[Congressional Record (Bound Edition), Volume 152 (2006), Part 18]
[Senate]
[Pages 23454-23460]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF KENT A. JORDAN TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             THIRD CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the hour of 10:30 
a.m. having arrived, the Senate will proceed to executive session for a 
vote on the motion to invoke cloture on the nomination of Kent Jordan, 
which the clerk will report.
  The assistant legislative clerk read the nomination of Kent A. 
Jordan, of

[[Page 23455]]

Delaware, to be United States Circuit Judge for the Third Circuit.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of Kent A. Jordan, of Delaware, to be United States Circuit 
     Judge for the Third Circuit.
         Bill Frist, Robert Bennett, Arlen Specter, Tom Coburn, 
           Kit Bond, George Allen, Lindsey Graham, Trent Lott, Mel 
           Martinez, Gordon Smith, Sam Brownback, Rick Santorum, 
           Richard Burr, Hillary Clinton, Johnny Isakson, Jim 
           DeMint.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 924, the nomination of Kent A. Jordan, of 
Delaware, to be United States Circuit Judge for the Third Circuit, 
shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from South Carolina (Mr. Graham), the Senator from Utah (Mr. 
Hatch), the Senator from Arizona (Mr. McCain), the Senator from 
Missouri (Mr. Talent), and the Senator from Virginia (Mr. Warner).
  Further, if present and voting, the Senator from Utah (Mr. Hatch) and 
the Senator from Virginia (Mr. Warner) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden) and 
the Senator from Connecticut (Mr. Dodd) are necessarily absent.
  The yeas and nays resulted--yeas 93, nays 0, as follows:

                      [Rollcall Vote No. 275 Ex.]

                                YEAS--93

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

                             NOT VOTING--7

     Biden
     Dodd
     Graham
     Hatch
     McCain
     Talent
     Warner
  The PRESIDING OFFICER. On this vote, the yeas are 93, nays are 0. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  There are 2 hours of debate equally divided.
  The Senator from Vermont.
  Mr. GREGG. Mr. President, parliamentary inquiry: Will the Senator 
yield for a question?
  Mr. LEAHY. Without losing my right to the floor, yes.
  Mr. GREGG. I was wondering if the Senator will allow us to set up a 
sequence of speakers after the Senator speaks.
  Mr. LEAHY. I will do anything to accommodate my neighbor from New 
Hampshire, as he knows.
  Mr. GREGG. I ask unanimous consent that at the conclusion of the 
statement of the Senator from Vermont, the Senator from North Dakota be 
recognized for 5 minutes and then that I be recognized for 15 minutes. 
Does the Senator from Ohio seek recognition, also?
  Mr. DeWINE. I do, but not on this topic.
  Mr. GREGG. It doesn't matter. Then the Senator from Ohio be 
recognized after I complete my remarks.
  Mr. LEAHY. Mr. President, if the Senator would amend that to add the 
Senator from Delaware. The judge is from Delaware. I ask that Senator 
Carper be recognized for up to 10 minutes following that.
  Mr. GREGG. At the conclusion of the remarks of the Senator from Ohio.
  Mr. LEAHY. Yes.
  The PRESIDING OFFICER. Following the Senator from Vermont, the 
Senator from North Dakota be recognized for 5 minutes, then the Senator 
from New Hampshire for 15 minutes, then the Senator from Ohio for 15 
minutes, and the Senator from Delaware for 10 minutes. Is there 
objection?
  Mr. LEAHY. I have no objection.
  Mr. GREGG. I thank the Senator from Vermont for his courtesy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I am pleased the Senate finally has an 
opportunity to consider the nomination of Kent Jordan of Delaware for a 
lifetime appointment to the U.S. Court of Appeals for the Third 
Circuit. Judge Jordan is a well-qualified nominee with the support of 
both home State Democratic Senators, as well as that of the chairman of 
the Judiciary Committee, whose State is within the Third Circuit. I 
support this nomination, and I will vote to confirm him.
  I regret that the Republican leadership chose to eschew bipartisan 
discussion of nominations and unilaterally filed an unnecessary cloture 
vote on Judge Jordan's nomination, especially after we worked so hard 
to expedite it in September. We could very easily have voted on this in 
September instead of having this folderol of urgency now. Most of us 
wanted to vote on this weeks ago, and I am not sure what political last 
gasp is involved in saying we have to have cloture. That was never 
necessary.
  I wish, instead, the leadership had followed the customary practice 
in the Senate of the Republican and Democratic leaders to have sat down 
with the chairman and ranking member of the Judiciary Committee and 
worked out a process to conclude the consideration of judicial 
nominations for this session. Had they done so, we could have 
capitalized on the hard work done by the chairman and the Judiciary 
Democrats to report consensus nominations. Instead--and I mention this 
to those from States such as Georgia and elsewhere--this is the only 
judicial nomination the Republican leadership has scheduled for 
consideration in months.
  I mention this for my colleagues who might be from States that have 
some of these judicial nominees--apparently those from those States do 
not particularly care. I mention it in case anybody is reading the 
Record later on. I was going to suggest a way to get some of them, but 
there does not seem to be an interest in it, so I will not.
  What they have left unexplained is why they refuse to go forward with 
the President's nomination of Judge Janet Neff from Michigan. The 
Federal court serving the Western District of Michigan has three 
Federal trial court vacancies that are judicial emergency vacancies 
three in one district. The Senators from Michigan have worked with the 
White House on the President's nomination of three nominees to fill 
these emergency vacancies. The Judiciary Committee has proceeded 
unanimously on all three.
  Working with Chairman Specter, the Democratic members of the 
committee cooperated to expedite their consideration.
  On September 16 we held a confirmation hearing for those three 
nominees on an expedited basis. Regrettably, the President waited until 
July to make these nominations. Had he acted sooner, as some of us 
suggested earlier this year, we would not be in this situation. From 
the beginning I have urged the President to work with us on consensus 
nominations, and I have worked hard to proceed. I continue to do so 
even at this late date in the session, in spite of the pocket 
filibusters employed by Republicans to stall and block more than

