[Congressional Record (Bound Edition), Volume 151 (2005), Part 7]
[Senate]
[Pages 8992-9002]
[From the U.S. Government Publishing Office, www.gpo.gov]




 EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT FOR DEFENSE, THE GLOBAL WAR 
       ON TERROR, AND TSUNAMI RELIEF ACT, 2005--CONFERENCE REPORT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to the consideration of the conference report to 
accompany H.R. 1268, which the clerk will report.
  The assistant legislative clerk read as follows:

       The committee of conference on the disagreeing votes of the 
     two Houses on the amendments of the Senate to the bill (H.R. 
     1268), making emergency supplemental appropriations for the 
     fiscal year ending September 30, 2005, to establish and 
     rapidly implement regulations for State driver's license and 
     identification document security standards, to prevent 
     terrorists from abusing the asylum laws of the United States, 
     to unify terrorism-related grounds for inadmissibility and 
     removal, to ensure expeditious construction of the San Diego 
     border fence, and for other purposes, having met, after full 
     and free conference, have agreed to recommend and do 
     recommend to their respective Houses this report, signed by a 
     majority of conferees on the part of both Houses.

  The ACTING PRESIDENT pro tempore. The Senate will proceed to the 
consideration of the conference report.
  (The conference report is printed in the House proceedings of the 
Record of May 3, 2005.)
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Mississippi is 
recognized.
  Mr. COCHRAN. Mr. President, the Senate now has under consideration 
the conference report to accompany H.R. 1268, the fiscal year 2005 
emergency supplemental appropriations bill. This bill was requested by 
the President to carry forward the spending and accounts of the 
Department of Defense, the Department of State, and other agencies and 
departments of the Government through the remainder of this fiscal year 
which will end on September 30.

[[Page 8993]]

  The bill was passed in the Senate on April 21, and we began 
conference discussions with our colleagues from the other body on April 
27. A bipartisan majority of the conferees reconciled differences 
between the two bills and reached agreement on the provisions of a 
conference report on Tuesday, May 3.
  The House approved the conference report on May 5 by a rollcall vote 
of 368 to 58. The conference agreement provides a total of $82.041 
billion, slightly less than the President's request of $82.042 billion. 
Almost $76 billion in emergency supplemental appropriations is provided 
to the Department of Defense to cover the costs of continuing the 
operations in Iraq and Afghanistan.
  Title II of the conference agreement provides $4.128 billion for 
international programs and assistance for reconstruction and the war on 
terror. Title III provides $1.184 billion for domestic programs in the 
war on terror. And title IV provides $907 million in relief for the 
Indian Ocean tsunami disaster.
  Finally, division B of the conference agreement carries the House-
passed REAL ID Act and other provisions relating to immigration issues.
  This conference agreement embodies a genuine compromise between the 
two bodies on legislation that is of utmost importance to our troops 
who are deployed in the war on terror and for our allies around the 
world. It is supported by the administration, and I hope the bill, as 
reflected in the conference report, will receive bipartisan support in 
the Senate.
  We are pleased to have the benefit of comments by other members of 
the committee or Senate to explain specific provisions of this 
conference agreement. We are prepared to try to respond to any 
questions that any Senators may have about the provisions of the 
conference report, and we will be hopeful, however, that the Senate 
will proceed with some dispatch to the approval of the conference 
report because it is an urgent supplemental appropriations conference 
report. The funds provided in this conference report are urgently 
needed by our forces in the field and by our State Department for 
accounts that have been depleted in connection with programs 
administered by that Department.
  The administration is urging that we act quickly, and I hope we will 
not unnecessarily prolong consideration of the conference agreement in 
the Senate but respond enthusiastically with the challenge from the 
administration to act with dispatch on this conference report.
  Mr. President, before I yield the floor, if I may have one more 
moment of indulgence from the Senator from California, on behalf of the 
majority leader, I ask unanimous consent that there be 3 hours and 15 
minutes of debate under the control of the ranking member and 1\1/2\ 
hours of debate under the control of the chairman; provided further 
that following the use or yielding back of time, the Senate proceed to 
a vote on adoption of the conference report, with no intervening action 
or debate.
  The PRESIDING OFFICER. Is there objection?
  Mrs. FEINSTEIN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, the distinguished chairman of the 
Appropriations Committee had indicated that I would be able to speak as 
in morning business, that he would not object. My concern is, with the 
time, if I will, in fact, have the time to complete my remarks.
  Mr. COCHRAN. Mr. President, I have no objection to the Senator 
speaking as in morning business.
  Mrs. FEINSTEIN. For such time as I may consume.
  Mr. COCHRAN. I do not want her to talk forever.
  Mrs. FEINSTEIN. No, it will not be forever.
  Mr. COCHRAN. How long does the Senator expect to talk?
  Mrs. FEINSTEIN. Probably a half hour.
  Mr. COCHRAN. I have no objection, and I have no objection with that 
being done in spite of the agreement we have reached on the time for 
debate of the supplemental.
  The PRESIDING OFFICER. Is there objection to the request of the 
Senator from Mississippi? Without objection, it is so ordered.
  The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the chairman of the 
Appropriations Committee for his graciousness. I am pleased to serve on 
that committee. He has been nothing but fair always. That is very much 
appreciated. I would like to indicate my support for the supplemental 
appropriations. I do have concerns about the inclusion of the REAL ID 
Act in this bill, largely because it is the Judiciary Committee that is 
the committee of jurisdiction, and this very complicated act has not 
had the opportunity of a hearing or discussions or markup by members of 
that committee. That having been said, it is my intent to vote for the 
emergency supplemental.
  I wish to speak during the remainder of my time on the so-called 
nuclear option and the majority leader's intention to remove the 
ability of the minority party to filibuster judicial nominations.


                          Judicial Nominations

  Mr. President, I speak today as a member of the Judiciary Committee 
for the past 12 years. In this capacity, I have worked with Members 
from both sides of the aisle and on nominations from both Democratic 
and Republican Presidents. In all, I voted to confirm 573 judges and 
have voted no on the Senate floor on 5 and voted against cloture on 11.
  I evaluate each candidate on a case-by-case basis and thoroughly 
examine their writings, opinions, statements, temperament, and 
character. The fact that Federal judges are lifetime appointments 
weighs heavily. They do not come and go with an administration, as do 
Cabinet appointments. Rather, they cannot be removed from the bench 
except in extremely rare circumstances. In fact, in our Government's 
over 200-year history, only 11 Federal judges have been impeached, and 
of those, only 2 since 1936.
  Over the years, we have had heated debates and strong disagreements 
over judicial nominees; however, that debate is what ensures the Senate 
confirms the best qualified candidates.
  I am deeply troubled when our legitimate differences over an 
individual's qualifications to be given a lifetime appointment to the 
Federal bench become reduced to inflammatory rhetoric. I am even more 
concerned when rhetoric turns into open discussion about breaking 
Senate rules and turning the Senate into a body where might makes 
right.
  I am here today because some Members on the other side of the aisle 
have decided that despite a constitution that is renowned worldwide and 
used as a model for emergent democracies, despite a confirmation rate 
of 95 percent of President Bush's judicial nominees, and despite the 
other pressing priorities that the American people want us to address, 
that the time has come to unravel our Government's fundamental 
principle of checks and balances. The majority has decided the time has 
come to unravel the Senate's traditional role of debate and that the 
time has come to break the rules and discard Senate precedent.
  I am very concerned about this strategy. It is important to remember 
that once done, once broken, it will be hard to limit and hard to 
reverse. In fact, just last month, Senator Coleman stated on CNN:

       The President has a right to make appointments. They are 
     not to be filibustered. They deserve an up-or-down vote. 
     That's true for any kind of appointee, whether it's Under 
     Secretary of State or a judge.

