May 9, 2002 CONGRESSIONAL RECORD — SENATE S4089 CONCLUSION OF MORNING war on terrorism, support for strong other important matters. It was bad BUSINESS and effective law enforcement, or our enough when they utilized secret holds The ACTING PRESIDENT pro tem- effort to work collaboratively to lower and stalling tactics in considering pore. Morning business is closed. judicial vacancies. President Clinton’s moderate judicial For a bit of history, when the Demo- nominees, but now they bemoan the ju- f crats took over the full Judiciary Com- dicial vacancies that were created and EXECUTIVE SESSION mittee in July of last year, there were take no responsibility for creating 110 vacancies. My Republican col- these vacancies. They seek to blame leagues had not held any judicial con- others. It is really too bad that the NOMINATIONS OF LEONARD E. firmation hearings at all prior to the White House now appears to be reject- DAVIS TO BE U.S. DISTRICT time we took over, despite the fact ing all of our efforts—and they have JUDGE FOR THE EASTERN DIS- that there were a number of pending been significant—at reconciliation and TRICT OF TEXAS; ANDREW S. nominations when they first came into problem solving. Instead, the White HANEN TO BE U.S. DISTRICT power. Then there were, of course, House has joined the partisan attack. JUDGE FOR THE SOUTHERN DIS- nominations that President Bush sent The fact is, since last July, when we TRICT OF TEXAS; SAMUEL H. to the Senate in May. But as of July, took over the majority, we have been MAYS, JR. TO BE U.S. DISTRICT when we took over, the Republican- working hard to fill judicial vacancies. JUDGE FOR THE WESTERN DIS- controlled committee had not held any We have had more hearings on more ju- TRICT OF TENNESSEE; THOMAS hearings. Ten minutes after we took dicial nominees and confirmed more M. ROSE TO BE U.S. DISTRICT over the committee and I became judges than our Republican prede- JUDGE FOR THE SOUTHERN DIS- chairman, we announced hearings on a cessors ever did over any similar period TRICT OF OHIO number of the President’s nominees. of time. Actually, it is hard to know The ACTING PRESIDENT pro tem- I mention this to put in perspective when there was a similar period in pore. Under the previous order, the that we have tried to move quickly. We time. The Senate and the Judiciary hour of 10:35 having arrived, the Senate inherited 110 vacancies. Interestingly Committee had to work in the after- will now go into executive session and enough, most of the vacancies occurred math of the attacks of September 11 proceed to the consideration en bloc of while the Republicans were in control and we kept on meeting. We were in Executive Calendar Nos. 811, 812, 813, of the Senate, notwithstanding the fact this Chamber on September 12. We had and 814, which the clerk will report. that former President Clinton had the anthrax attacks on the Senate, on The assistant legislative clerk read nominated people to fill most of those Majority Leader DASCHLE and, I hate the nominations of Leonard E. Davis, vacancies. But those nominees were to say, one on me, as chairman of the of Texas, to be U.S. District Judge for never given a hearing. They were never Senate Judiciary Committee. The New the Eastern District of Texas; allowed, under Republican leadership, York Times reported it as the most Andrew S. Hanen, of Texas, to be U.S. to go forward. deadly of all. While working to fill ju- District Judge for the Southern Dis- Last Friday, when the Democratic dicial vacancies, we were also approv- trict of Texas; Senators were out of town on a long ing executive branch nominees—Attor- Samuel H. Mays, Jr., of Tennessee, to planned meeting, President Bush spoke ney General Ashcroft and others—and be U.S. District Judge for the Western about what he now calls the ‘‘judicial we were considering the Antiterrorism District of Tennessee; vacancy crisis.’’ I was disappointed Act. In my 28 years here, I have never Thomas M. Rose, of Ohio, to be U.S. that the White House speech writers known a time when the Judiciary Com- District Judge for the Southern Dis- chose a confrontational tone and tried mittee, or any committee, was hit with trict of Ohio. to blame the Democratic Senate ma- so many things that it had to do in The ACTING PRESIDENT pro tem- jority, which has actually been the ma- such a short period of time and under pore. Under the previous order, there jority in the Judiciary Committee for so much pressure. The Hart Building, will be 1 hour of debate on the nomina- only about 10 months. housing half of the Senators, was tions, to be equally divided between The fact is, we inherited 110 judicial closed down. At times, this building the chairman and ranking member of vacancies on July 10, 2001. The fact is, was closed down. Senator DASCHLE and the Judiciary Committee or their des- the increase in vacancies had not oc- I and our staffs were under actual ignees. curred on the watch of the Democratic physical attacks with the anthrax let- The Senator from Vermont. Senate majority but in the period be- ters. I mention that because this after- Mr. LEAHY. Madam President, today tween January 1995 and July 2001, when noon we are going to hold our 18th the Senate is considering, as the Chair the Republican majority on the com- hearing for judicial nominees within 10 has reported, four more of President mittee stalled President Clinton’s mod- months—unless, of course, the other Bush’s judicial nominees. We will begin erate nominees and overall vacancies side objects to our proceeding. voting on those nominees in about an rose by almost 75 percent—from 63 to By the end of today, the Senate will hour. 110. That is what we inherited because have confirmed 56 new judges, includ- I rarely predict the outcome of votes the other side would not hold hearings. ing 9 to the courts of appeals, within in the Senate. Having been here 28 Vacancies on the courts of appeals rose the last 10 tumultuous months—an all- years, I have had enough chances to be even more. They more than doubled, time record. wrong in my predictions, but I will pre- from 16 to 33. I am sorry that the White House and dict, with a degree of certitude, that I don’t expect President Bush to our Republican colleagues do not ac- these will be another four of President know these numbers or to be that in- knowledge our achievements but Bush’s judicial nominees that we will volved with them. But his staff does, choose, instead, to only criticize. I re- confirm. and when they write his speeches, they gret that the White House and our Re- These confirmations demonstrate, as ought to do him the favor of being publican colleagues will not acknowl- has been demonstrated with each of the truthful. They ought to know that the edge that the obstructionism of the Re- judges we have confirmed in the past Federal judiciary is supposed to be publican Senate majority between 1996 ten months, with the exception of one, independent and outside of partisan po- and 2001 is what created what they now that we have taken up nominees in the litical battles, and they should not term a ‘‘vacancy crisis.’’ Senate Judiciary Committee, that they have drawn him into one, which makes When they were engaged in those tac- have gone through the committee and, it even worse. tics, some Republicans defended their when they have reached the floor, have It is bad enough when Republicans in record then by arguing that 103 vacan- been confirmed. the Senate threaten and seek to in- cies was not a crisis. They actually did Democrats have demonstrated over timidate on this issue, but we are now that. They said in an op-ed piece that and over again that we are working being threatened with a shutdown of having 103 vacancies was not a crisis. with the President on fundamental the Senate’s business, a shutdown of They let it go to 110. issues that are important to this coun- committee hearings, a refusal to work The Democratic majority has cut try, whether it is our support for the together on unemployment, trade, and back those vacancies. We have not only S4090 CONGRESSIONAL RECORD — SENATE May 9, 2002 kept up with attrition, we have cut right-to-life issues than I and who have arose during the Clinton administra- them back. Under a Democratic Presi- taken different positions on the death tion and are a prime and unfortunate dent, some Republicans said 103 vacan- penalty. But I knew they would be fair legacy of recent Republican obstruc- cies was not a crisis, but now, with a judges. I will continue to do that. That tionist practices. Republican President, they say that 84 is our responsibility as Senators to our The confirmations of Justice Davis vacancies is a crisis—even as we con- country, to the judiciary, and to his- and Mr. Hanen will make the third and firm judges at a record pace. tory. fourth district court judgeships we I have been here with six Presi- With today’s votes, the number of have filled in Texas and the eighth and dents—Republican and Democrat. I Federal judges confirmed since the ninth judgeships we have filled overall have never seen a time when any White change in Senate majority 10 months in the Fifth Circuit since I became House has made the issue of the make- ago now totals 56. Under Democratic chairman last summer. Included among up of the Federal judiciary such a par- leadership, the Senate has confirmed those confirmations is the first new tisan issue. I am a lawyer, as is the dis- more judges in 10 months than were judge for the Fifth Circuit in 7 years. tinguished Presiding Officer. I have ar- confirmed by the Republican-con- On February 5, the Senate confirmed, gued cases before Federal courts, both trolled Senate in the 1996 and 1997 ses- by a vote of 93 to 0, Judge Philip Mar- at the district level and at the appel- sions combined. We have accomplished tinez of Texas to fill a judicial emer- late level. in less than 1 year what our prede- gency vacancy on the District Court One thing I have always known when cessors and critics took 2 years to do. for the Western District of Texas. On I walked into a Federal court in Amer- It took a staunchly Republican major- March 18, the Senate confirmed, by a ica is that it is an impartial court, ity 15 months working closely with the vote of 91 to 0, Robert (Randy) Crane to where you are not looked at as a Re- Reagan administration to reach this fill a judicial emergency vacancy on publican or a Democrat, whether you number of confirmations, confirma- the District Court for the Southern are rich or poor, whether you are white tions we have achieved in just 10 District of Texas. The Senate has con- or black, plaintiff or defendant, or lib- months. firmed Judge Kurt Engelhardt and eral, conservative or moderate. You Of course the ‘‘anniversary’’ of the Judge Jay Zainey to fill vacancies on can always go into a Federal court here reorganization of the Judiciary Com- the District Court for the Eastern Dis- and think that you will be treated on mittee after the shift in majority last trict of Louisiana. The Senate has con- the merits of your case. That is why I year is not until July 10, more than 2 firmed Judge Michael Mills to fill a va- regret the lack of balance and the bi- months from now. On July 10 last year cancy on the District Court for the partisan perspective that was lacking we inherited 110 judicial vacancies, in- Northern District of Mississippi. De- in the President’s speech and in the cluding 33 on the courts of appeals. spite the unfounded claim of some Re- comments of some of my colleagues. Since then, 30 additional vacancies, in- publicans that the Senate will not con- The Senate would do a disservice to cluding 5 on the courts of appeals have firm conservative Republicans, these the country if we allowed ideological arisen. This is an unusually large num- nominees were all confirmed and treat- court packing of the left or the right, if ber. Nonetheless, through hard work ed more fairly and expeditiously than we were to put a stamp on Federal and great effort, the Democratic ma- many of President Clinton’s nominees courts and say: ‘‘He who enters here, if jority in the Senate has proceeded with for the Federal Bench. you do not fit the ideological rubber 17 hearings involving 61 judicial nomi- Mr. Hanen was nominated to fill the stamp of this court, if you cannot re- nees, the committee has voted on 59 vacancy created by the retirement of spond and say you fit in a certain nominees, and, today, the Senate is set Judge Filemon B. Vela in May 2000. I mold, according to the speeches of the to hold its 18th hearing involving four recall just 2 years ago when Ricardo President’s advisers—a very narrow more judges and to approve four more Morado, who served as mayor of San ideological spectrum—forget about it new judges—bringing the working total Benito, TX, was nominated to fill this when you come in here.’’ If anybody to 56 confirmations in just 10 months. vacancy in the Southern District of would take time to read a history The number of judicial confirmations Texas and never received a hearing book, they would understand that it is over these past 10 months, 56, exceeds from the Republican-controlled Senate. the Senate’s role to ensure that the the number confirmed in 4 out of 6 full President Clinton nominated Ricardo judges it confirms meet the standards years under recent Republican leader- Morado on May 11, 2000, and his nomi- for impartiality and fairness. ship, during all 12 months of 2000, 1999, nation was returned to President Clin- A very popular President, a wartime 1997, and 1996. And we have confirmed ton without any action on December President, Franklin Delano Roosevelt, more judges at a faster pace than for 15, 2000. In filling a judicial emergency a revered President, tried to pack the all the years of Republican control. vacancy that has been pending for courts, and the Senate said: no, you Fifty-six confirmations exceeds the more than 700 days, Mr. Hanen will be cannot do that. Every historian will number of confirmations in the first the 17th judicial emergency vacancy tell you today: Thank goodness the year of the Reagan administration by a that we have filled since July and the Senate has stood up to a popular war- Republican Senate majority. It is al- 10th since the beginning of this session. time President and said you cannot most double the number of confirma- With the confirmation of Mr. Hansen, pack the courts because it would de- tions in the first year of the Clinton there will no longer be any vacancies stroy the independence of the Federal administration by a Democratic Senate on the District Court for the Southern judiciary. majority. And it is more than triple District of Texas, a Court which has I say this because sometimes we sit the number of judges confirmed for the faced an extraordinary caseload and here and think we have to decide on George H.W. Bush administration by a has the third highest number of filings issues just for today. We have a respon- Senate of the other party. In fact, with of criminal cases in the country. With sibility in the Senate to decide issues 56 confirmations for President George Judge Crane and Judge Hanen, we have for history’s sake and for the good of W. Bush, the Democratic-led Senate provided much needed help to this this country. I want to know that each has confirmed more judges than were court. one of us can go back to our constitu- confirmed in 7 of the 8 whole years of It was not long ago when the Senate ents and say that we have preserved an the Reagan administration, that Sen- was under Republican