Department of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 2004

DEPARTMENT OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY AND RELATED AGENCIES APPROPRIATIONS ACT, 2004

Mr. DURBIN. Mr. President, will the Senator yield?

Mr. REID. I will yield to my friend from Illinois, without losing the floor, for a question.

Mr. DURBIN. I thank the Senator for bringing this to the attention of the Senate and those who are following this proceeding.

Can the Senator from Nevada tell us-apparently there is a belief on the Republican side of the aisle that there is a disproportionate number of judicial nominees suggested by President Bush who have not been approved-the number of judges approved for President Bush and how many have been held up here in the Senate as of this time?

Mr. REID. Mr. President, that is something that is easy to answer. We have approved 168 judges, and we have turned down 4. I gave you their names: Estrada, Pickering, Owen, and Pryor. We have turned them down. Maybe the magic number is not 98 percent. Whether it is his way or no way, maybe we should have approved all of them. Maybe we should have swallowed very hard and approved people who the American people I am sure, if they understood what this is all about, wouldn't like very much. But they want to spend 30 hours on four judges.

My friend from Illinois came here in 1982. He is someone for whom I have great affection. I say to him through the Chair, when we were told we would be in on Monday: What is going to happen? I do not know. Well, we will have some votes. When? We will decide later when those votes will be. Maybe somebody knew. We didn't know. And Tuesday? Well, we don't know. Maybe some people on the east coast can go back to the festivities and the parades on Veterans Day.

We aren't a part of what is going on here. What this is all about today is the Senate is a partnership between the majority and the minority, especially when you have a difference of one-49 to 51. That is why the Republican majority must understand that we have to be part of what is going on around here. We cannot be taken for granted. We cannot be thought of as nothing. We cannot be treated as if we were Members of the House of Representatives. I have been in the House. I understand how the majority works. I have been there. If you are in the minority in the House of Representatives, you can be pushed around pretty hard. But in the Senate, the Constitution of the United States protects the minority. The Constitution was written not to protect the majority. The majority can always take care of themselves.

Mr. DURBIN. Mr. President, will the Senator yield for another question?

Mr. REID. I will yield for a question without losing the floor.

Mr. DURBIN. I would like to go back to this point. Since President Bush was elected to be President, he has had 168 of his judicial nominees approved by this Senate, and 4 have not been approved-the 4 the Senator from Nevada mentioned earlier.

I would like to ask the Senator from Nevada, am I mistaken that in this Constitution which we are all sworn to uphold, article II, section 2, it says that the President shall have the power to make his appointments with the advice and consent of the Senate? I would like to ask the Senator what that phrase could possibly mean-advice and consent-if it is the position of the Republicans that every nominee has to be approved. If they believe that approving 98 percent is not adequate, that we have to approve 100 percent, I would like to ask the Senator from Nevada what the phrase "advice and consent" means. Shouldn't it just be "consent"?

Mr. REID. I respond to my friend from Illinois, who I know is not only a lawyer but my recollection is that he was a parliamentarian of the Illinois State Senate and certainly understands parliamentary procedure. He certainly understands parliamentary procedure. I believe the words "advice and consent" mean just what they say. It means we have the obligation as a Senate to work with the President, to give him advice as to what we think should be done on some appointments set forth in the Constitution, and others not so directly defined, to give advice, and once we work with him, give him consent to select whoever he wants.

I say to my friend, I am not overjoyed with all 168, but the minority of the Judiciary Committee has done an extremely good job in sifting out people who just do not meet basic standards. I appreciate the work done by the Judiciary Committee. I have not served on the Judiciary Committee either in the House or the Senate, but I served in the Judiciary Committee when I was in the State legislature in Nevada.

Why bring in the Judiciary Committee? There are so many things you can work on and many things we need to work on here that we are not spending time on because of the time we are spending on judges. We have done a good job of getting rid of the backlog. It is the lowest in approximately 13 years.