  And this is exactly my point. First, the rules would be broken with 
regard to judicial nominees, then it is executive branch nominees, then 
it is legislation, and then the Senate has no rules at all and simply 
becomes a replication of the House of Representatives.
  Every Thursday morning, I have a constituent breakfast, and at that 
breakfast I describe the difference between the House and the Senate 
based on something George Washington once said, that the House moves 
rapidly, is

[[Page 8994]]

controlled totally by the party in power, and is akin to a cup of 
coffee. You drink your coffee out of the cup, but if it is too hot, you 
pour it into the saucer to cool it. And that is the Senate, the 
greatest so-called deliberative body on Earth, a place that fosters 
debate, often unlimited, and is basically based on the fact that no 
legislation is better than bad legislation. So the Senate by design was 
created to be a very different house than is the House of 
Representatives.
  The strategy of a nuclear option will turn the Senate into a body 
that could have its rules broken or changed at any time by a majority 
of Senators unhappy with any position taken by the minority. As I said, 
this is not the Senate envisioned by our Founding Fathers, and it is 
not the Senate in which I have been proud to serve for the past 12 
years.
  I think it is important to take a look at history, as others have 
done, to understand the context of where this debate is rooted. The 
Founding Fathers and our early Pilgrims were escaping a tyrannical 
government where the average man, the common man, often did not have a 
voice and was often left without any say in its laws that governed him 
and his family. In response, these men specifically embedded language 
in the Constitution to provide checks and balances so that inherent in 
our Government's design would be conflict and compromise, and it is 
precisely these checks and balances that have served to guarantee our 
freedoms for over 200 years.
  When you read the Federalist Papers, discussions at the 
Constitutional Convention, and about the experience of America's first 
President, it is clear the Senate was never intended to be a 
rubberstamp. While it is often difficult to discern the original intent 
of a constitutional provision, the records of the Convention address 
the role of the Senate in the selection of Federal judges with unusual 
clarity.
  Both the text of the appointments clause of the Constitution and the 
debates over its adoption strongly suggest that the Senate was expected 
to play an active and independent role in determining who should sit on 
the Nation's judiciary.
  Throughout its deliberations, the Convention contemplated that the 
National Legislature in some form or another would play a substantial 
role in the selection of Federal judges. As a matter of fact, on May 
29, 1787, the Convention began its work on the Constitution by taking 
up the Virginia plan, which provided:

       That a National Judiciary be established . . . to be chosen 
     by the National Legislature.

  Under this plan, the President was to have no role at all. One week 
later, James Madison modified the proposal so that the power of 
appointing judges would be given exclusively to the Senate rather than 
to the legislature as a whole. This motion was adopted without any 
objection. So the Senate had the entire authority.
  Then less than 2 weeks before the Convention's work was done, for the 
first time the committee's draft provided that the President should 
have a role in the selection of judges.
  However, giving the President the power to nominate judges was not 
seen as ousting the Senate from a central role. Governor Morris of 
Pennsylvania paraphrased the new provision as one giving the Senate the 
power to appoint judges nominated to them by the President. In other 
words, it was considered the Senate was the nomination body and the 
President simply recommended judges to the Senate.
  The Convention, having repeatedly and decisively rejected the idea 
that the President should have the exclusive power to select judges, 
could not possibly have intended to reduce the Senate to a rubber 
stamp, but rather it created a strong Senate role to protect the 
independence of the judiciary. In fact, Alexander Hamilton, considered 
the strongest defender of Presidential power, emphasized that the 
President would be required to have his choice for the bench submitted 
to an independent body for debate, a decision, and a vote, not simply 
an affirmation. He clarified the necessary involvement of the Senate in 
Federalist No. 77 by writing:

     . . . if by influencing the President be meant restraining 
     him, this is precisely what must have been intended.

  Here is the emergence of a check, a balance, a leveling impact on the 
power of appointment, which is not to be unbridled.
  In 1776, John Adams also wrote on the specific need for an 
independent judiciary and checks and balances. He said:

       The dignity and stability of government in all its 
     branches, the morals of the people and every blessing of 
     society, depends so much upon an upright and skillful 
     administration of justice, that the judicial power ought to 
     be distinct from both the legislative and executive, and 
     independent upon both, that so it may be a check upon both, 
     as both should be checked upon that . . . [The judges'] minds 
     should not be distracted with jarring interests; they should 
     not be dependent upon any man or body of men.

  So it is clear, when examining the creation of our Constitution, that 
the Federal judiciary was specifically designed to be an independent, 
nonpartisan third branch, and the Senate was meant to play an active 
role in the selection process.
  In addition, the experience of President Washington in appointing 
judges illustrates that from the outset the Senate took an active role 
in evaluating judicial nominees. In 1795, President George Washington 
nominated John Rutledge to be Chief Justice. Soon after his nomination, 
Rutledge assailed the newly negotiated and popular Jay Treaty with 
Britain. Even as Rutledge functioned as Acting Chief Justice, the 
Senate debated his nomination for 5 months, and in December 1795 the 
body rejected him 14 to 10, illustrating from the first administration 
that the Senate has always enjoyed a strong prerogative to confirm or 
reject nominees.
  Now, use of procedural delays throughout history has prevented 
nominees from receiving an up-or-down vote. The claim that it is 
unprecedented to filibuster judicial nominations is simply untrue. In 
1881, Republicans held a majority of seats in the Senate but were 
unable to end a filibuster to preclude a floor vote on President 
Rutherford B. Hayes's nomination of Senator Stanley Matthews to the 
Supreme Court. Matthews was renominated by incoming President James 
Garfield, and after a bitter debate in the Senate, was confirmed by a 
vote of 24 to 23. This has been described as the first recorded 
instance in which the filibuster was clearly and unambiguously deployed 
to defeat a judicial nomination.
  Then, as has been stated on the Senate floor, there was the 1968 GOP-
led filibuster against President Lyndon B. Johnson's nomination of Abe 
Fortas to be Chief Justice of the United States. At the time, a page 1 
Washington Post story declared: ``Fortas Debate Opens With a 
Filibuster.''
  The article read:

       A full-dress Republican-led filibuster broke out in the 
     Senate yesterday against a motion to call up the nomination 
     of Justice Abe Fortas for Chief Justice.

  So here are two specific examples of Republican-led filibusters 
against judicial appointments.
  Last Congress, the Congressional Research Service reported that 
filibusters and cloture votes have been required to end debate on 
numerous judicial appointments. CRS reported that since 1980, cloture 
motions have been filed on 14 court of appeals and district court 
nominations. We all know a cloture vote is another kind of filibuster. 
It is the kind of filibuster where one does not have to stand up on the 
floor, but it takes the same 60 votes to close off debate. Moreover, 
cloture petitions were necessary in 2000 to obtain votes on the 
nominations of both Richard Paez and Marsha Berzon to the Ninth Circuit 
after Republican opponents repeatedly delayed action on them, for over 
4 years in the case of Paez.
  In fact, at the time, Republican Senator Bob Smith openly declared he 
was leading a filibuster against Richard Paez and he described Senator 
Sessions as a member of his filibuster coalition.
  In addition to using the filibuster and other procedural delays, 
Republicans have publicly pronounced the

[[Page 8995]]

importance of these rules and their own desire to delay or block the 
confirmation of judges. As recently as 1996, Senator Lott stated:

       The reason for the lack of action on the backlog of Clinton 
     nominations was his steadily ringing office phone saying ``No 
     more Clinton Federal judges.''

  In 1996, Senator Craig said:

       There is a general feeling . . . that no more nominations 
     should move. I think you'll see a progressive shutdown.

  In 1994, Senator Hatch stated that the filibuster is ``one of the few 
tools that the minority has to protect itself and those the minority 
represents.''
  How soon they forget. Recent Republican practices using anonymous 
holds allowing a single Senator, not 41, to prevent a hearing or a vote 
on a judicial nominee, in effect, has created a filibuster of one. All 
told, during the last administration, more than 60 judicial nominees 
suffered this fate. This practice was recently commented on in the 
Chicago Tribune which said:

       In addition, there are lots of congressional practices that 
     defy majority rule. Under President Clinton, when Republicans 
     controlled the Senate, they didn't have to use the filibuster 
     to bottle up judicial nominations. The Judiciary Committee 
     simply refused to send them to the floor for a vote.

