he wanted to change the tone in 
Washington. He has--for the worse. The White House has adopted the 
rabid partisanship of House Republicans. The President of the United 
States has sunk to name-calling, extreme rhetoric and partisan 
campaigning against the Senate and individual Senators, which is not 
helpful to the process or to the institutions of our government.
  The answer is for the administration to work with the Senate, as 
earlier Presidents have done. The process starts with the President, 
and the buck stops with the President.
  Here on the Senate floor, when Senators have opposed the most 
divisive of the President's nominees with whom he is seeking to pack 
the courts and ideologically tilt them, we have done so on the record. 
We have debated and put forth the considerations and reasons. That, 
too, was something all too often missing from the years in which 
Republicans defeated judicial nominees through stealth tactics. We have 
voted on the record in vote after vote required by Republican cloture 
petitions.
  Unfortunately, in the case of Mr. Estrada, the administration has 
made no effort to work with us and resolve the impasse. Instead, there 
has been a series of votes on cloture petitions in which the opposition 
has grown and from time to time the support has waned. Recently, there 
have been press reports indicating that Mr. Estrada had asked the White 
House months ago to withdraw his nomination. I understand his 
frustration. If this administration is not going to follow the practice 
of every other administration and share with the Senate the government 
work papers of the nominee--the very practice this administration 
followed with an EPA nominee in 2001--then I can understand him not 
wanting to be used as a political pawn by the administration to score 
partisan, political points. That the administration has not acceded to 
his reported request but has plowed ahead to force a succession of 
unsuccessful cloture votes and to foment division in our Hispanic 
community for partisan gain is another example of how far this 
administration is willing to go to politicize the process at the 
expense of its own nominees.
  The frustration with these two difficult nominations should not 
obscure the work that the Senate leadership has done to correct some of 
the abuses of power earlier this year and pave the way for votes on the 
nominations of Jeffrey Sutton and Judge Cook to the Sixth Circuit and 
John Roberts to the DC Circuit. There were more votes against the 
Sutton nomination than the number required for a filibuster, but there 
was no filibuster of that nomination. Just as there was no filibuster 
of the controversial nomination of Mr. Tymkovich to the Tenth Circuit 
or of the controversial nomination of Judge Dennis Shedd to the Fourth 
Circuit. All three of these circuit court nominations were 
controversial and opposed by many Americans and many Senators.
  The President's recent comments took the Republican Chairman of the 
Judiciary Committee to task for, among other things, not holding a 
hearing on the nomination of Judge Terry Boyle. I understand that 
Chairman Hatch is following a longstanding tradition of the Senate in 
not proceeding with a nomination that is opposed by a home State 
Senator. After all, it was Senator Helms' opposition to Judge Beaty and 
Judge Wynn, as well as to Roger Gregory and a number of others, that 
has led to there being numerous vacancies on the Fourth Circuit. Having 
honored Senator Helms' objections, Chairman Hatch would be seen as 
hypocritical and partisan if he were to ignore the concerns of 
Democratic home State Senators. Among the difficulties the chairman of 
the Judiciary Committee has faced since 2001 are the high number of 
judicial nominees of this White House that do not have home State 
Senator support. So when the President attacks the Senate for not 
having acted on nominations that the White House knows does not have 
the support of home State Senators, he is not being fair to the Senate, 
to the chairman or to the nominees. The White House knows that judicial 
nominations do not proceed without the support of home State Senators. 
Yet this administration continues to belittle the role of home State 
Senators in the advice and consent process and ignore the important 
role they have long played in Senate consideration of judicial 
nominees.
  Another example is the nomination of Judge Carolyn Kuhl to the Ninth 
Circuit. This is a nomination that is opposed by both home State 
Senators. Proceeding on such a nomination is unprecedented. Yet Senate 
Republicans have forced the nomination out of the Judiciary Committee 
on a party-line vote after knowing that Senator Feinstein and Senator 
Boxer both oppose confirmation.
  The last time the Senate voted on a nomination opposed by both home 
State Senators was only because the Republican caucus ambushed the 
nomination of Judge Ronnie White of Missouri on the Senate floor in 
1999 after one of the Missouri Senators switched from supporting the 
nomination to opposing it the day of the vote. They proceeded without 
telling the administration, Senate Democrats or the nominee of the 
change of position and a number of Republican Senators who had 
previously voted in favor of the nomination changed their positions, as 
well, and the nomination was defeated on the only party-line vote to 
defeat a judicial nominee in Senate history of which I am aware.
  With respect to Senator Frist's resolution, S. Res. 138, I look 
forward to the work of the Rules Committee on this proposal. Initially, 
I would observe that voting on judicial nominations is unlike Senate 
consideration of legislation in the way that imposing capital 
punishment is unlike any other criminal sentence. It is final and 
irrevocable. A bad statute once enacted can be amended or repealed. A 
bad judge is on the bench for life and will continue to affect 
American's rights, our freedoms and our environment in case after case 
for decades to come, long after the President who appointed that judge 
is gone. Given that dimension, I believe Senator Frist got his proposal 
upside down by seeking to exempt judicial nominations from Senate 
debate rules. It is more important that there be a higher level of 
confidence and certainty that a judicial nomination being considered 
for a lifetime appointment be the right person for the job, be a person 
of fairness, impartiality, judgment and someone committed to our 
constitutional values. The rights of

