8786 CONGRESSIONAL RECORD—SENATE May 9, 2005 Unfortunately, today marks the For most of the 20th century the take every step we can to avoid this fourth anniversary of another can- same party controlled the White House confrontation. didate whose nomination is, likewise, and the Senate. Yet until the last Con- We are prepared to be reasonable being blocked. Priscilla Owen, who has gress, no minority ever denied a judi- even with respect to these controver- served on the Supreme Court for cial nominee with majority support an sial nominations that are now before 10 years, has earned the praise of both up-or-down vote. They treated judicial the Senate. But it seems that the Republicans and Democrats. Judge nominees fairly. They respected the White House, and maybe the Senate Owen won reelection to the Texas Senate’s role in the appointments proc- leadership, will not give the Senate a bench with 84 percent of the vote and ess designed by the Framers. chance to put this issue behind us. the endorsement of every major news- Before the recess, I came to the Sen- It is important to understand that paper in the State. ate to offer a compromise. That pro- this manufactured crisis has been Former justice Raul Gonzalez, a posal was simple: Appeals court judi- forced upon the Senate by the White Democrat, says: cial nominees should get a fair, open, House. During President Bush’s first I found her to be apolitical, extremely and exhaustive debate, and then they term, the Senate confirmed 205 of his bright, diligent in her work, and of the high- should get an up-or-down vote. Wheth- judicial nominations and turned back est integrity. I recommend her for confirma- er on the floor or in committee, it is only 10. This is a significant, strong tion without reservation. time for judicial obstruction to end no percentage—more than 95 percent. Still, a minority of Senators is using matter which party controls the White The President could have accepted the filibuster to stop this Senate from House or the Senate. that success and avoided confrontation exercising its constitutional duty to Senate tradition is comprised of by choosing not to resubmit the names advise and consent, to vote up or down, shared values based on civility and re- of those who were rejected. Instead, the to vote yes or no, to vote, confirm or spect for the Constitution. I sincerely President sent back 7 of the 10 nomi- reject. hope that Senate tradition can be re- nees the Senate declined to confirm, This campaign of obstruction is un- stored. It is a matter of fairness. It is including: the very controversial nomi- precedented. Before Miguel Estrada, a matter of honor. It is our constitu- nations of Priscilla Owen, whom I the Senate had never denied a judicial tional duty to give these nominees a briefly commented about; William nominee with majority support an up- vote. Myers, who, by the way, is the first or-down vote. In the last Congress, the I yield the floor. nominee to the Federal bench that President submitted 34 appeals court f American Indians have ever opposed; nominees to the Senate. Ten of those William Pryor; ; nominees continue to be blocked. Each RECOGNITION OF THE MINORITY and Henry Saad. has been rated ‘‘qualified’’ or ‘‘well- LEADER In fact, this whole crisis is really qualified’’ by the American Bar Asso- The ACTING PRESIDENT pro tem- about five people. I have mentioned the ciation, each has the majority support pore. The Senate minority leader is five. Of the 10 previously rejected of the Senate, and each would be con- recognized. nominees, 3 were not renominated, and firmed if brought to the Senate floor to f 2 are tied up in a separate controversy a vote. over the Sixth Circuit involving proce- JUDICIAL NOMINATIONS Meanwhile, the other side threatens dural matters. So we are talking only, to shut down the Senate and obstruct Mr. REID. Mr. President, of the ini- I repeat, about 5 judges, 5 out of the government itself if it does not get its tial Bush nominees, the 10 or 11 we are 218. But this historically high percent- way. Instead of thoughtful deliberation talking about today, 8 have been con- age the President has obtained, cre- and debate, a small minority is at- firmed; only 3 were not. Of course, one ating one of the lowest vacancy rates tempting to change 225 years of con- of those, Miguel Estrada, has not been in the entire history of the Federal ju- stitutional history. Former Senate ma- renominated. Another, Terrence Boyle, diciary, is not good enough for some. jority leader Bob Dole is correct when has never been reported by the Judici- They have to have it all. he says: ary Committee, even after 4 years of Meanwhile, the President has failed By creating a new threshold for the con- Republican control. So only one of the to send us new nominations. In the firmation of judicial nominees, the