  That is true. I know. I was there. Remembering this history is 
important, not to point fingers or justify a tit-for-tat policy; 
instead, it is important to recall that Senate rules have been used 
throughout our history by both parties to implement a strong Senate 
role and ensure that Presidents do not attempt to weaken the 
independence of the judiciary.
  The history is not new, and these examples have been cited by my 
colleagues in other contexts, and therefore, those on the other side 
have responded to the history. I believe it is important to address the 
differences that the other side is trying to draw.
  Some have argued that the nomination by President Hayes of Senator 
Matthews of Ohio was not a filibuster because there was no cloture 
vote. This is true, however, a procedural delay denying a nominee 
confirmation to a court still has the result blocking a nomination. 
Trying to make a distinction about the procedures used to deny a 
nominee confirmation is a distinction without a difference.
  As for the nomination of Abe Fortas--colleagues on the other side of 
the aisle have made various arguments including: that's only one 
isolated example; it was a Supreme Court, not a Circuit Court nominee; 
or Fortas' nomination was withdrawn after a failed cloture vote showed 
he did not have majority support and therefore its not the same 
situation.
  Miguel Estrada and Carolyn Kuhl both withdrew their nominations after 
failed cloture votes, however both were used as examples of filibusters 
by Democrats.
  Our colleagues have argued that the delays to the nominations of 
Richard Paez and Marsha Bershon do not count because in the end they 
were confirmed. This ignores that it took over four years to confirm 
both nominees. In addition, if a party attempts to filibuster a 
nomination, or legislation, and it is eventually passed that does not 
mean it is not a filibuster. It simply means that the filibuster or 
refusal to grant cloture cannot be sustained. That has happened to both 
parties in a variety of situations. However, failure does not undo the 
effort.
  Finally, as to the other Clinton Administration nominees--the 
response given is that their nominations weren't defeated by a cloture 
vote on the floor. In essence the argument is because different 
procedural rules were used to defeat a nomination, it doesn't count. On 
its face, this argument doesn't hold water. To the nominee whether 
their confirmation failed because of a ``hold'' in Committee, or a 
failed cloture vote, the result is the same--they are not sitting on 
the bench.
  Dozens of Clinton's nominees were ``pocket filibustered'' by as 
little as one Senator who, in secret, prevented the nominees from 
receiving a hearing in Committee, or a mark-up, or a floor vote. One 
Senator without debate or reason has stopped many Clinton nominees.
  The question I have is whether the public interest is better served 
by one hidden filibuster without explanation, or 41 Senators debating 
publicly and refusing publicly to confirm the nominee. Clearly, it is 
the later.
  I would like to go over a few nominees from the last administration 
who have been filibustered by Republicans, and filibustered 
successfully on many occasions by as little a number as one Republican; 
filibustered in a way that it was secret; filibustered in a way that 
the individual never received a hearing or a markup in Judiciary or a 
vote on the Senate floor. Then I would like an answer to the question, 
which is better, a filibuster by 40 Members on the floor openly 
declared, publicly debating, discussing an individual's past speeches, 
an individual's temperament, character, opinions, or a filibuster in 
secret when one does not know who or why?
  I begin with Clarence Sundram. Clarence Sundram was the chairman of 
the New York Commission for the Mentally Disabled. He was nominated on 
September 29, 1995. He had hearings on July 31, 1996, and June 25, 
1997. There was no committee vote. There was no floor vote. His 
nomination was simply killed in committee by a filibuster of one or 
two, or the chairman's decision not to bring the nomination to the 
floor. He was supported by both home State Senators Moynihan and 
D'Amato. On seven occasions, Senator Leahy spoke on the Senate floor 
urging that a vote be taken on Sundram, but no vote was ever taken.
  James A. Beaty, Jr., was nominated to the U.S. Court of Appeals for 
the Fourth Circuit on December 22, 1995, and renominated on January 7, 
1997. He did not receive a hearing and was not voted on in committee. 
His nomination languished for more than 1,000 days, almost 3 years 
without any action being taken. He was nominated by President Clinton 
to be a judge on the U.S. District Court for the Middle District of 
North Carolina. He was finally confirmed by the Senate in 1994.
  Before that, he spent 13 years as a judge in the North Carolina 
Superior Court. He was blocked by Senator Helms. On November 21, 1998, 
National Journal reported that Senator Helms wanted President Clinton 
to name to the Fourth Circuit one of the Senator's proteges, Terrence 
W. Boyle, whose nomination to that bench was killed when the Democrats 
ruled the Senate and George Bush was President, but the Clinton White 
House refused and Senator Helms made it clear that President Clinton 
would not get Beaty confirmed until he nominated Boyle.
  Then Senator Helms supported Beaty when he was nominated for his 
current position as a U.S. district court judge. But this shows how 
things worked, where one person could deny a nomination.
  Then there is Helene White from the State of Michigan. She was 
nominated to the U.S. Court of Appeals for the Sixth Circuit on January 
7, 1997, and renominated on January 26, 1999, and renominated for a 
third time on January 3, 2001. She did not receive a hearing or a 
committee vote during the pendency of her nomination. She had waited 
for a Senate Judiciary Committee hearing for 4 years, longer than any 
other judicial nominee in history, according to the Associated Press. 
She had been a judge on the Michigan Court of Appeals. She served as a 
Wayne County circuit judge for nearly 10 years. She sat on the Common 
Pleas Court for the city of Detroit and served on the board of 
directors of the Michigan legal services. President Clinton thanked her 
for hanging in there through an ordeal that no one should have to 
endure. It is my understanding Senator Levin, one of the Michigan 
Senators, supported her. Senator Abraham waited 2 years before turning 
in his blue slip, and after turning in the blue slip did not endorse 
Ms. White. That, again, is how things worked. One person--not 41 people 
on the floor debating but 1 person--in secret holding up a nominee. 
That is just as much a filibuster, and even more effective a 
filibuster.
  Jorge Rangel was nominated to the U.S. Court of Appeals for the Fifth 
Circuit on July 24, 1997. He did not receive a hearing or a vote in 
committee. He was a partner in Rangel & Chriss, a Corpus Christi law 
firm, and specialized in personal injury, libel, and general media 
litigation. He was presiding

[[Page 8996]]