control, that it independent judiciary. That does not ator HATCH acknowledges as the all- took 943 days to confirm Judge Hilda mean just all one party. I have voted time leader in judicial appointments. Tagle to the United States District for hundreds upon hundreds of judges The confirmations of Justice Leonard Court for the Southern District of who stated that they were Republicans. Davis, Andrew Hanen, Samuel Mays, Texas. She was first nominated in Au- I have voted for hundreds of judges and Judge Thomas Rose today illus- gust 1995, but not confirmed until nominated by Republican Presidents. trate the progress being made under March 1998. When the final vote came, But I will not allow an ideological shift Democratic leadership, and the fair and she was confirmed by unanimous con- one way or the other on the courts. expeditious way in which we have con- sent and without a single negative I have voted for judges whom I know sidered nominees. Many of the vacan- vote, after having been stalled for al- have a different personal view on the cies that will be filled by today’s votes most 3 years. I recall the nomination of May 9, 2002 CONGRESSIONAL RECORD — SENATE S4091 Michael Schattman to a vacancy on Clinton. Judge Helene White of the sixth circuit, we held the first hearing the Northern District of Texas. He Michigan Court of Appeals was nomi- on a sixth circuit nomination in almost never got a hearing and was never nated in January 1997 and did not re- 5 years. And, with the confirmations of acted upon, while his nomination lan- ceive a hearing on her nomination dur- Judge Rose and Mr. Mays, we have now guished for over two years. These are ing the more than 1,500 days before her confirmed all the nominees to the dis- district court nominations that could nomination was withdrawn by Presi- trict courts in the sixth circuit for have helped respond to increased fil- dent Bush in March of last year. Kath- whom we have received nominations. I ings in the trial courts if acted upon by leen McCree Lewis, a distinguished note that the White House has still not the Senate over the last several years. lawyer from a prestigious Michigan law sent nominees for the six remaining va- In addition to these nominees, the Re- firm, also did not receive a hearing on cancies that exist on the district publican-led Senate failed to provide her 1999 nomination to the sixth circuit courts in the sixth circuit. any hearings on nominees to the Court during the years it was pending before As our action today demonstrates, of Appeals for the Fifth Circuit, which it was withdrawn by President Bush in again, we are moving at a fast pace to includes Texas, during the entire 6 March 2001. Professor Kent Markus, an- fill judicial vacancies with nominees years of their majority in the Clinton other outstanding nominee to a va- who have strong bipartisan support. administration. cancy on the sixth circuit that arose in Partisan critics of these accomplish- Many of the vacancies in the Fifth 1999, never received a hearing on his ments ignore the facts. The facts are that we are confirming President Circuit are longstanding. For example, nomination before his nomination was Bush’s nominees at a faster pace than despite the fact that President Clinton returned to President Clinton without the nominees of prior presidents, in- nominated Jorge Rangel, a distin- action in December 2000. cluding those who worked closely with guished Hispanic attorney, to fill a Some on the other side of the aisle fifth circuit vacancy in July 1997, Mr. a Senate majority of the same political held these seats open for years for an- party. Rangel never received a hearing and other President to fill, instead of pro- his nomination was returned to the The rate of confirmation in the past ceeding fairly on consensus nominees. President without Senate action at the 10 months actually exceeds the rates of Some were unwilling to move forward end of 1998. On September 16, 1999, confirmation in the past three presi- knowing that retirements and attrition President Clinton nominated Enrique dencies. For example, in the first 15 would create four additional seats that Moreno, another outstanding Hispanic months of the Clinton administration, would arise naturally for the next attorney, to fill a vacancy on the fifth 46 judicial nominees were confirmed, a President. That is why there are now circuit but that nominee never re- pace on average of 3.1 per month. In eight vacancies on the sixth circuit. ceived a hearing either. When Presi- the first 15 months of the first Bush ad- That is why it is half empty or half dent Bush took office last January, he ministration, judges were confirmed at full. withdrew the nomination of Enrique a pace of 1.8 judges per month. Even in Moreno to the fifth circuit. Long before some of the recent voices the first 15 months of the Reagan ad- The surge of vacancies created on the of concern were raised about the vacan- ministration, when a staunchly Repub- Republicans’ watch is being cleaned up cies on that court, Democratic Sen- lican majority in the Senate was work- under Democratic leadership in the ators in 1997, 1998, 1999, and 2000 im- ing closely with a Republican Presi- Senate. The Senate received Justice plored the Republican majority to give dent, 54 judges were confirmed, a pace Davis’s and Mr. Hanen’s nominations the sixth circuit nominees hearings. of 3.6 per month. In fewer than 10 the last week in January. Their ABA Those requests, not just for the sake of months since the shift to a Democratic peer reviews were not received by the the nominees but for the sake of the majority in the Senate, President committee until late March and early public’s business before the court, were George W. Bush’s judicial nominees April. Both participated in a confirma- ignored. Numerous articles and edi- have been confirmed at a rate of 5.6 tion hearing on April 25, were consid- torials urged the Republican leadership judges per month, a faster pace than ered and reported by the committee to act on those nominations. Fourteen for any of the past three Presidents. last week and are being considered and former presidents of the Michigan During the 61⁄2 years of Republican confirmed by the Senate today. State Bar pleaded for hearings on those control of the Senate, judicial con- Justice Davis has been serving as nominations. firmations averaged 38 per year—a pace Chief Justice of the Court of Appeals in The former chief judge of the sixth of consideration and confirmation that Tyler, TX, since 2000 and has extensive circuit, Judge Gilbert Merritt, wrote to we have already exceeded under Demo- experience practicing as a litigator be- the Judiciary Committee chairman cratic leadership over these past 10 fore State and Federal courts. Mr. years ago to ask that the nominees get months in spite of all of the challenges Hanen has legal experience working as hearings and that the vacancies be facing Congress and the Nation during a civil trial attorney and in private filled. The chief judge noted that, with this period and all of the obstacles Re- practice for over 20 years, and has been four vacancies—the four vacancies that publicans have placed in our path. As a leader in establishing programs to arose in the Clinton administration— of today, we have confirmed 56 judicial serve the needs of the disadvantaged. the sixth circuit ‘‘is hurting badly and nominees in fewer than 10 months. This The confirmations of Mr. Mays of will not be able to keep up with its is more than twice as many confirma- Tennessee and Judge Rose of Ohio, will work load due to the fact that the Sen- tions as George W. Bush’s father had fill two judgeships in the sixth circuit. ate Judiciary Committee has acted on over a longer period—27 nominees in 15 They will make the fourth and fifth none of the nominations to our Court.’’ months—than the period we have been district court judgeships we have filled He predicted: in the majority in the Senate. overall in the sixth circuit since I be- By the time the next President is inaugu- The Republican critics typically came chairman last summer, including rated, there will be six vacancies on the compare apples to oranges to the three earlier confirmations from court of appeals. Almost half of the court mischaracterize the achievements of Kentucky. will be vacant and will remain so for most of the last 10 months. They complain that The Sixth Circuit Court of Appeals 2001 due to the exigencies of the nomination we have not done 24 months of work in currently has eight vacancies, many of process. Although the President has nomi- the 10 months we have been in the ma- which are longstanding. Six of those nated candidates, the Senate has refused to jority. Ironically, with today’s con- vacancies arose before the Judiciary take a vote on any of them. firmations, we even meet that unfair Committee was permitted to reorga- Nonetheless, no sixth circuit hear- standard: Within the last 10 months we nize after the change in majority last ings were held in the last 3 years of the have confirmed more judges than were summer. None, zero, not one of the Clinton administration, despite these confirmed by the Republican majority Clinton nominees to those vacancies on pleas. Not one. Since the shift in ma- in the entire 1996 congressional session the sixth circuit received a hearing by jority the situation has been exacer- and in all of 1997 combined—we have the Judiciary Committee under Repub- bated as two additional vacancies have now exceeded their 2-year figure in 10 lican leadership. arisen. months. One of those seats has been vacant With our April 25 hearing on the A fair examination of the rate of con- since 1995, the first term of President nomination of Judge Gibbons to the firmation shows that Democrats are S4092 CONGRESSIONAL RECORD — SENATE May 9, 2002 working harder and faster on judicial utes of the reorganization of the Sen- and balances of our system of govern- nominees, confirming judges at a faster ate and held that hearing on the day ment that does not give the power to pace than the rates of the past 20 years. after the committee was assigned new make lifetime appointments to one The double standards asserted by Re- members. person alone to remake the courts publican critics are just plain wrong That initial hearing included two dis- along narrow ideological lines, to pack and unfair, but that does not seem to trict court nominees and a court of ap- the courts with judges whose views are matter to Republicans intent on criti- peal nominee on whom the Republican outside of the mainstream of legal cizing and belittling every achieve- majority had refused to hold a hearing thought, and whose decisions would ment of the Senate under a Democratic the year before. Within 2 weeks of the further divide our nation. The Senate majority. first hearing, we held a second hearing should not and will not rubber stamp The Republican attack is based on on judicial nominations that included nominees who would undermine the the unfounded notion that the Senate another court of appeals nominee. I did independence and fairness of our Fed- has not kept up with attrition on the try to schedule some district court eral courts. It is our responsibility to district courts and the courts of ap- nominees for that hearing, but none of preserve a fair, impartial and inde- peals. Well, the Democratic majority the files of the seven district court pendent judiciary for all Americans, of in the Senate has not only been keep- nominees pending before the com- all races, all religions, whether rich or ing up with attrition but outpacing it, mittee was complete. Similarly, in the poor, whether Democrat or Republican. and we have started to move the vacan- unprecedented hearings we held for ju- Some on the other side of the aisle cies numbers in the right direction— dicial nominees during the August re- have falsely charged that if a nominee down. By contrast, from January 1995 cess, we attempted to schedule addi- has a record as a conservative Repub- when the Republican majority took tional district court nominees but we lican, he will not be considered by the over control of the Senate until July could not do so if their paperwork was committee. That is simply untrue. 2001, when the new Democratic major- not complete. Had we had cooperation Take, for example, the nomination of ity was allowed to reorganize, Federal from the Republican majority and the Mr. Mays. Mr. Mays has been involved judicial vacancies rose by almost 75 White House in our efforts, we could in more than 50 political campaigns on percent, from 63 to 110. When Members have held even more hearings for more behalf of Republican candidates for were finally allowed to be assigned to district court nominees. Nevertheless, President, Senate, Governor, and local committees on July 10, we began with including our hearing scheduled for offices. He is a member of the Repub- 110 judicial vacancies. this week, in 10 tumultuous months, lican National Lawyers Association. He With today’s confirmations of Jus- the committee will have held 18 hear- was a delegate to the Republican Na- tice Davis, Mr. Hanen, Judge Rose, and ings involving 65 judicial nominations. tional Convention in 2000, and he was Mr. Mays, we have reduced the overall The Senate Judiciary Committee is on the Executive Committee of the number of judicial vacancies to 84. Al- holding regular hearings on judicial Tennessee Republican Party from 1986 ready, in fewer than 10 months in the nominees and giving nominees a vote through 1990. Thus, it would be wrong majority, we more than kept up with in committee, in contrast to the prac- to claim that we will not consider attrition and begun to close the judi- tice of anonymous holds and other ob- President George W. Bush’s nominees cial vacancies gap that grew so enor- structionist tactics employed by some with conservative credentials. We have mous under the Republican majority. during the period of Republican con- done so repeatedly. Under Democratic leadership, we have trol. The Democratic majority has re- The next time Republican critics are reduced the number of district court formed the process and practices used bandying around charges that the vacancies by nearly 30 percent and the in the past to deny committee Democratic majority has failed to con- overall number of judicial vacancies by consideraiton of judicial nominees. We sider conservative judicial nominees, I nearly 25 percent. are moving away from the anonymous hope someone will ask those critics Overall, in 10 months, the Senate Ju- holds that so dominated the process about Mr. Mays, or all the Federalist diciary Committee has held 17 hearings from 1996 through 2000. We have made Society members and Republican Party involving 61 judicial nominations and home State Senators’ blue slips public activists this Senate has already con- is scheduled this afternoon to hold its for the first time. firmed. I certainly do not believe that 18th hearing today involving four more I do not mean by my comments to President Bush has appointed 56 liberal judicial nominees. That is more hear- appear critical of Senator HATCH. Many judges and neither does the White ings on judges than the Republican ma- times during the 61⁄2 years he chaired House. jority held in any year of its control of the Judiciary Committee, I observed The committee continues to try to the Senate—twice as many as they that, were the matter left up to us, we accommodate Senators from both sides held during some full years. Recall would have made more