[Congressional Record (Bound Edition), Volume 150 (2004), Part 13]
[Senate]
[Pages 16972-16979]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF HENRY W. SAAD TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             SIXTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session and resume consideration of Calendar No. 
705, which the clerk will report.
  The assistant legislative clerk read the nomination of Henry W. Saad, 
of Michigan, to be United States Circuit Judge for the Sixth Circuit.
  The PRESIDING OFFICER. Under the previous order, the time until 11 
a.m. shall be equally divided between the chairman and the ranking 
member or his designee.
  Mr. REID. Madam President, on behalf of Senator Leahy, I designate 5 
minutes to the Senator from Michigan, Mr. Levin. If there is any time 
remaining on our side, following his presentation, the Senator from New 
York is yielded the remainder of the time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Michigan.
  Mr. LEVIN. Madam President, the issues which we are going to vote on 
today relate to a principle. The principle is that we should provide 
hearings to people who are nominated by Presidents. When those hearings 
are denied in order to preserve vacancies so that a subsequent 
President can make the appointments, that is wrong. That is what 
happened with Clinton appointees to Michigan judgeships. Two women, 
highly qualified, were appointed. One was denied a hearing over 4 
years, the longest time in the history of the Senate, never given a 
hearing by the Judiciary Committee. The second nominee, highly 
qualified, was denied a hearing for over a year and a half by the 
Judiciary Committee.
  This happened in a number of States. It happened to a nominee from 
Ohio, whose name was Markus, who testified as to why he was denied a 
hearing because he asked the Republicans on the Judiciary Committee who 
were in the majority as to why he was never given a hearing. He was 
nominated for an Ohio vacancy to the Sixth Circuit. There are four 
States in our circuit: Ohio, Kentucky, Tennessee, and Michigan. He 
testified in front of the Judiciary Committee as to what happened, why 
he was never given a hearing.

     . . . Senator DeWine and his staff and Senator Hatch's staff 
     and others close to him were straight with me. Over and over 
     again they told me two things: There will be no more 
     confirmations to the 6th Circuit during the Clinton 
     Administration, and this has nothing to do with you; don't 
     take it personally--it doesn't matter who the nominee is, 
     what credentials they may have or what support they may have.
     . . . On one occasion, Senator DeWine told me ``This is 
     bigger than you and it's bigger than me.'' Senator Kohl, who 
     had kindly agreed to champion my nomination within the 
     Judiciary Committee, encountered a similar brick wall. . . . 
     The fact was, a decision had been made to hold the vacancies 
     and see who won the presidential election. With a Bush win, 
     all those seats could go to Bush rather than to Clinton 
     nominees.

  That is not an acceptable tactic. It should not be allowed to 
succeed. That is the fundamental issue with these nominees, as to 
whether that tactic of denying hearings--in one case for over 4 years 
and another case for a year and a half, to two highly qualified women 
appointed by President Clinton--is going to work. Senator Stabenow and 
I are determined that it should not work. But we are also determined to 
try to accomplish a bipartisan solution.
  There is a rare opportunity here, because of the number of vacancies 
to the Sixth Circuit--there are four Michigan vacancies on the Sixth 
Circuit--to have a bipartisan solution. Two have been proposed to the 
White House. Senator Stabenow and I have proposed that there be a 
bipartisan commission appointed in Michigan to make recommendations on 
these nominations. Whether these two women succeed in getting those 
recommendations is not the point and it is not assured. We don't know. 
Recommendations would not be binding upon the President, nor on the 
Senate. They are simply recommendations. That has been rejected by the 
White House.
  When Senator Leahy was the chairman, when Democrats were in the 
majority in the Senate, he made a suggestion, a proposal to the White 
House as to how to solve this problem. The White House rejected that 
one as well.
  Senator Stabenow and I have pursued bipartisan solutions to this 
deadlock. We are going to continue to pursue solutions. But what we 
will not do and the Senate should not do, in terms of the principle 
involved here of denying hearings year after year after year to 
nominees in the Judiciary Committee in order to keep those seats vacant 
so the next President can make the appointment, this principle, it 
seems to me, is not in all of our interests.
  Even Judge Gonzales has acknowledged there were wrongs. He said: That 
was wrong. That was wrong to deny Judiciary Committee hearings. That is 
not right.
  And he is right. We are going to try to correct that wrong. It can be 
corrected in a bipartisan way. But for these nominations to simply be 
approved and for cloture to be invoked is not the way to achieve a 
bipartisan solution.
  One final comment, if I have another minute. How much time do I have 
remaining?
  The PRESIDING OFFICER. The Senator has 1\1/2\ minutes remaining.
  Mr. LEVIN. I thank the Presiding Officer.
  Madam President, for over 4 years, we made efforts to get hearings 
first for Judge White, who is a court of appeals judge in Michigan, and 
for Kathleen McCree Lewis, who is a noted appellate lawyer from 
Michigan in the Sixth Circuit. Two pages of efforts were made to get 
hearings. I am not going to read them all. All I can say is, month 
after month after month Senator Daschle, Senator Leahy, and others 
pleaded with the Republican majority, the majority leader, and the 
chairman of the Judiciary Committee for hearings. We came to the floor 
and made speeches, even after the blue slip was returned from Senator 
Abraham.
  There is a blue-ship issue here because Senator Abraham did not 
originally return the blue slip on these judges. But even after the 
blue slip was returned, there were no hearings provided.
  There is a huge issue always, whether blue slips were returned or 
returned with objections, whether two Senators from a State who have 
objections should be overridden and the nomination should proceed. That 
is an issue which affects all of us, and all of us should give a great 
deal of thought as to whether, if two Senators from a State object to a 
nominee, that nomination should proceed. That gets to the advise and 
consent clause of the Constitution. But when blue slips are returned, 
which is the case with these