Demo- initial nominees, Priscilla Owen, is more than 4 months since he was sworn cratic minority has abandoned the tradition currently on the calendar. in to a second term, the President has of mutual self-restraint that has long al- I think the Democrats have been re- sent the Senate only one new judicial lowed the Senate to function. sponsible and reasonable in exercising nomination. Other than that one nomi- Precedent has been replaced with advice and consent regarding this ini- nee to the District Court of Nevada, partisanship, and respect for the sepa- tial nominee. Brian Sandoval, every single one of the ration of powers tossed aside. Regarding Priscilla Owen, she served President’s judicial nominees has been Now, 12 of the 16 court of appeals va- on the Texas Supreme Court with the here before. I have said to everyone cancies have been officially declared President’s lawyer, , who will listen that Senate Democrats judicial emergencies. The Department who is now the Attorney General. will be careful and judicious in the use of Justice tells us that the delay Judge Gonzales wrote that several of of our procedural rights. I have said caused by these vacancies is compli- Judge Owen’s opinions were acts of un- that judicial filibusters will continue cating their ability to prosecute crimi- conscionable activism. to be rare. So why doesn’t the White nals. The Department also reports that I am concerned the Senate is heading House test our willingness to be rea- due to the delay in deciding immigra- toward an unnecessary showdown over sonable by sending new nominees who tion appeals, it cannot quickly deport judicial nominations. One of the Hill we can consider anew and fresh, in- illegal aliens who are convicted mur- newspapers recently reported that my stead of old nominees who have run derers, rapists, and child molesters. distinguished friend, the majority lead- into trouble before? Additionally, there are notoriously er, is under enormous pressure from It is clear that the White House long delays in deciding habeas peti- right-wing groups to trigger the so- would rather pick fights than pick tions, meaning that both victims’ fami- called . So many of our judges. One reason the White House lies and prisoners often wait years be- colleagues, Democrats and Repub- will not send new judges to the Senate fore getting final resolution on murder licans, have contacted me and, I am is that they do not want to give Senate convictions. sure, the majority leader, saying: Let’s Democrats a chance to show we are All of this obstruction must stop. It try to work something out. They want reasonable. They do not want the con- is hurting the nominees. It is hurting to avert this damaging confrontation firmation rate to increase from 95 per- the Senate. It is hurting the American because it would be bad for the Senate cent to 96 or 98 percent. They want to people. and bad for the country. So we need to paint us as obstructionists. But the

VerDate Sep 11 2014 09:26 Mar 29, 2017 Jkt 059102 PO 00000 Frm 00006 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BR09MY05.DAT BR09MY05 ejoyner on DSK2TWX8P1PROD with BOUND RECORD May 9, 2005 CONGRESSIONAL RECORD—SENATE 8787 facts are that the judicial confirmation it that this nominee is to the DC Court in cooperation rather than confronta- rate this year is 100 percent and that of Appeals? tion, let us move forward on a unani- there has not been a single filibuster of Let me note that this same courtesy mous consent request—which I would the four nominees the majority leader was not extended to President Clin- be happy to propound at a subsequent has brought before the Senate this ton’s nominees to the DC Circuit. Re- time, or the majority leader could do year. But the radicals on the far right publicans held up the nomination of it—to move forward on Griffith. We do not want to give us an opportunity Justice Department official Merrick want 5 hours on our side to talk about to continue that cooperation because it Garland for years before finally con- this man. They could have whatever would undercut their argument justi- firming him. time they want on their side. And we fying the nuclear option. Maybe the President Clinton then nominated would move forward on an up-or-down White House wants to force the nuclear two distinguished lawyers to the court: vote on a DC Circuit Court of Appeals option on the Senate because it wants Elena Kagan, now dean of the Harvard judge. I would think that would get us to clear the way for a Supreme Court Law School, and Allen Snyder, a part- down the road to doing work that needs nominee, because they are afraid the ner in the law firm of Hogan & Hartson to be done in the Senate. person they will submit is not going to and a former clerk to Chief Justice Mr. LEAHY. Mr. President, will the be reasonable. Rehnquist. Both