[[Page 23456]]

60 of President Clinton's qualified judicial nominees.
  Democrats cooperated to expedite consideration of a number of matters 
and reported the three judicial nominees to fill the emergency 
vacancies in the Western District of Michigan on September 29. 
Regrettably the White House, Republican leadership, and objections by 
Republican Senators continued to undermine this process. Instead of 
focusing on consensus nominees, the President sent back to the Senate 
in September and, again, following the November election, highly 
controversial nominees who had been returned to the White House in the 
hope that the President would work with us on a bipartisan basis.
  We have been accommodating, and we will continue to be. I urge all 
Democrats to vote for confirmation of Judge Jordan, as I will. But 
neither the Judiciary Committee nor the Senate should be a rubberstamp 
for this President or any President. We should be taking our 
constitutional responsibility to advise and consent seriously. These 
are the only lifetime appointments in the Federal Government, and they 
will have an enormous impact on the lives, the rights, and future of 
Americans.
  We were accommodating when Judge Jordan was pending before the 
Judiciary Committee. I knew this nomination was from Chairman Specter's 
circuit, and I cooperated with his request for a special executive 
business meeting. We came to the meeting and made sure we had a quorum, 
even though the meeting was out of the normal course.
  The chairman said that the meeting would be held to expedite 
consideration of noncontroversial nominees. I agreed to let the 
majority meet to hold over the nomination of Judge Jordan in order to 
expedite its consideration at our next meeting. In order to be more 
accommodating, I went further and continued to meet so that nominees of 
interest to Senator Grassley and Senator DeWine could be moved forward 
in the process as well.
  The Democratic Senators on the Judiciary Committee and our staffs 
worked especially hard as time ran down in this Congress to be 
accommodating on judicial nominations. The chairman held four 
nomination hearings in September. Three of these hearings were for four 
nominees, an extraordinary number in one hearing, and the fourth was an 
unprecedented hearing for two nominees who had received ``not 
qualified'' ratings from the American Bar Association. This was a 
faster pace than is traditional for the committee so late in the 
session, particularly in an election year. It was a much faster pace 
than is ideal for careful consideration of lifetime appointments to the 
Nation's courts. But we nonetheless cleared nominees at this pace to be 
accommodating and to keep the nominations moving forward.
  Sadly, rather than meet to work out a process to conclude the 
consideration of judicial nominations for this session, the Republican 
leadership has apparently made the unilateral decision to stall certain 
of these nominations, including those for the judicial emergencies in 
the Western District of Michigan, and particularly the President's 
nomination of Judge Janet Neff.
  This fall, an editorial in the Richmond Times-Dispatch entitled ``No 
Vacancies,'' highlighted the administration's counterproductive 
approach to judicial nominations. The editorial criticized the 
administration before the November elections and before the President 
renominated those controversial choices, for failing to turn vacancies 
into judges and instead pursuing political fights. According to the 
Richmond Times-Dispatch:

       The president erred by renominating . . . [Haynes] and may 
     be squandering his opportunity to fill numerous other 
     vacancies with judges of right reason.

