Executive Session

EXECUTIVE SESSION

Mr. DURBIN. Will the Senator yield?

Mr. REID. I am happy to yield.

Mr. DURBIN. Is it possible for us to get an update during the course of the evening on what Fox News is going to be looking for during this marathon? This opening about the march into the Chamber clearly was priority for the "fair and balanced" network. Will we get updates from time to time how Fox News would like to orchestrate the rest of this?

Mr. REID. I say to my friend, perhaps so. If not, maybe we could check with the Federalist Society, which, coincidentally, is starting their convention tomorrow.

BREAK IN TRANSCRIPT

Mr. DURBIN. Thank you, Mr. President, and I thank the minority whip.

First, for those who are following this debate, if it can be characterized as such, you should understand we had an opportunity to finish the appropriations bill for the Veterans' Administration, a $62 billion bill to fund veterans hospitals, clinics, and health care across the United States. We tried.

Senator Byrd of West Virginia came to the floor and said: Can we postpone what we are doing tonight here to finish this important appropriations bill so we can go to conference and get ready to adjourn this session in a timely fashion? Sadly, the Republican side objected to finishing the appropriations bill for the Veterans' Administration. It is their belief what we are doing now took precedence, is more important. It will be up to the voters and the public to make a judgment as to whether they were right.

I would also say that instead of addressing some issues families across America might tune in to follow, such as the unemployment in this country, and what we are doing about it, we are here debating a situation where 4 judges have been held out of 172 submitted by President Bush.

I would think, frankly, we ought to spend a little time really addressing the problem of unemployment in this country. This President has witnessed, in his administration, a loss of more than 3 million private-sector jobs. That is a record. Unless something changes dramatically, this President will be the first President since Herbert Hoover to have lost jobs during the course of his administration. Over 3 million Americans unemployed. Sadly, we have 9 million unemployed across the country today and their unemployment benefits are running out.

UNANIMOUS CONSENT REQUEST-S. 1853

In the interest of at least trying to do something constructive and legislative this evening, rather than just exchanging our comments back and forth, I am about to make a unanimous consent request that the Senate proceed to legislative session, and the Finance Committee be discharged from further consideration of S. 1853, a bill to extend unemployment insurance benefits for displaced workers, that the Senate proceed to its immediate consideration, and that this bill be read a third time and passed, and the motion to reconsider be laid upon the table.

The PRESIDING OFFICER. Is there objection?

Mr. SESSIONS. I object.

The PRESIDING OFFICER. Objection is heard.

Mr. DURBIN. I am not surprised because what we are about tonight is not the issues families care about. We are about a political script. Senator Reid of Nevada read to us this all-points bulletin that was sent out to the Senators saying: Be sure and get over here exactly at 6 o'clock. It said: The Fox News channel is really excited about this marathon. Britt Hume at 6 would love to open with all of our 51 Senators walking on to the floor. The producer wants to know, will we walk in exactly at 6:02 when the show starts so they can get it live to open Britt Hume's show, or, if not, can we give them an exact time for the walk-in?

That is what this is about: It is about theater. The theater we are witnessing tonight is one where, frankly, the curtain should come down. We ought to start talking about things people really care about across America. I can tell you, it is not about 4 judges out of 172. We have approved for this President 168 of his nominees. I think it is a new record. I do not think any President in that brief a period of time has had 168 nominees approved. Lest you believe the Democrats dragged their feet, we approved 100 of these judges during the 17 months Pat Leahy was chairman of the Senate Judiciary Committee. The remaining 68 came through under Republican Chairman Hatch. I think there has been a concerted and conscientious effort to give the President his nominees. Then, of course, there were 4 who were not approved-168 to 4. So 98 percent of this President's nominees have been approved. By any reasonable standard, this President is doing very well. Most people would agree, except for the 51 Senators on the other side of the aisle. They believe unless the President gets every nominee, this is a miscarriage of justice.

Sadly, though, they are ignoring the obvious. The obvious is the Constitution of the United States gives this Senate the authority to say yes or no, to advise and consent. Article II, section 2: Advice and consent of the Senate. Some of these Republican Senators would like to see this phrase go away and make their argument at least a little plausible, but it is a fact. We have the authority under the Constitution we swear to uphold to make these decisions; and we have made them.