of these nominations Senator yield on that point? There are lots of reasonable people were buried in the Judiciary Com- Mr. REID. I would be happy to yield around. There are Members sitting in mittee and were never given an up-or- to the distinguished ranking member this Senate today who could be a Su- down vote in committee or on the Sen- of the Judiciary Committee. preme Court nominee of President ate floor. Mr. LEAHY. Is it my understanding, Bush. They do not want a David I have heard my Republican friends Mr. President, the distinguished Demo- Souter, a Republican, or an Anthony say so many times this year that nomi- cratic leader is saying he is prepared to Kennedy, a Republican, or a Sandra nees are entitled to an up-or-down ask consent to move forward on the Day O’Connor, a Republican, or a Ruth vote. I would defy them to explain why nomination of Tom Griffith to the DC Bader Ginsberg, or a Stephen Breyer. Kagan and Snyder were denied votes on Circuit? So, Mr. President, I want a chance to the Senate floor and why 69 Clinton Mr. REID. I answer my friend: the prove that Senate Democrats are rea- nominees were buried and lost in the answer is yes, even though this man is sonable. There is a nominee on the Ex- judiciary committee. But we want to a controversial nominee. I know my ecutive Calendar named Thomas Grif- move forward. To demonstrate our distinguished friend, the senior Sen- fith. Mr. Griffith is a controversial good will, we want to move forward on ator from Vermont, has on a number of nominee to an important appellate a controversial nominee to the DC Cir- occasions criticized this nomination. I court. But if he is brought before the cuit. I want the majority leader to have mentioned already a number of Senate, I believe he will be confirmed. know that Democrats are prepared to the reasons, including his practice of He is the former Senate legal counsel. enter into a unanimous consent agree- law without a license in a couple of dif- He was here during the impeachment ment to move to the Griffith nomina- ferent jurisdictions. But I have stated proceedings. His nomination to the DC tion. Under this unanimous consent that I would be willing to move for- Circuit was reported from the Judici- agreement, we would proceed to the ward on this nomination. We would ary Committee by a 14-to-4 vote. Rank- Griffith nomination immediately upon have adequate time on our side—up to ing Member LEAHY and other Senators disposition of the supplemental appro- 5 hours—to talk about the merits or who opposed Griffith were concerned, priations bill. We would then have up demerits of this gentleman, and the among other things, that he had failed to 10 hours of debate on that nomina- majority could have whatever time to obtain a license to practice law in tion, equally divided. Following that they wanted. We would move to an up- either the District of Columbia or Utah debate, we would be willing to have an or-down vote on this man. I think this during the time he was working as a up-or-down vote on this controversial would be an appropriate way to move lawyer in those jurisdictions. nominee to the DC Circuit. forward and—again, I repeat for the A number of Democrats will vote Let’s take a step away from the prec- third time—have in this body coopera- against confirmation on the floor, for ipice. Let’s arrive at this step and have tion rather than confrontation. these reasons and other reasons. But a decision made on Griffith and then Mr. LEAHY. Mr. President, if the we on this side know the difference be- move on. Let’s try cooperation rather Senator will yield further for a ques- tween opposing nominees and blocking than confrontation, which seems to be tion, the Senator has stated he realizes nominees. We will oppose bad nomi- the hallmark of what we have been Mr. Griffith practiced law illegally, nees, but we will only block unaccept- doing here lately. first in one jurisdiction for 3 or 4 years, able nominees. Democrats will use ex- I just remind everyone: This has been then in a second jurisdiction for 3 or 4 tended debate responsibly, and there is a pretty good year for work being done years, but that he is the President’s no cause for the majority to break the in the Senate. My friend, the distin- choice for going on the DC Circuit. rules and 217 years of Senate traditions guished Presiding Officer, served in the I am sure the Senator is aware that to take that right away. Mr. Smith House of Representatives where you during the last administration, several should still be able to come to Wash- can ram things through the House. If nominees for that same seat were ington, with either a Democratic or you are in the majority there, things blocked by pocket filibusters by the Republican Senate. go very quickly. But that is not how it Republicans—one was Elana Kagan, I emphasize that