  The Richmond Times-Dispatch focused on the renomination of William 
James Haynes II to the Fourth Circuit. Of course Mr. Haynes has yet to 
fulfill the pledge he made to me under oath at his hearing to supply 
the materials he discussed in his opening statement regarding his role 
in developing the legal justifications and policies having to do with 
torture, detention and other matters.
  The Richmond Times-Dispatch editorial could just as easily have been 
written about Judge Terrence Boyle, whom the President also renominated 
again to a seat on the Fourth Circuit. He did so despite the fact that 
as a sitting U.S. district judge and while a circuit court nominee, the 
President's nominee, Judge Boyle, ruled on multiple cases involving 
corporations in which he held investments. The President should have 
heeded the call of the North Carolina Police Benevolent Association or 
the North Carolina Troopers Association or the Police Benevolent 
Associations themselves from South Carolina and Virginia or the 
National Association of Police Organizations or the Professional 
Firefighters and Paramedics of North Carolina, as well as the advice of 
our former colleague, Senator John Edwards, to withdraw this ill-
advised nomination and not renominate him. Law enforcement officers 
from North Carolina and across the country oppose the nomination. Civil 
rights groups oppose the nomination. Those knowledgeable and respectful 
of judicial ethics oppose this nomination. This nomination has been 
pending on the floor calendar in a Republican-controlled Senate for 
more than a year after being forced out of the committee on a solid 
party-line vote. The Senate actually did the President a favor by 
returning this nomination to the White House before the summer recess 
and again before the election. Republican Senators tell me they don't 
want to vote on this nomination, but the White House keeps sending it 
back up.
  The President also squandered an opportunity to fill Idaho's vacancy 
in the Ninth Circuit by renominating William Gerry Myers III for that 
seat again in September and again after the November elections. This is 
another administration insider and lobbyist whose record has raised 
very serious questions about his ability to be a fair and impartial 
judge. I opposed this nomination when it was before the Judiciary 
Committee in March 2005. Actually, this was a nomination which the so-
called Gang of 14 expressly listed as someone for whom they made no 
commitment to vote for cloture, and with good reason.
  Mr. Myers' record as Solicitor General for the Department of the 
Interior suggests that he was part of a culture of corruption 
documented in the testimony of the Interior Department's inspector 
general, Earl Devaney, at a hearing of the House Government Reform 
Subcommittee on Energy. Listen to what the Inspector General in the 
Bush administration says about this Bush nominee. Mr. Devaney testified 
about a ``culture of managerial irresponsibility and lack of 
accountability'' at the upper levels of the Interior Department in 
which, ``[s]imply stated, short of a crime, anything goes at the 
highest levels of the Department of the Interior.'' He also testified, 
``I have observed one instance after another when the good work of my 
office has been disregarded by the Department. Ethics failures on the 
part of senior Department officials--taking the form of the appearances 
of impropriety, favoritism and bias--have been routinely dismissed with 
a promise `not to do it again.''' Apparently, reading this record, it 
was done again and again.
  While Mr. Myers' anti-environmental record is reason enough to oppose 
his confirmation, his connection to the ``culture of managerial 
irresponsibility and lack of accountability'' raises further concerns. 
But these are the kinds of judges who keep getting sent back to the 
White House when even a Republican-controlled Senate won't bring them 
up for a vote. You would think somebody at the White House would be 
listening when they say: We are trying to send you a signal. Don't keep 
sending them back.
  In particular, questions remain about his role in authorizing a 
lawyer who worked for him, Bob Comer, to arrange a sweetheart 
settlement agreement for a politically well-connected rancher, Frank 
Robbins. Mr. Comer was found, in an investigation by the Department of 
the Interior's inspector general, to have been responsible for 
arranging the deal. Documents have come to light recently showing that 
Mr. Myers had

[[Page 23457]]