judge of the 347th District Court in Nueces County from October of 1983 
to June of 1985, and a former assistant professor of law at the 
University of Houston. He was originally recommended to the White House 
by Senator Bob Krueger, but removed his name from consideration 
because, according to a July 25, 1997 Dallas Morning News article, he 
was then a member of the American Bar Association Panel that reviews 
federal court nominees, which made him ineligible. He was subsequently 
nominated after he was no longer on the ABA panel, at which time, Texas 
Monthly has reported, he was blocked by his two home state Senators. 
So, two persons there.
  Barry Goode was nominated to the U.S. Court of Appeals for the Ninth 
Circuit in 1998, renominated January 26, 1999, and renominated a third 
time on January 3, 2001, just before President Clinton left office--
three tries. He waited for 2\1/2\ years without a hearing or a vote in 
committee. He was a partner at the time at the San Francisco law firm 
of McCutchen, Doyle, Brown & Enersen. He had practiced law since 1974. 
He was an adjunct professor of environmental law at the University of 
San Francisco and served 2 years as special assistant to Senator Adlai 
E. Stevenson III. The ABA rated him as qualified. He was supported by 
both myself and Senator Boxer. The reason for the block was an 
anonymous Republican who, to this day, is not known. Senator Leahy 
spoke at least eight times on the Senate floor, urging that Goode's 
nomination be considered, but a filibuster of one, hidden, in secret, 
nobody knowing who it was, essentially killed this nomination.
  Legrome Davis was nominated to the U.S. District Court for the 
Eastern District of Pennsylvania on July 30, 1998, and renominated on 
January 26, 1999. He did not receive a hearing or a vote from the 
Judiciary Committee during the nearly 2\1/2\ years his nomination was 
pending. President Bush renominated Davis to the same court at Senator 
Specter's request on January 23, 2002, and he was finally confirmed by 
a unanimous vote of the Senate on April 18, 2002. But the point was he 
was stopped for nearly 2\1/2\ years by an unknown individual.
  Lynnette Norton was nominated to the U.S. District Court for the 
Western District of Pennsylvania on April 29, 1998, and renominated on 
January 26, 1999. She did not receive a hearing or a vote in committee 
during the more than 2\1/2\ years her nomination was pending. She died 
suddenly in March 2002 of a cerebral aneurysm. It is my understanding 
Senator Specter supported Norton. Senator Santorum, I believe, did not 
return the blue slip. According to a November 18, 1999 article in the 
Philadelphia Inquirer, a hold was placed on Ms. Norton's nomination.
  H. Alston Johnson was nominated to the U.S. Court of Appeals for the 
Fifth Circuit on April 22, 1999, and renominated on January 4, 2001. 
Despite waiting over a year and a half, he did not receive a hearing or 
a vote in committee. His nomination was withdrawn by President Bush on 
March 19, 2001. He was supported by both home State Senators, Senators 
Breaux and Landrieu. According to articles in the Baton Rouge Advocate 
on July 10, 2000, and January 8, 2001, it is my understanding an 
individual Senator blocked his nomination from proceeding, even though 
both Republicans and Democrats appeared willing to confirm him.
  James E. Duffy, Jr. was nominated to the U.S. Court of Appeals for 
the Ninth Circuit on June 17, 1999, and renominated on January 3, 2001. 
He did not receive a hearing or vote in committee. He is from Honolulu, 
had been a litigator for his entire legal career, been a partner in the 
Honolulu law firm of Fujiyama, Duffy, and Fujiyama since 1975. He was 
former president of both the Hawaii State Bar and the Hawaii Trial 
Lawyers Association. He would have been the first active Hawaii member 
of the Ninth Circuit Court of Appeals in 15 years, despite rules that 
at least 1 judge must sit in each of the States within the Ninth 
Circuit. He was unanimously rated as well qualified. He was supported 
by both Hawaii Senators. There has been no explanation forthcoming of 
who blocked his progress. Again, a secret hold, one person. Two home 
State Senators supporting this individual and the individual does not 
go forward. That is as much a filibuster as anything going on on the 
floor at this time.
  Elena Kagan was nominated to the U.S. District Court of Appeals for 
the District of Columbia on June 17, 1999. She did not receive a vote 
or a hearing in committee. She is currently the dean of Harvard Law 
School. She was a visiting professor at Harvard Law School, former 
domestic adviser to President Bill Clinton when she was nominated. She 
was special counsel to the Senate Judiciary Committee during the 
confirmation hearings of Ruth Bader Ginsburg. She served as Associate 
Counsel to the President from 1995 to 1996, and Deputy Assistant to the 
President for Domestic Policy, and Deputy Director of the Domestic 
Policy Council from 1997 to 1999. Prior to that she was professor of 
law at the University of Chicago, tenured. She worked at the 
Washington, DC, law firm of Williams and Connolly, and she clerked for 
U.S. Supreme Court Justice Thurgood Marshall. A substantial majority of 
the ABA rated her qualified. A minority rated her well qualified. It is 
my understanding three Senators argued that the DC Circuit did not need 
any more judges, an argument that had been used to delay the 
confirmation of Judge Merrick Garland between 1995 and 1997.
  See, this was another thing that was happening during that time. Let 
me just say it like it was. Vacancies on the DC Circuit--a critical and 
important circuit because it reviews all of the administrative 
appeals--were purposely kept open, preventing President Clinton from 
filling that circuit, to have more openings for the next President. 
Here three Senators kept this very qualified and very distinguished 
nominee from receiving a vote or a hearing on the committee. Again, a 
secret, hidden filibuster.
  And, nevertheless, Senate Republicans supported the nomination by 
President Bush of Miguel Estrada to the same circuit court in 2002.
  James Wynn was nominated to the U.S. Court of Appeals for the Fourth 
Circuit on August 5, 1999, and renominated on January 3, 2001. As you 
can see, President Clinton made one last try before he left office. He 
did not receive a hearing or a vote in committee. President Bush 
withdrew Judge Wynn's nomination on March 19, 2001. He was a judge on 
the North Carolina Court of Appeals and had previously served on the 
North Carolina Supreme Court. When nominated, he was a Navy reservist 
in the JAG corps of the U.S. Navy with the rank of captain. He served 
as the ABA's first African-American chair of the Appellate Judges 
Conference whose membership includes over 600 Federal and State 
appellate judges. He was on the board of governors of the American 
Judicature Society and was a vice president of the North Carolina Bar 
Association. He was an executive board member of the Uniform State Laws 
Commission and a drafter of the Revised Uniform Arbitration Act, 
Uniform Tort Apportionment Act, and proposed Genetic Discrimination 
Act. He was rated qualified by the ABA screening committee. Senator 
Edwards supported him. The Associated Press, on December 29, 2000, 
reported that Senator Helms blocked Judge Wynn. One person blocks a 
distinguished jurist, a filibuster of one, and not a word said.
  Kathleen McCree-Lewis was nominated to the U.S. Court of Appeals for 
the Sixth Circuit Court on September 16, 1999, and renominated on 
January 3, 2001. She did not receive a hearing or a vote in committee 
during the more than a year her nomination was pending. She was a 
distinguished appellate attorney with Dykema Gossett, one of the 
largest law firms in Michigan. She had been active in the Michigan bar 
from 1996 to 1999. She chaired the rules advisory committee of the U.S. 
Court of Appeals for the Sixth Circuit. From 1992 to 1995, she 
cochaired the appellate practice committee of the ABA section of 
litigation. From 1987 to 1998, she was editor of the Sixth Circuit 
section of the Appellate Practice Journal and is a life member of the 
Sixth Circuit Judicial Conference. She was president of

[[Page 8997]]

the American Academy of Appellate Lawyers. She would have been the 
first African-American woman to serve on the Sixth U.S. Circuit Court 
of Appeals. She was rated by the ABA as well qualified. On March 21, 
2001, the Detroit Free Press reported that she was blocked by one of 
her home State Senators, namely Senator Abraham. Let me quote the 
Detroit Free Press. McCree-Lewis never ``got a hearing in the Senate, 
thanks to Abraham's epic obstructionism.''
  Now on January 8, 2001, the Detroit Free Press reported:

       The Senate has been obscenely obstructionist in blocking 
     President Bill Clinton's judicial nominations. Former Senator 
     Spencer Abraham did nothing to help shepherd Michigan Court 
     of Appeals Judge Helene White and Detroit attorney Kathleen 
     McCree Lewis through the system.

  Again, filibuster of one, in secret, with no floor debate.
  Enrique Moreno was nominated to the U.S. District Court of Appeals 
for the Fifth Circuit on September 16, 1999, and renominated January 3, 
2001.
  He did not receive a hearing or a vote in committee. At the time of 
his nomination, Moreno had a longstanding and diverse legal practice in 
El Paso, working on both civil and criminal law. In the civil area, he 
represented both plaintiffs and defendants, representing both large 
business clients and also individuals, advocating their civil rights. 
In a survey of State judges, he was rated as one of the top trial 
attorneys in El Paso. A native of Chihuahua, he came to El Paso as a 
small child, son of a retired carpenter and a seamstress.
  The ABA committee unanimously rated him as well qualified.
  In November of 2000, Texas Monthly reported that he was blocked by 
both home State Senators, again without a hearing or a vote in the 
Judiciary Committee.
  Allen Snyder was nominated to the U.S. Court of Appeals for the DC 
Circuit on September 22, 1999. He did receive a committee hearing on 
May 10, 2000. His nomination, though, was not voted on by the 
committee.
  At the time of his nomination, he was a longtime partner and chairman 
of litigation practice at the DC law firm Hogan & Hartson. At Hogan & 
Hartson, he represented Netscape Communications Corporation in the 
landmark Microsoft antitrust case.
  He was a former law clerk to Chief Justice William Rehnquist. The ABA 
unanimously rated him well qualified. He served as chair of the 
Committee on Admissions and Grievances of the U.S. Court of Appeals for 
the District of Columbia, as secretary and executive committee member 
of the Board of Governors of the District of Columbia Bar, and on the 
board of the Washington Council of Lawyers. It is my understanding his 
nomination was blocked by two Judiciary Committee Senators. No reason 
was given.
  Kent Markus was nominated to the U.S. Court of Appeals for the Sixth 
Circuit on February 9, 2000. He did not receive a hearing or a vote in 
committee. He was the director of the Dave Thomas Center for Adoption 
Law and visiting professor at Capital University Law School at the time 
of his nomination. He served in numerous high-level legal positions 
within the Department of Justice, including counselor to the Attorney 
General, Deputy Chief of Staff for the Office of the Attorney General, 
and Acting Assistant Attorney General for the Office of Legislative 
Affairs.
  He also served as first assistant attorney general and chief of staff 
for the Ohio Attorney General's Office.
  His nomination was supported by 14 past presidents of the Ohio State 
Bar Association, including Democrats, Republicans, and Independents; 
more than 80 Ohio law school deans; prominent Ohio Republicans; the 
National District Attorneys Association; and the National Fraternal 
Order of Police.
  The ABA unanimously rated him as qualified.
  Both Senators DeWine and Voinovich returned blue slips. He was 
blocked by one Senator--a filibuster of one, all hidden, all quiet.
  Bonnie Campbell was nominated to the U.S. Court of Appeals for the 
Eighth Circuit on March 2, 2000, and renominated on January 3, 2001. 
Her hearing was on May 25, 2000. The nomination was never voted on by 
the Judiciary Committee.
  She served for 4 years as Iowa's Attorney General. She is the only 
woman to have held that office in her State, and she wrote what became 
a model statute on antistalking for States around the country.
  She was selected by President Clinton in 1995 to head the Justice 
Department's newly created Violence Against Women Office. She emerged 
as a national leader for her work to bring victims' rights reforms to 
the country's criminal justice system.
  In 1997, Time magazine named her one of the 25 most influential 
people in America. Praising her for bringing ``rock-solid credibility'' 
to her job, Time called Campbell the ``force behind a grass-roots shift 
in the way Americans view the victims--and perhaps more important, the 
perpetrators--of crimes against women.''
  She oversaw a $1.6 billion program to provide resources to 
communities for training judges, prosecutors, and police. She was 
chosen to serve on the President's Interagency Council on Women, 
chaired by former First Lady Hillary Rodham Clinton. She also headed 
the Justice Department's Working Group on Trafficking.
  According to a statement given by Senator Leahy to the Judiciary 
Committee on January 22, 2004, she was blocked by a secret Republican 
hold from ever getting committee or Senate consideration. Apparently, 
just one Senator. She had a hearing, as I said, but she never had a 
vote.
  Roger Gregory was nominated to the U.S. Court of Appeals for the 
Fourth Circuit on June 30, 2000, and was renominated on January 3, 
2001. He was a recess appointee of President Clinton at the end of the 
106th Congress. He did not receive a hearing or a vote.
  On March 19, 2001, President Bush withdrew his nomination. He was 
subsequently renominated by President Bush on May 9, 2001, and 
confirmed July 20, 2001, by a 93-to-1 vote.
  According to former Senator Chuck Robb, on October 3, 2000:

       Despite the well-documented need for another judge on this 
     court, and despite Mr. Gregory's stellar qualifications, the 
     Judiciary Committee has stubbornly refused to even grant Mr. 
     Gregory the courtesy of a hearing.

  I know Senator Warner supported this judge.
  Again, this just goes to show that we are having a major flap because 
41 people feel strongly, are willing to come to the floor, and willing 
to debate a nominee, and all of a sudden the world is going to come to 
an end, when for years and years and years one or two or three Members 
of the Senate could prevent a hearing or a markup in the Judiciary 
Committee or an individual even being brought to the floor.
  Which would the public prefer? I would hope it would be a discussion 
on the floor of the Senate. I would hope it would be laying out the 
case against the individual, as has been done with every one of the 
ten--only ten; in all of President Bush's terms, only ten--when in 
President Clinton's term there were 60, and one or two, in secret, kept 
that individual from being brought to the floor of the Senate and voted 
on.
  Well, let me continue. John Bingler was nominated to the U.S. 
District Court for the Western District of Pennsylvania on July 21, 
1995, and renominated on July 31, 1997. He did not receive a hearing or 
a vote either time he was nominated.
  After waiting more than 2 years without any action on his nomination, 
he withdrew on February 12, 1998.
  Since 1971, he has practiced law with the Pittsburgh firm of Thorp, 
Reed & Armstrong. He served for 6 years as chair of the firm's 
litigation department.
  From 1970 to 1971, he was the public safety director for the city of 
Pittsburgh. He served for 3 years as an assistant U.S. attorney in 
Pittsburgh where he prosecuted Federal criminal cases, and for 2 years 
he was an attorney for the Civil Rights Division of the Department of 
Justice. He served a 3-year tour of duty in the U.S. Navy. He was rated 
unanimously as well qualified by the ABA.
  On October 16, 1997, the Pittsburgh-Post Gazette reported that one of 
the

[[Page 8998]]

two home State Senators held up his nomination for 2 years, allowing 
neither a hearing nor a vote, and I do not believe it was the chairman 
of the committee.
  Bruce Greer was nominated to the U.S. District Court for the Southern 
District of Florida on August 1, 1995. He did not receive a hearing and 
he was never voted on by the committee. His nomination was withdrawn on 
May 13, 1996. At the time of his nomination, he was the president of 
the Miami law firm of Greer, Homer & Bonner, where he has a civil 
litigation practice.
  Senator Bob Graham supported him. Senator Connie Mack's position is 
not known. It is my understanding the Wall Street Journal published a 
lengthy editorial on July 17, 1996, that made no direct allegations 
against Greer, but made a case for guilt by association implying that, 
because Mr. Greer represented unsavory defendants, he was soft on 
crime.
  The Columbia Journalism Review reported that the day after the 
editorial appeared, the chairman came to the floor to denounce judges 
who are soft on crime and, shortly afterward, Mr. Greer received word 
that he would not be receiving a hearing. So Bruce Greer was denied 
even a hearing to see if the allegations were true.
  That is what has happened, ladies and gentlemen.
  Leland Shurin was nominated to the U.S. District Court for the 
Western District of Missouri on April 4, 1995. He did not receive a 
hearing and was never voted on in committee. His nomination was 
withdrawn at his request, because of inaction, on September 5, 1995.
  He was an executive committee member and partner at the law firm of 
McDowell, Rice & Smith, in Kansas City, where he maintained a general 
practice doing plaintiff and defense litigation. He was very active in 
the community.
  He was rated as qualified by the ABA committee. He told the Kansas 
City Star:

       I had the sense that my confirmation is being delayed. No 
     one could give me a clear date when anything could be done. 
     I've sat around for two years. I can't keep doing it.

  One has to come to grips with whether this was a fair process, 
whether this was even as fair as what is happening today. I believe no 
way, no how was this a fair process. I have been one who has believed 
that the blue slip should be done away with, that there should be no 
anonymous holds, and that every appointee should be given a hearing and 
a vote in the committee. That does not mean that we should change the 
rules of the Senate to prevent, in extreme cases, the ability of the 
minority to register a strong point of view, when the minority of one 
has historically been allowed to register a strong point of view 
secretly and, in fact, kill a nominee.
  Sue Ellen Myerscough was nominated to the U.S. District Court for the 
Central District of Illinois on October 11, 1995. She did not receive a 
hearing or a vote in committee. She was an Illinois State circuit court 
judge. She was an associate circuit court judge. She worked in law 
firms in Springfield. She formerly clerked for U.S. District Judge 
Harold Baker. A substantial majority of the ABA committee rated her as 
well qualified, while a minority rated her as qualified.
  She was supported by both Senator Paul Simon and Senator Carol 
Moseley-Braun at the time. In 1997, Senator Dick Durbin stated in the 
State Journal-Register that he believed ``Judge Myerscough was caught 
up in a Federal stall.''
  On September 27, 1996, the State Journal-Register reported that 
Senator Simon said he believed the reason was a matter of partisanship, 
not because of any controversy or problems with her qualifications. 
Senator Simon said he escorted Myerscough for individual meetings with 
Senator Hatch and other members of the panel but had ``not had a single 
member of the committee tell me he or she couldn't vote for her.''
  This is what has happened. So I have a hard time understanding why we 
are where we are today.
  Charles Stack was nominated to the U.S. Court of Appeals for the 
Eleventh Circuit on October 27, 1995. He received a hearing before the 
committee on February 28, 1996, but did not receive a vote in 
committee.
  According to the May 11, 1996, Miami Herald, he came under intense 
attack from then-Presidential candidate Bob Dole, and he withdrew his 
nomination on May 13, 1996.
  Cheryl Wattley, nominated to the U.S. District Court for the Northern 
District of Texas on December 12, 1995, did not receive a hearing or 
vote in committee. The Dallas Morning News reported in 1996 that she 
was supported by both home State Senators. Again, no reason--probably 
filibustered because one or two or three didn't like her for one reason 
or another.
  Michael Schattman, nominated to the U.S. District Court for the 
Northern District of Texas, December 19, 1995, and renominated on March 
21, 1997, did not receive a hearing, was not voted on in committee. His 
nomination at his request was withdrawn on July 1998 after 2\1/2\ years 
of inaction by the committee. This man was a Texas State district court 
judge in Fort Worth. He had previously been a county court judge. And 
to add insult to injury, because of the lengthy delay in the nomination 
process, the February 11, 1998 edition of the NewsHour with Jim Lehrer 
reported that he lost his State court judgeship. He was unanimously 
rated as qualified. Again, this is the hidden filibuster of this body.
  J. Rich Leonard, was nominated to the U.S. Court of Appeals for the 
Fourth Circuit, on December 22, 1995, did not receive a hearing or a 
vote in committee. Subsequently, he was nominated to the District Court 
for the Eastern District of North Carolina on March 24, 1999. Again, he 
did not receive a hearing or a vote. In total, this gentleman waited 
over 2.5 years before the committee for the two nominations without 
ever receiving a hearing or a vote. He was a judge on the U.S. 
Bankruptcy Court for the Eastern District of North Carolina at the time 
of his nomination by President Clinton. He was rated as well qualified. 
Again, my information is that one Senator blocked both of his 
nominations.
  I see there are others waiting. I will be brief. But let me list some 
of the others.
  Robert Freedberg was nominated to the U.S. District Court for the 
Eastern District of Pennsylvania, April 23, 1998. He never received a 
hearing. He was a judge on Northampton County's Court of Common Pleas. 
He is a former prosecutor. The January 28, 1999 Allentown Morning Call 
reported that he was blocked by one Senator.
  Robert Raymar, nominated to the U.S. Court of Appeals for the Third 
Circuit, did not receive a hearing. His nomination expired at the end 
of the session. Former deputy attorney general for the State of New 
Jersey, member of the New Jersey Executive Commission on Ethical 
Standards. He was rated as qualified. He was supported by both State 
Senators. One person filibustered this individual in committee. He 
didn't receive a hearing or a vote.
  James Lyons, nominated to the U.S. Court of Appeals for the Tenth 
Circuit, did not receive a hearing or a vote, and withdrew after it 
became clear he would not receive a hearing or a vote. He was a 
longtime senior trial partner at the Denver law firm of Rothberger, 
Johnson & Lyons, special advisor to the President of the United States 
and the Secretary of State for economic initiatives in Ireland and 
Northern Ireland. He couldn't get a hearing. He was adjudged well 
qualified by the ABA.
  I don't see where anybody is concerned about these injustices, and 
that is what they were--real injustices.
  John Snodgrass was nominated to the U.S. District Court, Northern 
District of Alabama, September 22, 1994, renominated January 11, 1995. 
He did not receive a hearing or a committee vote. His nomination was 
withdrawn on September 5, 1995.
  Anabelle Rodriguez was nominated to the U.S. District Court for the 
District of Puerto Rico, January 26, 1996, renominated March 21, 1997. 
A committee hearing was held on October 1 of 1998, but a vote was never 
held on her nomination during the nearly 3 years her nomination was 
pending. What were the reasons for this block? On October

