S7856 CONGRESSIONAL RECORD — SENATE August 1, 2002 the Senator will not be allowed to get U.S. Supreme Court. Is this individual preme Court; and prior State Solicitor access to the floor for the rest of the qualified? He was nominated a year ago of the State of Ohio. He has yet to have day; and maybe other penalties. We in May, and he has yet to have a hear- a hearing in the Judiciary Committee. have not done that, but maybe we need ing. He has argued 37 cases before the Dennis Shedd, nominated to the to do it. So that is my purpose for com- Supreme Court. How do you get more Fourth Circuit; a judge in the U.S. Dis- ing to the floor. qualified? Miguel Estrada argued 15 trict Court of South Carolina since I want to make a couple of other cases before the Supreme Court and 1991; rated well qualified by ABA; 20 comments. was unanimously rated well qualified years of private practice and public Mr. GRAHAM. Will the Senator yield by the ABA. He emigrated to the service prior to becoming a district for another question? United States as a teenager from Hon- judge; law degree from the University Mr. NICKLES. I am not going to duras and spoke virtually no English. of South Carolina; master of law degree yield. I am going to make one other He graduated magna cum laude from from Georgetown. He received a hear- comment on a different subject. Harvard Law School, editor of the Har- ing on June 27—still not reported out f vard Law Review, law clerk to Justice of committee. I thank my colleagues for the fact we JUDICIAL NOMINATIONS Kennedy, a former assistant solicitor general and assistant U.S. attorney. He have confirmed 72 judges, but I men- Mr. NICKELS. Mr. President, earlier has not received a hearing. tioned 8 nominees who were nominated today we confirmed a total of eight I guess you can say, we have con- in May of last year; a couple have had judges. A lot of people said, boy, didn’t firmed 72 this year, how is it fair to a hearing, and the rest have not had we do great? We have done more in the have 2 individuals such as John Rob- hearings and have not been voted on in last 12 months than anybody has done erts and Miguel Estrada not even have committee, and we have not had a in the last 12 months. a hearing, having been nominated over chance to have a vote on the floor. A I thank Senator DASCHLE, Senator a year ago? Senator LEAHY made a year and a half, how much is enough? LEAHY, and others because we did con- commitment we would do Miguel This is an outrage. I don’t think this firm a few more circuit court judges, Estrada. I am waiting. should be done, Democrat or Repub- but let me state my disappointment in Priscilla Owen: We had a hearing in lican. the fact that we have not done near July of this year but no vote. The Re- I plan on being back in the majority, enough. I want to put out facts. We publicans asked that be postponed be- and I tell my friends and colleagues on have now confirmed 13 circuit court cause we are not sure where the votes the other side of the aisle, I plan on judges. President Bush submitted 32. are. Texas Supreme Court justice since treating judicial nominees fairly. Re- We are in the second year of his Presi- 1994; unanimously rated well qualified gardless of who is in the White House, dency. We are not quite finished, but by ABA; Baylor Law School graduate; we should treat them fairly. If there is we have confirmed 40 percent of his cir- member, Baylor law review; highest a judge really out of the mainstream, cuit court nominees. I looked at the scorer on the Texas bar exam; emi- let’s debate it. But to hold up these in- first 2 years of the Clinton administra- nently qualified. dividuals who have argued 30, and 15, tion, and this Senate confirmed 19 of Maybe some people are now putting a and 9, and 10 cases before the Supreme 22. That is 86 percent. I looked at the litmus test in the committee. We did Court and we do not even give them a first 2 years of the first President not used to do that. People used to rail hearing in committee, that is not fair. Bush, the 101st Congress, and we con- against having a litmus test, and now That is an injustice. That is an abuse firmed 22 of 23 circuit court judges. people are trying to come up with a lit- of power. That is 95 percent. mus test. If she is not confirmed, that Maybe we are confirming district I looked at the first 2 years of Presi- is a travesty. judges, and that is great, and district dent Reagan, 97th Congress, we con- Terrence Boyle was nominated in judges have sponsors of Senators. firmed 19 of 20 of his circuit court May, a year ago chief judge of the U.S. These are appellate court judges, cir- nominees. That is 95 percent. District Court, District of North Caro- cuit court judges, next to the highest So for the three previous Presidents lina, since 1997; unanimously rated well court in the land, next to the Supreme we confirmed over 90 percent of their qualified. He worked as counsel in the Court, and they cannot get a hearing. I circuit court nominees in their first 2 House Subcommittee on Housing; was don’t think that is right. I don’t think years. a legislative assistant in the Senate; it is fair. I am not saying there have This Congress—and granted, the first prior district judge, 1984 to 1987; very not been injustices before by Repub- several months, the first 6 or 7 months well qualified and still no hearing and licans. Enough of this nonsense: You of this Congress was controlled by Re- certainly has not had a vote. did not treat us right, we are not going