[[Page 16973]]

two judges, there was still a refusal to hold hearings. That is 
unacceptable. That tactic should not work, and I hope cloture will not 
be invoked on these three nominations.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. LEAHY. Madam President, the handling of the nominations of Henry 
Saad, Richard Griffin, and David McKeague in the Judiciary Committee 
and here on the Senate floor sets an unfortunate precedent, and will be 
long remembered in the annals of this Chamber for the double standard 
it embodies. In collusion with a White House of the same party, the 
Senate's Republicans have engaged in a series of changed practices and 
broken rules. The home-State Senators of these nominees opposed 
proceeding on them any further until and unless they are able to reach 
a bipartisan solution with the White House, but their interests have 
been disregarded. In the process Republicans have trampled on years of 
tradition, practice and comity. This sort of behavior may not easily be 
repaired, but must be exposed.
  Before I discuss the specifics of the Michigan nominations, I would 
like to review the recent history of Republican rule breaking, bending, 
and changing with regard to nominations for lifetime judicial 
appointments. Over the last 3\1/2\ years, the good faith efforts of 
Senate Democrats to repair the damage done to the judicial confirmation 
process over the previous 6 years has been sorely tested and met with 
nothing but divisive partisanship. Rule after rule has been broken or 
twisted until the process so long agreed upon is hardly recognizable 
anymore.
  The string of transparently partisan actions taken by the Senate's 
Republican majority took a wrong turn in January of last year. It was 
then that one hearing was held for three controversial circuit court 
nominees, scheduled to take place in the course of a very busy day in 
the Senate. There was no precedent for this in the years that 
Republicans served in the majority and a Democrat was in the White 
House.
  Then, two of the nominees from that hearing were voted out of the 
committee in clear violation of committee rules. Despite his prior 
statements acknowledging the proper operation of rule IV in February, 
which should operate to preserve the minority's right to debate, the 
chairman declared that Rule IV no longer applied. I spent months 
working to reach an agreement to move forward the nominees voted out in 
violation of rule IV and reach an understanding that this important 
rule would not be violated again. However, in connection with the 
nomination of William Pryor to the Eleventh Circuit the chairman again 
overrode the rights of the minority in order to rush to judgment on a 
controversial circuit court nominee. The assurances given to us that 
minority rights would be respected and the Senate would not take up 
nominations sent to the Senate floor in violation of our rights were 
broken.
  The Republican majority also supported and facilitated the 
unprecedented renomination and consideration of Priscilla Owen to a 
seat on the U.S. Court of Appeals for the Fifth Circuit, for which she 
already had been rejected by the Judiciary Committee. That, too, was 
unprecedented.
  The other rule breaking I want to discuss is the one directly 
relevant to the Michigan nominees. It is the tradition of the ``blue-
slip,'' the mechanism by which home-State Senators were, until the last 
2 years, able to express their approval of or opposition to judicial 
nominees from their home States.
  For many years, at least since the time of Judiciary Committee 
Chairman James Eastland, the committee has sought the consent of a 
judicial nominee's home-State Senators by sending them a letter and a 
sheet of blue paper asking whether or not they approve of the nominee. 
This piece of paper, called a blue slip, formalized a courtesy long 
extended to home-State Senators. It was honored without exception when 
Chairman Hatch chaired the Judiciary Committee during the Clinton 
administration. Not once during those six years when the committee was 
considering the nominations of a Democratic President, did the chairman 
proceed on a nominee unless two approving, or positive blue slips had 
been returned. One non-returned blue slip, let alone one where a 
Senator indicated disapproval of the nominee, was enough to doom a 
nomination and prevent any consideration. For that matter, it seemed 
that so long as one Republican Senator had an objection, it was 
honored, even if they were not home-State Senators like Senator Helms 
of North Carolina objecting to an African-American nominee from 
Virginia, or Senator Gorton of Washington objecting to nominees from 
California.
  When President Clinton was in office, the chairman's blue slip sent 
to Senators, asking their consent, said this:

       Please return this form as soon as possible to the 
     nominations office. No further proceedings on this nominee 
     will be scheduled until both blue slips have been returned by 
     the nominee's home state senators.

  When President Bush began his term, and Senator Hatch took over the 
chairmanship of this committee, he changed his blue slip to drop the 
assurance he had always provided Republican Senators who had an 
objection. He eliminated the statement of his consistent practice in 
the past by striking the sentence that provided: ``No further 
proceedings on this nominee will be scheduled until both blue slips 
have been returned by the nominee's home state senators.'' Now he just 
asks that the blue slip be returned as soon as possible, disregarding 
years of tradition and respect for the interests of the home-State 
Senators. Can there be any other explanation for this other than the 
change in the White House? It is hard to imagine.
  This change in policy has worked a severe unfairness on the interests 
of Senators Levin and Stabenow. They objected to the nominations of 
Henry Saad, Richard Griffin, and David McKeague for reasons they have 
explained in detail. From the very beginning, they have been crystal 
clear with the President and the White House about their objections, 
and they have done everything possible to reach a compromise. Their 
concerns ought to be respected, not rejected in favor of partisan 
political rule-bending.
  This is not the first time the blue slip rule has been broken. Last 
year the Judiciary Committee, under Republican leadership, took the 
unprecedented action of proceeding to a hearing on President Bush's 
controversial nomination of Carolyn Kuhl to the Ninth Circuit, over the 
objection of Senator Boxer. When the senior Senator from California 
announced her opposition to the nomination at the beginning of a 
Judiciary business meeting, I suggested that further proceedings on 
that nomination ought to be carefully considered and noted that the 
committee had never proceeded on a nomination opposed by both home-
State Senators once their opposition was known. Nonetheless, in one in 
a continuing series of changes of practice and position, the committee 
was required to proceed with the Kuhl nomination, and a divisive vote 
was the result. The Senate has withheld consent to that nomination 
after extended debate.
  Continuing with the Saad nomination, and going further with Griffin 
and McKeague, the committee made more profound changes in its 
practices. When a Democratic President was doing the nominating and 
Republican Senators were objecting, a single objection from a single 
home-State Senator stalled any nomination. There is not a single 
example of a single time that Chairman Hatch went forward with a 
hearing over the objection or negative blue slip of a single Republican 
home-State Senator during the years that President Clinton was the 
nominating authority. But now that a Republican President is doing the 
nominating, no amount of objecting by Democratic Senators is 
sufficient. Republicans overrode the objection of one home-State 
Senator with the Kuhl nomination. Republicans outdid themselves when 
they overrode the objections of both home-State Senators and forced the 
Saad, McKeague and Griffin nominations out of committee.
  We will hear a lot of arguments from the other side about the history 
of the