[[Page 12081]]

women, minorities, consumers, workers and those concerned about the 
environment should not be sacrificed to political expediency and the 
independence of our federal courts should not be lost to ideological 
court packing by this administration.
  Others will no doubt point out that Senator Frist voted against a 
proposal in 1995 to revise the Senate filibuster rules. I have pointed 
out in other statements how many Republicans supported the filibusters 
against President Clinton's executive calendar nominees, including the 
judicial nominations of Judge Marsha Berzon and Judge Richard Paez, the 
last most recent double filibuster in 2000, and the nominations of 
Judge Rosemary Barkett and Judge H. Lee Sarokin. In addition, recent 
Republican filibusters succeeded in defeating the nominations of Dr. 
Henry Foster to be Surgeon General and Sam Brown to be an ambassador. 
Republicans have not been shy about using filibusters to defeat the 
nominees of the most recent Democratic President or stall legislation 
some of them oppose. Just last year, in their tributes to Senator 
Thurmond, Republicans extolled his use of the filibuster and his 
setting a record for the longest individual filibuster in Senate 
history. What they left out of their tributes was the fact that Senator 
Thurmond had filibustered civil rights legislation.
  Others may also point out how many Republicans have proposed 
supermajority requirements. Not only have Republicans abandoned their 
commitment to fiscal responsibility and their call for a balanced 
budget, they have forgotten that they insisted in recent years on 
three-fifths requirements to raise the debt ceiling or have taxes apply 
retroactively. Senator Craig and Senator Miller currently support a 
proposal, S.J. Res. 2, to require a balanced Federal budget that 
includes a three-fifths rollcall vote of each chamber to increase the 
debt limit. Last year Senator Sessions introduced a measure, S.J. Res. 
11, cosponsored by Senators Crapo, Kyl, Fitzgerald, Hagel, Inhofe and 
Shelby to require a two-thirds vote of each House in order to increase 
any tax. Of course, in the 105th Congress, along with former Senators 
Ashcroft and Abraham, who are now Cabinet secretaries in this 
administration, Senators Allard, Bennett, Bond, Brownback, Burns, 
Campbell, Cochran, Collins, Craig, DeWine, Domenici, Enzi, Frist, 
Grassley, Gregg, Hagel, Hutchison, Inhofe, Kyl, Lott, Lugar, McCain, 
McConnell, Nickles, Roberts, Santorum, Sessions, Shelby, Smith, Snowe, 
Specter, Stevens, Thomas and Warner all cosponsored S.J. Res. 1 which 
would have required a three-fifths majority requirement to raise the 
debt ceiling.
  The Senate was not designed by the founders or the Constitution to be 
a strictly majoritarian institution. To the contrary, the genius of the 
Framers at the Constitutional Convention was to construct a House of 
Representatives, structured on majoritarian principles with 
representatives voting on behalf of relatively equal numbers of 
constituents, and the Senate using different principles. The Senate has 
always had two Senators for each State regardless of size. Thus, small 
States like Vermont and Rhode Island and less populous States like 
Wyoming, Idaho and Alaska each have equal representation with 
California, Texas and New York. The Senate and the House are not the 
same and were not intended to be the same. They were designed to be 
complimentary institutions of government to form a balanced 
legislature. I understand why proposals like S. Res. 138 might appeal 
to newer Republican Senators and to former House Members who are now 
Republican in the Senate but I fear it would represent another ill-
advised step to change the Senate into a second House of 
Representatives. The Constitution did not assign the advice and consent 
role to the House but to our distinctive body, the Senate. The Senate 
has many distinctive traditions including, to me, one of the most 
significant--that smaller States have a larger role to play in the 
Senate than in the House.
  It is a bit ironic, to say the least, that an administration that was 
selected with less popular vote than the Democratic Presidential 