Of course, not only is the Constitution on our side, but the rules of the Senate are on our side. It reminds me in law school, they told you early in a trial advocacy course-and this a cliche, I know-they used to say: If you have the law on your side in your trial, beat on the law. If you have the facts on your side, beat on the facts. But if you do not have the law or the facts on your side, beat on the table. That is what is happening in this 30-hour marathon. Our Republican colleagues are beating on the table. The law is not on their side.

The Constitution says we have the authority to say no. We have said no 4 times out of 172 opportunities. It is constitutional to do so. Are the facts on our side? Are we being unfair to stop 4 judges, approving 168 and stopping 4? I do not think so.

Frankly, if you look at the record of the Republicans in control of this same committee with a Democratic President, you will find some 63 nominees were never given the decency of a hearing. They never had a chance to even appear and introduce themselves to the committee. The decision was made by the Republican leadership, with a Democratic President, not to even let them in the building.

I have been through this. Three of my nominees that happened to. Do you know what it consisted of? If any one Republican Senator objected to any nominee, end of story. They effectively had a filibuster by one Senator. They stopped these nominees in their tracks.

I can recall going to Senator John Ashcroft, our Attorney General, with one extraordinarily talented nominee, and pleading with him, after the man had waited for a year for a hearing, pleading with him to at least meet the man. Let him come before the committee. No way. The answer was no. End of story. End of nomination.

That was the treatment accorded to three judges from my State during the short period of time when I was here and President Clinton was President, as the Republicans ruled the Senate Judiciary Committee.

I lost 3 nominees. Did I rally my Democratic colleagues: "Let's all get together and hold our breath and turn blue for 30 hours because I have lost 3 nominees"? No. Maybe I could have. Maybe I should have. But I did not. I understood it. I thought it was fundamentally unfair, and I still do.

What we have done to these four nominees is not unfair. Each and every single one of them has had a hearing. Each and every one of them has been able to come to the committee and present their credentials. That never happened to 63 nominees offered by President Clinton.

This President has a pretty good batting average when it comes to the Senate: 98 percent of his nominees have gotten through. But for the 2 percent, we are meeting this evening.

I might add here, if you take a look at the issues at hand, the Senator from Nevada raised an interesting one. Almost without fail, the majority of the 168 nominees were all members of this Federalist Society. It sounds like a secret handshake society. It is something else. I am not sure exactly what it is. I will tell you why I am not sure.

I do know this. If you are an aspiring law student who one day wants to be a Republican nominee for a judgeship, my recommendation to you is to join the Federalist Society today and do not miss a meeting because, frankly, that is a requirement if you are going to make it into the ranks of judges in the future.

What is it about this society? I don't know. But if you scratch the DNA of all these Republican nominees, you are going to find that Federalist Society chromosome. It is in every one of them. Time and again, I have said to these nominees: What is the Federalist Society? What does it mean to you? Some people say it is a rather extreme organization that views the law and the Constitution in a manner that most Americans do not. But when I ask these nominees-I can remember a Professor Viet Dinh of Georgetown Law School where I went to school many years ago. I said: You belong to the Federalist Society. Why? He said: Because I get a free lunch in Chinatown once a month.

Well, I think it is more than that. If you go to their Web site and ask the Federalist Society what they believe, what they put on their Web site is they talk about how we have lost control of the law and the liberals are taking over-all the stuff you expect. Then when you ask each of these nominees: Well, do you agree with that? "Oh, no,"-with one exception: Mr. Pryor. William Pryor of Alabama says, yes, he does agree with it. If you got to know Mr. Pryor, you would understand he is rather unabashed in his political beliefs.

The fact of the matter is, the nominees we are receiving from the White House are not mainstream nominees. Sadly, of the 168 we have approved, many could be challenged as outside the mainstream, and that is not what America is looking for.

President Clinton knew if he sent up a real liberal, someone who, frankly, had the credentials of the left, he did not stand a chance before Senator Orrin Hatch's Judiciary Committee. We would strive to find people with extraordinary legal credentials, people who really have made a difference in terms of their practice of law and what they have done; and they, too, suffered before that same committee.

This President has no qualms. The people he sends to us, whether it is Miguel Estrada or whether it is William Pryor or Priscilla Owen, each and every one of them have come back-Charles Pickering-with credentials that just do not pass the middle-of-the-road test.

Why are we doing this for 30 hours? Let's lay it on the line. This memo from Fox News tells you why we are here. We are here to grind raw meat for the Republican rightwing, so television networks like the fair and balanced Fox News network can rail on for days and weeks about this 30-hour tribute to the Republican point of view, so the radio talk show hosts, who blather on every single day from the right, will have much more to talk about. And instead of dealing with real issues, paying for the Veterans' Administration, so we can get that done, and meet our obligations, taking care of the unemployed across America, so they can feed their families and avoid bankruptcy, we do not have time for that. Our time has to be focused and dedicated to this debate.