[[Page 8999]]

8, 1998, the Associated Press reported that her supporters said she was 
opposed by Puerto Rico's prostatehood Governor and congressional 
representative because she is a backer of the island's current status 
as a U.S. commonwealth, and there was apparently some overwhelming 
bipartisan opposition.
  Why not vote? If what is being said now has been true and par for the 
course, why not vote?
  Lynne Lasry was nominated for the Southern District of California but 
did not receive a hearing or a vote. After one year of inaction, the 
nomination was withdrawn in 1998.
  James Klein was nominated to the U.S. District Court for the District 
of Columbia, January 27, 1998, renominated March 25, 1999, and did not 
receive a hearing or committee vote during the 3 years that he was 
pending.
  Patricia Coan was nominated to the U.S. District Court for the 
District of Colorado, May 27, 1999. She did not receive a hearing or 
committee vote in the year and a half that her nomination was pending. 
The May 21, 2000 Denver Post reported that one Senator blocked her 
nomination.
  Dolly Gee was nominated to the District Court for the Central 
District of California, May 22, 1999. She did not receive a hearing or 
committee vote in the year and a half that her nomination was pending.
  Fred Woocher was nominated to the U.S. District Court for the Central 
District of California, received a hearing on November 10, 1999, but 
was not voted on by the committee despite waiting for a year after his 
hearing.
  Steven Bell was nominated to the U.S. District Court for the Northern 
District of Ohio but did not receive a hearing or vote in committee for 
more than a year that his nomination was pending.
  Rhonda Fields was nominated to District Court for the District of 
Columbia on November 17, 1999, no hearing, no vote.
  Robert Cindrich was nominated to the U.S. Court of Appeals, Third 
Circuit, February 9, 2000, no hearing, no vote.
  David Fineman was nominated to the U.S. District for the Eastern 
District of Pennsylvania on March 9, 2000, no hearing, no vote.
  Linda Riegle was nominated to the U.S. District for the District of 
Nevada on April 25, 2000, no hearing, no vote in committee.
  Ricardo Morado was nominated to the U.S. District for the Southern 
District of Texas on May 11, 2000, no hearing, no vote.
  Stephen Orlofsky was nominated to the U.S. Court of Appeals, Third 
Circuit, May 25, 2000, no hearing, no vote.
  Gary Sebelius was nominated to the U.S. District for the District of 
Kansas on June 6, 2000, no hearing, no vote.
  Kenneth Simon was nominated to the U.S. District for the Northern 
District of Alabama on June 6, 2000, no hearing, no vote.
  John S.W. Lim was nominated to the U.S. District for the District of 
Hawaii on June 8, 2000, no hearing, no vote.
  And there are those, you might say, that came under the Thurmond 
rule. There is sort of an informal practice that in the last few months 
of a President's tenure, the hearings do not go forward. Again, that is 
not a rule; it is a practice.
  Christine Arguello, nominated to the U.S. Court of Appeals, Tenth 
Circuit, on July 27, 2000.
  Andre Davis, nominated to the U.S. Court of Appeals, Fourth Circuit, 
on October 6, 2000.
  Elizabeth Gibson, nominated to the U.S. Court of Appeals, Fourth 
Circuit, on October 26, 2000.
  David Cercone, nominated to the U.S. District Court for the Western 
District of Pennsylvania on July 27, 2000.
  Harry Litman, nominated to the U.S. District Court for the Western 
District of Pennsylvania on July 27, 2000.
  Valerie Couch, nominated to the U.S. District Court for the Western 
District of Oklahoma on September 7, 2000.
  Marian Johnston, nominated to the U.S. District Court for the Eastern 
District of California on September 7, 2000.
  Steve Achelpohl, nominated to the U.S. District Court for the 
District of Nebraska on September 12, 2000.
  Richard Anderson nominated to the U.S. District Court for the 
District of Montana on September 13, 2000.
  Stephen Lieberman, nominated to the U.S. District Court for the 
Eastern District of Pennsylvania on September 14, 2000.
  And, Melvin Hall, nominated to the U.S. District Court for the 
Western District of Oklahoma on October 3, 2000.
  What I have tried to show today is that there is a certain amount of 
hypocrisy in what is going on today. The opposition cannot have any 
concern about one Clinton nominee or dozens of Clinton nominees who 
received no hearing, no markup, no floor vote, but suddenly they are 
upset because 41 of us in public, eight of us in committee, vote no and 
believe that our views are strong enough and substantive enough to 
warrant a debate on the floor of the Senate in the true tradition of 
the Senate. And bingo, we are going to have a change in the rules to 
prevent that from happening. Nobody is talking about changing the rules 
so one person can't filibuster; one person can't, on a pique or because 
they don't like the individual, condemn that individual.
  I can tell you, because I have been on this committee for 12 years, I 
have had people call me and say: Look, I have three children. I have to 
know what is going to happen to me. I try to get information, can't get 
that information.
  I ask the majority of this body, is that fair? Do you not feel 
aggrieved? Or is that OK because it was a different President of a 
different party? I don't think so. I think what is sauce for the goose 
is sauce for the gander. I pointed out two uses of filibusters for 
judicial appointments by Republicans, one in 1881 and one in 1968.
  Mr. COCHRAN. Mr. President, will the Senator yield for a question?
  Mrs. FEINSTEIN. I certainly will.
  Mr. COCHRAN. Mr. President, I am curious to know when the Senator 
plans to complete her remarks. At the beginning of her remarks, she 
assured the Senate that she would take about 30 minutes. We are on the 
conference report on the supplemental appropriations bill which is an 
urgent supplemental bill. We have about 4 hours divided among Senators 
on both sides to complete debate. I don't want to push the Senate into 
the evening hours, if we are going to have a prolonged discussion of 
this issue when we thought it was going to be 30 minutes. It is almost 
an hour now.
  Mrs. FEINSTEIN. I appreciate the Senator's forbearance. He is a true 
gentleman. Out of respect for him and for the institution, I will 
conclude my remarks.
  During the reorganization of the Senate in 2000, Senators Daschle and 
Leahy worked to make the nominations process more fair and public. This 
refining forced Senators opposed to a nomination to be held accountable 
for their positions. They could not hide behind a cloak of secrecy. 
This step also wiped out many of the procedural hurdles that have been 
used to defeat nominations. So many of the tools used by Republicans in 
the past, and referred to as a way to draw distinctions with a public 
cloture vote are no longer available. This historical record is 
important, yet it is too often lost in our debates.
  I also believe it is useful to examine the current state of judicial 
nominations, and what has actually occurred in this body during 
President Bush's tenure: 208 judges confirmed out of 218; 95 percent of 
President Bush's judges have been confirmed; the Senate has confirmed 
35 circuit court nominees; recently, the Judiciary Committee reported 
out 2 District Court and 1 Circuit Court nominees; today, there are 
only 4 judicial nominations on the Senate calendar waiting for a vote; 
and there are only 45 total vacancies, both district and circuit 
courts, and 29 do not have nominations submitted.
  What do these numbers mean? There are more judges today sitting on 
the federal bench than in any previous presidency. The Senate has 
confirmed more judges for President Bush than in President Reagan's 
first term, his father's only term, or President Clinton's second term.