progress on of the aisle. The court of appeals nomi- that one-sixth of President Clinton’s more judicial nominees. I thanked him nees included at hearings so far this judicial nominees—more than 50— during those years for his efforts. I year have been at the request of Sen- never got a committee hearing and know that he would have liked to have ators GRASSLEY, LOTT, SPECTER, ENZI, committee vote from the Republican been able to do more and not have to SMITH, and THOMPSON, six Republican majority, which perpetuated long- leave so many vacancies and so many Senators who each sought a prompt standing vacancies into this year. nominees without action. hearing on a court of appeals nominee Despite the new-found concern from I hope to hold additional hearings who was not among those initially sent across the aisle about the number of and make additional progress on judi- to the Senate in May 2001. judicial vacancies, no nominations cial nominees. In our efforts to address The whipsawing by the other side is hearings were held while the Repub- the number of vacancies on the circuit truly remarkable. When we proceed on licans controlled the Senate during the courts we inherited from the Repub- nominees that they support and on first half of last year. No judges were licans and to respond to what the whom they seek action, we are criti- confirmed during that time from President, Vice President CHENEY and cized for not acting on others. When we among the many qualified circuit court Senator HATCH now call a vacancy cri- direct our effort to trying to solve nominees received by the Senate on sis, the committee has focused on con- problems in one circuit, they complain January 3, 2001, or from among the sensus nominees. This will help end the that we are not acting in another. nominations received by the Senate on crisis caused by Republican delay and Since these multiple problems arose on May 9, 2001. obstruction by confirming as many of their watch while they were in the ma- The Democratic leadership acted the President’s judicial nominees as jority, it is a bit like the arsonist who promptly to address the number of dis- quickly as possible. complains that the local fire depart- trict and circuit vacancies that had Most Senators understand that the ment is not responding fast enough to been allowed to grow when the Senate more controversial nominees require all of his destructive antics. was in Republican control. The Judici- greater review. This process of careful I imagine that today we will be hear- ary Committee noticed the fist hearing review is part of our democratic proc- ing a refrain about the most controver- on judicial nominations within 10 min- ess. It is a critical part of the checks sial of President Bush’s nominees who May 9, 2002 CONGRESSIONAL RECORD — SENATE S4093 have not yet participated in a hearing. have seen the light of day in past dis- Court of Appeals. We confirmed Ninth Some of them do not have the nec- cussions of confirmations. Circuit nominees such as Judge Marcia essary home-State Senate support First, there is a seemingly immortal Berzon, Judge Richard Paez, Judge needed to proceed. Some will take a myth around here that it was the Re- Margaret Morrow, and Judge Willie great deal of time and effort for the publicans who created the current va- Fletcher, and I could go on down the committee to consider. In spite of all cancy crisis by stalling President Clin- line. These nominees were confirmed we have done and all we are doing, our ton’s nominees. That is purely and un- with my support as chairman. I can partisan critics will act as if we have mistakably false. The fact is, the num- tell you not a single one of these would not held a single hearing on a single ju- ber of judicial vacancies decreased by 3 be characterized, by any measure of dicial nominee. They will not acknowl- during the 6 years of Republican lead- the imagination, as nominees with po- edge their role in creating what they ership while I was chairman over what litical ideology within the moderate now call a judicial vacancies crisis. it was when the Democrats controlled. mainstream. I have personal political They will not apologize for their harsh There were 70 vacancies when I be- views almost completely opposite tactics in the 61⁄2 years that preceded came chairman of the Judiciary Com- them, but they were confirmed. the shift in majority. They will not ac- mittee in January of 1995 and President I applied no litmus test to them. I re- knowledge that the Democratic major- Clinton was in office, and there were 67 viewed them on their legal capabilities ity has moved faster on more judges at the close of the 106th Congress in and qualifications to be a judge, and than they ever did. They will not ac- December 2000 and the end of President that is all I am asking from the Demo- knowledge that we have been working Clinton’s Presidency. The Republicans crat majority. That is not what is hap- at a record pace to seek to solve the did not create or even add to the cur- pening. It is clear there is this whole- problems they created. rent vacancy crisis. sale, calculated, slow-walking of Presi- Each of the 56 nominees confirmed by Each Member of this Senate is enti- dent Bush’s nominees and particularly the Senate has received the unani- tled to his or her opinion on what hap- for the circuit court nominees. mous, bipartisan backing of the com- pened, but not to his or her own set of Last year on this very day, May 9, we mittee. Today’s confirmations make facts. Enron-type accounting should had 31 vacancies in the circuit courts the 53rd through 56th judicial nominees not be employed regardless of which of appeals. Today there are 29—2 fewer. to be confirmed since I became chair- liberal interest group is insisting on it We are not making a lot of headway on man last July. I would like to com- when we are talking about something these very important circuit court mend the members of the Judiciary as serious as our independent judiciary. nominations. Committee and our Majority Leader Second, there has been considerable I might add, yes, it took a lengthy Senator DASCHLE and Assistant Major- sleight of hand when it comes to the period to go through some of these ity Leader Senator REID for all of their true overall record of President Clin- nominees. Sometimes it was because hard work in getting us to this point. ton’s nominations. I worked well with objections were made; sometimes it The confirmation of the 56th judge in President Clinton. I did everything in was because of further investigation 10 months, especially these last 10 my power to help him with his nomina- that had to occur; sometimes it was months, in spite of the unfair and per- tions. One person does not control ev- just because I had to fight with my sonal criticism to which they have erything, but I did everything I knew own caucus to get them through. But each been subjected, is an extraor- how. they did get through. dinary achievement and a real example The undisputed fact is that Repub- The third point I wish to make is of Democratic Senators acting in a bi- licans treated a Democratic President that an illusion has been created out of partisan way even when some on the equally as well as they did a Repub- thin air that the Republicans left an other side have continued to make our lican. We did not use any litmus tests, undue number of nominees pending in a efforts toward progress as difficult as regardless of our personal views, committee without votes at the end of possible. whether it was abortion, religion, race, the Clinton administration. Again, I again invite the President to join or personal ideology. I am disappointed more Arthur Andersen accountings. with us to fill the remaining judicial to note that seems to be precisely what Get ready for the truth. vacancies as quickly as possible with is happening with the Democrat-con- There were 41 such nominees—I re- qualified, consensus nominees, nomi- trolled Senate now. peat, 41—which is 13 fewer than the 54 nees chosen from the mainstream and Let’s be honest and look at the facts. whom Democrats who controlled the not for their ideological orientation, During President Clinton’s 8 years in Senate in 1992 left at the end of the nominees who will be fair and impar- office, the Senate confirmed 377 judges, first Bush administration. That is 41 tial judges and will ensure that an essentially the same as, only 5 fewer under my chairmanship and 54 under independent judiciary is the people’s than, the all-time confirmation cham- the Democrat-controlled Senate in bulwark against a loss of their free- pion, Ronald Reagan, who had 382. 1992, at the end of the first Bush ad- doms and rights. President Reagan enjoyed 6 years of his ministration. The PRESIDING OFFICER. The Sen- own party controlling the Senate, My fourth point is, as you can see ator from Utah is recognized. while President Clinton had only 2. from this particular chart, I believe Mr. HATCH. Mr. President, I am President Clinton had to put up with 6 President Bush is being treated very grateful for this opportunity to talk years of a Republican-controlled Sen- unfairly. I will try to point this out. about some of the things that are going ate. President Reagan and the first Presi- on with regard to judges. This proves that the Republicans did dent Bush got all of their first 11 cir- I believe that my chairmanship of not let partisanship get in the way of cuit court nominees confirmed. All 11 the Senate Judiciary Committee and principle when it came to judicial were confirmed well within one year of the record we established during the nominations. True, there were indi- their nominations. This is a stark con- Clinton administration have been vi- vidual instances where a handful of trast to today: 8 of current President ciously attacked through the last num- nominees did not move, but it was Bush’s first 11 nominations are still ber of months. There seem to be a num- nothing like the systematic and cal- pending without a hearing, despite ber of illusions floating around Capitol culated stalling tactics being employed being here for a whole year at the end Hill relating to this committee’s han- by this Democratic Senate to stop of yesterday. All have their ABA rat- dling of judges during my tenure. President Bush’s highly qualified nomi- ings. All are rated either well qualified, I am here to set the record straight. nees. the highest rating possible, or quali- I am here to help everybody else know At this point, I should also add the fied, a high rating, and all but one have what that record is. Clinton nominees we confirmed were their home State Senators’ support, The Democrats are in power. They no mainstream moderates as some of and that one is a North Carolina nomi- set the pace and agenda for such nomi- us have been led to believe. We con- nee for whom Senator EDWARDS has yet nation hearings, and they have a right firmed nominees—and I am going to to return a blue slip. to do so. I want to shine a candle mention four—in one circuit; all four I might add that the North Carolina through five points that never seem to were moved up to the Ninth Circuit nominee was nominated in the first S4094 CONGRESSIONAL RECORD — SENATE May 9, 2002 Bush administration. So he has been take on a life of their own and how nominees who might be in the same pending for over 10 years. John Rob- they can take away the life from their circumstance. erts—who is considered one of the two victims. I urge and call upon the Democratic or three greatest appellate lawyers in By the time I became chairman, I majority to show some leadership and this country by everybody who knows was determined to change the process put partisanship and the politics of intimately what he has done, both that had gotten so vicious. I worked to personal destruction behind. Give fair Democrats and Republicans—has been restore dignity back to the nomina- hearings and confirmations of qualified sitting here for 1 solid year. tions process both in the Committee nominees and keep the judiciary inde- My fifth point, shown in this chart, is and the Senate. I championed the cause pendent, as our forefathers intended. that President Clinton had the privi- of President Clinton’s Supreme Court Keep the left-wing interest groups out lege of seeing 97 of his first judicial nominee Ruth Bader Ginsburg, even of the nominations process. Do not let nominees confirmed. The average time though she was criticized by many as a them smear our people. from nomination to confirmation was liberal activist and was a former gen- I will introduce some of the nominees 93 days. Such a record was par for the eral counsel of the ACLU, nothing that that have been held hostage in the Ju- course until the current Senate leader- bothered me. I used my influence to diciary Committee this whole year. ship took over last year. President quiet her detractors. I helped secure John Roberts, who is one of the most Reagan got 97 of his first 100 judicial her vote of 96 to 3. qualified and respected appellate law- nominations confirmed in an average Under my chairmanship, I ended the yers in this country, has argued 37 of 36 days. Again, he had 6 years of a practice of inviting witnesses to come cases before the Supreme Court. He Republican Senate to help him. Presi- into hearings to disparage the district just won a Supreme Court case 2 weeks dent H.W. Bush saw 95 of his first 100 court and circuit court nominees. In ago for environmentalists. That was a confirmed in an average of 78 days, and other words, I would not allow an out- historic property rights case. Miguel for most of his tenure he had a Demo- side group to come in. And there were Estrada, who is a true American suc- crat-controlled Senate. plenty of them that wanted to. I dealt cess story, arrived in this country from The ground rules obviously have been with the FBI background issues in pri- Honduras as a teenager, taught himself changed as the extreme interest groups vate conference with Senators, never English, graduated with high honors have reportedly instructed my Demo- mentioning them in public hearings. from both Columbia and Harvard Law cratic colleagues. As we sit here today, Now that is a practice I am concerned School, and has argued 15 cases before the Senate has confirmed only 52—only has not been followed. the U.S. Supreme Court—an excep- 52—not the 97 President Clinton got, It is a matter of great concern be- tional Hispanic young man. but only 52 of President Bush’s first 100 cause sometimes we do have to delay a Professor Michael McConnell, from nominees, and the average number of hearing. We may have to put off some my State of Utah, one of the greatest days to confirm these nominees is over things because of further investigation, legal minds of our generation, is sup- 150 and increasing every day. which may turn out be innocuous, or ported by top liberal legal scholars The reason I mention these five because of some serious charges that Laurence Tribe of Harvard, Cass points is that there are some people were raised, or because of something Sunstein of Chicago Law School, and who read the title of what we are doing that has arisen that needs to be dis- many others. He is widely known to today, and they hear what my col- cussed. Anytime somebody indicates possess all the intelligence, tempera- leagues have to say, and ignore the fact we have to put off a hearing because of ment, and personal qualities that can that, of President Bush’s first 11 nomi- an FBI report—that essentially comes make for an