been given materials about the deal, which certainly undermine his 
assertions made under oath that he was merely misled by Mr. Comer. If 
anyone sought to proceed to this nomination, then we would want to know 
a lot more about these new documents, and we would need to explore any 
connections to the lobbying scandals associated with the Interior 
Department and Republican lobbyist Jack Abramoff. Recent reports in the 
Denver Post raise additional questions about the thoroughness of what 
Mr. Myers told us since the report that Mr. Myers and Mr. Abramoff 
attended at least one party together has gone unrefuted and 
unexplained.
  So it is particularly troubling to see Mr. Myers be nominated because 
the President squandered yet another opportunity to fill a vacancy. I 
had suggested he renominate Norman Randy Smith, a Republican nominee, 
for the vacancy created by the retirement of Judge Thomas Nelson from 
Idaho. Instead, the President has again nominated Judge Smith, but not 
to this seat. He has nominated him to a California seat of the Ninth 
Circuit, effectively stealing California's seat. That is wrong. I 
support the California Senators in their opposition to this. I had 
urged President Bush to resolve this impasse and turn Idaho's vacancy 
into a judge by withdrawing the controversial and tainted Myers 
nomination--tainted Myers nomination--and instead nominate Judge Smith 
for the Idaho vacancy to which he could be easily confirmed. 
Alternatively, he could have renominated them both but merely switched 
the vacancies for which they were nominated, thereby allowing the Smith 
nomination an opportunity to proceed.
  In addition, the President has renominated, again, Michael Wallace to 
the vacant seat on the Fifth Circuit even though he received the first 
ABA rating of unanimously ``not qualified'' that I have seen for a 
circuit court nominee in a quarter of a century, from Republican and 
Democratic administrations. That in itself should have been enough of 
an embarrassment not to send the name back, especially when a 
Republican-controlled Senate did not bring it forth. Committee 
proceedings on this nomination detailed the significant concern raised 
by numerous jurists around the country regarding Mr. Wallace's judicial 
temperament, his lack of commitment to equal justice to the poor and 
minorities, his lack of tolerance, and his closemindedness. It detailed 
concerns from judges and lawyers that Mr. Wallace may not follow the 
law and is driven by his ``personal agenda.''
  Of course, the troubling issues raised in the ABA's testimony echo 
significant concerns about Mr. Wallace's record on civil rights, his 
opposition to the Voting Rights Act, his support for tax exemptions for 
Bob Jones University, his opposition to prison safety regulations, and 
his attempt, as President Reagan's director of the board of the Legal 
Services Corporation, to undermine efforts to provide legal services to 
low-income clients. Don't they understand that even a rubberstamp 
Republican Senate which has gone along with just about everything this 
Bush administration has done had something in mind when they sent this 
nomination back to the White House? Instead, the White House sent it 
back.
  Months ago--months--ago before the last recess, I was urging Senate 
action on nominees such as the Michigan District Court nominees and 
Judge Jordan, whom we have before us now. What little progress we might 
have made has been undone by some on the Republican side. I have been 
here 32 years. I have never seen anything with either Republican 
leadership or Democratic leadership with a judge like this who could 
have been easily passed--Democrats and Republicans supported him--
months ago, and here we are stalled because nobody can figure out what 
to do the last few days of a session. Suddenly, it is like, My God, we 
have to have a cloture vote on him. We could have had 30 hours of 
debate afterwards, which I said let's not do, and we have a unanimous 
consent agreement that we would not. But to have gotten to a cloture 
vote on somebody who would have passed on a bed check vote months ago--
well, if this is theater, it is theater of the absurd. If this is 
theater, it would close after opening night on Broadway or anywhere 
else.
  This goes beyond a farce. And it is particularly ironic that after 
months of Republicans repeating a new mantra that every one of the 
President's nominees, whether qualified or not, whether engaged in 
conflicts of interest or not, whether found by their own peers to be 
not qualified or not, whether they are supported by home State senators 
or not, is entitled to a swift up-or-down vote, after we heard this 
over and over--guess what--it was Republican objections that stalled 
more than a dozen judicial nominees.
  After the last working session in October, I learned that several 
Republicans were objecting to Senate votes on some of President Bush's 
own judicial nominees. This is theater of the absurd. You had 
Republicans on the campaign trail saying: Oh, my, God, those Democrats 
are holding up President Bush's poor nominees for these highly paid 
lifetime appointments. They are holding them up. And guess what 
happened. All these nominees of President Bush, we said: Fine, let's 
just pass them. We were told: Oh, can't do it. Can't do it because we 
have Republicans who put holds on them. Talk about having it both ways. 
Republicans hold up the judges so they can go on the campaign trail and 
say: Oh these terrible Democrats. They are holding up our judges. Oh, 
my heart cries for them.
  In fact, according to press accounts, Senator Brownback had placed a 
hold on Judge Neff's nomination even though he raised no objection to 
the nomination when she was unanimously reported out of the Judiciary 
Committee. Later, without going through the committee, Senator 
Brownback sent questions to Judge Neff about her attendance at a 
commitment ceremony held by some family friends several years ago in 
Massachusetts. Senator Brownback spoke of these matters and his 
concerns on one of the Sunday morning talk shows.
  So where is the consultation about this with the leaders of the 
committee? Where is the cooperation? Where is the working together? 
Where is the attempt to be uniters and not dividers? Where is the 
wonderful statement by the President, after he got shellacked in the 
last election, saying: We are going to work together. Where is the 
explanation why the Republican leadership has chosen not to proceed 
with the Neff nomination to a judicial emergency vacancy? Can it really 
be that her attendance at a commitment ceremony of a family friend 
failed some Republican litmus test of ideological purity, that her 
lifetime of achievement and qualifications are to be ignored and that 
her nomination is to be pocket-filibustered by Republicans like the 60 
they pocket-filibustered of President Clinton's? Oh, goodness gracious.
  The Republican approach to nominations, of using nominations to score 
political points rather than filling vacancies and administering 
justice, has led to a dire situation in the Western District of 
Michigan. Judge Robert Holmes Bell, Chief Judge of the Western 
District, wrote to me and to others about the situation in that 
district where several judges on senior status--one is over 90 years 
old--continue to carry heavy caseloads to ensure justice is 
administered in that district. In fact, Judge Bell is the only active 
judge. If it had not been for Republicans blocking President Bush's 
nominations, those vacancies would be filled.
  Of course, this is not the first time Republicans objected to an up-
or-down vote on judicial nominees. They objected and stopped up-or-down 
votes on more than 60 of President Clinton's judicial nominees. Last 
year, the President's nomination of Harriet Miers to a vacancy on the 
Supreme Court was stalled and withdrawn, not because a single Democrat 
in this body objected but because Republicans objected. Republicans 
questioned her qualifications, demanded answers about her work in the 
White House and her legal philosophy and, although Democrats said go 
ahead and give her a hearing, they then defeated her nomination without 
allowing a hearing.