I will say to my colleagues in the Senate, I think my friends on the Republican side will have to agree with this: Though they do not like the outcome of the four judges we have talked about here, we have given the nominees, even when Senator Leahy was chairman, ample opportunity to explain who they are and what they stand for. I think what we have asked for is reasonable.

What we ask of every judicial nominee, from a Democrat or Republican President, is really basic. They have to be people who are honest, of high integrity. They have to understand the law. They should be people who do not come to this job with an ax to grind. That is not too much to ask. Four have failed that test; 168 have been approved.

The PRESIDING OFFICER. The time of the minority has expired.

BREAK IN TRANSCRIPT

Mr. DURBIN. I begin by commending my colleague from Indiana. That was an extraordinary speech. I hope that for a moment Senators on both sides of the aisle will stop and reflect on what he just said. I think it was a challenge to everyone, as strongly as we feel about what we are debating tonight, the appointment of Federal judges; the Senator from Indiana is right. The people across America wonder why we are wasting the time of the Senate on issues that have no importance or relevance to their lives, and because they cannot understand us, they are estranged from us. They do not feel invested in this process, they do not feel a responsibility to vote; they, frankly, think we spend too much time in partisan posturing. The 30 hours of this debate are a classic example of that kind of partisan posture. That is unfortunate.

What the Senator hears in Indiana and I hear in Illinois and I daresay every Senator hears in their State-I have been going back to Illinois for 4 straight years in the month of August trying to tour the State, meeting with business and labor leaders and community leaders, to ask what is going on. For 4 straight years they told me the same thing: Senator, can you do anything about the cost of health insurance? It is killing us. It is killing my small business. It is killing my large business. My family is worried about coverage. What are you going to do in Washington about the cost of health insurance? I have to basically shrug my shoulder and say: I am sorry, that is not on our agenda. We have other things we debate in Washington, not the things you and your family worry about, that keep you up at night. This is a good example.

Would it not have been inspiring if we came together as Democrats and Republicans on the floor to talk for 30 hours about the future of health care in America, to speak to it in honest, nonpartisan fashion, to try to address some of the most controversial parts of it in a responsible, gentlemanly way?

That is what we are expected to do. That is not what this is about. This is about alerting FOX News to grind out their cameras at the entrance of the Senate to watch a parade of Senators come in-Senators who have now disappeared. This is about charts being made, night and day by Democrats and Republicans, to argue their case.

My people living back home in Springfield, IL, and Chicago, IL, I am sure, turned off C-SPAN a long, long time ago, if this is the best we can offer them. Sadly, that is all we are offering them.

We left the Veterans Administration appropriations bill-we could have finished it-for veterans hospitals and the millions of veterans across America because we did not have time; we had to start this never-ending 30-hour debate. We cannot entertain a motion made by the Senator from Indiana, a motion I made, as well, to try to do something about the 9 million unemployed Americans whose benefits are running out. We do not have time for that. We have time for this political debate.

That is unfortunate. It is distressing. I have given 21 years of my adult life to public service. I have never regretted a moment of it. I walked away from a law practice and never looked back. This is the most exciting and interesting thing I can think of to do with your life, to be involved in public service. I encourage everyone, regardless of your political stripe, to get involved. You will love the opportunity it gives you to help people. But, frankly, we are not seizing that opportunity or we would not be here tonight. We would not be here discussing a question about whether 168 or 172 judges is the right number.

Is this the best we can do? I think not. I think we can rise to a greater challenge but we have to put aside the partisanship.

I readily concede I have struck a few partisan blows and a few have been thrown my way. That is part of life in the Senate, I am sure, and life in the big leagues. But at the end of the day when it is all over, at the end of the year or end of the session, each of us would like to point back to something we did to improve the lives of the people we represent. What have we done to make the schools better? What have we done to deal with the economic uncertainty of middle-income families? What have we done to deal with the trade laws that are killing us in the Midwest and across the Nation?

I have been a proponent of free trade. It is almost impossible to defend at this moment in time. We are not enforcing our trade agreements. We have lost five or six manufacturers in Indiana and the same is true in Illinois. We lost 3 million jobs across America. Frankly, many of those jobs will never come back. When we read headlines that say there are 120,000 new jobs in America, that is good news. But ask the hard question, are the jobs we created paying as much as the jobs we lost? If they were manufacturing jobs, the answer is pretty obvious. The answer is no, they are not. We are losing more and more good jobs. Instead of focusing on that as we should, on the things that people care about, we are spending our time in 30 hours of debate over four judges.