outstanding judge. nations, only 3 of them have gotten down to telling everybody in the world. Jeffrey Sutton, a top legal advocate through. Those 11 were made on May 9 At the very least, it makes the public who graduated first in his class at the of last year. There is no historical jus- draw the conclusion that there must be Ohio State College of Law, served as a tification for blocking President Bush’s something wrong with this nominee. Of law clerk to the U.S. Supreme Court. choices for the Federal judiciary. First, course, in most cases there is not. There they are: John Roberts, Miguel I do not want to accuse my colleagues Now I told interest groups, even the Estrada, Michael McConnell, and Jef- on the other side of doing that. ones with which I agree and whose frey Sutton on the top of this chart. Second, there simply is no historic work I like in other areas, that they I will go a little bit further. Then justification for blocking President were not welcome to come in and there is Deborah Cook at the Sixth Cir- Bush’s first 11 or first 100 judicial smear Clinton nominees. I refused to cuit, who has overcome formidable ob- nominees. Nor is there any truth to the alter the 200-year tradition of deference stacles in her personal life and legal myth that the vacancies we have today to Presidents by shifting the burden career, including breaking a glass ceil- were caused by the Republican Senate. onto nominees, and I informed the ing when she became the first female They were caused by retiring judges. In White House of problems that could, if attorney in her law firm. She has other words, anything conjured up made public, lead a nominee to a served with distinction on the Ohio from the past and dressed up as a rea- humiliating vote so that the nominee State Supreme Court. son to thwart the requests of President could withdraw rather than face that Then there is Judge Dennis Shedd. Bush should be dismissed. fate. These are the reasons we were He has a long and admirable record in Now I want to switch gears a little able to confirm 377 Clinton nominees. public service. He was chief of staff of bit and say something I consider to be Anybody who thinks they were with- the Senate Judiciary Committee, and personal, even though it has had—and in the mainstream did not look at he is now a judge on the Federal dis- still could have—a lot of bearing on those nominees. We included some trict court. He already knows his way this process. Back before I became pretty contentious ones, such as the around the Fourth Circuit Court of Ap- chairman of the Judiciary Committee ones I have mentioned earlier in my re- peals where he has been nominated to in 1995, I was personally affected by marks, and I only mentioned four be- serve because he has already been des- several events that occurred under the cause they were from the one circuit. I ignated by that court to hear over 30 of auspices of advise and consent. These could mention many. If we had applied their cases and write a number of opin- events included the mistreatment of the same litmus tests as our colleagues ions. I should also note that Judge nominees including Sessions, Bork, are applying to President Bush’s Shedd has the bipartisan support of Thomas, Ryskamp, Rehnquist, and oth- judges, very few of President Clinton’s both home State Senators. ers. In fact, even Justice Souter was nominees would have gotten through. Then there is Priscilla Owen of not treated really well when he came I worked to get them confirmed. I Texas, who is a litigator with 17 years’ before the committee, and the main stuck my neck out for them, and I still experience and currently serving her reason was they thought he might be believe to this day I did the right 7th year as a justice on the Texas Su- anti-abortion. thing, even though I am increasingly preme Court. She is only the second I saw how politics can affect the pessimistic that someone on the other woman even to sit on that bench. She human spirit both in success and de- side of the aisle will step up to the has been sitting, as have all these oth- feat. I saw how baseless allegations can plate and reciprocate for any Bush ers, for over a year now. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4095 Last but certainly not least, there is mittee, has been here for almost a year Baker, Donelson, Bearman & Caldwell. Judge Terrence Boyle, a judge with 14 and will not get a vote today; and Mr. Mays became a partner in 1979. His years’ experience, who is a thoughtful, Judge Michael McConnell, who some law practice ranged from trial work— fair, and nonpartisan jurist who has say is probably one of the two or three where he represented clients such as been waiting for a hearing for 11 years, greatest legal geniuses in the country, small, family-owned businesses in liti- ever since the first President Bush is still without a hearing—and I am gation matters—to banking and health nominated him in 1991, and who has ranking member. care transactions. been designated to sit with the Fourth This is bothering me to a large de- In 1995 Mr. Mays entered government Circuit Court during 12 terms and has gree because I do not treat my col- service as Tennessee Governor written more than 20 circuit court leagues on the other side the way they Sunquist’s legal counsel. Here his re- opinions. That is how much they have are treating our nominees. I believe it sponsibilities included reviewing all honored him. He was nominated, as I has to change. I will do everything in legislation requiring the Governor’s ap- say, over 10 years ago and still has not my power to change it. Should we get proval; reviewing all clemency matters had a hearing. back in the majority, I will move to do and extraditions; advising the Gov- These are all superbly qualified, a lot better job than has ever been done ernor on matters of judicial adminis- mainstream jurists who are committed before and, hopefully, we can correct tration; reviewing and recommending to the principle that judges should fol- some of the ills that we have all com- all judicial appointments; and super- low the law and not make it up from plained about in the past. vising, on behalf of the Governor, all the bench. They are also President We have a 100-person body and it is litigation to which the State of Ten- Bush’s selections. They enjoy bipar- not easy sometimes to get people nessee was a party. tisan support. They are not ideologues. through. I have to say, in comparison, In 1997, recognizing Mr. Mays’ hard The Senate Democrats who are block- we treated President Clinton’s nomi- work and legal talents, Governor ing them from having hearings should nees fairly. There are some excep- Sunquist promoted him to Deputy to treat these nominees and the President tions—I have to admit; there always the Governor and Chief of Staff. As who nominated them with fairness. I are—whether the Democrats or Repub- Chief of Staff, Mr. Mays became, in ef- do not think the process is fair now licans are in control of the committee. fect, the Chief Operating Officer of a and have to speak out. Look at the figures and facts. They State with approximately $19 billion in It is time for this Senate to examine were treated very fairly. annual revenue. After leaving govern- the real situation in the Judiciary It is interesting to note how much ment service in 2000, he rejoined his old Committee rather than to listen to the my colleagues have changed their tune firm of Baker, Donelson. more inventive ways of spinning. We in the last year or so. Moments ago, No description of Mr. Mays’ life have lots of work to do. Let us put the my colleague criticized our President, would be complete without mentioning statistics judo game behind us and get President Bush, for using the phrase his active membership on numerous to work. We have been elected to do a ‘‘judicial vacancy crisis.’’ My colleague committees and boards, whose purpose is to enrich the lives of the people of job and let’s do it instead of making up called this ‘‘confrontational.’’ Yet in Memphis. excuses for why we are not doing it. June of 1998, the Democrat leader of Mr. Mays is eminently qualified to be If we look at these eight nominees, the Senate said that the ‘‘vacancy cri- a member of the Federal bench. I com- John Roberts, unanimously well quali- sis is the most serious problem.’’ Has ment President Bush for another ex- fied by the gold standard according to the phrase ‘‘judicial crisis’’ taken on a traordinary judicial nominee, and I sin- our colleagues on the other side, the new connotation, or is this simply an- cerely hope that the Senate will begin American Bar Association; Miguel other example of the shoe being put on to deal with the growing judicial crisis Estrada, unanimously well qualified by the other foot? I don’t think we should that this Nation is facing. the American Bar Association; Michael be tit for tat in this body. Yes, we can Madam President, I support the nom- McConnell, unanimously well qualified always point to some nominees you ination of Andrew Hanen to be U.S. by the American Bar Association; Jef- wish could have gotten through, District Judge for the Southern Dis- frey Sutton, a majority qualified, a mi- whether JOE BIDEN was chairman or trict of Texas. nority well qualified; Deborah Cook, whether ORRIN HATCH was chairman. I It should be noted that in 1992 Mr. unanimously qualified; Priscilla Owen, know we both worked very hard to get Hanen was nominated to the same posi- unanimously well qualified; Dennis them through. tion by the first President Bush, but, Shedd, a majority of the ABA com- I am concerned. I don’t think Presi- regrettably, he was not given a hearing mittee found him well qualified; Ter- dent Bush is being treated fairly. I by the Democratic Senate. Still, as was rence Boyle, unanimously qualified. don’t think the courts are being treat- the case 10 years ago, I am confident he There is no reason why they should ed fairly. I don’t think litigants are will serve with distinction on the Fed- have sat there for 1 solid year. being treated fairly when half of a cir- eral district court. I think the American people are dis- cuit in the Sixth Circuit is without Following graduation from Baylor appointed; they want the Senate to judges. That means the civil cases vir- University School of Law, where he fin- help, not hinder, President Bush. I urge tually cannot be heard because they ished first in his class, Mr. Hanen my friend across the aisle to focus on have to go to the criminal cases first, clerked for a year with Chief Justice this situation and step up the pace of and many of those cannot be heard. Joe Greenhill of the Texas Supreme hearings and votes and do what is right Justice delayed is justice denied. Court. In 1979 Mr. Hanen joined the for the country. That is happening all over our country. firm of Andrews & Kurth, handling Having said that, I understand there I believe we have to change that. medical malpractice defense cases, are only four of the six judges pending Madam President, I support the con- commercial litigation, products liabil- on the floor that will be voted on firmation of Samuel ‘‘Hardy’’ Mays, ity, and legal malpractice defense today. Unfortunately, one of them who Jr., to the United States District Court cases. In addition, he represented cli- will not be voted on is a judge we rec- for the Western District of Tennessee. ents in cases in the areas of FELA, ommended from Utah who is truly be- I have had the pleasure of reviewing ERISA, lender liability, civil rights, loved out there and by many through- Mr. Mays’ distinguished career, and I and antitrust. out the country. He is one of the finest can say without hesitation that he will Following his unsuccessful nomina- law professors in the country. He came be an excellent addition to the Federal tion to the Federal bench in 1992, Mr. out of the committee with a vote of judiciary. Hanen, along with two others, opened only four of our committee voting Mr. Mays graduated in 1961 from Am- his own law firm, which is now com- against him. Whenever members of the herst College and attended Yale Law posed of 17 employees. Mr. Hanen has committee had judges, I did everything School, where he served on the edi- represented clients in contract, patent in my power to put them to the head of torial board of the law journal. After litigation, toxic tort, mass tort, and the line and to get them through. receiving his Juris Doctorate, Mr. personal injury matters. These two judges, Judge Paul Cassell, Mays began an over-20-year association Mr. Hanen is a leader in the Houston who is already approved by the com- with the law firm presently known as Volunteer Lawyers Program. While S4096 CONGRESSIONAL RECORD — SENATE May 9, 2002 serving as president of the Houston Bar this period, my colleague and good administration. In those six years, the Association, Mr. Hanen has led effort friend, Senator DEWINE, was also a number of vacancies in the Federal ap- to raise funds for additional pro bono prosecutor for Greene County. Senator peals courts more than doubled, from work. Mr. Hanen has also been active DEWINE discovered that one of his su- 16 to 33. Today, that vacancy level is in promoting and instituting pro bono periors had bugged his office. Senator down from 33 to 29. legal services for AIDS and HIV-af- DEWINE took the only honorable action To sum up, I believe that when it fected individuals. He volunteers with available and resigned in protest. comes to judges, we are doing our job Habitat for Humanity, ADR programs, Judge Rose also resigned because he carefully, and we are doing our job and various nonprofit groups. felt the office’s integrity had been vio- well. I am very proud of this nominee and lated. Clearly, this shows that Judge Mr. THOMPSON. Madam President, I I know he will make a great judge. Rose, who was not involved in this in- am very pleased that the Senate is con- Madam President, I support the nom- cident in any manner, is a man who sidering the nomination of Samuel ination of Leonard E. Davis to be will put the interests of justice and Mays, whom everybody in Tennessee United States District Judge for the fairness above his own personal gain. knows as ‘‘Hardy,’’ to be a U.S. District Eastern District of Texas. Judge Rose is also a man deeply de- Judge for the Western District of Ten- I have had the pleasure of reviewing voted to his community. After leaving nessee. Judge Davis’ distinguished legal ca- the prosecutor’s office, he became I am grateful to Chairman LEAHY and reer, and I have concluded, as did Chief Juvenile Court Referee for the the Judiciary Committee and its staff President Bush, that he is a fine jurist Greene County Court of Common for moving Mr. Mays’s nomination so who will add a great deal to the Fed- Pleas. In this position, he was respon- quickly. The need is quite urgent. The eral bench in Texas. sible for working with delinquent, ne- Western District of Tennessee typically Upon graduation from Baylor Univer- glected and abused children. Currently, has four judges assigned to hear cases sity School of Law, where he finished he is a Board Member of the Xenia Ro- in Memphis, along with a fifth who first in his class, Leonard Davis joined tary Club and a member of three local hears cases in Jackson. Only two of the Tyler, TX, law firm of Potter, Chambers of Commerce. those four seats are currently filled Guinn, Minton & Roberts. He became a Later, under a new Greene County with judges hearing cases, and the partner in 1979 and was managing part- Prosecutor, Judge