candidate because of a court decision and the workings of the electoral 
college is now pressing so vociferously to change the Senate rules and 
allow judicial and executive branch confirmations approved by the 
barest of ``majorities''--of only those Senators present and voting at 
the time the Republican Senate majority chooses to call the vote.
  In addition, given the Senate's structure, the administration's 
pretense that somehow the votes of a majority of Senators shows that a 
majority of Americans favor a nomination may not be factually accurate. 
For example, Senate Republicans have complained bitterly and 
resentfully about the Senate's failure to end debate on the nomination 
of Judge Owen. But the Senators who have voted to end debate represent 
less than 50 percent of the population of the United States and the 
Senators who have voted not to end that debate represent the majority 
of the American population. Now, put that way, the decision of the 
Senate on this controversial nominee hardly seem anti-democratic.
  I respect the role of the Senate and the ways in which it has 
traditionally functioned on behalf of the American people. Any rule or 
practice can be used for ill, of course. For instance, the Senate 
grants significant authority to committees and to chairs of committees 
to determine the Senate's agenda and business. Traditionally, when a 
committee votes down a nominee, that nomination does not go forward. We 
have made one recent exception for the nomination of Judge Bork to the 
Supreme Court. That led to a heated battle on the Senate floor that 
resulted in that nomination ultimately being rejected by the Senate. 
Never in our history has the Senate or an administration simply 
overridden the judgment of the Judiciary Committee. That is what this 
administration chose to do when it renominated Judge Owen after her 
nomination had been thoroughly and fairly considered last year.
  Finally, I am troubled that the administration and Senate Republicans 
are so intent on changing the rules and procedures and practices of the 
Senate in so many ways to gerryrig the process in favor of the 
administration's most extreme, divisive and controversial nominees. 
That was not the motivation behind the amendment of rule 22 in 1975 
that I supported. It used to be rare that judicial nominees would 
receive so many negative votes and engender so much opposition. In 
accordance with the consultation and cooperation that prevailed between 
administrations before this one and Senators from both parties, it was 
a rarity to have a contested nomination or to have close votes. That 
this administration is so fixated on forcing through the Senate 
nominees that do not have the support of more Senators is alarming in 
itself.
  Consensus, mainstream, qualified nominees will get the support of not 
just a bare majority of Senators voting but the overwhelming majority 
of Senators. Thus, Judge Prado, and Judge Gregory, and Judge Raggi were 
confirmed with overwhelming bipartisan support. So, too, I am confident 
that Judge Consuelo Callahan will be the second Hispanic nominee of 
this administration to a circuit court to receive the strong support of 
Democratic Senators, when the leadership decides to schedule a vote on 
her confirmation. The 125 judicial confirmations to date are by and 
large conservative nominees but many enjoyed the strong bipartisan vote 
of Senators from both parties.
  Yet Senate Republicans at the behest of the administration want to 
grant even more power to the administration by encouraging the 
President to nominate more controversial nominees. I respectfully 
suggest that the better way to proceed would be for the White House to 
work more closely with Democrats and Republicans in the Senate to 
identify consensus nominees who will not generate a close vote and do 
not need special rules in order to be considered.
  I thank the majority leader for working with the Democratic leader 
and assistant leader to make what he himself recognized as progress 
over the last

[[Page 12082]]

weeks. With some cooperation and consideration from the administration 
we could accomplish so much more.

                          ____________________