[[Page 23458]]

  With regard to judicial nominations, I do want to acknowledge the 
kind words of the majority leader, who noted before the October recess 
that we made ``tremendous progress'' in confirming qualified judicial 
nominees. By Senator Frist's count, the Senate ``has confirmed 88 
percent of President Bush's judicial nominees, giving him the highest 
confirmation rate since President Reagan.'' He calculates that ``95 
percent of all judgeships are filled, including more than 92 percent of 
all circuit court judgeships and more than 95 percent of all district 
court judgeships.'' He notes that the Senate has confirmed ``[n]early 
160 nominees'' for judgeships under the 46 months of his leadership--
160 in just 46 months. He leaves out the fact that 100 of the 
President's judicial nominees were confirmed during 17 months when the 
Democrats were in charge. Senator Daschle was leader, I was chairman of 
the committee, and ironically--I guess it is something that got 
overlooked because it doesn't fit in the campaign slogans--President 
Bush's judges moved much faster under Democratic leadership than they 
have under Republican leadership.
  Likewise, Chairman Specter acknowledged before the recess that 
Democrats on the Judiciary Committee in the Senate have been extremely 
accommodating. I hope he doesn't get in trouble for that because his 
statements sharply diverged from the vitriolic attack the Republican 
National Committee made on me, personally. It went way beyond campaign 
rhetoric to flatout lies.
  This year we have confirmed 31 judicial nominees so far. That far 
surpasses the total number of judges confirmed in the 1996 
Congressional session, when Republicans controlled the Senate and 
pocket filibustered President Clinton's nominees. In that session, 
Republicans would not confirm a single appellate court judge--not one--
and moved forward on only 17 district court judges all session. That 
was the only session of the Senate I can remember, in my 32 years, in 
which the Senate simply refused to consider appellate court 
nominations. That was part of their pocket filibuster strategy to stall 
and maintain vacancies so that a Republican President could pack the 
courts and tilt them decidedly to the right. In confirming eight 
circuit court judges so far this year, we have already confirmed more 
circuit judges than in 1996, 1997, 1999, and 2000.
  We could have accomplished a lot more this year if the White House 
had sent over consensus nominations earlier in the year. Regrettably 
the administration concentrated on a few highly controversial nominees 
and delayed until recently sending other nominations and thereby 
prevented us from having the time to do any meaningful review. As I 
said before, we could have done the Jordan nomination before us now 
back in September instead of having this high drama.
  If I were at all cynical--and we Vermonters are not, by nature--I 
would almost think this vote had been set up to distract the people 
from the fact that the Senate and House leadership have failed to 
figure out a way to get us out of this morass, after they failed to 
follow the law and pass a budget this year. They broke the law, didn't 
follow it, to pass a budget this year, even though they control both 
bodies of the Congress. Then they failed to pass our appropriations 
bills by the end of September, even though they are required to do so. 
Could it be that this nomination, this high drama of something that is 
going to pass unanimously, was brought up so maybe the press would be 
fooled into thinking that this was so important it might distract them 
from the fiasco from the fiscal train wreck they have got us into?
  Even though this Republican controlled Congress has sent back a few 
of the most controversial nominations, the administration keeps sending 
them back. By contrast, there are six judicial emergencies still that 
have no nominee at all. Nor has President Bush fulfilled his solemn 
pledge to make a nomination for every vacancy within 180 days. Of the 
vacancies currently without a nominee, seven have been vacant for more 
than 180 days. An additional 14 of the pending nominees were nominated 
only after their vacancies had occurred for more than 180 days.
  I want to note, again, so nobody will think that we even had to be 
taking the time here now: I support the confirmation of Judge Jordan. I 
helped expedite his consideration by the committee so we could vote on 
him nearly 3 months ago, in September. But we didn't in September. Of 
course, we didn't in October. We didn't in November. Here we are in 
December. But even with his confirmation, only 32 judicial nominees 
will have been confirmed in the last 12 months. Contrast that to the 17 
months when Democrats were in charge of this body and I was chairman 
when we confirmed 100 judges. In the last two years of Republican 
control, with a Republican President and Republican Senate, we 
confirmed half of that, just 53 nominees. Think how much higher it 
could have been with some cooperation.
  We have been accommodating, and we will continue to be, as we vote 
for confirmation of Judge Jordan today. But neither the Judiciary 
Committee nor the Senate should be a rubberstamp for the President. In 
case anybody is wondering, the Senate Judiciary Committee will not be a 
rubberstamp for this President or any President. Our success in this 
process depends on the White House sending consensus nominees, as 
opposed to the highly controversial nominees it sent the Senate 
repeatedly. I was encouraged by President Bush's pledge after the 
election to work with Congress in a bipartisan and cooperative way. But 
I was disappointed barely a week later when he broke that pledge and 
renominated a slate of his most controversial nominees who had failed 
to win confirmation, even under a Republican-controlled Senate. If they 
could not win confirmation when the Republicans were in control, my 
guess--I can't speak for other Senators--but my guess, with a 
Democratic chairman and Democratic-controlled Senate, they probably 
will not win confirmation there either. If they weren't good enough for 
the Republicans, they probably won't be good enough for the Democrats.
  I am hopeful we can find a better approach in the 110th Congress. It 
starts with the President. If the President would consult with us and 
work with us to send consensus picks instead of failed controversial 
nominations for important lifetime appointments, we can make good 
progress filling vacancies.
  We owe it to the American people. The American people do not want 
nominations to be about partisan politics but about Government 
responsibility to provide justice. The American people expect the 
Federal courts to be fair forums, where justice is dispensed without 
favor to anybody based on their political philosophy.
  These are the only lifetime appointments in our entire Government. 
They matter a great deal to our future. Most of them will serve long 
after most of us in the Senate have left office; certainly after the 
President who nominates them has left office. I said over and over 
again, the Federal judiciary should not be an arm of the Democratic 
Party nor the Republican Party. Otherwise we lose all faith in the 
independence of the judiciary. Just as I have opposed those who call 
for the impeachment of judges when they disagree with a particular 
opinion or give speeches seemingly condoning violence against judges 
and their families, I, also, do not want to see a Federal judiciary 
politicized. I will continue, in the 110th Congress, to work with 
Senators from both sides of the aisle to ensure that the Federal 
judiciary remains independent and able to provide justice to all 
Americans.
  I congratulate Judge Jordan and his family because I know he will be 
confirmed today.
  I reserve the remainder of my time and I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.