Rose became Chief nomination of one of those two judges ner from 1983 to 1990. Assistant Prosecutor in Charge of the to the Court of Appeals is now pending At the outset of his legal career, Civil Division. In 1991, he rose to the before the Senate. A third seat, the one Judge Davis concentrated on insurance bench as a Judge for the Greene Coun- to which Mr. Mays has been nomi- defense work. He also handled a diverse ty Common Pleas Court, General Divi- nated, is vacant. The fourth judge is caseload including cases involving sion. Currently, Judge Rose handles ap- currently on disability leave. So mov- worker’s compensation, section 1983, proximately 400 civil and 400 felony ing Mr. Mays’s nomination so promptly automobile accidents, deceptive trade criminal cases annually. is imperative for litigants with cases practices, products liability, and mal- Judge Rose’s nomination is yet an- pending in the Western District. practice. Later, as his practice devel- other example of the quality of judicial Hardy Mays is very well known to oped, he focused primarily on commer- nominations that President Bush is the bar of the Western District of Ten- cial litigation. In addition, Judge Davis making. I believe that we should all nessee. He was born and raised in Mem- was appointed to defend several follow the example set by the President phis. He graduated from Amherst Col- indigents in Federal and State crimi- when he said that it is time to provide lege in 1970 and in 1973 from Yale Law nal cases involving murder, aggravated fair hearings and prompt votes to all School, where he served as an editor of assault, interstate transportation of nominees, no matter who controls the the law journal. stolen cattle, and tax evasion. Senate or the White House. This is He returned home to Memphis, where Judge Davis served on the Texas what I tried to do when I was chair- he joined the law firm that is today State Ethics Advisory Commission man, and it is a standard to which we known as Baker, Donelson, Bearman & from 1983–88 and on the State Judicial should now aspire. Caldwell, at which he practiced law for Districts Board from 1988–92. Judge Mr. EDWARDS. Madam President, I over 20 years, and which was also the Davis was appointed by then-Governor wanted to say just a few words on this firm of our former colleague, Senator George W. Bush as Chief Justice of the subject of judicial nominations. Howard Baker, now U.S. Ambassador Twelfth Court of Appeals in Tyler, TX, Not everyone realizes how important to Japan. Although Mr. Mays started where he has served since 2000. the Federal courts are. They are ex- his practice as a tax and banking law- I have every confidence that Judge traordinarily important. Once judges yer, he soon shifted his focus to litiga- Leonard E. Davis will serve with dis- are confirmed by the Senate, they hold tion. He represented clients before the tinction on the Federal district court lifetime appointments. Although the local, State, and Federal courts in west for the Eastern District of Texas. focus tends to be on the Supreme Tennessee in a wide variety of civil Madam President, I rise in support of Court, the reality is that well over 99 cases. While his practice continued to the confirmation of Judge Thomas percent of all cases never reach that evolve into one primarily concentrated Rose to the U.S. District Court for the court. These cases are decided by dis- on banking law issues, Mr. Mays con- Southern District of Ohio. trict judges and circuit judges who tinued to try cases until 1985. During After reviewing Judge Rose’s distin- most Americans have never heard of. his time as a litigator, Mr. Mays tried guished legal career, I can state with- The final decisions made by these over 25 cases to judgment. Many of out reservation that he is a man of in- judges resolve the most fundamental these cases were in Federal court. His tegrity and honesty and will be a wel- questions about our civil rights and in- peers recognized his standing at the come addition to an already taxed judi- dividual rights. Every single day, these bar and selected him as a member of ciary. judges make decisions that literally the board of directors of the Memphis Judge Rose graduated from Ohio Uni- make and break people’s lives. Bar Association, a position he held versity in 1970 with a Bachelors of So it is critical that we examine from 1985 to 1987. Science in Education. He then went on nominations to the Federal bench very In 1987, he became managing partner to receive this Juris Doctorate from carefully, particularly when those of his firm, a move that forced him to the University of Cincinnati College of nominations raise serious questions. give up litigation. He helped turn the Law in 1973. Of course, being deliberate does not firm into a regional law firm, opening After graduating law school, Judge mean being dilatory. But Madam Presi- offices in Nashville and Chattanooga. Rose worked as a Greene County As- dent, the truth is that the Senate is He gave up his position as managing sistant Prosecutor while maintaining a confirming large numbers of nominees. partner of the firm in 1988 and returned private practice. As a prosecutor, his As of today, the Senate will have con- to the full-time practice of law. By responsibilities included addressing a firmed 56 judges, including 9 to the then, his practice had again evolved wide range of issues from juvenile mat- courts of appeals. That is a faster pace into one focused on health law and re- ters to capital murder cases. During than in the last 6 years of the Clinton lated practice areas. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4097 In 1995, Mr. Mays joined the adminis- nees including one for the Ninth Cir- tailing programs promoting racial and tration of Governor Don Sundquist as cuit Court of Appeals. Our record on ethnic diversity in our schools and his legal counsel. Two years later, he confirmations is good. workplaces; and overturned laws pro- became the Governor’s chief of staff. In So it has been a continual surprise to tecting workers. Balance in each of the these positions, he served the people of me that my colleagues on the other branches of our government is a key Tennessee ably and tirelessly. He was side of the aisle have complained day precept of our democracy, and balance highly regarded during his tenure with after day, that the Senate was not con- in the Federal judiciary is, in my opin- Governor Sundquist. firming judges. This is particularly ion, crucial to ensure that the Amer- In 2000, he returned to his former law surprising as those doing the com- ican public maintains its unquestioned firm, where he has continued to prac- plaining sit beside me week after week respect for and deference to the rulings tice law focused on representing health as we continue to hold hearings and of our Federal judiciary. care providers. vote these nominees out of the Com- Americans in huge numbers favor re- Mr. Mays is highly regarded by the mittee. productive choice, and the right to bar for his intellect, legal ability, fair- The problem is not that the Senate work in a safe workplace free from in- ness, and his unfailing good humor. I has not been confirming judges. Any jury and regardless of physical dis- am confident that he has the ideal tem- reasonable examination of the record ability. They believe in the need for perament to serve in the stressful posi- makes clear that the Committee is government to take steps to protect tion of a trial judge. Mr. Mays enjoys working hard to confirm more judges our environment for future genera- broad, bipartisan support. I know the than in past years. We have confirmed tions, and to protect consumers from Judiciary Committee has heard from a many strong Republican judges who unfair and deceitful business practices. number of prominent Democrats, in- are impartial, ethical, and who bring to These are the values that are placed in cluding Memphis Mayor Willie their decision making an open minded- jeopardy by extreme nominees. It is Herenton; President Clinton’s U.S. At- ness to the arguments presented. My the responsibility of the Senate and of torney in Memphis, Veronica Coleman- own experience in reviewing the record the members of the Judiciary Com- Davis; former Tennessee Governor Ned of nominees who have come before me mittee to ensure that the people we McWherter; and our former colleague, makes clear that judges who are quali- seat on the Federal bench share the Senator Harlan Matthews, in support fied, moderate candidates, who are held same respect for these rights. of the nomination of Mr. Mays. in high esteem by lawyers in their The reality is appointments to the In addition to his record of profes- community, and who have a record of judiciary have become more politicized sional accomplishments, no recitation fair-minded decision making will be over the past 20 years. If the Senate is of Mr. Mays’s career would be complete promptly confirmed. truly interested in filling all the out- without reference to his extraordinary The problem is that a few controver- standing vacancies as quickly as pos- commitment to his community. While sial nominees have not yet received sible, we must work together to find I will not take the time to detail the hearings. President Bush last year nominees who can help to correct the full scope of his community involve- nominated individuals to the Circuit current imbalance on the courts. We ment, including his significant polit- Court of Appeals who are among the need to see more cooperation and con- ical activities, I do want to focus on most conservative the Senate has ever sultation between the White House and one aspect of his involvement with his considered. Many of these nominees the members of the Senate, and a will- neighbors: the arts in Memphis would have long records of decisions and ingness to compromise on nominees be far poorer without his contribu- writings that are far outside main- who do not present a threat to values tions. He serves or has served as a di- stream thinking. They have records and rights that mainstream Americans rector of the Memphis Orchestra, Opera that call into question their commit- accept and welcome. We have an amaz- Memphis, the Memphis Ballet, the ment to upholding precedent, and to ing pool of talent in our legal commu- Playhouse on the Square, the Decora- respecting individual rights. When nity, and it would be a simple matter tive Arts Trust, and the Memphis questions like these are raised about a to nominate more mainstream nomi- Brooks Museum, and the Memphis Bo- nominee, the Committee must under- nees. tanic Garden. take a thorough examination of the It is my hope that as we continue to Hardy Mays is an excellent choice to nominee, and that takes time. work to fill existing vacancies, that it serve as Federal district judge in Mem- The Supreme Court hears fewer than will become more possible to work to- phis. I appreciate the President’s deci- 100 cases per year and circuit court gether to find candidates for nomina- sion to nominate him, and I am grate- judges make the final decisions in hun- tion who unite, not who seek to divide. ful to the Judiciary Committee for dreds of cases a year that set precedent Mr. VOINOVICH. Madam President, considering his nomination so prompt- for thousands of additional cases. Sen- today, May 9, 2002, marks one year to ly. I urge my colleagues to support his ate confirmation is the only check the date that I was at the White House nomination. upon federal judges appointed for life. I when President Bush announced the Ms. CANTWELL. Madam President, take seriously the responsibility to nominations of Deborah Cook and Jef- the Senate and the Judiciary Com- carefully review these nominees and to frey Sutton for the Sixth Circuit Court mittee have been under Democratic reflect upon the power they will hold of Appeals. However, one year later, no leadership for 10 months. During that to affect the lives of ordinary Ameri- action has been taken on these Ohio- 10 months, Chairman LEAHY and the cans in the workplace, the voting ans, as well as five other nominees to Judiciary Committee staff have booth, and in the privacy of their the Sixth Circuit. In fact, the entire ju- worked overtime to establish a steady home. dicial nominee process has been egre- process to fill judicial vacancies. In the When the Senate confirms nominees giously delayed over this past year. 10 months, each one of my Democratic to fill the remaining existing vacan- There are currently over 96 vacancies colleagues has taken time from their cies, as I am confident that it will, 11 in the Federal courts, enough that the busy schedules to chair multiple nomi- of the 13 Circuit Courts will be domi- Chief Justice of the Supreme Court, nations hearings. nated by conservative jurists. These William Rehnquist, referred to the va- Hearings on nominees began less same courts have increasingly issued cancy crisis is ‘‘alarming.’’ It certainly than a week after the Senate reorga- rulings that have curtailed the power is alarming to note that these vacan- nized, and have continued on a month- of Congress to enact laws to protect cies exist despite the fact that Presi- ly, or twice monthly basis, right up to women from domestic violence, pre- dent Bush has nominated nearly 100 this afternoon. As you have heard re- vent discrimination based on disabil- judges in his first year of office, more peatedly today, in 10 months we have ities, and to protect the environment. judges than any President in history. confirmed 52 judges, and have 4 more Rulings have increasingly limited the At the same point in his administra- awaiting confirmation today. We have ability and the opportunity for women tion, President Clinton had nominated held hearings on 13 Court of Appeals to exercise their right to reproductive only 74 judges. In addition, former nominees. This afternoon, I will con- freedom; limited the opportunity for President Bush had nominated 46 and vene a hearing on four additional nomi- education and advancement by cur- President Reagan had nominated 59. S4098 CONGRESSIONAL RECORD — SENATE May 9, 2002 Despite this overwhelming number of gation. Jeffrey Sutton graduated first to the Federal bench. But unfortu- nominees, as of April 12, 2002, the Sen- in his law school class, followed by two nately, many of these outstanding indi- ate has only confirmed 42 of President clerkships with the United States Su- viduals are still waiting for a hearing Bush’s 98 nominees. More egregious is preme Court, as well as the Second Cir- by the Senate Judiciary Committee, I the fact that only 7 of President Bush’s cuit. As he was the State Solicitor of believe 47 nominees are still pending. 