[[Page 16974]]

blue slip, and of the practices followed by other chairmen, including 
Senator Kennedy and Senator Biden. What I doubt we will hear from the 
other side of the aisle is the plain and simple truth of the two 
conflicting policies the Republicans have followed. While it is true 
that various chairmen of the Judiciary Committee have used the blue-
slip in different ways--some to work unfairness, and others to attempt 
to remedy it--it is also true that each of those chairmen was 
consistent in his application of his own policy--that is, until now.
  In addition, I think the Senate and the American people need to 
recall the party-line vote by which Senate Republicans defeated the 
confirmation to the District Court in Missouri of an outstanding 
African-American judge named Ronnie White. In connection with that 
vote, a number of Republican Senators who voted against Judge White 
justified their action as being required to uphold the role of the 
Missouri home-State Senators who opposed the nomination. Any Senator 
who voted against the nomination of Ronnie White and does not vote with 
Senators Levin and Stabenow today will need to find another explanation 
for having opposed Judge White or explain why suddenly the rules that 
applied to Judge White do not apply today.
  I know Republican partisans hate being reminded of the double 
standards by which they operated when asked to consider so many of 
President Clinton's nominees. I know that they would rather exist in a 
state of ``confirmation amnesia,'' but that is not fair and that is not 
right. The blue slip policy in effect, and enforced strictly, by 
Republicans during the Clinton administration operated as an absolute 
bar to the consideration of any nominee to any court unless both home-
State Senators had returned positive blue slips. No time limit was set 
and no reason had to be articulated.
  Remember also that before I became chairman in June of 2001, all of 
these decisions were being made in secret. Blue slips were not public, 
and they were allowed to operate as anonymous holds on otherwise 
qualified nominees.
  A few examples of the operation of the blue slip process and how it 
was scrupulously honored by the committee during the Clinton Presidency 
are worth remembering. Remember, in the 106th Congress alone, more than 
half of President Clinton's circuit court nominees were defeated 
through the operation of the blue slip or other such partisan 
obstruction.
  Perhaps the most vivid is the story of the United States Court of 
Appeals for the Fourth Circuit, where Senator Helms was permitted to 
resist President Clinton's nominees for 6 years. Judge James Beaty was 
first nominated to the Fourth Circuit from North Carolina by President 
Clinton in 1995, but no action was taken on his nomination in 1995, 
1996, 1997, or 1998. Another Fourth Circuit nominee from North 
Carolina, Rich Leonard, was nominated in 1995, but no action was taken 
on his nomination either, in 1995 or 1996. The nomination of Judge 
James Wynn, again a North Carolina nominee to the Fourth Circuit, sent 
to the Senate by President Clinton in 1999, languished without action 
in 1999, 2000, and early 2001 until President Bush withdrew his 
nomination.
  A similar tale exists in connection with the Fifth Circuit where 
Enrique Moreno, Jorge Rangel and Alston Johnson were nominated but 
never given confirmation hearings.
  Perhaps the best documented abuses are those that stopped the 
nominations of Judge Helene White, Kathleen McCree Lewis and Professor 
Kent Markus to the Sixth Circuit. Judge White and Ms. Lewis were 
themselves Michigan nominees. Republicans in the Senate prevented 
consideration of any of President Clinton's nominees to the Sixth 
Circuit for years.
  When I became chairman in 2001, I ended that impasse. The vacancies 
that once plagued the Sixth Circuit have been cut in half. Where 
Republican obstruction led to 8 vacancies on that 16-judge court, 
Democratic cooperation allowed 4 of those vacancies to be filled. The 
Sixth Circuit currently has more judges and fewer vacancies than it has 
had in years.
  Those of us who were involved in this process in the years 1995-2000 
know that the Clinton White House bent over backwards to work with 
Republican Senators and seek their advice on appointments to both 
circuit and district court vacancies. There were many times when the 
White House made nominations at the direct suggestion of Republican 
Senators, and there are judges sitting today on the Ninth Circuit and 
the Fourth Circuit, in the district courts in Arizona, Utah, 
Mississippi, and many other places only because the recommendations and 
demands of Republicans Senators were honored.
  In contrast, since the beginning of its time in the White House, this 
Bush administration has sought to overturn traditions of bipartisan 
nominating commissions and to run roughshod over the advice of 
Democratic Senators. They attempted to change the exemplary systems in 
Wisconsin, Washington, and Florida that had worked so well for so many 
years. They ignored the protests of Senators like Senator Boxer who not 
only objected to the nominee proposed by the White House, but who, in 
an attempt to reach a true compromise, also suggested Republican 
alternatives. And today, despite the best efforts of the well-respected 
Senators from Michigan, who have proposed a bipartisan commission 
similar to their sister state of Wisconsin, we see the administration 
has flatly rejected any sort of compromise.
  The double standards that the Republican majority has adopted 
obviously depend upon the occupant of the White House. The change in 
the blue slip practice marks only one example of their disregard for 
the rules and practices of committees and the Senate. In the Judiciary 
Committee, the Republican majority abandoned our historic practice of 
bipartisan investigation in the Pryor nomination, as well as the 
meaning and consistent practice of protecting minority rights through a 
longstanding committee rule, rule IV, that required a member of the 
minority to vote to cut off debate in order to bring a matter to a 
vote. Republicans took another giant step in the direction of unbridled 
partisanship through the hearings granted Judges Kuhl, Saad, Griffin 
and McKeague.
  During the past year and a half we have also suffered through the 
scandal of the theft of staff memoranda and files from the Judiciary 
computer by Republican staff, a matter which is now under criminal 
investigation by the Department of Justice. It is all part of a pattern 
that has included bending, changing and even breaking this committee's 
rules to gain partisan advantage and to stiffen the White House's 
influence over the Senate.
  The partisan Republican motto seems to be ``by any means necessary.'' 
If stealing computer files is helpful, do it. If rules protecting the 
minority are inconvenient, ignore them. If traditional practices are an 
impediment, break them. Partisan Republicans seem intent on turning the 
independent Senate into a wholly-owned subsidiary of the Presidency and 
our independent Federal judiciary into an activist arm of the 
Republican Party.
  Senate Republicans are now intent on violating ``the Thurmond Rule'' 
and the spirit of the cooperative agreement reached earlier this year 
by which 25 additional judicial nominees have been considered and 
confirmed. The Thurmond Rule dates back at least to July 1980 when the 
Reagan campaign urged Senate Republicans to block President Carter's 
judicial nominees. Over time, Senator Thurmond and Republican leaders 
refined their use of and practices under the rule to prevent the 
consideration of lifetime judicial appointments in the last year of a 
Presidency unless consensus nominees. Consent of the majority and 
minority leaders as well as the chairman and ranking member of the 
Judiciary Committee came to be the norm. The agreement earlier this 
year on the 25 additional judicial nominees considered and confirmed 
was consistent with our traditions and the Thurmond Rule.
  Senate Republicans abused their power in the last year of President 
Clinton's first term, in 1996. They