[[Page 9000]]

  The Senate confirmed more circuit court judicial nominees than in 
Reagan's or Clinton's first term. When Democrats were in the majority 
in 2001, there were 110 vacancies and by the end of the 108th Congress 
and President Bush's first term, the number had plummeted to 27--the 
lowest level of vacancies since the Reagan era.
  Of the 8 nominees reported out of committee this year, four have 
already been confirmed. One, Thomas Griffith, is waiting a vote, and 
the remaining three are controversial nominees who were defeated last 
Congress: William Myers, Priscilla Owen, and Janice Rogers Brown.
  In addition, President Bush has sent the Senate but one new judicial 
nomination this year. Brian Sandoval of Nevada is the only new judicial 
nomination sent to the Senate in the first five months of this year. He 
has bipartisan support from his home State Senators and appears to be a 
consensus nominee.
  Again, what do these numbers mean? They mean there is no crisis on 
the federal bench that justifies the so-called nuclear option as some 
of my Republican colleagues contend.
  To me, the record I just described and the reasons for opposing these 
limited number of nominees doesn't lead to the conclusion that the 
Senate should be discussing breaking our own institutional rules and 
unraveling the checks and balances established by our Constitution.
  Some have described this debate as a strategy to change the rules. 
Changing the rules is not only unacceptable, but in this case it is 
inaccurate as well. The nuclear option is a strategy to break the 
rules. This isn't just my assessment; it's the conclusion drawn by the 
Senate Parliamentarian and the Congressional Research Service.
  Last week, press reports reiterated that Senator Reid had been 
assured by the Parliamentarian that if the Republicans go through with 
this strategy they would ``have to overrule him, because what they are 
doing is wrong.''
  The Congressional Research Service concluded in a recent report that 
to employ these tactics the Senate would have to ``overturn previous 
precedent.'' ``Proceedings of this kind, it is argued, would both break 
old precedent and establish new Senate precedents. Eventually such a 
plan might even result in changes in Senate rules, while circumventing 
the procedures prescribed by Senate rules.''
  So, shortly, the Senate will likely be faced with a preemptive strike 
to break the rules. The term preemptive strike seems appropriate when 
there are only three controversial judges waiting for a vote--judges 
who were previously defeated last Congress and have drawn strong 
opposition.
  This is a move to wipe out 200 years of precedent when this Senate 
has only been in session for just over 4 months, when this President 
has had over 200 judges confirmed, and when the Judiciary Committee 
reported favorably a controversial circuit court judge who was not 
voted on last Congress, but was renominated. This appears to me to be 
an escalation that is unwarranted in the reality of what has actually 
occurred and is happening in this session.
  I find it ironic that while our country fights abroad to establish 
democracy, to promote checks and balances, and institute wide 
representation of all people in government; here at home our leadership 
is attempting to erode those very protections in our own government. 
What kind of message are we sending? ``Do as I say, not as I do''?
  This debate over judicial nominees is a debate about privacy, women's 
rights, civil rights, clean environment, access to healthcare and 
education; retirement security--we may not all agree, but the beauty of 
our country is the freedom to disagree, to debate, and to require 
compromise because no one party has the corner on the market of good 
ideas and solutions--and no party has the corner on the market of 
political power.
  Democrats held the House majority for over 50 years, and now 
Republicans have been in the majority for over a decade. Democrats held 
the White House for eight years, now the Republicans will have occupied 
the White House for eight years. Neither party will always be right 
when it comes to the best policies for our country, and neither party 
will always be in power.
  There are many urgent problems the Senate needs to be focused on and 
Americans' want us to focus on: the war in Iraq; protecting our 
homeland; addressing the high cost of prescription drugs; alleviating 
rising gas prices; ensuring our social security system is stable and 
working; and reducing the federal deficit.
  I am troubled that instead today we are spending much of our time on 
political posturing gone too far--on a strategy to unravel our 
constitutional checks and balances.
  Cold War commentator Walter Lippman once said, ``In making the great 
experiment of governing people by consent rather than by coercion, it 
is not sufficient that the party in power should have a majority. It is 
just as necessary that the party in power should never outrage the 
minority.'' And today, we are outraged.
  I would hope that the majority would not choose to unravel that 
foundation over a small handful of nominees. I would hope we would 
continue to honor the tradition of our democracy. I would hope the 
President will urge others in his party to walk away from this nuclear 
strategy. And I know if the shoe was on the other foot, I would not 
advocate breaking Senate rules and precedent.
  Regardless of how this debate continues to unfold, I remain committed 
to evaluating each candidate on a case by case basis, and I will 
continue to ensure that judicial nominees are treated fairly and even-
handedly, but I will not fail to raise concerns or objections when 
there are legitimate issues that need to be discussed.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. Mr. President, before I make my remarks on the 
supplemental appropriations conference report, I commend my friend and 
colleague from California. As we have come to expect, her presentation 
was thorough, comprehensive, factually and historically accurate. Much 
in the debate that has occurred around the so-called nuclear option has 
been heated. It has been rhetorical. It has been filled with opinion. 
It has been, unfortunately, often devoid of either historical or 
factual content. I personally appreciate greatly the Senator from 
California putting into the Record these very carefully created remarks 
based on facts. I hope no matter what happens with this debate--and 
obviously, I hope the Senate comes to its senses and realizes that we 
owe an obligation to the Constitution and the country--historians will 
be able to look back and read the very impressive statement of the 
Senator from California and know what the facts were. I personally 
express my appreciation to her.
  Mr. DORGAN. Will the Senator from New York yield for a question?
  Mrs. CLINTON. Yes.
  Mr. DORGAN. Mr. President, I ask unanimous consent that I be 
recognized at 2:15 for 15 minutes to discuss the supplemental. Senator 
Byrd is the ranking member on the Appropriations Committee. If he is 
here and wishes to speak at that time, I will yield the floor to him. 
In the absence of that, I ask consent.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New York.
  Mrs. CLINTON. Mr. President, I rise to address the emergency 
supplemental appropriations conference report. When the vote occurs, it 
is likely to be, if not unanimous, very close to being unanimous. And 
why? Because this conference report contains the funding that is needed 
by our brave troops in Iraq and Afghanistan. It contains funding to 
provide necessary resources to equip our troops and to do the military 
construction that is necessary. I will vote for this conference report. 
But I want to record some serious reservations about this process. 
First, the emergency supplemental appropriations process is destined to 
be just that. It is a way to fund unforeseen emergencies outside of the 
usual budgetary process.
  Unfortunately, once again, we are funding the cost of the military in 
Iraq, Afghanistan, and elsewhere, as well as a legitimate emergency, 
such

[[Page 9001]]