29 nominees to the circuit courts have Ohio when I was Governor, I worked We need to move these judicial nomi- been confirmed. No circuit has felt this with him extensively when he rep- nations quickly, because they are all delay more powerfully than the Sixth. resented the Governor’s office, and in good men and women. Since 1998, the number of vacant my judgment, he never exhibited any I want to talk about a few facts and judgeship months in the Sixth Circuit predisposition with regard to an issue. figures. We’ve heard a lot of numbers has increased from 13.7 to 60.9 and is He has contributed so much and his being thrown around by both the currently the highest in the Nation. compassion for people and the law is so Democrats and the Republicans about The median time from the filing of a evident. In my opinion, Jeffrey Sutton who delayed who the longest, who de- notice of appeal to disposition of the is exactly what the federal bench nied hearings to whom, and on and on, case in the Sixth Circuit was 15.3 needs: a fresh, objective perspective. so we are left in a numbers daze. I get months in 2001, well above the 10.9 Jeffrey Sutton’s qualifications for dizzy from all the numbers. But this months national average, and second in this judgeship are best evidenced what I think is the bottom line. When the Nation only to the Ninth Circuit. through his experience. He has argued President Bush Sr., left office, he had Clearly the Sixth Circuit is in crisis nine cases before the United States Su- 54 nominees pending with a Democratic and the reason is the inaction of the preme Court, including Hohn v. United Senate. The vacancy rate was 11.5 per- Senate Judiciary Committee. States, in which the Court invited Mr. cent. When President Clinton left of- When I talk to Ohio practitioners, I Sutton’s participation, and Becker v. fice, he had 41 nominees pending with a hear many complaints about the over- Montgomery, in which he represented a Republican Senate. The vacancy rate use of visiting judges throughout the prisoner’s interests pro bono. He has was 7.9 percent. So the way I see it, Sixth Circuit. One lawyer told me that also argued twelve cases in the Ohio Senate Republicans gave the Demo- one of the visiting judges on his panel Supreme Court and six cases in the cratic President a better deal. The was from as far away as the Western Sixth Circuit. While his participation other bottom line is that a year, 365 District of Louisiana. In fact, the Sixth in controversial cases has, in some in- days, after President Bush nominated Circuit has the highest number of vis- stances, led to a clouding of his quali- his first 11 circuit court nominees, only iting judges providing service: 59 vis- fications and accomplishments, what 3 have been confirmed. By contrast, iting judges participated in the disposi- his detractors fail to mention is how he each of the 3 previous Presidents en- tion of 1,626 cases for the 12-month pe- argued pro bono on behalf of a blind joyed a 100 percent confirmation rate riod ending September 30, 2001. student seeking admission to medical on their first 11 circuit nominees, and It is time to put a stop to this logjam school or how he filed an amicus curiae they were all confirmed within a year. of Sixth Circuit nominees and allow brief with the Ohio Supreme Court in The way I see it, President Bush is get- our overburdened appeals courts to op- support of Ohio’s Hate Crimes law on ting the short end of the stick with his erate free of partisan wrangling. In behalf of the Anti-Defamation League, nominees. particular, it is time to give Justice the NAACP and the Ohio Human I’d like to talk about some of Presi- Deborah Cook and Jeffrey Sutton a Rights Bar Association. Jeffrey Sutton dent Bush’s nominees, specifically the hearing, and allow their nominations should not be criticized on assumptions 8 nominees of the 11 original circuit to be considered by the full Senate. that past legal positions reflect his per- court nominees sent up last May who In all candor, I can not think of two sonal views. Instead, he should be are still pending without action. Today individuals more qualified or better lauded for always zealously advocating a full year has gone by, 365 days, with prepared to assume the solemn respon- his client’s interests, no matter the only 3 of President Bush’s first 11 sibilities of the Sixth Circuit bench issue. I know Jeff. He is a man of ex- nominees having seen any action at all. than Deborah Cook and Jeffrey Sutton. ceptional character and compassion. And of those 3, I understand 2 were I have had the privilege of knowing For these and many other reasons, Jef- judges previously nominated by Presi- Deborah Cook for over 25 years. frey Sutton will be an unquestioned dent Clinton. The Senate needs to do Throughout, I have found her to be a asset to the Federal Bench. better than that. These individuals of woman of exceptional character and in- As you may know, the Sixth Circuit exceptional experience, intellect and tegrity. Her professional demeanor and is in desperate need of judicial appoint- character deserve to be treated fairly thorough knowledge combine to make ments. Fourteen judicial vacancies now and considered by the Senate prompt- her truly an excellent candidate for an exist, one of which has been vacant ly. appointment to the Sixth Circuit. since 1995. Furthermore, the Adminis- Let me say a few words about each of Deborah Cook has served with distinc- trative Office of the U.S. Courts has de- these nominees. I know that some of tion on Ohio’s Supreme Court since her clared five of these vacancies to be ju- my colleagues may have already given election in 1994 and reelection in 2000. dicial emergencies within the U.S. fed- many details about these individuals, My only regret is that with her con- eral court system. but I think that it is important that firmation to the Sixth Circuit, we will Given the crisis in the Sixth Circuit Americans see what quality individuals lose her on the Supreme Court of Ohio. and the exemplary records of Justice President Bush has sent up to the Sen- With a combined 10 years of appellate Cook and Jeffrey Sutton, I respectfully ate. These individuals have all excelled judicial experience on the Ohio Court urge the Judiciary Committee to hold in their legal careers and I’m sure, if of Appeals and the Ohio Supreme hearings on their nominations as soon confirmed, they will all make excellent Court, Deborah Cook uniquely com- as possible, and expeditiously move judges. bines keen intellect, legal scholarship them to the floor of the Senate. Judge Terrence Boyle is President and consistency in her opinions. She is Mr. GRASSLEY. Madam President, I Bush’s nominee for the Fourth Circuit a strong advocate of applying the law rise today to speak in support of Presi- Court of Appeals. He is currently the without fear or favor and not making dent Bush’s judicial nominees. Presi- Chief Judge of the U.S. District Court policy towards a particular constitu- dent Bush says that we need to move for the Eastern District of North Caro- ency. Deborah Cook is a committed in- these nominees swiftly and fairly. He lina, appointed by President Reagan in dividual and a trusted leader, and it is wants our support for his nominees. I 1984. He has served in this post with my pleasure to give her my highest agree. The Senate needs to act to fill distinction. He was nominated to the recommendation. these vacancies and ensure that the Fourth Circuit in 1991 by President I am also very pleased to speak on Federal courts are operating at full Bush Sr., but he did not receive a hear- behalf of Jeffrey Sutton, a man of un- strength. ing from the Democrat-controlled Ju- questioned intelligence and qualifica- Right now, President Bush has sent a diciary Committee. tions, with vast experience in commer- number of extremely qualified men and Justice Deborah Cook is President cial, constitutional and appellate liti- women to the Senate for consideration Bush’s nominee to the Sixth Circuit May 9, 2002 CONGRESSIONAL RECORD — SENATE S4099 Court of Appeals. After graduation in the legislature and in the Federal equitable solutions to virtually any from law school, Justice Cook became courts, as well as in private practice challenge. His personal and profes- the first female attorney hired at the and academia. Judge Shedd worked as sional integrity are above reproach, oldest law firm in Akron, OH, and just the Chief Counsel and Staff Director and his even temperament is ideally 5 years later, she was named a partner. for the Senate Judiciary Committee suited for the federal bench. She then served on the Ohio Court of under then-Chairman STROM THUR- Many outstanding Tennesseans have Appeals for 4 years, and in 1994 she be- MOND. He was appointed a district added their support to Hardy’s nomina- came a justice on the Ohio Supreme court judge for the District of South tion. They most often have mentioned Court. Her pro bono work is laudable: Carolina in 1990, where he has served to me his brilliant mind, sense of fair Judge Cook is a founder and trustee of with distinction. play and lack of personal bias, good a mentored college scholarship pro- Jeffrey Sutton is President Bush’s wit, and respect for other’s views and gram in Akron, and I understand she nominee to the Sixth Circuit Court of opinions. and her husband personally fund efforts Appeals. Mr. Sutton clerked for Jus- Thomas Jefferson wrote in 1776 that to help inner-city children go to col- tices Scalia and Powell on the U.S. Su- our judges ‘‘should always be men of lege. preme Court, then spent three distin- learning and experience in the laws, of Miguel Estrada is one of President guished years as Solicitor for the State exemplary morals, great patience, Bush’s nominees to the D.C. Circuit of Ohio. Since that time, Jeffrey Sut- calmness and attention.’’ Samuel Court of Appeals. He has an incredible ton has worked in private practice and Hardwicke Mays, Jr., certainly fits story, having immigrated to the United served as an adjunct professor of law at President Jefferson’s description. He States when he was young without the Ohio State University College of will serve our country with distinction, even speaking English, to then grad- Law. and his talent, experience and energy uate with honors from Columbia Col- These eight outstanding nominees will be an asset to our Federal judicial lege and Harvard Law School. He are still waiting for a hearing, even system. clerked for the Second Circuit and the though they are some of the most re- I ask unanimous consent after Sen- U.S. Supreme Court, then served as an spected judges and lawyers and profes- ator FEINGOLD speaks that Senator Assistant U.S. Attorney in the South- sors in the country. They have excel- HUTCHINSON be permitted to speak for ern District of New York, where he be- lent qualifications, are of high moral up to 5 minutes. came Deputy Chief of the Appellate character, and will serve our country Mr. LEAHY. Reserving the right to Section in the Office. Mr. Estrada well. They all have ratings of ‘‘well object, does the Senator have the time? acted as Assistant to the Solicitor Gen- qualified’’ or ‘‘qualified’’ by the Amer- How much time is remaining on both eral for 5 years in both the Bush and ican Bar Association, the so-called sides? I don’t want to object, but I Clinton administrations. If he is con- ‘‘gold standard’’ by the Democrats on know the Republican and Democrat firmed, Mr. Estrada would be the first the Judiciary Committee. It’s clear leader have 11:35 for the vote. Hispanic judge on the D.C. Circuit that the Senate Judiciary Committee The PRESIDING OFFICER. The Sen- Court of Appeals. needs to do its job and schedule them ator from Utah has 5 minutes 41 sec- Michael McConnell is President for a hearing and markup. onds. Bush’s nominee to the Tenth Circuit Let’s give these good men and women Mr. LEAHY. OK. Court of Appeals. He graduated from what they deserve, to be treated with The PRESIDING OFFICER (Mrs. the University of Chicago Law School respect. They need a prompt hearing CARNAHAN). Without objection, it is so and then clerked for Judge Skelly and markup. They have waited too ordered. Wright on the D.C. Circuit, and Justice long. The Senate has to act. Like the The Senator from Wisconsin. William J. Brennan on the U.S. Su- President said, the American people Mr. FEINGOLD: Madam President, preme Court. Professor McConnell was deserve better. today the Senate is going to confirm a tenured professor at the University of Mr. FRIST. Madam President, I rise four more of President Bush’s nomi- Chicago Law School for more than a today to thank my colleagues for the nees to the Federal bench. While there decade before accepting the Presi- confirmation of Samuel Hardwicke is no controversy about these par- dential Professorship at the University Mays, Jr., of Memphis TN, as U.S. Dis- ticular nominees, there has been much of Utah College of Law in 1997. He has trict Judge for the Western District of debate here on the floor about the pace earned the reputation of being one of Tennessee. I am also grateful to Presi- of confirmations. And today, because the top constitutional scholars in the dent Bush for his nomination of an in- this is the anniversary of President country. dividual who I know will act with fair- Bush’s announcement of his first batch Justice Priscilla Owen is President ness to all in a way which will make all of judicial nominations, we have been Bush’s nominee to the Fifth Circuit of us proud. told to expect a series of events de- Court of Appeals. Justice Owen spent Hardy Mays is a Memphis institu- signed to criticize the majority leader 17 years as a litigator with a top Hous- tion. No one lives life more to the full- and the chairman of the Judiciary ton law firm. Currently, Ms. Owen is est than Hardy whose passion for the Committee for their conduct of the serving her 7th year as Associate Jus- arts, a good book, the law and public confirmation process and to pressure tice on the Texas Supreme Court, she service is known to all. them to move this process along faster. is only the second woman ever to sit on As have so many others, I first I am pleased to join my colleagues on that bench. She has great professional sought his counsel when I decided to the floor this morning to make a few credentials, and has demonstrated a run for the United States Senate. Since points about this. strong commitment to her community. then, I have turned to Hardy for advice First, though I am sure the com- John Roberts is President Bush’s on a variety of occasions, and I value plaints will never stop, on the basis of other outstanding nominee to the D.C. the thoughtful, balanced approach he the numbers alone, it is awfully hard Circuit Court of Appeals. He is one of can bring to any issue. And I am proud to find fault with the pace of judicial the most qualified and respected appel- to call him my friend. confirmations. Since the Democrats late lawyers in the country. Mr. Rob- More importantly, he is an out- took control of the Senate last June, erts has had a distinguished record in standing lawyer with a keen intellect. we have confirmed 52 judges, not in- private practice, and he has performed He is fair and impartial, and has enor- cluding the four whom we will vote on a significant amount of pro bono legal mous compassion for his fellow man. today, which will bring the total to 56. service. He also served as Deputy Solic- Hardy has demonstrated, both in his In under a year, that is more judges itor General of the United States. Mr. distinguished legal career with the than were confirmed in four out of the Roberts’ background in public office Baker, Donelson firm in Memphis, and six years of Republican control of the and private office are outstanding. his life in public service as Legal Coun- Senate under President Clinton. Judge Dennis Shedd is President sel and Chief of Staff to Governor Don Judiciary Committee Chairman PAT- Bush’s nominee to the Fourth Circuit Sundquist, his unique ability to hear RICK LEAHY has vowed not to treat Court of Appeals. He has a long and ad- all sides of an issue, to work with peo- President Bush’s nominees as badly as mirable record of public service, both ple from all walks of life, and to find our predecessors treated President S4100 CONGRESSIONAL RECORD — SENATE May 9, 2002 Clinton’s nominees. I