                      Honoring Senatorial Service

                             Paul Sarbanes

  Mr. CONRAD. Mr. President, I rise today to pay tribute to one of the 
Senate's finest Members, Senator Paul

[[Page 23459]]

Sarbanes, who is retiring after 30 years of service in this Chamber. 
Senator Sarbanes has served this Senate, his State, and our country 
with dignity, wit, and uncommon wisdom. He is simply one of the 
smartest, most principled people I have ever known. He is, quite 
simply, a class act.
  Paul Sarbanes has focused his energies on governance and effective 
legislating. This thoughtful approach has served him well, served his 
State well, and served this Chamber well. Paul Sarbanes never lost an 
election, and he is the longest serving Senator in the history of the 
State of Maryland.
  In the Senate, Paul Sarbanes served with great distinction as 
chairman and ranking member of the Banking and Joint Economic 
Committees and has long provided wise counsel on the Foreign Relations 
Committee.
  At the Banking Committee, he has been relentless in protecting 
consumers from unscrupulous financial acts. When the country was hit by 
scandals in the Enron and WorldCom cases, Paul Sarbanes acted to 
protect against further abuse and the Sarbanes-Oxley Act is the result. 
That is an act that has stopped further abuse.
  Paul Sarbanes also fought for affordable housing, for adequate public 
transportation, for transparency at the Federal Reserve. In debating 
former Fed Chairmen and the current one, he has never let central 
bankers forget that they must pursue a dual mandate, with jobs for 
Americans on an equal footing with fighting inflation.
  It has been my honor and my privilege to serve with Senator Sarbanes 
on the Budget Committee. Few can match his understanding of economics 
and the interaction between the budget and the economy. His insightful 
and tenacious questioning, his even temper, and his humor have made 
being his colleague on the Budget Committee both rewarding and a 
pleasure.
  My favorite story about Paul Sarbanes is from his youth. Paul 
Sarbanes was an outstanding athlete. He was a great baseball player and 
a great basketball player. In fact, he was so good in baseball that he 
was chosen as a Maryland All Star. He was chosen to play shortstop on 
that team. When he showed up for the first practice, the manager 
directed him to second base. Paul Sarbarnes was a little surprised by 
that because he had been chosen to play shortstop. But he went out and 
played second base. He thought there might be some mistake. The next 
day, he came to the next practice and was again directed by the manager 
to play second base. At this point, Senator Sarbanes thought he should 
go to the manager and inquire why--since he had been chosen to play 
shortstop--he was playing second base. The manager looked him in the 
eye and said, ``Sarbanes, Kaline will be playing shortstop.'' Of 
course, the Kaline was Al Kaline, who became a Hall of Fame baseball 
player.
  That is some measure of the extraordinary athletic talent that Paul 
Sarbarnes had. It was not his athletic talent that so distinguished him 
in this body; it was his remarkable academic talent, his remarkable 
ability to deal with others.
  I think in my time in the Senate I have never dealt with a person of 
greater wisdom than Paul Sarbarnes.
  I wish Senator Sarbanes the very best in his retirement and whatever 
endeavors he will pursue. His wife, too, has become a special favorite 
to our family--so bright, so talented, and such a good partner with 
Paul Sarbarnes. I know they are deeply proud that their son has been 
elected to the Congress of the United States to represent a district in 
Maryland.
  Paul Sarbarnes has been a great colleague and a very dear friend to 
me. I will miss him and his service on the Budget Committee and in the 
Senate.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from New Hampshire is recognized 
for 15 minutes.
  Mr. GREGG. I thank the Chair.