as the tsunami relief provisions in the bill, through an emergency. I 
am privileged to sit on the Senate Armed Services Committee, which is 
responsible for presenting the authorization for the budget for the 
Department of Defense, and during several of our hearings over the last 
several months, I, among a number of my colleagues on both sides of the 
aisle, have asked our civilian and military leadership from the 
Department of Defense how they explain the fact that once again the 
costs for Iraq and Afghanistan are not in the budget; they are in the 
emergency supplemental.
  Many of these costs perhaps were genuine emergencies, but many others 
are not. I would not argue with many of the decisions made because I am 
well aware of the importance of recapitalizing our equipment, building 
back up our stores of arms that have been decreased through necessary 
action. But a good budgeting process would take all of that into 
account. Having this supplemental, unfortunately, with the big title 
``emergency'' over it appears to be an effort to rush things through to 
avoid congressional oversight and scrutiny. Obviously, a bill that is 
going to provide funding for the young men and women wearing the 
uniform of our country, in harm's way every single hour of every day, 
is going to command broad bipartisan and public support, as it should. 
But that doesn't, in my opinion, in any way mitigate against what 
should be the necessity of an orderly process, an appropriations 
process subject to the give and take of opinion and fact, and argument 
and reason and evidence, and then the presentation of a budget that 
includes the expenses that are necessary for our military.
  I regret deeply that we are, once again, seeing an emergency bill 
being pushed through the Senate, as it was pushed through the House 
last week, when instead we should be having an orderly process looking 
at these matters within the budget and making decisions based on that 
process.
  During the Armed Services Committee hearing on this supplemental 
request, a number of my colleagues asked why projects that ordinarily 
are included in the regular Department of Defense budget were being 
shifted to the supplemental. I really was quite taken aback when the 
military leadership said they didn't know, that they were just told 
they should put it out for the supplemental. The civilian leadership 
present at the hearing could not offer a much better explanation. So it 
is regrettable that we are making these important, literally life-and-
death decisions once again in an emergency supplemental as opposed to 
the regular budget.
  Also, it is regrettable that the administration is not providing a 
proper accounting of how funds are being spent in Iraq. According to 
recent reports, Government auditors found that American officials 
rushed to start small building projects in a large area of Iraq during 
2003 and 2004. They did not keep the required records that would tell 
us how they spent $89.4 million in cash. They cannot account for at 
least $7.2 million more. This is a very serious question. If we are 
appropriating this money and we are sending it for both military and 
reconstruction purposes to Iraq, we have a right to expect that records 
will be kept so we can determine whether it is being spent in the 
appropriate manner.
  We have also heard that millions of dollars of Iraqi reconstruction 
funds that have been appropriated have also not been spent. A large 
reason for that is security. But why come back for more money when we 
cannot spend the money we have already appropriated? It is 
heartbreaking to me that there is so little oversight from this 
Congress with respect to this administration. There are no rigorous 
hearings being held to determine whether we are spending money 
correctly, how it is being spent, where all of the cash is going. The 
first time I flew into Iraq, I flew from Kuwait to Baghdad on a C-130. 
The back of it was loaded with cash--dollars. They were being taken 
into Baghdad to be spent for God knows what, and there is no 
accountability.
  It is remarkable that this Congress, at this important moment in 
American history, is not exercising its constitutional oversight 
responsibilities. During the Second World War, Harry Truman, a 
Democratic President, with a Democratic Congress, held hearings about 
where money was going in World War II. In the 1960s, Senator Fulbright, 
with a Democratic President and a Democratic Congress, held hearings 
about our policies and actions in Vietnam. We have a Republican 
President, a Republican Congress--hear no evil, see no evil, speak to 
evil; we don't want to know. Questions are not asked--at least 
publicly. People have no idea where this money is going, who is getting 
it, and how it is being spent. These emergency supplementals have even 
less oversight than the typical budget, which in this Congress is 
practically nothing.
  So while we continue to spend billions and billions of American 
taxpayer dollars, we don't see the requisite accountability occurring 
in this body to determine whether we are spending them appropriately.
  I am also deeply concerned that on an emergency supplemental to fund 
our troops and fund the relief disaster in southeast Asia because of 
the tsunami, we are being asked to vote on something called ``REAL 
ID.'' It is a provision meant to, in the supporters' argument, make our 
country safer. How do we know? We haven't had hearings about it in the 
Senate. We have not even had debate about it in the Senate. I joined 
with Senator Feinstein to try to prevent immigration proposals from 
being tacked onto the supplemental. But we all know why that happened--
because the administration backed up the House Republican leadership to 
give them an opportunity to put the so-called REAL ID on a must-pass 
piece of legislation; namely, legislation to fund our troops. So 
without debate, without committee hearings, without process, we have 
the so-called REAL ID in this emergency supplemental.
  I am outraged that the Republican leadership, first in the House and 
now, unfortunately, in the Senate, would put this seriously flawed act 
into this emergency supplemental bill for our troops in Afghanistan and 
Iraq. Emergency legislation designed to provide our troops the 
resources they need to fight terrorism on the front lines is not the 
place for broad, sweeping immigration reform. That is what REAL ID is. 
There may be parts of it that we could agree on if we ever had a chance 
to debate it. Other parts go too far and don't fulfill the purpose of 
making our country more secure.
  I am in total agreement with those who argue that we need to address 
our immigration challenges, and we are still not doing what we should 
to fulfill the demands of homeland security. I think they go hand-in-
hand. If we cannot secure our borders, we cannot secure our homeland. 
Everybody knows we are not securing our borders. Who are we kidding? We 
need a much tougher, smarter look at these issues. But instead we are 
taking a piece of legislation passed by the House, jammed into 
supplemental emergency appropriations for our troops, and we are going 
to up-end the way we do driver's licenses throughout our country, and 
we are going to claim we have now made America safer.
  I think that is a false claim. I regret deeply that we are rushing to 
pass this emergency bill with this so-called REAL ID in it. We need to 
reform our immigration laws. We need to make our borders more secure. 
But we need a debate about how we are going to do that. Isn't it 
somewhat interesting to everyone in this Chamber that the richest, 
smartest country with the best technology in the world cannot secure 
its borders? Why would that be? Well, part of the reason is because 
there are many people, particularly to our south, who are desperate for 
a better chance. They literally risk their lives to come here. Part of 
it is because we have a lot of employers who want to employ them. So 
they know if they get here, they will have a job. We are not having a 
public national debate about this because, if we were, we would have to 
point fingers at these employers who pick up illegal immigrants every 
single day on street corners throughout

[[Page 9002]]

America, or who sign them up to work in dangerous factories with very 
little health and safety regulation.
  So come on, let's not kid ourselves. We have a serious security and 
immigration problem. But we are not addressing it by jamming this 
provision about driver's licenses into our emergency appropriations. We 
need to make our borders more secure. I have introduced legislation 3 
years in a row to have a northern border coordinator. I met with both 
Secretary Ridge and Secretary Chertoff. We don't know who is in charge 
of the northern border. Trying to figure out who is responsible for the 
northern border is like playing ``Where is Waldo.'' we cannot figure 
that out. We are not taking simple steps to rationalize our bureaucracy 
in Washington, to find out what our holes are and how they can be 
plugged, what policies would work if we were actually serious about 
improving security.
  The REAL ID Act also gives total control to the Secretary of Homeland 
Security to waive legal requirements that stand in the way of 
constructing barriers and roads along the border. The only check is 
limited judicial review. This is quite a tremendous grant of authority 
to one person in our Government. I am sure there are some reasons why 
we would want to expedite a process to try to have better security 
along our borders. But to give this unchecked responsibility to the 
Secretary, with limited judicial review--that is a slippery slope, my 
friends. We are sliding further and further toward absolute power and 
the removal of our checks and balances.
  We also have to figure out how we are going to deal with the changes 
in asylum rules that are in REAL ID. I am very proud of the fact that 
our country has always welcomed asylum-seekers and refugees. There is a 
city in New York, Utica, which is known as one of the most welcoming 
places for refugees in the entire country. I am so proud of the people 
of Utica. They have taken in Bosnians, Kosovars, Somalians, all kinds 
of refugees--people who could not stay in their home country and were 
desperate for some place of refuge. Under these new rules, we will see 
whether America remains the place of welcome, whether we fulfill our 
obligations to our fellow men and women.
  I hope that the failure of having a process with respect to REAL ID, 
the continuing use of the supplemental appropriations route for funding 
our troops, which avoids the budget process, will at some point come to 
an end because the majority will no longer tolerate it. This is not 
good for any of us--to have these kinds of processes that really turn 
our constitutional system upside down.
  In the meantime, we need to send a message that we are able to have 
national debates about sensitive issues, to debate judicial nominations 
on the floor, using the rules that have really stood the test of time 
and been good for the Senate and our country. We don't always win, but 
the Senate was devised to protect minority rights. I represent a State 
of 19 million people. The Presiding Officer represents a much smaller 
State. He and I are equal. That is the whole idea behind the setup of 
the Senate.
  Finally, let's be sure that we do not piecemeal reform immigration--I 
use the word ``reform'' advisedly--that we have the kind of debate and 
comprehensive reform that is so needed. I bet every one of the offices 
of my colleagues is faced with what my office confronts every single 
day. We do lots of casework. There are a lot of people who came here 
legally. They cannot get their relatives into this country. They cannot 
reunite their families. I want to have a reform that really provides 
benefits for legal immigrants.
  Mr. President, I hope we can deal with these issues in a better way 
that really reflects the best of the Senate going forward.
  The PRESIDING OFFICER. The Senator from Mississippi.


             Unanimous consent request--committee meetings

  Mr. COCHRAN. Mr. President, before the Chair announces the recess for 
the policy luncheons, I have eight unanimous consent requests for 
committees to meet during today's session of the Senate. They have the 
approval of the majority and minority leaders. I ask unanimous consent 
that these requests be agreed to and the requests be printed in the 
Record.
  The PRESIDING OFFICER. Is there objection?
  Mr. GREGG. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.

                          ____________________