[Congressional Record (Bound Edition), Volume 151 (2005), Part 8]
[Senate]
[Pages 10827-10831]
[From the U.S. Government Publishing Office, www.gpo.gov]




NOMINATION OF PRISCILLA RICHMAN OWEN TO BE UNITED STATES CIRCUIT JUDGE 
                    FOR THE FIFTH CIRCUIT--Continued

  Mr. KOHL. Mr. President, as passions rise higher and higher here in 
the Senate, I come to the floor today to urge that cooler heads 
prevail; to urge that the majority not take the fateful step they are 
contemplating; to urge that we step back from the cliff we are 
approaching, before it is too late.
  We have all heard the arguments for and against a rule change that 
has been dubbed ``the nuclear option.'' I

[[Page 10828]]

will not reiterate those arguments here. But as someone who came to the 
Senate to get things done for real people, I have some experience 
trying to reach compromise on difficult issues. The heart of compromise 
is well known: one side cannot have all that they want. Yet the essence 
of the so called ``nuclear option'' is just that--one side wins, one 
party wins, one majority wins full power over who will sit on the 
Federal bench. The other side--the other party, the minority--is left 
powerless, silenced by a new rule that strips the minority of all power 
over judges. We all know that such an outcome is the opposite of 
moderation, the opposite of compromise, the opposite of bipartisanship. 
In short, the opposite of how to get things done in a way that 
encourages participation on both sides of the aisle.
  There is no need to go down this troubled partisan path on judicial 
nominations and my own State of Wisconsin has shown us a smoother road 
for more than a quarter century. In all those years, Wisconsin has used 
a bipartisan nominating commission to force all sides to act in 
bipartisan cooperation when selecting judges. During the 
administrations of Democrats and Republicans, and during the tenure of 
Republican as well as Democratic Senators, we have used the Commission 
and succeeded in selecting well-qualified nominees who have been easily 
confirmed by the Senate in every case. Using this process, both 
political parties have been represented--the minority does not get to 
choose the nominee, but they can affect the choice and have their views 
count.
  If we move forward with the proposed rule change--a change designed 
to bring about one-party rule whenever the Senate considers judges--we 
will silence a minority of the Senate and a majority of Americans. You 
see, the Democratic Senators in this body were elected by a majority of 
Americans. How will a majority of Americans speak up about judges who 
will sit in their districts, on the Seventh Circuit, on the Supreme 
Court, making decisions about their lives for generations to come if 
this rule change is made?
  People all across our country--whether in the majority or the 
minority--deserve better. They deserve to have some say over who will 
sit in judgment over them. And they deserve more than that, they 
deserve a Senate that is working to solve the challenges they face 
every day, challenges like the skyrocketing cost of health care which 
leaves too many without coverage and even more struggling to pay for 
the coverage they have, challenges like factories closing and jobs that 
pay too little to support a family, challenges like the need to save 
for retirement in an age of disappearing pensions and job insecurity. 
These are among the problems we should be dealing with today.
  So for the sake of those who need healthcare, for the sake of those 
working for too little, for the sake of those nearing retirement with 
fear and worry, I urge my colleagues to stop. Stop and listen. I hope 
you will hear what I hear, Americans asking for what they have always 
asked of the Senate--that it be a place where debate continues, 
passions cool, and compromise prevails for the good of all.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The Senator will note the business at hand is 
the Priscilla Owen nomination, and the minority controls the time until 
5:30.
  Mr. LEAHY. I thank the distinguished Presiding Officer. I will take 
some of my time.
  Mr. President, I 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. LEAHY. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, the Senate is on a path toward a divisive 