[[Page 16975]]

would not allow a single circuit court nominee to be considered by the 
Senate that entire session and only allowed 17 noncontroversial 
district court nominees confirmed in July. No judicial nominees were 
allowed a vote in the first 6 months of that session or the last 5 
months of that Presidency.
  In 2000, we had to work hard to get Senate Republicans to allow votes 
on judicial nominees, even in the wake of searing criticism of their 
obstructionism by the Chief Justice of the United States Supreme Court. 
After July 4, 2000, the only judicial nominees confirmed were by 
consensus.
  In stark contrast to their practices in 1996 and 2000, the Republican 
leadership of the Senate is now seeking to force the Senate into 
confirmations of judicial nominees they know to be highly 
controversial. That is wholly inconsistent with the Thurmond Rule and 
with their own past practices. Republican partisans seem intent on 
another contrived partisan political stunt. They insist on staging 
cloture votes on judicial nominees late in a Presidential election year 
knowing that they have broken rule after rule and practice after 
traditional practice just to force the controversial nominations before 
the Senate. They are manufacturing confrontation and controversy. Like 
the President, they seek division over cooperation with respect to the 
handful of most controversial judicial nominees for lifetime 
appointments.
  Reports this week are that the Republican leadership is setting up 
unilaterally to change the Senate's historic rules to protect the 
minority. According to press accounts, some Republicans leaders are 
planning to have Vice President Cheney, acting as President of the 
Senate, declare that the Senate's longstanding cloture rule is 
unconstitutional and then have his fellow party members sustain that 
partisan power grab. When this radical might-makes-right approach was 
advocated last year, some Republican had reservations about sacrificing 
the Senate's rights to freedom of debate. Traditional conservatives who 
understand the role of the Senate as part of the checks and balances in 
our Constitution recognized the enormity of damage that would be caused 
to this institution by empowering such a partisan dictatorship. From 
this week's reports, sensible Senate Republicans are being cast aside 
and overridden by the most strident.
  Norm Ornstein observed: ``If Republicans unilaterally void a rule 
that they themselves have employed in the past, they will break the 
back of comity in the Senate.'' Republicans call this the so-called 
``nuclear action,'' because it would destroy the Senate as we know it. 
It is unjustified and unwise. It is ironic that Republicans blocked 
nearly 10 times as many of President Clinton's judicial nominees as 
those of President Bush denied consent. Apparently, clearly Republican 
partisans will apparently stop at nothing in their efforts to aid and 
abet this White House in the efforts to politicize the Federal 
judiciary.
  Both of the Senators from Michigan are respected Members of the 
Senate. Both are fair-minded. Both are committed to solving the 
problems caused by Republican high-handedness in blocking earlier 
nominees to the Sixth Circuit. Both of these home-State Senators have 
attempted to work with the White House to offer their advice, but their 
input was rejected. They have suggested ways to end the impasse on 
judicial nominations for Michigan, including a bipartisan commission 
along the lines of a similar commission in Wisconsin. This is a good 
idea and a fair idea. I am familiar with the work of bipartisan 
screening commissions. Vermont and its Republican, Democratic and 
Independent Senators had used such a commission for more than 25 years 
with great success. I commend the Senators representing Michigan for 
their constructive suggestion and for their good faith efforts to work 
with this White House in spite of the administration's refusal to work 
with them.
  Some Senators have said we need to forget the unfairness of the past 
on nominations and start on a clean slate. But the way to wipe that 
slate clean is through cooperation now, and moving forward together--
not with the petulant, partisan unilateralism that we have seen so 
often from this administration.
  Although President Bush promised on the campaign trail to be a uniter 
and not a divider, his practice once in office with respect to judicial 
nominees has been more divisive than those of any President. Citing the 
remarks of a White House official, The Lansing State Journal reported, 
for example, that the President is simply not interested in compromise 
on the existing vacancies in the State of Michigan. It is unfortunate 
that the White House is not willing to work toward consensus with all 
Senators.
  Under our Constitution, the Senate has an important role in the 
selection of our judiciary. The brilliant design of our Founding 
Fathers established that the first two branches of Government would 
work together to equip the third branch to serve as an independent 
arbiter of justice. As columnist George Will has written, ``A proper 
constitution distributes power among legislative, executive and 
judicial institutions so that the will of the majority can be measured, 
expressed in policy and, for the protection of minorities, somewhat 
limited.'' The structure of our Constitution and our own Senate rules 
of self-governance are designed to protect minority rights and to 
encourage consensus. Despite the razor-thin margin of recent elections, 
the Republican majority is not acting in a measured way but in 
disregard for the traditions of bipartisanship that are the hallmark of 
the Senate.
  When there was a Democratic President in the White House, circuit 
court nominees were delayed and deferred, and vacancies on the Courts 
of Appeals more than doubled under Republican leadership from 16 in 
January 1995, to 33 when the Democratic majority took over part way 
through 2001.
  Under Democratic leadership, we held hearings on 20 circuit court 
nominees in 17 months. Indeed, while Republicans averaged 7 
confirmations to the circuit courts every 12 months for the last 
President, the Senate under Democratic leadership confirmed 17 in its 
17 months with an historically uncooperative White House.
  With a Republican in the White House, the Republican majority shifted 
from the restrained pace it had said was required for Clinton nominees, 
into overdrive for the most controversial of President Bush's nominees. 
In 2003 alone, 13 circuit court judges were confirmed. This year more 
hearings have been held for nominees in just 5 months than were held in 
all of 1996 or all of 2000. One hundred and ninety-eight of President 
Bush's nominees have been confirmed so far--more than in all 4 years of 
President Reagan's first term, when he had a Republican Senate to work 
with, more than in the Presidency of the first President Bush and more 
than in the last term of President Clinton.
  Many of the 198 nominees who have been confirmed for this President 
have proceeded by consensus out of committee and on the Senate floor. I 
would have hoped that the scores of nominees agreed upon by home-State 
Senators of both parties, voted out of committee unanimously and 
confirmed without opposition in the full Senate would have been a 
lesson for the President. I would have hoped that the Michigan 
Senators' principled and reasoned opposition to the way the Sixth 
Circuit nominations have occurred would have been a starting point from 
which to reach a compromise. But, as with so many other nominees and so 
many other issues, compromise was not forthcoming from this White 
House. Instead, they have refused to acknowledge the wrong done to 
President Clinton's nominees to the very same court, and they have 
refused to budge. It is a shame.
  The Judiciary Committee has now reported more than 200 of President 
Bush's judicial nominees. Most have been reported with the support of 
Democratic Senators. Some have been contentious and some have been so 
extreme that they have not garnered bipartisan support and have been 
problematic. We have demonstrated time and again that when we unite and 
work