Mr. DURBIN. Will the Senator yield for another question without losing the floor?

Clearly, the Constitution gives the Senate the authority to say no to a judicial nominee. Is this a question of fairness? Are the Democrats in the Senate treating this Republican President unfairly by only giving him 98 percent of the people he has nominated? Is it fair to conclude when there was a Democratic President, the Republicans in control gave that President 100 percent of his judicial nominees? Does the Senator feel the Republicans are going through a display for 30 hours because we are fundamentally unfair in treating them in a fashion that they did not treat President Clinton?

Mr. REID. I say to my friend, when we talked about this early in the day, Senator Daschle made a decision there is no payback time. We are not trying in any way to get even with the Republicans for holding up judges. If we did that, if we were trying to get even, there would not be 168 judges agreed to.

Here is a partial list of some of the difficulties we had when President Clinton was President. People are saying there has been no need to file cloture. Berzon, Paez, Barkett, you can say whatever you want, these were not serious cloture votes-and I don't know the difference between a serious and nonserious cloture-the only way these people could become judges is by filing cloture. For people to say we are not treating the judges fairly is simply wrong. We are treating the judges fairly. We are treating President Bush fairly. He has gotten 168 judges and we have turned down 4.

We are going to spend the valuable time of this Senate, 30 hours, on 4 people who already have jobs, when we have almost 10 million unemployed people, and we have done nothing about the minimum wage. We are doing nothing about the environment. We are doing nothing on appropriations bills. We have conference reports we have not taken up. We have pending a conference report on the Armed Services Committee that could be acted on at any time, Military Construction. We have the Syria Accountability Act. The defense authorization was not completed. I did not ask unanimous consent on that. I did on Military Construction and the Syria Accountability Act. I agreed that instead of taking 90 minutes we would take 30 minutes each and debate it just for an hour. No, they are more interested in these 4 people who already have jobs than the approximately 10 million people who do not have jobs. People are being driven into poverty, the deficit is going up, the debt is increasing.

Mr. DURBIN. If the Senator will yield for another question without yielding the floor.

Mr. REID. I am happy to yield.

Mr. DURBIN. If I understand this correctly, there is no constitutional basis for the Republicans to argue that we cannot turn down a nominee from the President. In fact, the Constitution is explicit that we have the power of advice and consent. The facts show us that 98 percent of the nominees sent by the President have been approved; 168 have been approved, and only 4 have been held back.

The Republicans cannot argue they treated President Clinton any better. In fact, the record reflects there were 60 nominees sent to the Senate by President Clinton who were never even given a hearing before the Republican-controlled Senate Judiciary Committee.

It leads me to a question of the Senator from Nevada, through the Chair, Why then are we going to take 30 hours to debate the obvious? If we have the constitutional right to say no to a nominee, if we have said yes to 98 percent of the President's nominees, if the Republicans, when they were in control, turned down an even greater percentage of President Clinton's nominees, why then wouldn't we get about the business of the people of this country, pass the important appropriations bills, try to do something to help the economy, instead of wasting 30 hours debating the obvious?

Mr. REID. I say to my friend, through the Chair, I don't know. I am at a loss. I am not at a loss that when the Senate is in action, it takes both sides. You cannot do both things as a dictator. The majority leader of this Senate is not the Speaker of House of Representatives. He is the majority leader and leads under very delicate rules. To think we were just going to say, OK, we have worked like dogs, we have gotten a great record here, passing 10 appropriations bills and 3 other bills we could do, and we will take 30 valuable hours of the Senate time. We could debate the many things I talked about here, beginning with the environment. We could talk about minimum wage. We could talk about people who have lost their jobs in America today. We could talk about the need for a transportation bill. We could talk about the need for infrastructure development in this country. We could talk about farm programs we need to look at. The Senator from Nebraska talked about droughts all over the Midwest. We need to spend some time on that. But we do not have time to do that. No, because we are going to spend 30 nonstop hours on an agenda dealing with four people.