Mr. Griffith is nom- works in the Senate. So we have been who is now the dean of the Harvard inated to the DC Circuit Court of Ap- very fortunate this year to move legis- Law School. Another was Allen Sny- peals. This is the most important ap- lation—important, landmark legisla- der, a former Supreme Court law clerk pellate court, separate and apart from tion, legislation that many of my col- to Chief Justice Rehnquist. the Supreme Court. Republicans say leagues on my side of the aisle did not I voted against Mr. Griffith because I that our 95-percent confirmation rate especially like: class action legislation, felt on the second highest court of the is not relevant because many of the 208 bankruptcy legislation. land it is not a good example to have a judges we have confirmed are district We have done a lot of work here. We person, whatever his other qualifica- court nominees—trial court judges, not are going to do the supplemental ap- tions might be, who was so cavalier as appellate court judges. Well, here is a propriations bill. We have finished the to practice law illegally in two dif- nominee to the most important Fed- budget. We have done a lot of work. We ferent jurisdictions. eral appellate court in the country, are on the highway bill. So I would I ask the Senator, is the Senator with the exception of the Supreme think we should move forward. I say to aware I did work with the distin- Court, and we are prepared to move those people who are interested in guished Chairman of the committee, forward. So I ask, do we get extra cred- moving forward and who are interested Senator SPECTER, to allow the hearing

VerDate Sep 11 2014 09:26 Mar 29, 2017 Jkt 059102 PO 00000 Frm 00007 Fmt 0686 Sfmt 0634 E:\FDSYS\BOUNDRECORD\BR09MY05.DAT BR09MY05 ejoyner on DSK2TWX8P1PROD with BOUND RECORD 8788 CONGRESSIONAL RECORD—SENATE May 9, 2005 to go forward with Mr. Griffith and to The ACTING PRESIDENT pro tem- We have been very selective in those allow a vote to go forward without pore. If the Senator from Vermont we have opposed. We think we are right delay in the committee? While I voted would suspend for a second. The Chair on every one of them. Hindsight will against Mr. Griffith because of the would remind both the Senators that tell. practice of law, primarily, and while, I Senators may yield time for the pur- This whole dispute is over 5 judges, 5 felt concern that Chief Justice poses of a question only. out of 218. It seems that people of good- Rehnquist’s former law clerk and Dean Mr. LEAHY. I am posing a question. will can agree, as my distinguished Kagan were blocked by the Republican Mr. REID. I am happy to yield to my friend from Nebraska Senator HAGEL pocket filibuster, I ask the leader if he friend for a question. indicated this weekend on television, understands that I will certainly have Mr. LEAHY. I would ask if the Sen- when he said: We should be able to no objection nor do I know of any Dem- ator would yield for the purpose of a work this out. We should. The world is ocrat who would object to moving for- question. When we talk about votes, 40 watching us. We should not be chang- ward and having a real debate and the is the threshold on filibusters. Of ing the rules by breaking the rules. We up-or-down vote that was denied to a course, the Senate sets the rules. The should not do that. I hope the distin- Democratic President’s nominees? Senate could say: You require 95 votes. guished Senator from Tennessee, the Does the Senator understand that not Or it could say: You require 2 votes. majority leader, my friend, will accept withstanding the fact that I would vote There is nothing magic about 50, 40, 60, the gesture of goodwill we have made. against that nominee, I would support or anything else. But be that as it may, It is a step in the right direction. I I would ask, through the Chair, wheth- him bringing this nomination forward? hope we can let bygones be bygones er the Senator from Nevada is aware of I suspect he would get a majority of and move forward. numerous instances in which Demo- the votes in the Senate. f Mr. REID. Let me say to my friend crats have proceeded to debate and through the Chair, there is no question vote on the President’s nominees TRANSPORTATION EQUITY ACT: A that Elana Kagan is qualified—she is against which there were more than 40 LEGACY FOR USERS the dean of the No. 1 rated law school negative votes—I can think of three The ACTING PRESIDENT pro tem- in the country, No. 1. Yale and Stan- significant judicial nominations where pore. Under the previous order, the ford come close, but Harvard is the No. there were 41 Democratic votes against Senate will resume consideration of 1 law school in the country. She is the allowing them to go forward: Timothy H.R. 3, which the clerk will report. dean of that school. But the Repub- Tymkovich was confirmed to the