and actually unnecessary showdown. I have been here long enough to know 
that if the vote on the Republican leader's nuclear option were by a 
secret ballot it would fail overwhelmingly. There are too many Senators 
who will tell you privately that on a secret ballot they would never 
vote for it. We know this because, as these Senators know, it is 
harmful to this institution and it is wrong for this country--wrong in 
terms of protecting the rights of the American people, wrong in terms 
of undercutting our fundamental system of checks and balances, wrong in 
terms of defending the independence of and public support for an 
independent Federal judiciary. But especially it is wrong in 
unilaterally destroying minority protections in the Senate in order to 
promote one-party rule, something this Senate has never known and has 
never wanted.
  I have served in the Senate for almost 31 years. During that time, 
several times the Democrats were in charge of the Senate--in the 
majority. Several times the Republicans were. The hallmark of every 
leader, Republican or Democratic, was that the special minority 
protections of the Senate would remain. No matter who was in the 
majority, they believed they had as their obligation protecting the 
rights of the minority because that is what the Senate is all about. 
Every Senate majority leader took as his trust to make sure that when 
he left, the Senate had at least the strengths it had when he took 
over.
  Today, Democratic Senators alone will not be able to rescue the 
Senate and our system of checks and balances from the breaking of the 
Senate rules the Republican leadership seem so insistent on demanding. 
It will take at least six Republicans standing up for fairness and for 
checks and balances. I know a number of Senators on the other side of 
the aisle know in their hearts that this nuclear option is the wrong 
way to go.
  Senators on both sides of the aisle have called for the vote on the 
nuclear option to be one of principle rather than one of party loyalty, 
and for this to be a vote of conscience. I agree. To ensure that it is, 
I urge both the Republican leader from Tennessee and the Democratic 
leader from Nevada--both of whom are my friends--to announce publicly, 
today, in advance of the momentous vote that awaits us at the end of 
this debate, that every Senator should search his or her heart, his or 
her conscience, and vote accordingly.
  I call on both the Democratic and Republican leaders to announce that 
there will be no retribution or punishment visited upon any Senator for 
his or her vote.
  I remember in the aftermath of another vote, one I called at that 
time a profile in courage, when our friend, the senior Senator from 
Oregon, Mark Hatfield, cast the deciding vote against a proposed 
constitutional amendment. Ten years ago some of the newer Republican 
Senators at the time reportedly wanted to strip him of the chairmanship 
of the Appropriations Committee. The press at the time provided counsel 
to those newer Senators, some having recently arrived from the other 
Chamber, and who were accustomed to the way the Republican Party in 
that body operates, where everything is all or nothing.
  At the time, some of those Members urged that Senator Hatfield be 
penalized for his vote of conscience, a vote they did not like. They 
thought conscience should be set aside, he should have toed the party 
line. I remember the unfair pressures brought to bear on Senator 
Hatfield. I do not want to see that befall other Senators, Republican 
or Democrat, whichever way they choose to vote on the nuclear option.
  The Senate has its own carefully calibrated role in our system of 
Government. The Senate was not intended to function like the House. The 
Great Compromise of the Constitutional Convention more than 200 years 
ago was to create in the Senate a different legislative body from the 
House of Representatives. Those fundamental differences include equal 
representation for each State in accordance with article I, section 3. 
Thus, Vermont has equal numbers of Senators to New York or Idaho or 
California. The Founders intended this as a vital check. Representation 
in