[[Page 16976]]

together we make progress. Republicans have too often chosen, instead, 
to seek to pack the courts and tilt them out of balance and to use 
unfounded allegations of prejudice to drive wedges among Americans for 
partisan political purposes.
  We have more Federal judges currently serving than at any time in our 
Nation's history and we have succeeded in reducing judicial vacancies 
to the lowest level in decades. Even Alberto Gonzales, the White House 
Counsel, conceded that: ``If you look at the total numbers, I think one 
could draw the conclusion that we've been fairly successful in having a 
lot of the president's nominees confirmed.'' The Republican leader in 
the Senate has termed our efforts ``steady progress.'' The White House 
would be even more successful if they would work with us to resolve 
this situation in the Sixth Circuit.
  Senate Democrats had demonstrated our good faith in confirming 100 of 
President Bush's judicial nominees in our 17 months in the Senate 
majority. We have now cooperated in the confirmation of more judicial 
nominees for President Bush than President Reagan achieved working hand 
in hand with a Republican Senate majority. We have already confirmed 
more judges this Congress than were confirmed before the presidential 
elections in 1996. We fulfilled our commitment in accord with the 
agreement reached with the White House to consider 25 additional 
judicial nominees already this year. We have demonstrated not only our 
willingness to cooperate but we have done so to achieve historic 
confirmation numbers and historically low numbers of judicial 
vacancies. I have come to recognize that no good deed we do in 
correcting the Republican abuses of the past goes unpunished.
  Unfortunately, this President has also chosen to nominate for some 
important circuit court seats some candidates who on their merits are 
not deserving of lifetime appointments. It appears that Judge Saad is 
one of those nominees. Clearly the Senators from Michigan have grave 
concerns.
  I also have concerns about the nominee, his legal judgment, and his 
ability to be fair. While Judge Saad was an attorney his practice 
primarily consisted of defending large corporations against employees' 
claims of race discrimination, age discrimination, sexual harassment 
and wrongful termination. A review of Judge Saad's cases on the 
Michigan Court of Appeals raises concerns because he frequently favored 
employers in complaints brought by workers, even in the face of 
extremely sympathetic facts.
  For example, in Cocke v. Trecorp Enterprises, a young Burger King 
employee was aggressively and repeatedly sexually harassed and 
assaulted by her shift manager. More than once, she reported this 
treatment to her other shift managers who promised to take care of it. 
The trial court prevented her case from going to the jury but Judge 
Saad dissented from an appellate decision reversing the trial court. 
Judge Saad ignored the legal standard of review followed by the 
majority and would have protected the corporation from responsibility 
for the shift manager's notorious and unlawful behavior.
  Also, in Coleman v. Michigan, a female corrections officer brought a 
sexual harassment suit against her employer, the State of Michigan. 
This officer was assaulted and nearly raped by an armed prisoner. 
According to the officer's complaint, after this terrible attack, her 
supervisor insinuated that she provoked the attack because of her 
attire. The supervisor made the officer come to his office on a regular 
basis to check the appropriateness of her clothing and he frequently 
called her to discuss personal matters, such as her relationship with 
her boyfriend. Despite these serious allegations, the trial court 
granted summary disposition in favor of the State of Michigan. Judge 
Saad joined in the Michigan Court of Appeals' per curiam opinion 
affirming the trial court's grant of summary disposition. The 
corrections officer appealed his decision to the Michigan Supreme 
Court, which reversed and held that her claims constituted sufficient 
evidence to go to trial.
  In another case, Fuller v. McPherson Hospital, a jury who heard live 
testimony was persuaded to conclude that a woman had endured sexual 
harassment from her immediate supervisor and other superiors. The trial 
court vacated the jury findings because it found that the plaintiff had 
not complained of the harassment while working at the hospital. On 
appeal, the panel reinstated the jury's finding of sexual harassment 
but Judge Saad dissented. Unfortunately, his dissent in this case was 
only two sentences and failed to address his colleagues' legal 
conclusions.
  I cannot speak in open session about all concerns but I can note a 
temperament problem, as evidenced by an e-mail he sent, a copy of which 
he mistakenly sent to Senator Stabenow as well. In Judge Saad's e-mail 
he displays not only shockingly bad manners, but appalling judgment and 
a possible threatening nature.
  In the e-mail exchange, Judge Saad is writing to someone named Joe, 
forwarding him a copy of another e-mail sent by Senator Stabenow in 
response to a letter of support for Saad's nomination. In her response 
Senator Stabenow politely and reasonably explains the basis for her 
continuing objection to the nomination, explaining that she understands 
the writer's ``concerns and frustrations,'' thanking them, and offering 
her help in the future. Apparently this type of courteous explanation 
was too much for Judge Saad. Here is what he wrote in response to the 
Senator's explanation:

       She sends this standard response to all those who inquire 
     about this subject. We know, of course, that this is the game 
     they play. Pretend to do the right thing while abusing the 
     system and undermining the constitutional process. Perhaps 
     some day she will pay the price for her misconduct.