The assistant legislative clerk read licans controlled the Judiciary Com- Eighth Circuit although 41 Senators as follows: mittee, and they would not allow this voted against him; was confirmed to the Sixth Circuit al- A bill (H.R. 3) to authorize funds for Fed- woman to come to this floor. eral-aid highways, highway safety programs, I would love to have had her on the though 41 Senators voted against him; and transit programs, and for other purposes. J. Leon Holmes was confirmed to the floor so somebody could have filed a Pending: cloture motion. I would have loved to district court in Arkansas although 46 vote on that, but they would not even Senators from both parties voted Inhofe amendment No. 567, to provide a against him. In addition, Senate Demo- complete substitute. bring that nomination to the floor for Salazar amendment No. 581 (to amendment a vote. They would not let it come to crats proceeded to debate and vote on No. 567), to modify the percentage of appor- a vote in the committee, because this the controversial nomination of former tioned funds that may be used to address woman was eminently qualified, not Attorney General Ashcroft, who was needs relating to off-system bridges. only by her legal experience and her confirmed although 42 Senators voted The ACTING PRESIDENT pro tem- education, but by her demeanor and against his confirmation; Ted Olson, pore. The Senator from Texas. personal attitude toward the law. So who was confirmed to be Solicitor Gen- Mr. CORNYN. Mr. President, I ask she would have been really good for the eral although 47 Senators voted against unanimous consent to speak as in second highest court in the land. his confirmation; Victor Wolski, who morning business. And I say about the other person—— was confirmed to the Court of Claims Mr. LEAHY. Reserving the right to Mr. LEAHY. Allen Snyder. although 43 Senators voted against his object—I will not object—I ask unani- Mr. REID. Allen Snyder, this man confirmation. mous consent to follow the Senator clerked for Chief Justice Rehnquist. Most recently, a number of us voted from Texas as in morning business. Again, there was not even the courtesy for cloture on the nomination of Ste- of having a vote in the committee. phen Johnson to head the EPA. He was The ACTING PRESIDENT pro tem- They come to the floor and cry croco- confirmed with only 61 votes in sup- pore. Is there objection? dile tears about up-or-down votes. We port. I was one of those who voted for Mr. REID. Reserving the right to ob- would have taken a cloture vote on ei- cloture so we could go forward with the ject, would the distinguished Senator ther one of these people. But they were President’s nomination. from Texas give us a general outline of unwilling to bring this person before Was the Senator from Nevada aware how long he is going to speak. the committee or the floor. of all those? Mr. CORNYN. Mr. President, I think So I say to my friend, you are abso- Mr. REID. Mr. President, the answer maybe 15 minutes. lutely right, there is a different stand- is yes. As I said earlier, we know the Mr. REID. Just so we have a general ard now than there was. We are bring- difference between opposing nominees idea. I ask unanimous consent then ing people to the court. They say there and blocking nominees. I believe this is that the normal 10-minute rule be has not been an up-or-down vote. There the time to put all of this behind us. waived for the distinguished Senator has been a vote. Every one of President Eight years of President Clinton, four from Texas and that he have up to 15 Bush’s nominees has come before the years of President Bush, let’s move for- minutes to speak as in morning busi- Senate for a vote. And I think it is on ward. That is what this proposal is all ness. 69 different occasions that President about. Let’s move forward. After we Mr. LEAHY. And that I then be rec- Clinton had a nominee turned down on finish that, let’s see where we are and ognized for the same amount of time. even a hearing in the Judiciary Com- see what else we can do. I think it is The ACTING PRESIDENT pro tem- mittee, even a vote in the Judiciary time to move forward. Again, I have no pore. The minority leader is reminded Committee, let alone coming to the problem distinguishing between what there is no 10-minute rule. floor. happened to the 69 Clinton would-be Mr. REID. There is no 10-minute rule So my distinguished friend is abso- judges who never showed up, never saw unless it is ordered. lutely right. the light of day, and all those we have The ACTING PRESIDENT pro tem- Mr. LEAHY. Mr. President, I ask the dealt with in the normal process in the pore. That is correct. distinguished leader through the 4 years President Bush has been Presi- Mr. REID. We have no morning busi- Chair—— dent. ness today?

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