publicans and we did not confirm any Michael McConnell, nominated to the to treat you right. judges because the President was just Tenth Circuit; presidential professor of Again, the tradition of the Senate: sending his nominees through and they law, University of Utah; unanimously We do not usually confirm a lot of did not have time, and that is not un- rated well qualified by ABA; one of the nominees in a President’s last year or usual. We usually do not confirm very country’s leading constitutional law so. We certainly do his first year or so, many in the first 6 months of any ad- experts; argued 11 cases before the U.S. as evidenced by the fact—and I will put ministration. Supreme Court; prior assistant solic- this in the Record—that 95 and 96 per- So far this year, we have done 13 out itor general; law clerk for Justice cent of the three previous Presidents’ of 32; that is 40 percent. That is less Brennan and cannot even get a hear- circuit court nominees were confirmed than half the percentage of what we did ing. in the first 2 years—almost all of in three previous Presidencies. Those Deborah Cook, nominated to the them—and this year we are at 40 per- are just facts. I heard someone said we Sixth District; justice to the Supreme cent on circuit court nominees. confirmed 72 judges. Great, 72 is a lot Court of Ohio since 1994; unanimously That is totally unsatisfactory. That more than we confirmed in the last 2 rated well qualified by ABA. The Sixth is not fair to those individuals. It is years of the Clinton administration. Circuit is almost half vacant, with 7 not fair to the judicial system. It is Granted, we usually don’t confirm very out of 16 seats empty in the Sixth Cir- certainly not fair to the Sixth Circuit many in the last year of a President’s cuit; exceptionally well qualified and Court, which is almost half vacant. terms, but in the first 2 years we usu- no hearing. I tell my colleagues, we have made ally do, and we are way behind. Jeffrey Sutton, nominated to the some progress, and my compliments. Some of the individuals were nomi- Sixth Circuit as well; rated well quali- But we have a lot more to do, espe- nated 449 days ago—over a year ago. fied by ABA and qualified by ABA; cially on circuit court nominees and on They were nominated last May—a year graduated first in his class, Ohio Uni- individuals such as John Roberts and ago May. Some of these are the most versity College of Law; law clerk to Su- Miguel Estrada. Let’s lower the rhet- outstanding nominees I have ever seen. preme Court Justices Powell and oric and get some people confirmed. John Roberts, nominated for the DC Scalia, and argued 9 cases and over 50 Let’s treat them like individuals, with Circuit, has argued 37 cases before the merits and amicus briefs before the Su- dignity. They have been nominated to

VerDate Mar 15 2010 20:08 Jan 09, 2014 Jkt 081600 PO 00000 Frm 00040 Fmt 4637 Sfmt 0634 E:\2002SENATE\S01AU2.PT2 S01AU2 mmaher on DSKCGSP4G1 with SOCIALSECURITY August 1, 2002 CONGRESSIONAL RECORD — SENATE S7857 the highest courts in the land. They ‘‘something’’ was not a small amount, Therefore, presenting the impression have been nominated for lifetime ap- but a very substantial, maybe as much that the passage of this amendment pointments. Let’s do our work. The as a $70 billion additional cost on the would result in substantial additional Senate traditionally, over the years, States according to my Republican col- cost to the States—touted to be $70 bil- would move judicial nominees expedi- leagues. lion—is a patently untrue statement. tiously. And they are getting more dif- I knew that was not accurate because I wanted to set the record straight ficult. I had received from the Congressional before we went home so none of our Now people are saying: We want to Budget Office, which had scored our colleagues spend August worrying that review every case that the judge has legislation, the fact that they had de- they might have been deceived into be- ever written; we want to review every termined that, in fact, there was no ad- lieving there was going to be a very case on which he made a recommenda- ditional cost to the States and I had major additional cost to the States and tion. That is ridiculous. It is an excuse made that representation to my col- that might have influenced their vote for delay. That is not right. It is not leagues. I felt my personal credibility on this matter. for the majority or the minority. I urge was at stake. So I went back to the So my only purpose was to make my colleagues to be fair to the nomi- Congressional Budget Office today to those corrective comments and express nees and get as many confirmed and recheck what they had said and they my hope that in the future we would move the Senate along as we should reaffirmed the statement that there follow the spirit and custom of the and restore the Senate through the was no additional cost to the States. Senate, which is when you distribute a great traditions that the Senate has I showed them this— document such as this, you put your long held so we can be worthy of the Mr. NICKLES. Will the Senator name on it so someone is held account- title of Senator, and not have a reputa- yield? able. And I suggest it would also be tion of: I am sorry, judge, we are sorry Mr. GRAHAM. Let me just finish, get helpful if we adopted the custom that about your political career or, Mr. At- the facts out, and then we will talk there be some source given for docu- torney, you were nominated by the about the