believe he is ful- But we all know that not all of Presi- They are the law. They are the judge’s filling that pledge, but frankly, he dent Clinton’s nominees were con- decisions. And we who are charged with doesn’t have to work all that hard to firmed. Far from it. In fact, 38 judicial evaluating the fitness of a sitting judge do that. nominees never even got a hearing in for a higher court have every right to For example, our friends on the Re- the last Congress, including 15 court of examine those decisions—before mak- publican side are complaining that appeals nominees. Three other nomi- ing our decision. some of President Bush’s nominees nees received hearings but never made I commend Chairman LEAHY on his from last May 9 have not yet been con- it out of committee. The nominations work on nominations thus far. Fifty- firmed. On today’s anniversary of those of eight court of appeals nominees who six confirmations in less than a year as nominations, I’m sure we’ll hear a lot never got a hearing and one who got a chairman is an admirable record. I am about that. So let’s just put that in hearing but no committee vote, were sure he won’t keep any nominee wait- perspective. pending for more than a year at the ing for 4 years before getting a con- Let’s assume for the sake of argu- end of the 106th Congress. In all, more firmation vote. I am sure we won’t fin- ment that these individuals have actu- than half of President Clinton’s nomi- ish this Congress having held hearings ally waited 365 days, a full year. We all nees to the circuit courts in 1999 and for fewer than half of the President’s know that at this time, that’s not real- 2000 never received a hearing. circuit court nominees. Most of all, I’m ly accurate. First, Democrats took Those who are concerned about cir- sure he will continue to treat this con- control of the Senate in June 2001. Our cuit court vacancies, if they are being firmation process with the dignity and committee was not organized so that honest, must lay the problem directly respect and care it deserves. The nominations hearings could be held at the feet of the majority in the Sen- courts, our system of justice, and the until July 10, 2001. So it’s really been ate during President Clinton’s last American people deserve no less. only 10 months that we have been in a term. Many of those who are now loud- I reserve the remainder of our time position to confirm any of the May 9 ly criticizing Chairman LEAHY refused and yield the floor. nominees. to recognize the results of the 1996 elec- Mr. HATCH. I yield time to the dis- Second, and just as significantly, tion and dragged their feet for 4 years tinguished Senator from Texas. under this administration, the Amer- on judicial nominations. Some of the The PRESIDING OFFICER. Under ican Bar Association can’t start its re- vacancies that President Bush is now the previous order, the distinguished view of a nomination until after the trying to fill actually date back to 1996 Senator from Texas is recognized. nomination is formally announced. or even 1994. Mrs. HUTCHISON. Madam President, During the Clinton administration, as So what are we to do about this? One I have been listening to the debate under all previous administrations, Re- alternative is to simply rubber stamp today. I certainly want to say I have a publican and Democrat, dating back to the President’s nominees. That is what very good friend who is a nominee for President Eisenhower, the ABA con- some would have us do. I, for one, am the Fifth Circuit, who was nominated 1 ducted its reviews of nominations be- thankful that that is not the approach year ago today, Priscilla Owen, who I fore they were sent to the Senate. of Chairman LEAHY or Majority Leader hope will get a fair hearing because she President Bush’s unfortunate decision DASHCLE. We have a solemn constitu- is one of the most qualified people who to change the way the White House tional obligation to advise and consent has ever been nominated for the Fifth handles the ABA review has added 30–60 on nominations to these positions on Circuit. days to the process as compared to the bench that carry with them a life- But I want to use my time this morn- prior years. That has to be factored time term. We must closely scrutinize ing to give the due accolades to two into any claims. They are the result of the records of the nominees to these judges on whom we will vote who are the President’s own choice of cutting positions. It is our duty as Senators. district judges. The circuit court the ABA out of the process. That duty is enhanced by the history judges are the ones about whom every- Assume for the sake of argument I have just discussed. If we confirm the one has been talking and about whom that all these nominees have been President’s nominees without close people are very concerned. But we have waiting 365 days to be considered by scrutiny, we would simply be reward- two very qualified district judges who the Senate. That is still 140 days shy of ing the obstructionism that the Presi- are going to be confirmed today. I want the 505 days that Richard Lazarra wait- dent’s party engaged in over the last to speak for them. ed between his nomination by Presi- six years by allowing him to fill with The first nominee is Andy Hanen. dent Clinton and his confirmation by his choices seats that his party held Andy Hanen was nominated in June of the Senate. And Judge Lazarra, now open for years, even when qualified 2001 to serve as Federal judge for the serving on the district court of Florida, nominees were advanced by President Southern District of Texas. He was also didn’t wait the longest. No, the period Clinton. nominated for this judgeship 10 years between his nomination and confirma- The most important part of the scru- ago by former President Bush. His tion is only the 15th longest of the tiny we must do is to look at the nomination expired at the end of the Clinton appointed judges. So when records of these nominees. Many of congressional session and was not re- nominees of President Bush have been them are already judges, at the State newed by President Clinton. waiting a year, however that is cal- level or on a lower court. There is Andy is a 1975 cum laude graduate of culated, they won’t even crack the top nothing wrong with examining their Denison University in Ohio, where he 15 of the Clinton judges who waited the work product; indeed, that is the best studied economics and political longest to be confirmed. indicator of how they will perform in science. In 1978 he earned his law de- Actually, the longest wait during the the positions to which they have been gree from Baylor University School of Clinton administration was endured by nominated. Law. He ranked first in his class and Judge Richard Paez, now on the Ninth Some have complained that it is im- was president of the Student Bar Asso- Circuit—1,520 days—over four years. proper for the committee to ask to see ciation and a member of the Baylor That’s in another league altogether copies of the unpublished opinions of Law Review. from the delay, if you can call it that judges nominated for the Circuit Court As a founding partner of the Houston at this point, on some of President who are currently serving as District law firm Hanen, Alexander, Johnson & Bush’s May 9 nominees. Nine Clinton judges. I disagree. Let me be clear that Spalding, he has gained extensive civil judges waited more than 2 years before we have not, as the Wall Street Jour- trial experience, half of which was in they were confirmed. If all of the May nal editorial page recently stated, Federal court. He went on to win a 9 judges still awaiting confirmation are asked judges to go back and write rul- number of accolades, including Out- still pending in the committee on May ing in cases where they have ruled standing Young Lawyer of Texas, 9, 2003, then maybe we should talk orally from the bench. That is laugh- awarded by the State bar. He was elect- about a delay. I am absolutely certain able. No, we simply asked for the ed president of the Houston Bar Asso- that will not be the case. judge’s work product—the judge’s writ- ciation in 1998 and is currently a direc- Now so far, I have been talking about ten rulings. Unpublished opinions are tor of the State Bar of Texas. He has judges who were ultimately confirmed. binding on the parties in the case. distinguished himself throughout his May 9, 2002 CONGRESSIONAL RECORD — SENATE S4101 career through civic and volunteer The PRESIDING OFFICER. The Sen- with the fairness, integrity, sound committees. He is an active member of ator from Vermont has 8 minutes 20 judgment, and energy that the people the community and contributes his seconds. of Ohio and this Nation deserve. I time to charities such as Habitat for Mr. LEAHY. And the Senator from whole-heartedly support his confirma- Humanity, Sunshine Kids, and the Red Utah? tion, and I encourage my colleagues to Cross. The PRESIDING OFFICER. The Sen- do the same. The Southern District of Texas is one ator has 30 seconds. The PRESIDING OFFICER. The Sen- of those that are in dire need of all the Mr. LEAHY. Madam President, the ator from Vermont. judicial vacancies being filled. I am Senator from Ohio has asked for time Mr. LEAHY. Madam President, I very pleased to support Andy Hanen. to make a statement. I yield that time truly believe, as I said in the debate, Leonard Davis has been nominated to to him. Democrats have been and will continue serve on the Eastern District of Texas. The PRESIDING OFFICER. The Sen- to be more fair than the Republicans He is a judge on the Circuit Court of ator from Ohio. were to President Clinton’s judicial Appeals for Texas, with an outstanding Mr. DEWINE. Madam President, I nominees. The fact is that more than record. He, too, was nominated by rise today in support of the confirma- 50 of President Clinton’s nominees former President Bush, but the nomi- tion of Judge Thomas M. Rose, whom never got a vote. Many languished for nation expired and was not renewed by the President has nominated for the years before they were returned with- President Clinton. post of U.S. District Judge for the out even having a hearing. Others wait- He earned a mathematics degree Southern District of Ohio, Western Di- ed for years, up to even 4 years to be from UT Arlington and a master’s de- vision. I first met Tom Rose 29 years confirmed. gree in management from Texas Chris- ago when we were both serving as as- We are moving through, as we have tian University. He earned his law de- sistant county prosecuting attorneys these last 10 months, in filling vacan- gree from Baylor University School of in Greene County, OH. I can tell you cies with consensus nominees. Law, where he graduated first in his without reservation that he is a man of I voted for the vast majority of these class. He went on to practice civil and great integrity, honor, and intel- nominees. I voted for all but one of criminal law for 23 years and handled ligence. I do not know a more qualified, these nominees. They are going to be Republicans. We hundreds of cases in State and Federal more experienced candidate for this know they are going to be conserv- courts. He was appointed to his current judgeship. position as Chief Justice of the 12th Tom, who comes from Laurelville, atives. That is fine. But I am not going to vote for some- Circuit Court of Appeals of the State of OH, graduated from Ohio University in body who will put a sign up over the Texas by then-President George W. 1970, and received his law degree from Federal court saying this is no longer Bush and has enjoyed strong bipartisan the University of Cincinnati’s College support and no opposition to his reelec- an independent court. of Law in 1973. Also in 1973, he was ap- If the White House would only work tion in November of 2000. pointed as Assistant County Pros- He has served on numerous boards with us instead of working against us, ecutor in Greene County; he became we could end the vacancy crisis by the and commissions, including the State the first Magistrate in the Greene Ethics Advisory Commission, the State end of next year. County Juvenile Court in 1976; and he Many partisans in the other party Bar of Texas’s Legal Publications Com- became the Chief Assistant Prosecutor mittee, and the American Heart Asso- appear, unfortunately, to have decided in charge of the Civil Division in 1978. to make judges a domestic agenda item ciation’s Board of Directors. In 1991, he became the Judge of the Judge Leonard Davis is a long-time on which this administration is intent Court of Common Pleas in Greene friend of mine. I believe he, too, will on winning partisan, political, and ide- County. serve our country well. ological victories. Given the closely di- During these last 11 years on the I urge my colleagues to support both vided Senate—and the Congress—and Common Pleas Court bench, Ohio’s of these Texas nominees for district the narrow electoral victory of the highest trial court, Judge Rose has pre- court benches—Andy Hanen and Leon- President, the better course would sided over a wide range of cases from ard Davis. have been to work together on vacan- Madam President, I also would like criminal cases to civil cases to admin- cies that we inherited from the Repub- to say one more thing about Judge istrative appeals. He has faced a tre- lican Senate. Priscilla Owen, a justice of the su- mendous volume of cases, many of Republicans held court of appeals preme court, and ask that she be con- which have been of unprecedented com- judgeships open for years. Now they see sidered for her Fifth Circuit nomina- plexity. For example, Judge Rose re- their chance to pack the courts and tion. cently presided over Ohio’s first pro se stack the deck with conservative judi- Every newspaper in Texas endorsed murder case in which the defendant cial activists in order to tilt the out- Justice Owen for her reelection bid in could have received the maximum sen- comes on these courts. 2000 for the Supreme Court of Texas. tence of death. The American people do not want— On February 10 of this year, a Dallas In addition, he has heard hundreds of and our justice system does not need— Morning News editorial said: the kinds of civil cases and administra- a finger on the scales of justice. It is up Justice Owen’s lifelong record is one of ac- tive appeals that dominate a common to the Senate to maintain the inde- complishment and integrity. pleas docket, tax appeals, annexation pendence of the courts and the balance During her reelection campaign, the questions, school districting disputes, on them. That means resisting the ap- Houston Chronicle said, in a September and insurance issues. In a particularly pointment of ends-oriented and ideo- 24, 2000, editorial: complex civil case, Judge Rose ruled on logically-driven nominees. Do not be A conservative, Owen has the proper bal- a case of first impression involving an fooled about what the fight over circuit ance of judicial experience, solid legal schol- ordinance enacted by a local Ohio city court nominations is about. arship, and real world know-how to continue to put impact fees on developers. Republicans, perhaps brilliantly from to be an asset on the high court. In both criminal and civil cases, he a political point of view, but disastrous I do hope Justice Owen will receive has ruled on hundreds of motions to from the point of view of the independ- due consideration for her nomination suppress and other constitutional ence of the courts, kept vacancies on to the Fifth Circuit, and certainly I issues, such as search and seizure and the Fifth, Sixth, and D.C. Circuits open hope the Senate will act on these cir- Miranda rights. for the last 5 years. Now they have a cuit court judge nominees. We have All of this demonstrates, that with- President with a list of what he views many vacancies that need to be filled. out question, Judge Rose is right for as ‘‘reliable nominees.’’ They are try- I urge the Senate to take action. this job. His background and the depth ing to get these ideological nominees The PRESIDING OFFICER. The time of his wide-ranging experience on the through. of the Senator has expired. bench, the experience that makes him This is not a political fight that we The Senator from Vermont. so well qualified for the Ohio district in my party have chosen. Indeed, the Mr. LEAHY. How much time is re- judgeship. I am confident that he will President’s recent fundraising cam- maining? discharge his duties of Federal judge paign swing through the South and the S4102 CONGRESSIONAL RECORD — SENATE May 9, 2002 antagonistic efforts of his political ad- Democrats are imposing on judicial So I am protecting the Senator’s viser, Karl Rove, make clear that the nominees would have the same effect right to free religion, not disparaging Republicans have chosen this fight be- as a religious test. Let me explain how. his religion. This is nothing like the cause they think it serves their polit- Most people who are pro-choice hold often-used and offensive race-card that ical advantage. their position as a matter of ideology. the Democrats often used. They are deadly serious about their Some even allow their chosen ideology The PRESIDING OFFICER. Who efforts to gain control of the District of to trump the tenets of their religion. yields time? Columbia Circuit, the Sixth, and the They do so in good conscience no Mr. LEAHY. Madam President, I urge Fifth Circuits, and others—even to the doubt, and I respect that and would not my colleagues to vote in favor of each point of questioning the religious back- judge them for that. of the four nominees. But the great majority of people who ground of members of the Senate Judi- I also urge the Senate and the admin- are pro-life come to their positions as a ciary Committee, something I have istration to work at keeping the impar- never seen in 28 years in the Senate. It result of their personal religious con- victions. We view unborn life as sacred. tiality of the Federal judiciary. is one of the most reprehensible tactics I urge those on the other side of that I have seen in my time in the Sen- Many Americans hold this view as a re- ligious tenet, but this view does not af- Pennsylvania Avenue to stop making ate. I respect the religious background this a political partisan game but to do of every Member. I do not know the fect their ability to interpret the law and precedent, just as skin color does what is best for the country. background of most; it is none of my I yield any time remaining that I business. I would never question the re- not. In effect, what is ideology to my may have. ligious background of any nominee. Democrat friends is a matter of reli- I resent greatly people on the other Mr. HATCH. I yield whatever time I gious conviction to a large portion of side of the aisle questioning my reli- may have remaining. the American people, regardless of gion or the religion of members of the VOTE ON NOMINATION OF LEONARD E. DAVIS their position on abortion. But many Senate Judiciary Committee. The PRESIDING OFFICER. The rightly fear that a judge with private This battle is over whether the cir- question is, Will the Senate advise and pro-life views, which often derives from cuit courts have judges who will follow consent to the nomination of Leonard religious conviction, will ever again be precedent, respect congressional ac- E. Davis, of Texas, to be United States confirmed in a Democrat-led Senate. District Judge for the Eastern District tion, and act to protect individual To impose an abortion litmus test on rights of Americans, or become domi- private views, call it ideological if you of Texas? nated by ideologically-driven activists. want to, is to exclude from our judici- The yeas and nays have been ordered, I will continue to evaluate all of ary a large number of people of reli- and the clerk will call the roll. President Bush’s nominees fairly, and gious conviction, who are perfectly pre- The legislative clerk called the roll. to work in spite of the obstructionism pared to follow the law. I fear this is Mr. REID. I announce that the Sen- and unfair criticism coming from the the door this Democrat-led Senate ator from New Jersey (Mr. CORZINE) is Republican side. could be opening. If a nominee who was necessarily absent. In the weeks and months to come we personally pro-life came before the Mr. NICKLES. I announce that the will be called upon to vote on some committee and said they could not fol- Senator from North Carolina (Mr. very controversial activist nominees. low Supreme Court precedent because HELMS) and the Senator from Wyoming The rights of all Americans are at of their pro-life views, then I would (Mr. THOMAS) are necessarily absent. stake. have a problem with that nominee too. I further announce that if present We have to ask whether a fair-mind- But to simply discriminate against and voting the Senator from North ed, independent judiciary will survive them and say that we can not trust Carolina (Mr. HELMS) would vote to protect our fundamental civil lib- you, despite your assurances to the ‘‘yea.’’ erties and constitutional rights, and Senate, to follow precedent, because The result was announced—yeas 97, whether our children and grand- you hold certain personal view, is pure nays 0, as follows: children will be able to look to the and simple religious discrimination. [Rollcall Vote No. 104 Ex.] Federal judiciary for even-handed jus- I can understand why people would tice and protection. believe that a religious test is being YEAS—97 That is what hangs in the balance. imposed. They fear as I do that the re- Akaka Durbin McCain Allard Edwards McConnell I again invite the President and all sult would be a federal judiciary that Republicans to join with us in working Allen Ensign Mikulski neither looks like America nor speaks Baucus Enzi Miller to fill the remaining judicial vacancies to America. Bayh Feingold Murkowski with qualified, consensus nominees I am afraid that what is now occur- Bennett Feinstein Murray chosen from the mainstream, and not Biden Fitzgerald Nelson (FL) ring is far beyond the mere tug-of-war Bingaman Frist Nelson (NE) chosen for their ideological orienta- politics that unfortunately surrounds Bond Graham Nickles tion—nominees who will be fair and Senate judicial confirmation since Boxer Gramm Reed impartial judges, and who will ensure Robert Bork. Some of my colleagues Breaux Grassley Reid that an independent judiciary will be Brownback Gregg Roberts are out to effect a fundamental change Bunning Hagel Rockefeller the bulwark against the loss of our in our constitutional system, as they Burns Harkin Santorum freedoms and rights. were reportedly instructed to do by Byrd Hatch Sarbanes I reserve the remainder of my time. Campbell Hollings Schumer noted liberal law professors at a re- Cantwell Hutchinson Sessions Mr. HATCH. Mr. President, the treat early last year. Carnahan Hutchison Shelby American people are right to ask why Rather than seeking to determine Carper Inhofe Smith (NH) this unprecedented departure from the the judiciousness of a nominee and Chafee Inouye Smith (OR) past is happening. My colleague just Cleland Jeffords Snowe whether a nominee will be able to rule Clinton Johnson Specter accused me of accusing him of religious on the law or the Constitution without Cochran Kennedy Stabenow discrimination. He has mischar- personal bias, they want to guarantee Collins Kerry Stevens acterized my pleas for civility and fair- that our judges all think in the same Conrad Kohl Thompson Craig Kyl Thurmond ness. way, a way that is much further to the Crapo Landrieu Torricelli Some of my Democrat colleagues left of mainstream than most Ameri- Daschle Leahy Voinovich have made no bones about the fact that cans. Dayton Levin Warner they are slowing down the President’s The legitimacy of our courts, and es- DeWine Lieberman Wellstone Dodd Lincoln Wyden nominees because they are imposing, pecially the Supreme Court, comes Domenici Lott for the first time, an ideological litmus from much more than black robes and Dorgan Lugar test. This is something I can not ac- a high bench. It comes from the peo- NOT VOTING—3 cept. ple’s belief that judges and justices will Many Americans are concerned that apply a judicial philosophy without re- Corzine Helms Thomas the abortion litmus test that some gard to personal politics or bias. The nomination was confirmed. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4103 Mr. REID. Madam President, I ask VOTE ON NOMINATION OF SAMUEL H. MAYS, JR. VOTE ON NOMINATION OF THOMAS M. ROSE unanimous consent that the three re- The PRESIDING OFFICER. Under The PRESIDING OFFICER. Under maining votes be 10 minutes in dura- the previous order, the question is, Will the previous order, the question is, Will tion. the Senate advise and consent to the the Senate advise and consent to the The PRESIDING OFFICER. Is there nomination of Samuel H. Mays, Jr., of nomination of Thomas M. Rose, of objection? Tennessee, to be U.S. District Judge Ohio, to be a United States District Without objection, it is so ordered. for the Western District of Tennessee. Judge for the Southern District of The PRESIDING OFFICER. Under On this question, the yeas and nays Ohio? the previous order, the motion to re- have been ordered. The clerk will call On this question, the yeas and nays consider is laid on the table, and the the roll. have been ordered. The clerk will call President shall be immediately noti- The legislative clerk called the roll. the roll. fied of the Senate’s action. Mr. REID. I announce that the Sen- The assistant legislative clerk called ator from New Jersey (Mr. CORZINE) is VOTE ON NOMINATION OF ANDREW S. HANEN the roll. necessarily absent. Mr. REID. I announce that the Sen- The PRESIDING OFFICER. Under Mr. NICKLES. I announce that the the previous order, the question is, Will ator from New Jersey (Mr. CORZINE), Senator from North Carolina (Mr. the Senator from Vermont (Mr. JEF- the Senate advise and consent to the HELMS) and the Senator from Wyoming nomination of Andrew S. Hanen, of FORDS), and the Senator from Lou- (Mr. THOMAS) are necessarily absent. isiana (Ms. LANDRIEU) are necessarily Texas, to be United States District I further announce that if present Judge for the Southern District of absent. and voting the Senator from North Mr. NICKLES. I announce that the Texas. Carolina (Mr. HELMS) would vote The yeas and nays have been ordered, Senator from North Carolina (Mr. ‘‘yea.’’ HELMS) and the Senator from Wyoming and the clerk will call the roll. The PRESIDING OFFICER. Are there The senior assistant bill clerk called (Mr. THOMAS) are necessarily absent. any other Senators in the Chamber de- I further announce that if present the roll. siring to vote? and voting the Senator from North Mr. REID. I announce that the Sen- The result was announced—yeas 97, Carolina (Mr. HELMS) would vote ator from New Jersey (Mr. CORZINE) is nays 0, as follows: ‘‘yea.’’ necessarily absent. [Rollcall Vote No. 106 Ex.] The PRESIDING OFFICER. Are there Mr. NICKLES. I announce that the YEAS—97 any other Senators in the Chamber de- Senator from North Carolina (Mr. Akaka Durbin McCain siring to vote? HELMS) and the Senator from Wyoming Allard Edwards McConnell The result was announced—yeas 95, (Mr. THOMAS) are necessarily absent. Allen Ensign Mikulski Baucus Enzi Miller nays 0, as follows: I further announce that if present Bayh Feingold Murkowski [Rollcall Vote No. 107 Ex.] and voting the Senator from North Bennett Feinstein Murray Carolina (Mr. HELMS) would vote Biden Fitzgerald Nelson (FL) YEAS—95 ‘‘yea.’’ Bingaman Frist Nelson (NE) Akaka Dorgan McCain Bond Graham Nickles Allard Durbin McConnell The PRESIDING OFFICER (Mr. Boxer Gramm Reed Allen Edwards Mikulski REED). Are there any other Senators in Breaux Grassley Reid Baucus Ensign Miller the Chamber desiring to vote? Brownback Gregg Roberts Bayh Enzi Murkowski Bunning Hagel Rockefeller The result was announced—yeas 97, Bennett Feingold Murray Burns Harkin Santorum Biden Feinstein Nelson (FL) nays 0, as follows: Byrd Hatch Sarbanes Bingaman Fitzgerald Nelson (NE) [Rollcall Vote No. 105 Ex.] Campbell Hollings Schumer Bond Frist Nickles Cantwell Hutchinson Sessions Boxer Graham Reed YEAS—97 Carnahan Hutchison Shelby Breaux Gramm Reid Akaka Durbin McCain Carper Inhofe Smith (NH) Brownback Grassley Roberts Allard Edwards McConnell Chafee Inouye Smith (OR) Bunning Gregg Rockefeller Allen Ensign Mikulski Cleland Jeffords Snowe Burns Hagel Santorum Baucus Enzi Miller Clinton Johnson Specter Byrd Harkin Sarbanes Bayh Feingold Murkowski Cochran Kennedy Stabenow Campbell Hatch Schumer Bennett Feinstein Murray Collins Kerry Stevens Cantwell Hollings Sessions Biden Fitzgerald Nelson (FL) Conrad Kohl Thompson Carnahan Hutchinson Shelby Bingaman Frist Nelson (NE) Craig Kyl Thurmond Carper Hutchison Smith (NH) Bond Graham Nickles Crapo Landrieu Torricelli Chafee Inhofe Smith (OR) Boxer Gramm Reed Daschle Leahy Voinovich Cleland Inouye Snowe Breaux Grassley Reid Dayton Levin Warner Clinton Johnson Specter Brownback Gregg Roberts DeWine Lieberman Wellstone Cochran Kennedy Stabenow Bunning Hagel Rockefeller Dodd Lincoln Wyden Collins Kerry Stevens Burns Harkin Santorum Domenici Lott Conrad Kohl Thompson Byrd Hatch Sarbanes Dorgan Lugar Craig Kyl Thurmond Campbell Hollings Schumer NOT VOTING—3 Crapo Leahy Torricelli Cantwell Hutchinson Sessions Daschle Levin Voinovich Carnahan Hutchison Shelby Corzine Helms Thomas Dayton Lieberman Warner Carper Inhofe Smith (NH) The nomination was confirmed. DeWine Lincoln Wellstone Chafee Inouye Smith (OR) Mr. LEAHY. Mr. President, I move to Dodd Lott Wyden Cleland Jeffords Snowe Domenici Lugar Clinton Johnson Specter reconsider the vote. Cochran Kennedy Stabenow Mr. BREAUX. I move to lay that mo- NOT VOTING—5 Collins Kerry Stevens tion on the table. Corzine Jeffords Thomas Conrad Kohl Thompson The motion to lay on the table was Helms Landrieu Craig Kyl Thurmond Crapo Landrieu Torricelli agreed to. The nomination was confirmed. Daschle Leahy Voinovich The PRESIDING OFFICER. The Sen- f Dayton Levin Warner ator from Nevada. DeWine Lieberman Wellstone Mr. REID. The majority leader has LEGISLATIVE SESSION Dodd Lincoln Wyden Domenici Lott asked me to notify everyone that fol- The PRESIDING OFFICER. Under Dorgan Lugar lowing this vote we are going to a pe- the previous order, the Senate will now NOT VOTING—3 riod of morning business until about return to legislative session. 2:30 today. I so ask unanimous consent. The majority leader. Corzine Helms Thomas The PRESIDING OFFICER. Is there f The nomination was confirmed. objection? The Senator from Okla- The PRESIDING OFFICER. Under homa. MORNING BUSINESS the previous order, the motion to re- Mr. NICKLES. Reserving the right to Mr. DASCHLE. Mr. President, I have consider is laid upon the table and the object, I would like to discuss this for been in consultation with the distin- President shall be immediately noti- a moment with my friend and col- guished Republican leader. We are con- fied of the Senate’s action. league. tinuing to discuss matters pertaining