                               Extenders

  Mr. GREGG. Mr. President, I rise to discuss what is the last pending 
major piece of business relative to this Congress and is headed toward 
the Senate from the House, something called the extenders bill.
  To put this in the proper context, there are a number of tax 
initiatives which are going to lapse this year and need to be 
extended--things such as the R&D tax credit, such as the deduction 
which teachers can take when they buy materials for their classrooms. 
Teachers--especially elementary teachers--seem to do a lot of that. 
They deserve that recognition; also, things such as tuition tax credit. 
These are all extenders which should occur. Were they to occur in the 
proper order, they might cost as much as $12 billion. However, the bill 
that is headed toward us doesn't cost $12 billion; it is going to cost 
$39.5 billion. At least that is what we think it is going to cost. We 
haven't had it finally scored. But that is what we believe is a 
reasonable number to put on that.
  That will be added to the deficit. It will be at least $17 billion 
over what is known as pay-go, which is a mechanism that disciplines tax 
cuts. It doesn't discipline spending, regrettably. I hope we can 
restructure it, and then I might be a supporter of it. But it is $17 
billion over what is known as the pay-go baseline. This represents $39 
billion of funding which will be added to the debt. That is incredible 
as the last act of Congress. It will actually be, arguably--depending 
on how you define the Part D premium exercise, which added trillions of 
dollars in the outyear debt--either the largest or the second largest 
budget buster passed by this Congress, $39 billion. It has in it a 
large amount of items which have nothing to do with extending taxes and 
has a lot to do with personal interests of various special interest 
groups around this country who have the capacity to get things put in 
bills.
  Probably the most significant one is conversion of a program called 
the Abandoned Mine Land Program which basically will create a new $4 
billion cost to the American taxpayer to pay for health insurance of 
mine workers and former mine workers which should have been paid for by 
the coal companies. In other words, it is a direct transfer of payment 
from the corporate coal companies' obligations to support the health 
care of these miners to the American taxpayer. And it is a directed 
program, a mandatory program, not a discretionary program. So it 
basically cannot be reviewed or adjusted in the outyears.
  It is probably one of the most egregious things we will do in this 
Congress in the area of abandoning fiscal discipline and raiding the 
taxpayers' pocketbooks for the benefit of a small group of people and 
corporations.
  It, also, includes something called the doctors' fix. It is 
appropriate that we correct the amount of money that doctors are 
reimbursed for under the Medicare Act. There is a 5-percent doctor 
reimbursement. It is not fair to doctors to be asked to bear the burden 
of the expansion of Medicare costs, and it should be corrected.
  But the understanding always was--at least I thought it was--I guess 
I am naive--that it was going to be paid for with real dollars. That 
wasn't exactly what was said here. There are some real dollars being 
used, but there are real dollars that do not have anything to do with 
the issue. They are taking something called the stabilization fund and 
applying it to doctors. That pays for some of it. That arguably is real 
dollars which should be used in this event, but as a matter of policy, 
you can't fight it from a budget standpoint. It is real dollars and bad 
policy.
  But there is another group of dollars being used that does not even 
exist and is being claimed as part of the payment. They are going to 
correct a hole in next year's doctors' fix which will double next 
year's fix; take that money that doesn't exist and claim they are 
taking that money to pay off the doctors' fix this year. It is an 
accounting gimmick of extraordinary brazenness, which if you did it in 
the corporate world, you would go to jail. There wouldn't be any 
question about it. There would be a clear-cut jail sentence tied to 
this one if this were a corporate gimmick used by a corporation and put 
on the shareholders or the investors in your company as something that 
was appropriate. It is an outrage of the first order on the American 
taxpayer and our children, because who

[[Page 23460]]