policy. ments such as this, so those who are in- President of the United States, but we So I showed them this chart. They terested in pursuing the basis upon are sorry you have waited a year and a pointed out what was obvious which which the calculation was made would half and you cannot get a hearing be- was that this chart only shows half, in at least know whose telephone number fore the Senate; they are too busy. fact less than half of the equation. It to call. That embarrasses me. shows the additional costs to the Mr. NICKLES. Will the Senator I yield the floor and suggest the ab- States that will come incident to their yield? sence of a quorum. picking up some of the prescription Mr. GRAHAM. I would be pleased to The PRESIDING OFFICER. The drug costs. What it does not show is yield. clerk will call the roll. that the States are going to be relieved Mr. NICKLES. I am wondering about The legislative clerk proceeded to of a substantial amount of their cur- all these savings. I am looking at my call the roll. rent costs. State. You said if the State had a pre- Mr. GRAHAM. I ask unanimous con- The Senator from Oklahoma men- scription drug program, the Federal sent the order for the quorum call be tioned one of these costs. But, in addi- Government might be picking up a lot rescinded. tion to that, there are other costs from of that State program so therefore it is The PRESIDING OFFICER. Without which the States will receive relief. saving. My State doesn’t have that, objection, it is so ordered. For example, there are 31 States that other than the fact we provide Med- f provide State pharmacy assistance for icaid prescription drugs up to 74 per- low-income senior citizens, the States cent, and that is limited to three pre- HEALTH CARE which have received Medicaid waivers scriptions per month. Mr. GRAHAM. Mr. President, this is in order to allow them to cover addi- So where is the savings for my State? the last day of a long legislative sea- tional groups of seniors. As the Federal HHS said this is going to cost my State son. We are about to take the month of Government has dawdled on the sub- something like $62 million. My director August to go back to our home States, ject of providing prescription drugs for of Medicaid said it is going to cost our be with our constituents, and maybe senior Americans, many States have State, and we can’t afford it. have a little opportunity to get some stepped forward and have done so. There, obviously, under your pro- personal relaxation and rejuvenation, So within the Medicaid Program as posal are some States, maybe a lot of and come back after Labor Day and well as in areas where the States have States, that would be losers; isn’t that complete this 107th session of Congress. tried to fill the void that the Federal correct? It would increase their Med- It is exactly this time in the legisla- Government has left behind, there are icaid costs dramatically? tive calendar where maybe tempers and substantial savings to the States—thus Mr. GRAHAM. What CBO has said is tolerance are beginning to wear thin the report of the Congressional Budget that for the States as a collective, that and short. Office that there is no increased cost to there would be no additional cost as a I share with my friend from Okla- the States. But there is no column or result of this. I have asked CBO to pre- homa high feelings for the persons who figures on this chart which reflect the pare a State-by-State analysis of what debated vigorously over the last 2 fact that there are these offsetting sav- those offsetting savings would be. I do weeks on an issue whose importance we ings to the States. not have those numbers today. all understand and feel deeply about, Mr. NICKLES. Will the Senator Mr. NICKLES. Isn’t it likely that which is the issue of providing a health yield? some States would be losers? care program to 40 million senior Mr. GRAHAM. What got Enron in Mr. GRAHAM. But I think it is a Americans by adding to that 37-year- trouble was it set up a whole constella- given that no State is going to have old program, at long last, a prescrip- tion of off-budget partnerships in order zero savings. So that every one of these tion drug benefit. I think the goal is to hide their expenses. State-by-State numbers is overstated. one we all share. We have somewhat Mr. NICKLES. Will the Senator yield Mr. NICKLES. I don’t know. I will different ideas as to how to get to that for a question? just state to my friend that these are goal. Mr. GRAHAM. And therefore it over- additional new costs. There may be The reason I came to the floor earlier stated their profitability. some offsets. I mentioned one possi- today was out of, yes, a sense of per- We have a chart here which does the bility. You mentioned: Well, if they sonal attack but also a sense of the opposite. We have a chart here which have the State drug program, that need to set a very obvious erroneous hides the benefits the States are going might be a savings. I didn’t have that record somewhat straighter. My con- to get and only highlights those addi- program. cern was piqued by a statement that tional costs. The only offsets I could see is if the was made which implied that I, Sen- Mr. NICKLES. Will the Senator yield Federal Government is taking over ator SMITH, and others, tried to slip for a question? some of the catastrophic, and I don’t something by the Senate. And that Mr. GRAHAM. I am almost there. see that hardly ever happening. So I

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