  I know that Senator Stabenow does not need me to defend her, and I 
doubt that sort of personal threat concerns her, but I think Judge 
Saad's message deserves some attention. It shows a shocking lack of 
good judgment, a pronounced political viewpoint, and a total absence of 
respect for the process undertaken by Senators of good faith and good 
will.
  As soon as they saw this e-mail message, both Michigan Senators wrote 
to the President's Counsel, Alberto Gonzales, alerting him to the 
offensive comments. While I do not believe Judge Gonzales or the 
President ever responded, 2 weeks later Judge Saad did get around to 
sending a ``non-apology.'' He wrote:

       I write regarding your and Senator Levin's recent letter to 
     Alberto R. Gonzales, Counsel to the President (a copy of 
     which you sent to me), relating to an e-mail message that I 
     meant to send only to a close personal friend of mine. 
     Unfortunately, this e-mail, which commented on my pending 
     nomination, was inadvertently sent to your office. I regret 
     that the e-mail was sent to you and certainly apologize for 
     any personal concern this may have caused you. I have a great 
     deal of respect for our political institutions and meant no 
     lack of respect to you.

  He cannot bring himself to say he is sorry for his words, to 
apologize for accusing a Senator of abusing the system she so respects, 
or even for expressing the hope that she would ``pay for her conduct.'' 
Instead he is sorry that he was caught, and if what he said may have 
caused Senator Stabenow ``personal concern.''
  Apart from all of the procedural problems with this nomination, I 
have serious concerns about giving lifetime tenure to someone with this 
stunning lack of judgment.
  I also have concerns about parts of the record of Richard Griffin. As 
a judge on the Michigan Court of Appeals since 1989, Judge Griffin has 
handled and written hundreds of opinions involving a range of civil and 
criminal law issues. Yet, a review of Judge Griffin's cases on the 
Michigan Court of Appeals raises concerns. He has not been shy about 
interjecting his own personal views into some of his opinions, 
indicating that he may use the opportunity, if confirmed, to further 
his own agenda when confronted with cases of first impression.
  For example, in one troubling case involving the Americans with 
Disabilities Act (ADA), Doe v. Mich. Dep't of Corrections, Judge 
Griffin allowed the State disability claim of disabled prisoners to 
proceed, but wrote that, if

[[Page 16977]]

precedent had allowed, he would have dismissed those claims. Griffin 
authored the opinion in this class action brought by current and former 
prisoners who alleged that the Michigan Department of Corrections 
denied them certain benefits on the basis of their HIV-positive status. 
Although Judge Griffin held that the plaintiffs had stated a claim for 
relief, his opinion makes clear that he only ruled this way because he 
was bound to follow the precedent established in a recent case decided 
by his court. Moreover, he went on to urge Congress to invalidate a 
unanimous Supreme Court decision, written by Justice Scalia, holding 
that the ADA applies to State prisoners and prisons. He wrote, ``While 
we follow Yeskey, we urge Congress to amend the ADA to exclude 
prisoners from the class of persons entitled to protection under the 
act.''
  In other cases, he has also articulated personal preferences that 
favor a narrow reading of the law, which would limit individual rights 
and protections. For example, in Wohlert Special Products v. Mich. 
Employment Security Comm'n, he reversed the decision of the Michigan 
Employment Security Commission and held that striking employees were 
not entitled to unemployment benefits. The Michigan Supreme Court 
vacated part of Judge Griffin's decision, noting that he had 
inappropriately made his own findings of fact when ruling that the 
employees were not entitled to benefits. This case raises concerns 
about Judge Griffin's willingness to distort precedent to reach the 
results he favors.
  In several other cases, Judge Griffin has gone out of his way to 
interject his conservative personal views into his opinions. The 
appeals courts are the courts of last resort in over 99 percent of all 
Federal cases and often decide cases of first impression. If confirmed, 
Judge Griffin will have much greater latitude to be a conservative 
judicial activist.
  It is ironic that Judge Griffin's father who, as Senator in 1968, 
launched the filibuster of the nomination of Supreme Court Justice Abe 
Fortas to serve as Chief Justice. Former Senator Griffin led a core 
group of Republican Senators in derailing President Johnson's 
nomination by filibustering his nomination on the floor of the United 
States Senate. Eventually, Justice Fortas withdrew his nomination. I 
know that the Republicans here will call any attempt to block Judge 
Griffin's nomination ``unconstitutional'' and ``unprecedented,'' but 
his father actually helped set the precedent for blocking nominees on 
the Senate floor.
  Finally, I turn to David McKeague, his record, and questions. In 
particular, I am concerned about Judge McKeague's decisions in a series 
of cases on environmental issues. In Northwoods Wilderness Recovery v. 
United States Forest Serv., 323 F.3d 405 (6th Cir. 2003), Judge 
McKeague would have allowed the U.S. Forest Service to commence a 
harvesting project that allowed selective logging and clear-cutting in 
areas of Michigan's Upper Peninsula. The appellate court reversed him 
and found that the Forest Service had not adhered to a ``statutorily 
mandated environmental analysis'' prior to approval of the project, 
which was dubbed ``Rolling Thunder.''
  Sitting by designation on the Sixth Circuit, Judge McKeague joined in 
an opinion that permitted the Tennessee Valley Authority (TVA) broadly 
to interpret a clause of the National Environmental Policy Act in a way 
that would allow the TVA to conduct large-scale timber harvesting 
operations without performing site-specific environmental assessments. 
Help Alert Western Ky., Inc. v. Tenn. Valley Authority, 1999 U.S. App. 
LEXIS 23759 (6th Cir. 1999). The majority decision in this case 
permitted the TVA to determine that logging operations that covered 
2,147 acres of land were ``minor,'' and thus fell under a categorical 
exclusion to the environmental impact statement requirement. The 
dissent in this case noted that the exclusion in the past had applied 
only to truly ``minor'' activities, such as the purchase or lease of 
transmission lines, construction of visitor reception centers and on-
site research.
  Judge McKeague also dismissed a suit brought by the Michigan Natural 
Resources Commission against the Manufacturer's National Bank of 
Detroit, finding that the bank was not liable for the costs of 
environmental cleanup at sites owned by a ``troubled borrower.'' See 
Kelley ex rel. Mich. Natural Resources Comm'n v. Tiscornia, 810 F. 
Supp. 901 (W.D. Mich. 1993). The bank took over the property from Auto 
Specialties Manufacturing Company when it defaulted on its loans. The 
Natural Resources Commission argued that the bank should be responsible 
for taking over the cost of cleanup because it held the property when 
the toxic spill occurred, but Judge McKeague disagreed.
  In Miron v. Menominee County, 795 F. Supp. 840 (W.D. Mich. 1992), 
Judge McKeague rejected the efforts of a citizen who lived close to a 
landfill to require the Federal Aviation Administration to enjoin 
landfill cleanup efforts until an environmental impact statement 
regarding the efforts could be prepared. The citizen contended that if 
the statement were prepared, the inadequacies of a State-sponsored 
cleanup would be revealed and appropriate corrective measures would be 
undertaken to minimize further environmental contamination and wetlands 
destruction. Holding that the alleged environmental injuries were 
``remote and speculative,'' Judge McKeague denied the requested 
injunctive relief.
  In Pape v. U.S. Army Corps of Engineers, 1998 U.S. Dist. LEXIS 9253 
(W.D. Mich.), Judge McKeague seems to have ignored relevant facts in 
order to prevent citizen enforcement of environmental protections. Dale 
Pape, a private citizen and wildlife photographer, sued the U.S. Corps 
of Army Engineers under the Federal Resource Conservation and Recovery 
Act of 1976 (RCRA), alleging that the Corps mishandled hazardous waste 
in violation of RCRA, destroying wildlife in a park near the site. 
Despite the Supreme Court's holding in Lujan v. Defenders of Wildlife 
that ``the desire to use or observe an animal species, even for purely 
esthetic purposes, is undeniably a cognizable interest for purpose of 
standing,'' and even though RCRA specifically conferred the right for 
citizen suits against the government for failure to implement orders or 
to protect the environment or health and safety, Judge McKeague 
dismissed the case, holding that plaintiff lacked standing to sue.
  Judge McKeague found plaintiff's complaint insufficient on several 
grounds, in particular plaintiff's inability to establish which site 
specifically he would visit in the future. Plaintiff had stated in his 
complaint that he ``has visited the `area around' the RACO site `at 
least five times per year' and that he has made plans to vacation in 
`Soliders Park' located `near' the RACO site in early October 1998, 
where he plans to spend his time `fishing, canoeing, and photographing 
the area.''' Comparing Pape's testimony with that of the Lujan 
plaintiff, who had failed to win standing after he presented general 
facts about prior visits and an intent to visit in the future, Judge 
McKeague rejected Pape's complaint as too speculative, based on the 
Court's holding in Lujan that:

       [Plaintiffs'] profession of an ``intent'' to return to the 
     places [plaintiffs] had visited before--where they will, 
     presumably, this time, be deprived of the opportunity to 
     observe animals of the endangered species--is simply not 
     enough to establish standing. . . . Such ``some day'' 
     intentions--without any description of concrete plans, or 
     indeed, even any specification of when the some day will be--
     do not support a finding of the ``actual or imminent'' injury 
     that our cases require.

  In concluding that ``the allegations contained in plaintiff's first 
amended complaint fail to establish an actual injury because they do 
not include an allegation that plaintiff has specific plans to use the 
allegedly affected area in the future,'' Judge McKeague seemed to 
ignore completely the detailed fact description that Pape submitted in 
his amendment complaint. The judge further asserted that there was no 
causal connection between the injury and the activity complained of, 
and that, in any case, the alleged injury was not redressable by the 
suit.
  On another important topic, that of the scheme of enforcing the civil 
and constitutional rights of institutionalized persons, I am concerned 
about one

[[Page 16978]]

of Judge McKeague's decisions. In 1994, (United States v. Michigan, 868 
F. Supp. 890 (W.D. Mi. 1994)), he refused to allow the Department of 
Justice access to Michigan prisons in the course of its investigation 
into some now notorious claims of sexual abuse of women prisoners by 
guards undermines the long-established system under the Constitutional 
Rights of Institutionalized Persons Act. That law's investigative and 
enforcement regime is unworkable if the Department of Justice is denied 
access to State prisons to determine if enough evidence exists to file 
suit, and Judge McKeague's tortured reasoning made it impossible for 
the investigation to continue in his district.
  I know that concern for the rights of prisoners who have often 
committed horrendous criminal acts is not politically popular, but 
Congress enacted the law and expected its statute and its clear intent 
to be followed. It seems to me that Judge McKeague disregarded 
legislative history and the clear intent of the law, and that sort of 
judging is of concern to me.
  I also note my disappointment in his answer to a question I sent him 
about a presentation he made in the fall of 2000, when he made what I 
judged to be inappropriate and insensitive comments about the health 
and well-being of sitting Supreme Court Justices. In a speech to a law 
school audience about the impact of the 2000 elections on the courts, 
Judge McKeague discussed the possibility of vacancies on the Court over 
the following year. In doing so he felt it necessary to not only refer 
to--but to make a chart of--the Justices' particular health problems, 
and ghoulishly focus on their life expectancy by highlighting their 
ages. He says he does not believe he was disrespectful, and used only 
public information. There were other, better ways he could have made 
the same point, and it is too bad he still cannot see that.
  The people of the Sixth Circuit deserve better than this. And the 
American people, the independent Federal judiciary, the U.S. Senate, 
all deserve better than the double standard that is now squarely on 
display for all to see.
  Mr. SCHUMER. Madam President, I yield the time remaining to me to the 
Senator from Michigan.
  The PRESIDING OFFICER. All time has expired on the Democratic side.
  Mr. LEVIN. Parliamentary inquiry: I thought there was 15 minutes on 
each side.
  The PRESIDING OFFICER. There is 7 minutes on each side.
  Mr. SCHUMER. Madam President, I ask unanimous consent, since nobody 
is here and we are voting at 11, that Senator Stabenow be given 4 
minutes to discuss this issue.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. STABENOW. I thank the Chair. Madam President, I thank my 
colleague and friend from New York.
  I rise to support the distinguished senior Senator from Michigan, my 
friend and colleague, who has spoken very eloquently about what we are 
about to vote on.
  Today we will be asked to vote to close debate and proceed to a final 
vote on three judges who have been nominated by the President to the 
Sixth Circuit in Michigan. We are asking that colleagues vote no and 
give us an opportunity to work out this situation in a bipartisan way. 
We have been very close. I appreciate Chairman Hatch's efforts to work 
with us, Senator Leahy, and others who have worked with us and proposed 
bipartisan solutions. I still believe we can develop a solution if we 
do not proceed with this vote today. If we do not vote for cloture, I 
believe we can continue to work together in a bipartisan way to resolve 
this issue.
  It is always difficult when the President nominates people for the 
bench. Oftentimes people will say: Why not give the President his 
nominees? We know this is different from the Cabinet. I have voted to 
give the President his team, his Cabinet, because they are with him for 
his 4-year term, and they are part of his team. Except for those few 
exceptions I believed were too extreme, I supported individuals I 
personally would not select to be in a Cabinet, but it is his team.
  In the case of the judiciary, this is the third branch of Government. 
As we learn from reading simple high school government books, in the 
beginning of the debate of our Founders, those at the Constitutional 
Convention gave the full authority to the Senate. Then there was 
further discussion and they said possibly the President should appoint 
the third branch of Government. In the end, they said this is so 
important that this judiciary, this third branch of Government, be 
independent of the other two branches that we are going to split the 
authority in half. We are going to give half to the President of the 
United States to make nominations, and the other half to the Senate to 
consult and to confirm.
  Our concern is that in the case of Michigan, working together has not 
been happening. It is not about two Senators; it is about the people we 
represent. We represent 9 million people in the State of Michigan whose 