Let me go over this again. This is over four people. We do not want to lose track of what we are doing. The fact of the matter is, we as Democrats determined that under our rules, our advise and consent obligations, there were four people we thought should not have the support of the Senate Democrats.

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Mr. DURBIN. Will the Senator from Nevada yield for a question?

Mr. REID. I will yield to the Senator, without losing my right to retain the floor.

Mr. DURBIN. I hate to interrupt the Senator's history of Searchlight, NV, because it is something I would like to know a little bit more about. I think the Senator from Searchlight is going to fill me in about the history of his hometown, but I would like to ask the Senator, for those who may have just joined in this debate, if he could bring me up to speed as to where we are in terms of the business of the Senate with pending appropriation bills.

I ask, through the Chair, are there still appropriations bills that need to be worked on and resolved before this Senate will have finished its work? If so, could the Senator tell me if the schedule announced by the Republican majority leader this week is conducive to finishing that schedule?

Mr. REID. I say to my friend, through the Chair, we have worked very hard to complete a schedule the country could be proud of. The distinguished majority whip came to the floor today and talked about the accomplishments of this Senate. He talked about the 10 appropriations bills we have passed. Well, what he did not mention-and I am sure it was an oversight-is that that could not have been done without the absolute, total cooperation of the Senate Democrats. Those bills passed because we worked to help them be passed.

I say to my friend, we called our floor leader, who does a wonderful job, and he worked with me to make sure we worked with the majority to pass the appropriations bills. The Senator from Illinois is a distinguished member of the Appropriations Committee. We worked hard to get that done.

In fact, I repeat-and repetition is part of the answer-we had agreed, the minority agreed, with what the majority leader wanted: Let us work November 10, let us even work November 11, so we can complete these appropriations bills. We said, okay. We went back to our Senators. They were not happy about that, but they understand Senator Daschle is our leader and we follow the leader, with rare exception.

The decision was made almost 2 weeks ago to work on November 10 and 11, and we worked so hard. We wanted to get out of this place. We have people at home to take care of. Our responsibilities are more than in Washington, DC. We have hearings we need to conduct at home. We have events we need to go to, constituents to take care of, offices to oversee. So, I say to my friend, we worked so hard.

All of a sudden, we turn around and there is a hot poker that sticks me right in the eye. What is this hot poker? There is a decision made, in spite of all our hard work, we are going to spend 30 hours, starting Wednesday at 6 o'clock until 12 o'clock Thursday night, to talk about how poorly the majority has been treated about judges, even though the judicial vacancies in our Federal courts are at a decade-and-a-half low, although we have approved 168 judges for this President. We have turned down four judges-well, not judges. We have turned down two judges who want to become different kinds of judges. We turned down another man who works downtown and makes a lot of money, and we turned down the attorney general of Alabama-4 out of 168.

The Senator from Illinois works on the Appropriations Committee. OK, so we learned that is going to happen. Some questions come up:

What are we going to do Monday?

I don't know.

Are there going to be votes?

I think so.

When?

I don't know.

What are we going to do Tuesday?

Well, we'll decide later.

Tuesday is a legal holiday, by the way.

What is going on here today is an effort to show the world that the Senate is unlike any other institution in the world. In the U.S. Senate, one person has a lot of things he can do to be involved in what is going on here. I am here today representing my Democratic Senators. There may be one or two who disagree with me, but not more than that. They know that I am here speaking for them. They know they are not Members of the House of Representatives, which works like the British Parliament. If you are in the minority, tough; you are going to get run over. Not the Senate.

So the majority leader, who is new at his job-I like him a lot. He is a fine man, dedicating his life to public service. I appreciate it very much. He is a distinguished surgeon. He is a man who devotes whatever little off time he has to helping those in countries far away less privileged than he. I have a great deal of respect and admiration for the majority leader.