The senior Senator from Texas said earlier that the President has a constitutional right to appoint judges. I don't want to correct the Senator from Texas, but she is wrong. The President does not have a constitutional right to appoint judges. The President has a constitutional right to nominate judges. The judges are appointed through the advice and consent of the Senate. Therein lies the difference in our points of view. From the Republican side of the aisle, the President has a constitutional right to name the judges he wants. End of story. But the Constitution says otherwise. And it always has.

Even the most powerful and beloved President has to be held accountable to the people of America through the Senate, through the House, and that is why we are here tonight. At one moment in history when President Roosevelt had been reelected with the largest majority in the history of the United States, Franklin Roosevelt, he decided he had had his fill with the U.S. Supreme Court across the street and they were not treating him well and he came up with a scheme to pack the court, to add more Supreme Court Justices because they just were not ruling on his laws the way he wanted them to. He proposed that to an overwhelmingly Democratic Congress in the House and the Senate and ran into a firestorm of opposition from his own party.

President Franklin Roosevelt, as popular as he was, with the mandate he brought to office-and I will not reflect on this President's mandate in this discussion, but President FDR's mandate was substantial. He felt that he had a moment in history when he could change the Supreme Court. And this Senate, the Democrats in the Senate, said: No, we have to draw the line; this executive branch cannot control the judicial branch and we will stand in the path of a popular and beloved President. And they did. They stopped him.

That, to me, was an important moment in history-when Senators of the same political party said to a President, this Constitution created three branches of Government for good reason.

So tonight we are in a position where many are arguing that this Senate should step back and not assert its constitutional right to speak to the qualifications of judges. It will be a sad day if we allow that to occur.

Let me try to synthesize this into what it is about. It is not about the four judges or two more who might be added on Friday. It is about the next appointment to the Supreme Court across the street. That is the real story. There are a lot of good reasons we are here tonight but the real reason is the next Supreme Court vacancy and the belief on the Republican side of the aisle that if we can hold fast with our approach in stopping people unqualified, unfit, to serve on a Federal court, they will have a difficult time passing through a controversial nominee to the U.S. Supreme Court.

I think, in my heart of hearts, that is why we are here this evening. They are trying to smooth the road, prepare the way for that Supreme Court nominee from this President.

Now, let me give advice to my friends-and they are not likely to take it-on the Republican side. There is a way to avoid all that. Pick a man or a woman who is of such impeccable legal background, great credentials, the kind of person with the integrity that they will be above this kind of political debate. It can happen and it has happened.

In my State of Illinois, a State with two Senators from opposite political parties, we have not had one problem in filling the Federal judicial vacancies. We have done so, Democrat and Republican, with good men and women whom I am certain will serve this country well. I just gave the green light to a nominee who sits on our calendar, and I hope we will move quickly, Mark Philip, who was a clerk to Justice Antonin Scalia. I am a Democrat, approving a former clerk to Justice Scalia. I met him and trust him and I think he will be a great Federal district court judge.

That can happen again. But we have to move away from those who are ideological extremes. We have to move away from those who are lightning rods. We have to move to a center path, which most Americans expect of us.

Sadly, tonight, we are being told this Senate should not even ask questions of these nominees. That is wrong. We have a constitutional responsibility, a responsibility that must be met.

Some have said, incidentally, that ours are the first to ever filibuster nominees. In fact, the Senator from Pennsylvania said it is the first time in the history of the United States anyone has ever filibustered a judicial nominee. Well, this chart shows that is not correct. Abe Fortas of the Supreme Court, subject to cloture motion, filibuster; Stephen Breyer, First Circuit-I am going through the list-Rosemary Barkett, Eleventh Circuit; Lee Sarokin, Third Circuit; Marsha Berzon, Ninth Circuit; and Richard Paez, Ninth Circuit.

The fact is, there have been judges brought to the Senate floor who have been filibustered in the past. The fact is, most of those filibusters failed. The motion for cloture prevailed but the filibuster was on. On the four who are under contention this evening, the filibuster has succeeded. The motion for cloture has not been filed successfully. That is the difference. To say it has never happened before in our history is to defy the obvious. It certainly has happened before.