voices are heard through our input to the President.
  My distinguished colleague from New York spoke about the fact that he 
and his colleague from New York, opposite parties of the President, 
have worked with him and have had agreement on judges they believe were 
mainstream, who were appropriate for the bench, and they have been able 
to work together to do that.
  Why in New York and not Michigan? Why in California and not Michigan? 
Why in Washington but not Michigan? Why in Wisconsin but not Michigan?
  The issue for us today on behalf of the people of our State is we are 
asking for the same consideration, the same ability to have input about 
people who will serve us long past this President, people who will 
serve us long past the next President, people who have lifetime 
appointments and make decisions that affect our lives in every facet of 
the laws that affect us, from the workplace to the home to the 
environment to civil rights. These judges make decisions that affect 
each of us, and it is our responsibility to be involved and make sure 
we are working with the White House, whoever that is, to have the very 
best choices that are balanced and mainstream and will continue on long 
beyond most of us who are serving in the Senate.
  This is important, and it is with great disappointment that I rise 
today to ask for a ``no'' vote on cloture because we have been 
attempting to work this out now for almost 3 years. Unfortunately, this 
move to get this vote at this time does not help us get to a fair 
bipartisan conclusion. It is an effort that will only get in the way of 
that happening.
  I ask colleagues to join with us in saying no to the motion to close 
debate and invoking cloture, and I ask colleagues to give us an 
opportunity, that same opportunity that anyone on this floor would ask, 
the same opportunity that others have been given, to work together with 
this White House to develop recommendations on the Sixth Circuit and 
nominees we all believe are in the best interest of the people of 
Michigan and in the best interest of the people of the country.
  I yield back my time, Madam President, and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Madam President, as chairman of the Judiciary Committee, I 
will take a couple of minutes before the vote to express my views with 
regard to Judge Saad. There is no question in my mind that Judge Saad 
is competent, decent, and honorable--a person of great temperament, 
great legal ability and great capacity. That is what all of the people 
who know him best say. He also has a ``very good'' recommendation from 
the American Bar Association. So he has fit the bill there.
  The real problem has been in the prior administration, we were unable 
to get two judges through, Judge Helene White and Kathleen McCree 
Lewis, both of whom are nice people. I tried to do my best to get them

[[Page 16979]]

through, but we could not because there was zero consultation at the 
time, and by the time we got to the end, it got into another set of 
problems and, frankly, they did not get confirmed.
  The two Senators from Michigan have been very upset about that, and 
if I were to put myself in their shoes I would feel the same way, 
perhaps.
  The fact of the matter is these are three excellent people who could 
do a very good job on the bench, and Judge Saad certainly in this 
particular case is very capable of doing the job. So are Judge Richard 
Griffin and Judge David W. McKeague. I will continue to work to try and 
resolve the problems that exist with the Michigan Senators, but these 
people deserve up-or-down votes and should have up-or-down votes.
  Some have said if two Senators are against a nomination in their 
State, that should be the end of it. That is not true, and it never has 
been with regard to a circuit court of appeals nominees. Every 
administration has guarded its right to nominate and put forth circuit 
court of appeals nominations, and in most cases at least one or two of 
the Senators have been cooperative in helping.
  In this particular case, both Senators feel aggrieved because of the 
prior two judges and in the process have had some difficulty with Judge 
Saad. I assure the Senate that Judge Saad is an excellent person. He 
deserves this position. There is no question about Griffin and 
McKeague. They are two excellent judges and have great reputations in 
the State of Michigan. They deserve to be voted up or down today. I 
hope the people will vote for cloture. It is the right thing to do.
  We should not be filibustering Federal judges. It has never been done 
before, and I recommend to all of our colleagues to vote for cloture in 
all three cases.
  I yield the floor.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the hour of 11 a.m. 
having arrived, 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. 705, Henry W. Saad, of Michigan, to be United 
     States Circuit Judge for the Sixth Circuit, Vice James L. 
     Ryan, retired.
         Bill Frist, Orrin Hatch, Lamar Alexander, Charles 
           Grassley, Mike Crapo, Pete Domenici, Lincoln Chafee, 
           Mitch McConnell, Ted Stevens, George Allen, Lindsey 
           Graham, John Warner, Jeff Sessions, John Ensign, Trent 
           Lott, Jim Talent, Pat Roberts.

  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 
Executive Calendar No. 705, the nomination of Henry W. Saad, of 
Michigan, to be United States Circuit Court Judge for the Sixth 
Circuit, shall be brought to a close.
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  The PRESIDING OFFICER (Mr. Ensign). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 52, nays 46, as follows:

                      [Rollcall Vote No. 160 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
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--46

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

                             NOT VOTING--2

     Edwards
     Kerry
  The PRESIDING OFFICER. On this vote, the yeas are 52 and the nays are 
46. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  Mr. REID. I move to reconsider the vote.
  Mr. BOND. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________