[[Page 10829]]

the Senate is not a function of population or based on the size of a 
State or its wealth.
  Another key difference is the right to debate in the Senate. The 
filibuster is quintessentially a Senate practice. James Madison wrote 
in Federalist No. 63 that the Senate was intended to provide 
``interference of some temperate and respectable body of citizens'' 
against ``illicit advantage'' and the ``artful misrepresentations of 
interested men.'' It was designed and intended as a check, a balancing 
device, as a mechanism to promote consensus and to forge compromise.
  The House of Representatives has a different and equally crucial 
function in our system. I respect the House and its traditions just as 
I respect and honor the Senate tradition. It is the Senate and only the 
Senate that has a special role in our legislative system to protect the 
rights of a minority from the divisive or intemperate acts of a 
headstrong majority.
  As the Republican leader agreed in debate with Senator Byrd last 
week, there is no language in the Constitution that creates a right to 
a vote or a nomination or a bill. If there were such a right, if there 
were a right in the Constitution to require a vote, then Republicans 
violated that more than 60 times by 60 times refusing to have a vote on 
President Clinton's judicial nominees, by 60 pocket filibusters of 
Clinton judicial nominations and about 200 other executive nominations.
  According to the Congressional Research Service, more than 500 
judicial nominations for circuit and district court did not receive 
final Senate votes between 1945 and 2004. That is more than 500. It 
amounts to 18 percent of all overall nominations. By contrast, this 
President has seen more than 95 percent of his judicial nominations 
confirmed, 208 to date.
  What the Republican leadership is seeking to do is to change the 
Senate rules in accordance with them but by breaking them. It is wrong 
that the Senators who refused to have votes on more than 60 of 
President Clinton's judicial nominees, and hundreds of his executive 
branch nominees, have only one Republican agenda now--to contend the 
votes and nominations are constitutionally required.
  The Constitution hasn't changed from the time of the Clinton 
Presidency to Bush's Presidency, nor have the Senate rules been 
changed. That is why I like to keep the Senate autonomous and secure in 
a ``nuclear free'' zone.
  The partisan power play now underway by Republicans will undermine 
the checks and balances established by the Founders of the 
Constitution. It is a giant leap toward one-party rule with an 
unfettered executive controlling all three branches of the Federal 
Government. It not only would demean the Senate and destroy the comity 
on which it depends, but it would undermine the strong, independent 
Federal judiciary protecting rights of liberties of all Americans 
against the overreaching of political branches.
  It is saying, no matter whether you are Republican or Democrat or 
Independent in this country, only Republicans need apply because they 
will control the executive branch, the House of Representatives, the 
Senate, and now the independent Federal judiciary. That is what it 
comes down to. There will be no checks and balances on who goes on a 
Federal bench for a lifetime job, lifetime position. There will be no 
checks and balance. It will be, if you are a Republican, you can be on 
the Federal bench and help shape it; otherwise, forget about it.
  This is not a country of one-party rule. I hope this country is never 
one of one-party rule. No democracy law exists if it is there by one-
party rule.
  Our Senate Parliamentarian, who is nonpartisan, our Congressional 
Research Service, which is there to serve both Republicans and 
Democrats, have said the so-called nuclear option would go against 
Senate precedent. In other words, to change the rule, you would have to 
break the rule. In other words, to say we are going to talk about how 
judges should judge, we will break our own laws to do it. What an 
example to a great and good country like ours. What an example to say 