But he has to learn, as I am sure he is, that the Senate is a partnership, a partnership between the majority and the minority. We want to be treated fairly in this partnership. To have 30 hours spent on an issue that involves four people, who have jobs-they are working, they have jobs-30 hours for four people is not fair.

Mr. DURBIN. Will the Senator yield for a question?

Mr. REID. I will yield to my friend from Illinois without my losing the floor.

Mr. DURBIN. I ask the Senator from Nevada, is he representing that the Democrats in the Senate are prepared to work with the Republicans in the Senate to pass the remaining appropriations bills so we meet our obligation under the Constitution in a timely fashion? Is this a filibuster to stop taking up the appropriations bills?

Mr. REID. I say to my friend, we not only can say what we will do, but we can talk about what we have done. We have a record of accomplishment of working with the majority. We worked very hard, not only on appropriations bills but other important pieces of legislation. The Fair Credit Reporting Act, that was difficult to get up from our side. We got it up. We had a very fine debate. That bill is now on its way, we hear, to becoming law.

The Healthy Forests initiative-that was a hard piece of legislation to get passed out of this Senate, but we did it. We did it because we cooperated. Either one of those two bills I mentioned, Fair Credit Reporting and the Healthy Forests initiatives-it would have been easy to spend a week on each one of those. We didn't do that.

We have a record of accomplishment. We share the accomplishments that were laid out by the Senator from Kentucky today. And I say also, respectfully, the only reason we did not pass more appropriations bills last year is we didn't get the same cooperation that the majority has gotten from us. But that has happened in the past, and we are now here where we are today.

We are part of the process. When the history books are written-and they will be written-I think they will look back on this decision made to address, out of the very important things focused in the eye on the American people-a war in Iraq, a war in Afghanistan, a war on terrorism globally. It is difficult to comprehend why that alone, together with the economy which is in such desperate shape, and problems dealing with health care, those who are medically uninsured, people who are desperately poor and need to be helped, our educational system-we could talk about any one of those and historians would think that is something we should do.

No, we are going to take 30 hours. When is the last time this Congress has spent 30 straight hours doing anything? Anything? What are we going to spend 30 hours doing? Thirty straight hours we are going to spend talking about four judges who, combined, make $1 million a year, one of whom makes a half a million dollars a year, all of whom have jobs. I think our priorities are a little out of kilter here-as I go back to my book.

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Mr. DURBIN. I ask a question of the Senator from Nevada. There are a number of colleagues asking, in terms of the presentation of the Senator from Nevada, if he has a goal in mind in terms of what he would like to present to the Senate before we reach a point where we might take a vote; has the Senator thought of that point?

Mr. REID. I am happy to respond to that. I have not heard anything about votes in the last 6½ or 7 hours. That is a reason I am here.

I will put this exciting book down for a minute and respond to my friend. I know the Chair wants to hear that before the 8 p.m. hour arrives so he does not have to come back and ask me tomorrow. That is one of the reasons we are here. We were not told, other than there will be a vote sometime today. I personally thought-and I think my distinguished Democratic leader, Senator Daschle, agreed-that really was not fair. We tried to probe and find out what there would be. We know there are 30 hours starting Wednesday. We read about that first in the newspapers. As far as votes, I want to make sure those people with planes coming from the West will not be jammed with an early vote. I heard there would be votes at 2 or 3 and people would leave so they could go to their events on Veterans Day. We did not know.

As I said earlier, I say to my friend from Illinois, around here we have to work together. No one knows that better than the Presiding Officer, with whom I worked on a close basis on the Ethics Committee. I cannot say enough about the Senator from Kansas and his leadership. It was significant, strong. It was for the good of the institution.

I say to my friend from Illinois, around here we have to get along. To get along, we have to work together. As I said, speaking for my Senators, including the Senator from Illinois, who is not only a fellow Senator but a close personal friend, someone I care about a great deal-we have been together here for 21 years. I say to him, I don't know. Somebody can let me know, and I guess someone from the majority can ask me to yield and ask me a question, Did I know they were scheduling a vote at such-and-such a time? I don't know if they want more votes tonight. I don't know.