pays for this? Our children pay for it. That is what happens.
  The bill is laden with earmarks, where this group or that group or 
that one--the District of Columbia gets $150 million, the State of 
Tennessee gets $35 million, and the State of Nevada gets $4 million. I 
don't know how this one got in here: The Music Writers of America are 
going to get $3 million. The music writers will get $3 million from the 
taxpayers and put on the debt. By our standards around here, it 
wouldn't even make an asterisk. But it is what this represents that is 
so outrageous.
  The rum excise revenue sharing with Puerto Rico, $184 million; 
special depreciation for ethanol plants.
  I don't think there has ever been a financial bill which has come 
through this body that didn't have something for ethanol. Ethanol is a 
great idea. I am for it now. I used to be suspect about it. But it is 
such a vertical, integrated subsidy. Why do we have to keep throwing 
subsidy after subsidy into it? In fact, not happy enough with that 
little exercise, they also had to extend the tariff on ethanol that 
comes into the country from international producers so that the 
Northeast, which can't get the ethanol from the Midwest because it 
can't be shipped through the pipelines because ethanol can't be shipped 
through the pipelines because it bonds with water and the pipelines 
will not work--the Northeast, which can only get it shipped efficiently 
and cost effectively, say, from Brazil and have it shipped in by boat, 
has to pay a huge tariff on that--54 cents a gallon, which makes it 
economically unfeasible, even though it is an alternative fuel source 
that should be used throughout our country. And granted, we would like 
to have it produced in America, but I would rather be buying ethanol 
from Brazil than oil from some of our friends in the Middle East, such 
as Iran. Yet this makes it virtually impossible to do that. It is good 
policy, I say with great irony and sarcasm. Of course, it has nothing 
do with tax extenders.
  Then there are serious policy implications. For example, it extends 
the sales tax deduction, which is a policy of essentially saying to 
high-tax States: You should increase your taxes on your people at the 
expense of the Federal Treasury. The sales tax deduction is nothing 
more than a revenue sharing for the Federal Government, where the 
Federal government says to a State: We will give you a deduction for 
increasing your taxes and the Federal taxes will then go up for 
everybody else to pay for that deduction. There are a lot of States 
that don't have a sales tax. There is no reason they should be 
penalized in this way. There is no reason people in New Hampshire 
should have to pay sales tax to subsidize a high sales tax in the 
States of New York or Texas or California. It doesn't make any sense, 
from a policy standpoint.
  This is not distributed in a very equitable way. The only people who 
can take advantage of this are the itemizers. Itemizers, by definition, 
usually earn more than $60,000, at about the breaking point where you 
start to itemize your tax deductions. Basically, low-income people who 
pay a sales tax will see their sales taxes go up because States will 
want to raise them in order to claim their deduction, and low-income 
people will now have to pay more in sales tax and not be able to deduct 
it; whereas, high-income people in those States deduct it. It doesn't 
make any sense policywise or from a tax standpoint. It is just one 
important effort by one group of States that want to get this deduction 
put in place to take advantage of a bill coming through here.
  The bill, as I said, is arguably the biggest budget buster ever 
brought forward by the Republican Congress. That is ironic in and of 
itself, isn't it? That is pretty ironic.
  The way it is being brought forward is interesting. It is being 
brought forward in a manner which will make it extraordinarily 
difficult. This is being done by the Republican leadership for the 
Republican membership in a way that makes it extraordinarily difficult 
for anyone to attack the bill at any point and raise any of the issues 
which I just raised. In other words, if I wanted to address this 
deduction of $35 million for Tennessee or if I wanted to address the 
music writers item, I will not be able to do that. That option is not 
going to be allowed to me on a traditional vote nor on a motion to 
strike. I probably would lose those motions, but that is not going to 
be available to knock those earmarks out.
  If I wanted to raise the policy arguments on the doctors' fix, the 
fact that you have this unbelievable accounting mechanism used to pay 
for it, I am not going to be able to do that as Budget chairman. That 
will be denied. The Republican leadership is denying Republican 
membership the capacity to address these serious fiscal issues in this 
bill, including the fact it is $39 billion added to the Federal debt. 
It is going to be brought over in a manner which I have never seen 
happen before, probably because it is the biggest budget buster in the 
history of our country passed by the Republican Congress. They do not 
want to have anybody highlighting it but are sending it over as a 
message from the House--not as a bill but as a message from the House, 
which dramatically limits the ability to attack it or raise issues by 
it. ``Tax'' maybe is the wrong term. Then they are going to fill the 
tree so no amendments can be made. Then they are going to have the 
final vote with motions to concur with the House message. It is obvious 
they have the votes to do this. This bill has so much in it for so many 
different little folks and issues around here that they have racked up 
the vote count to the point where they can accomplish it. Well over 60 
votes would be for this bill. The votes are there. They can do it. That 
is the way the majority works.
  But we have to ask this question. The American people took the reins 
of government away from the Republican Party, the Republican Congress, 
in this last election. They did so in large part because they were 
tired of our hypocrisy as a party on the issue of fiscal 
responsibility. It would appear their concerns are justified. It is 
true that our colleagues on the other side of the aisle will probably 
be worse at fiscal management than we are. We have shown it to be in 
our nature to spend money. If you add up all the things they talk about 
in their campaigns, they will spend a lot, but at least they will not 
be hypocritical, going to the American people and saying: We are the 
party of fiscal responsibility.
  We have to ask how we as a party got to this point where we have a 
leadership which is going to ram down the throats of our party the 
biggest budget buster in the history of the Congress under Republican 
leadership.
  Anyway, the American people figured it out. I am sorry we haven't 
figured it out yet.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized for 15 
minutes.

                          ____________________