we are somehow above the law.
  What it is saying to the American people, you 280 million Americans, 
you follow the law, but 100 Senators are better than that. We don't 
have to follow the law. We stand above the law. In fact, if we don't 
like the law, we will break the law and make a new one.
  Do our friends on the other side of the aisle want to so blatantly 
break the rules for short-term political gain? Do they desire to turn 
the Senate into a place where the parliamentary equivalent of brute 
force is whatever can be rammed through by partisan ramrodding and arm 
twisting?
  We are not playing king of the hill. We are protecting the 
Constitution. We are protecting the best checks and balance of our 
Nation, the Senate, and we are doing it so we can remove the checks and 
balance of the Federal judiciary. What enormous stakes.
  That is why I say if this were a secret ballot, the nuclear option 
would never pass. There are too many Senators who state privately in 
the cloakrooms, the dining room, and the Senate gym, they know this is 
wrong but they have to follow party discipline.
  We did not come to this crossroad overnight. No Democratic Senator 
wanted to filibuster. Not one of us came to those votes easily. We hope 
we are never forced by an overaggressive executive and compliant 
majority into another filibuster over a judicial nomination. 
Filibusters, like the confrontation the Senate is being forced into 
over the last several days, are the direct result of a deliberate 
attack by the current administration and its supporters in the Senate 
against not only the traditions of the Senate but the rules: We are 
willing to break the rules that serve our purpose for the moment.
  The nuclear option is the grand culmination of their efforts. It is 
intended to clear the way for this President to appoint a more extreme 
and more divisive choice--not only in the circuit courts of appeals but 
should a vacancy arise on the Supreme Court. That is not how the Senate 
has worked or should work.
  I have been here with six Presidents. It has been the threat of a 
filibuster that has encouraged a President to moderate his choice and 
work with Senators on both sides of the aisle, both Republican and 
Democratic Senators. Of the six Presidents I have served with, five of 
them actually looked at the advice and consent clause and worked with 
Senators from both parties for both advice and consent of the judges. 
But this has been politicized and the Senate Republicans have 
systematically eliminated every other traditional protection for the 
minority. Now their target is a Senate filibuster, the only route that 
is left to allow a significant Senate minority to be heard.
  Under pressure from the White House over the last 2 years prior to 
this year, the former Republican chairman of the Judiciary Committee 
led Senate Republicans in breaking the longstanding precedent and 
Senate tradition with respect to handling lifetime appointments to the 
Federal bench. Senate Republicans have had one set of practices to 
delay and defeat 61 of a Democratic President's moderate, qualified 
judge nominations. But then they suddenly switch gears and switch the 
rules to rubberstamp a Republican President's choices to lifetime 
judicial positions, including many who were very controversial.
  The list of broken rules and precedents is long, including in the way 
the home State Senators were treated, the way hearings were scheduled, 
in the way the committee questionnaire was unilaterally altered, to the 
way the Judiciary Committee historic protection of the minority by 
committee rule IV was repeatedly violated. In the last Congress they 
destroyed virtually every custom and courtesy used throughout history 
to enforce cooperation and civility in the confirmation process.
  For years, Democratic Senators have been warning that the 
deterioration of Senate rules and practices, if done away with, would 
also do away with the protection of minority rights.
  So that is where we are. I have been proud to serve here both in the 
majority and the minority. I remember all