The point we are trying to make is it is not unreasonable to have 4 nominees out of 172 questioned, to be found lacking.

Let me close by saying, again I commend my colleague from Indiana because I think he put it in perspective. We all know it is true. We could be spending our time doing a lot more important things for America and a lot more important things for the people we represent than squabbling over four judges.

Mr. REID. Will the Senator yield?

Mr. DURBIN. I am happy to yield.

Mr. REID. I ask the Senator, through the Chair, there have been statements made by the majority, for weeks, months, that never ever in the history of the country has there been a filibuster conducted regarding a Federal judge. Would the Senator again state whether or not those statements regarding filibusters of Federal judges having never been held is true or false?

Mr. DURBIN. It is false. It is clearly false. Justice Abe Fortas, 1968; Judge Stephen Breyer, 1990; Judge Rosemary Barkett, 1994; Judge Marsha Berzon, 2000; Judge Paez, 2000. And many others.

The fact is, for those who say there have never been filibusters by nominees, that is clearly not right.

Mr. REID. Another question I ask my friend from Illinois, through the Chair, what I have heard the Senator state tonight is that on numerous occasions-in fact, the chart that is behind you indicates this-that there would be numerous occasions going back to at least 1968, there have been filibuster after filibuster, and sometimes they have tried to invoke cloture on more than one occasion; is that true?

Mr. DURBIN. That is accurate. As noted here, for Judge Breyer, twice. That is a clear example. On some of the others, there could have been more than one time, as well.

The point I would like to make to my friend from Nevada, we also know that under President Clinton, 63 of his nominees never got a hearing. They were never given a chance to come to the floor for this vote because the Republican-controlled Senate Judiciary Committee would not even give them a hearing.

Mr. REID. Will the Senator yield for a question that I ask through the Chair?

Mr. DURBIN. I am happy to yield.

Mr. REID. The Senator from Illinois is a member of the Judiciary Committee. Would you explain to the people watching this-whatever it is-would you explain to the people how a person gets to the Senate floor to be nominated for a judge? How do they get here? What is the process? Explain to the people of the country what you mean when you say someone never had a hearing.

Mr. DURBIN. It is customary for a Senator of a State, depending on the President's party, to be able to suggest to the White House a nominee to fill a vacancy on the Federal district judge and the Federal circuit court. That nominee is then given to the White House for approval and investigation, FBI background checks, the normal things. If the White House then clears that nominee, the name is sent to the Senate Judiciary Committee. A hearing is scheduled in the normal course where the person is brought before the committee. After the committee has done its investigation, questions are asked and then the person is brought for a vote and eventually finds their way to the floor.

Under the Clinton administration, after the nominee came out of the White House, 63 times, 20 percent of the President's nominees were stopped at that point and never brought to a hearing before the Senate Judiciary Committee. So the argument that we have stopped four belies the reality that when we looked at the numbers from the Clinton administration, 20 percent, not 2 percent but 20 percent, of the judges never got their chance before the Judiciary Committee to even present their credentials and argue for their nomination.

I say to the Senator from Nevada, that is a sad reality. Frankly, this President is being treated far better than President Clinton. This Senate Judiciary Committee, under the leadership of Senator PATRICK LEAHY, a Democrat, approved 100 of President Bush's nominees, gave them hearings and moved them forward.

We tried in a bipartisan fashion to meet our constitutional responsibility. Only 4 times out of 172 have we said no. Only four. It is reasonable for us to stop and ask hard questions of nominees who are asking for lifetime appointments to some of the highest courts of the land.

Mr. REID. Will the Senator yield?

The PRESIDING OFFICER. The time of the Senator from Illinois has expired. However, there is a minute and a half left on the Democratic side.

Mr. REID. Will the Senator answer this question?

The PRESIDING OFFICER. The Senator from Nevada is recognized.

Mr. REID. I direct the question through the Chair to my friend from Illinois. The number 168 on the chart behind you, does that represent 168 people who have been nominated by President Bush who are now serving in the Federal judiciary who have lifetime appointments?

Mr. DURBIN. That is correct. I say to the Senator from Nevada that there are some among those 168 about whom I have had misgivings. Many of them I voted for anyway, understanding this is the President's prerogative to nominate people for the Federal courts.

Going back to the point I made earlier, the President does not have a constitutional right to appoint Federal judges. He has the right to nominate them. Only with the advice and consent can they be appointed to the Federal judicial vacancies. Therein lies the real difference in the argument we brought forward this evening.

I yield the floor.