In the meantime, I am a soldier with a mission. That mission is to tell people around the world, C-SPAN and people within the breadth and width of my voice, about Searchlight and how it got its name.

The PRESIDING OFFICER. Forward march.

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Mr. DURBIN. Will the Senator yield for a question without yielding the floor?

Mr. REID. I yield to my friend from Illinois without losing the floor.

Mr. DURBIN. I would like to ask the Senator from Nevada, through the Chair, as a member of the Senate Judiciary Committee, each of these nominees who has been contested, four nominees who have been contested-it is my understanding 168 of the President's nominees have been approved and four have been held, and as a member of this committee I can say to the Senator from Nevada, in preparation for my question, Miguel Estrada, I might mention there was a lengthy hearing. It may have been two hearings, if I am not mistaken, and a lot of questions asked by individual Senators and then several lengthy debates on the floor of the Senate leading to the cloture votes.

In the case of the nominee, Priscilla Owen, who is a Texas Supreme Court Justice, she was not only given a hearing and considered previously and rejected, she was brought again for another consideration by the committee and more debate on the floor.

When it comes to Attorney General Pryor of Arkansas, I can recall it was a very lengthy hearing in the large hearing room over at the Hart Building, the Senate Judiciary Committee, and then with Judge Pickering, another district court judge from Mississippi, who received two separate hearings, and then after those hearings was rejected, then brought back again, more lengthy debate. So I ask the Senator from Nevada, through the Chair, is it his belief that any of these four nominees have been treated rudely by the committee or denied an opportunity for a hearing or given a chance in the Senate to have had their qualifications considered before the votes were taken?

Mr. REID. I say to my friend from Illinois, through the distinguished Chair, there has never been any suggestion that these nominees were treated like President Clinton's nominees and not given hearings. The answer is, no.

I also say to my friend, assuming for purposes of this debate only, that every one of the decisions we made-that is the Senate Democrats made-with these four nominees, that we were wrong, we should not have done it, is that any reason to take the time of this Senate to spend 30 hours on four nominees? I am only stating this for purposes of this debate, that even if we made four wrong decisions, should we spend 30 hours of our time talking about what is going on? Thirty hours? I just cannot believe that.

Mr. DURBIN. Will the Senator yield for another question, through the Chair, without yielding the time?

Mr. REID. I would do that. Any time I hear someone shuffling around the room, I am always hoping it is people coming to hear more about my book. I am on chapter 6 and I can tell everybody it gets better. This is kind of the buildup. I thought the naming of the town was pretty good. I thought the strike was pretty good.

Mr. DURBIN. If the Senator would yield?

Mr. REID. I would say I thought my dissertation on the rabbits and cactus was okay. In fact, I wish I had known at the time how bad those rabbits were, and I may have talked about them in my book. I am becoming more of a coyote fan all the time, hoping that they win more battles with the rabbits.

Anyway, I would be happy to yield to the Senator from Illinois for a question only, without losing my right to the floor.

Mr. DURBIN. Well, being from Illinois, I cannot get into the rabbit and cactus debate as some of my colleagues, perhaps my colleague from Arizona might be able to, but I ask my colleague from the State of Nevada, through the Chair, the following question: Is it his hope this evening we will lead to a point where there is a vote so that Members will have a chance to vote before the end of the day? Is that the Senator's goal in taking the floor as he has?

Mr. REID. I say to my friend, I personally do not care whether we vote or not. I think it is late. I am not sure we need a vote. I am not sure people are here to vote, but I really do not care. I simply want everyone to know, as I have said on several occasions, that someone who can be maybe not the most cooperative-but I think I am in the top 20 or so of being cooperative around here-I am happy to be cooperative in the future. But I repeat, on more than one occasion I have said today that we cannot be treated this way. We are part of the program here.