[[Page 10830]]

the times when I was here as a member of the majority party, it was 
constantly drummed into us at our party caucuses, at party meetings, we 
have to maintain the Senate rules to protect the rights of the then 
minority, the Republicans.
  It is amazing to me the Senate, the place that is supposed to be the 
conscience of our Nation, would allow a President, any President, to 
convince them to turn their back on precedent, on history, but also on 
their own rules.
  We have always been a check and balance on Presidents. Now we have 
Senators who will tell you, quietly outside the Chamber, they are 
frustrated by taking orders from the White House and yet will not stand 
up and say no, we don't work for the White House. We are not appointed 
by the White House. We are elected by the people of our State. We swear 
on the oath to protect the Constitution. We are not protecting it when 
we break our own rules. We are not protecting the people of this 
country when we throw away the ability to have checks and balances. 
This is a serious mistake, and we will rue this day.
  So at this ninth hour, I say to Senators: Vote your conscience. As I 
said earlier, if this was a secret ballot, the nuclear option would 
never pass. But vote your conscience. And again, I would urge both the 
Republican leader and the Democratic leader to announce on the floor of 
the Senate that nobody will be punished if they vote their conscience 
because, after all, why would anybody want to serve, why would anybody 
want to be 1 of 100 to represent 280 million Americans? Why would you 
want to serve in the Senate if you felt you could not vote your 
conscience? I will vote mine on this issue. I will vote to protect the 
rights of the minority--all minorities throughout this country. I will 
vote to uphold the law. I will vote to uphold the rules of the Senate. 
And I will vote to uphold that which causes us to have a check and 
balance where instead of rushing off the cliff following one person on 
either the right or the left, we seek the compromises that are best for 
this country.
  I see the distinguished Senator from New York on the floor. I am 
perfectly willing to yield the remainder of my time to her.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. Mr. President, I thank my friend from Vermont who has 
been a stalwart defender of the Constitution his entire public life. 
And as a member of the Judiciary Committee, as chair and ranking 
member, and all of his activities on behalf of this issue, he has 
demonstrated the highest level of leadership.
  Mr. President, I started my day today in Newburg, NY, at the military 
headquarters of GEN George Washington. Many of the most important 
battles of the Revolutionary War were fought in New York, up and down 
the Hudson River Valley, the Champlain Valley, the Mohawk Valley, down 
into New York City, out on Long Island. Today, we were announcing 
legislation that I had sponsored here in the Senate with my friend and 
colleague, the senior Senator from Virginia, Mr. Warner, to commemorate 
the Revolutionary War.
  We were reminded at this event today of something called the Newburg 
Conspiracy. What was that? That was an effort by a small group of 
people to persuade George Washington to begin to assume the mantle of 
absolute power, to, in effect, become more like a king than what had 
been envisioned for this new Republic, a President and a system of 
government with checks and balances.
  In one of his greatest speeches, then General Washington repudiated 
the Newburg Conspiracy and memorably said that we should all stand 
against any effort to consolidate power. We must stand for our 
Republic. And that Republic, which is unique in human history, has this 
unusual system of checks and balances that pit different parts of the 
Government against one another that, from the very beginning, 
recognized the importance of minority rights because, after all, that 
is what the Senate is, a guarantor of minority rights.
  I represent 19 million people. Yet my vote is no more important than 
the Presiding Officer's or any of my other colleagues who may represent 
States with far fewer citizens because we have always understood that 
majority rule too easily can become abusive, that those in the majority 
and particularly those who lead that majority always believe that what 
they want is right by definition. It is what they fight for. It is what 
they care about. But we have understood, thanks to the genius of our 
Founders--great leaders such as George Washington--that human nature 
being what it is, we have to restrain ourselves, not only in the 
conduct of our day-to-day relations with one another but in the conduct 
of our government.
  So we have created this rather cumbersome process of government. 
Sometimes people in a parliamentary system look at it and say: What is 
this about? You have a House of Representatives where you have majority 
rule, and then you have this Senate over here where people can slow 
things down, where they can debate, where they have something called 
the filibuster. It seems as if it is a little less than efficient.
  Well, that is right. It is, and deliberately designed to be so, with 
the acute psychological understanding that every single one of us needs 
to be checked in the exercise of power, that despite what we may 
believe about our intentions and our views, not one of us has access to 
the absolute truth about any issue confronting us. So one of the ways 
we have protected the special quality of the Senate over all of these 
years is through unlimited debate, through the creation of rules that 
would make it possible for a minority to be heard, and more than that, 
create a supermajority for certain actions that the Constitution 
entrusts to the Senate, and, in particularly, the appointment of judges 
for lifetime tenure.
  Now, why would you have a supermajority for judges? Again, I think it 
shows the genius of our Founders in their understanding of human 
nature. This is a position of such great importance, such overwhelming 
power and authority, that anyone who comes before this body should be 
able to obtain the support of 60 of our fellow Senators. It has worked 
well.
  There have been people going back in American history, and not just 
back to the beginning but back just a few years into the Clinton 
administration, who I believe should have been confirmed as judges. The 
Senate decided not to. The President has sent us his nominees, and we 
have confirmed more than 95 percent of them. I voted against a number 
of them, but the vast majority were acceptable to more than 60 Members 
of this body.
  What is happening now with this assault on the idea of the Senate, on 
the creation of this unique deliberative body that serves as a check 
and a balance to Presidential power, to the passions of the House, 
which has exercised the opportunity to create consensus with respect to 
judicial nominees, is that we have a President who is not satisfied 
with the way every other President has executed his authority when it 
comes to judicial nominees.
  Many Presidents have not liked what the Senate has done to their 
judicial nominees. We can go back to Thomas Jefferson. Thomas 
Jefferson, one of our greatest Presidents, was really upset because 
John Adams appointed people Thomas Jefferson did not think should be on 
the Federal bench. He did not agree with their philosophy. He had 
personal problems with some of them and the relationships between them. 
So he tried to undue what his predecessor had done. And the Senate, 
recognizing what General Washington had understood back during the 
Revolutionary War, what the writers of the Constitution had understood 
in Philadelphia, said: No. Wait a minute, Mr. President. We are not 
substituting one king for another. We are trying something entirely 
different. You may get a little frustrated, but Presidential authority 
is not absolute, so we are going to expect you to abide by the rules.
  Every President has faced these frustrations. Franklin Roosevelt, at 
the height of his power, with an overwhelmingly Democratic Congress,

[[Page 10831]]

faced all kinds of setbacks from the judiciary, and he wanted to change 
them. He wanted to pack the courts, and the Democrats in the Senate, 
who put the Senate first, who put the Constitution first, said: No. 
Wait a minute. We admire you. You are saving our country. You are doing 
great things. But, no, we cannot let you go this far.
  Well, today, we are here because another President is frustrated. He 
has gotten 95 percent of his judges. He wants 100 percent. I can 
understand that. That is the way a lot of people get when they have 
power. They want it all. If you are against him, then he thinks you are 
against everything he stands for as opposed to having legitimate 
disagreements.
  So this President has come to the majority in the Senate and 
basically said: Change the rules. Do it the way I want it done. And I 
guess there were not very many voices on the other side of the aisle 
that acted the way previous generations of Senators have acted and 
said: Mr. President, we are with you. We support you. But that is a 
bridge too far. We cannot go there. You have to restrain yourself, Mr. 
President. We have confirmed 95 percent of your nominees. And if you 
cannot get 60 votes for a nominee, maybe you should think about who you 
are sending to us to be confirmed because for a lifetime appointment, 
60 votes, bringing together a consensus of Senators from all regions of 
the country, who look at the same record and draw the same conclusion, 
means that perhaps that nominee should not be on the Federal bench.
  But, no, apparently that is not the advice that has been given to the 
President. Instead, it looks as though we are about to have a showdown 
where the Senate is being asked to turn itself inside out, to ignore 
the precedent, to ignore the way our system has worked--the delicate 
balance we have obtained that has kept this constitutional system 
going--for immediate gratification of the present President.
  When I was standing on the banks of the Hudson River this morning, 
looking at General Washington's headquarters, thinking about the 
sacrifice that he and so many others made, many giving the ultimate 
sacrifice of their life, for this Republic--if we can keep it, as 
Benjamin Franklin said--I felt as though I was in a parallel universe 
because I knew I was going to be getting on an airplane and coming back 
to Washington. And I knew the Republican majority was intent upon this 
showdown. I knew the President had chimed in today and said he wants 
up-or-down votes on his nominees. And I just had to hope that maybe 
between now and the time we have this vote there would be enough 
Senators who will say: Mr. President, no. We are sorry, we cannot go 
there. We are going to remember our Founders. We are going to remember 
what made this country great. We are going to maintain the integrity of 
the U.S. Senate.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I understand we have 1 minute left.
  The PRESIDING OFFICER. The Senator has 1 minute 40 seconds, to be 
exact.
  Mr. LEAHY. I thank the distinguished Presiding Officer, and I thank 
the Senator from New York for her comments.
  Mr. President, I would simply reiterate what I said before. If the 
vote on the nuclear option was cast in secret, from everything I have 
been told by my fellow Senators, it would go down to crashing defeat. 
As Senators know, we have to break the rules to change the rules.
  Again, I would just urge that both leaders, both the Republican and 
Democratic leaders, make it clear to their Members that nobody is going 
to be punished for a vote on conscience. I hope Senators will stand up 
and be a profile in courage, vote their conscience, and vote the right 
way.
  Mr. President, the hour of 5:30 has arrived, so I yield the floor.


                              Quorum Call

  Mr. President, I see the Republican leader is not on the floor yet, 
so I will suggest the absence of a quorum to accommodate him. I suggest 
the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll and the 
following Senators entered the Chamber and answered to their names:

                           [Quorum No. 3 Ex.]

     Baucus
     Bingaman
     Burr
     Cantwell
     Cochran
     Cornyn
     Dayton
     Durbin
     Frist
     Gregg
     Inouye
     Kennedy
     Leahy
     Lincoln
     Lott
     Murkowski
     Nelson, Nebraska
     Pryor
     Reid
     Salazar
     Schumer
     Stabenow
  The PRESIDING OFFICER. A quorum is not present.
  Mr. FRIST. Mr. President, I move to instruct the Sergeant at Arms to 
request the presence of absent Senators, and I ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion of the Senator from 
Tennessee. The yeas and nays were ordered, and the clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Mississippi (Mr. Cochran), the Senator from New Hampshire 
(Mr. Gregg), the Senator from Texas (Mr. Cornyn), the Senator from 
Mississippi (Mr. Lott), and the Senator from Alaska (Ms. Murkowski).
  Further, if present and voting, the Senator from Texas (Mr. Cornyn) 
would have voted: ``yea.''
  Mr. DURBIN. I announce that the Senator from Minnesota (Mr. Dayton), 
the Senator from Hawaii (Mr. Inouye), the Senator from Massachusetts 
(Mr. Kennedy), and the Senator from Arkansas (Mrs. Lincoln), are 
necessarily absent.
  The PRESIDING OFFICER (Mr. Thune). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 90, nays 1, as follows:

                      [Rollcall Vote No. 126 Ex.]

                                YEAS--90

     Akaka
     Alexander
     Allard
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Coburn
     Coleman
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Isakson
     Jeffords
     Johnson
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Martinez
     McCain
     McConnell
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                                NAYS--1

       
     Allen
       

                             NOT VOTING--9

     Cochran
     Cornyn
     Dayton
     Gregg
     Inouye
     Kennedy
     Lincoln
     Lott
     Murkowski
  The motion was agreed to.
  The PRESIDING OFFICER. A quorum is present.
  The majority leader.
  Mr. FRIST. Mr. President, for the information of our colleagues, we 
will be voting around noon tomorrow on the cloture motion with respect 
to Priscilla Owen. We will be in session through the night, and time is 
roughly equally divided.

                          ____________________