Joe Biden

Mr. BIDEN

Mr. BIDEN. What is the pending business?

Mr. BIDEN. I have no objection to that, Mr. President. That is fine with me. Amendment No. 2817

Mr. BIDEN. I yield the floor.

Mr. BIDEN. I do not have an objection to that. Let me review quickly, and hopefully this will take just a moment. We debated this amendment at length yesterday, although I have the right to continue to debate it unless there is a motion to table. I do not want to take more time on the part of the Senate. Let me just briefly, very briefly, explain what this amendment does. First, it reinstates two-thirds of the money for drug courts, mandatory drug testing, drug treatment backed up by certain punishment for 55,000 offenders now on probation. They would all be put into this program. It provides for two-thirds of the funding that we originally agreed to. The second thing it does is allow States to continue to have the option to have drug treatment in their prisons. We are not talking about drug treatment for people out on the street; we are talking about treatment for people in prisons, administered by States in prisons. The third thing it does, it reinstates the money--$10 million--for rural drug enforcement. That function was zeroed out. Again, I will not go into all the arguments, but yesterday we spent a lot of time and I pointed out that the violent crime rate and the drug problem in rural America is increasing at a faster rate than it is in urban America. Every single, solitary Governor that I am aware of, every single, solitary local official that I am aware of, has said on drug matters, in rural areas, we need help. When you have a 2- or 3-person or 10- person police force facing what is happening, particularly in the Midwest, in the Rocky Mountain West, where drug gangs are moving to those rural areas setting up methamphetamine labs, they say they need help. This allows the control of the cooperation between Federal and local law enforcement officers to drug enforcement. It also reinstates what I think may have been unintentionally taken out of bill; that is, $1.2 million for law enforcement family support. What that is all about is funds to support families who have had their loved ones slain as peace officers. That is, cops who are killed, their families, their husbands, wives, children. They, in fact, are involved in and have made available the counseling for families killed in the line of duty, post-shooting debriefings for officers and [[Page S 14622]] their spouses and marital support groups that relate to the outcome of what happens when an officer is killed and/or wounded. Many have attended along with me every year the police memorial. Every year we honor slain officers that are killed that year. Every year the families line up and are greeted by the President and me and others who are there--Senator Thurmond. Every year immediately after that occurs, they all get on a bus and they go to these counseling services for 2 days. If you speak to the families of those officers, slain officers, you will find they say it is the single most important thing the Government does for them, the single most important thing for them to cope with this tragedy. The last piece of this amendment is $60 million for technology grants to the FBI. Those technology grants to the FBI are moneys that allow the FBI to upgrade all of their, what the average person would say is their very sophisticated technology capabilities and facilities. Frankly, they could use $200 million, which the distinguished Senator from Ohio put in the terrorism bill for them. But that has been stalled. The only reason we are going with only $60 million is so we do not have to go out and seek offsets to get this money. The offsets to pay for the entirety of this amendment come from reducing the State prison money from $750 million in this bill to $729 million. The House bill only has $500 million in it. The President only requested $500 million. And the second piece comes from increasing the fees related to acquisition of green cards. So, there are the offsets. Senator Bond and Senator Specter and a number of my Republican friends, including Senator DeWine, have spoken to pieces of this amendment. Again, the only reason I am continuing to speak is, not because I like to hear my voice and not because it needs further explanation, it is because I am told we are waiting to determine whether or not the modification will be accepted. If it was accepted--I think it is important we all exercise comity here--if, in fact, the DeWine amendment that I sent as an amendment to the Biden amendment was accepted and it was accepted without the knowledge of one of my Republican colleagues, I will not insist that be done. I would withdraw the modification because I do not want to catch anyone unawares here. But maybe my friend from Texas has been able to find out whether or not the modification, including the DeWine provision, is acceptable, whether I have unanimous consent to modify my own amendment to that extent.

Mr. BIDEN. I yield.

Mr. BIDEN. I would like to not have it vitiated if it had been agreed to.

Mr. BIDEN. Mr. President, if----

Mr. BIDEN

Mr. BIDEN. Mr. President, I know that this amendment was accepted by voice vote, but I just want to note for the Record that I oppose it. This is not the type of micromanagement that the Senate should be engaged in. The Judiciary is an independent branch of Government and it should be permitted to make reasonable decisions about how to spend the money that Congress appropriates to it without undue interference. Amendment No. 2845 (Purpose: To delete funding for the National Endowment for Democracy)

Mr. BIDEN

Mr. BIDEN. Mr. President, before the Senator suggests the absence of a quorum, I want to make it clear it is perfectly fine with me whatever way the Senator wishes to proceed.

Mr. BIDEN. I did not mean to do that to the body. I was trying to save time.

Mr. BIDEN

Mr. BIDEN. Mr. President, let me make a few points before I respond to the specific concerns of the Senator from Mississippi. One, it is true that, to the best of my knowledge, only myself and Senator Hatch have availed ourselves of the investigative report done by minority and majority staff on the question that has been raised by the Senator from Mississippi. Senator Hatch notified all Republican members on the committee, which is our practice, that follow-up work was conducted on a matter that had come up after we had voted and that professional staff who had done the investigation were there, ready, willing and able to brief people on it. My staff briefed the staffs of the Democratic members of the committee. I will tell you why most people did not think it was so important. Justice Dennis has been around for a long time. His nomination came up in 1994. There has been, and I am not questioning the motivation of my friend from Mississippi, but let me put it this way, he has not been fast tracked. He has not moved very swiftly. The Senator from Delaware may be under the mistaken impression that the failure to move Justice Dennis had little to do with Justice Dennis' integrity, competence and/ or forthrightness and ability to be on the bench, but had to do with a legitimate dispute--I guess any dispute between and amongst States is legitimate--about whose seat this should be. It happens all the time. It happens in the first circuit, it happens in the second circuit, it happens in the third circuit. We had a debate in the third circuit about whether or not a seat should be a Pennsylvania vacancy or a New Jersey vacancy. I am not saying this only happens in the South. It happens all across the country, and Senators fight very hard for the prerogatives of their States to have folks represented on the circuit courts in numbers that they believe are appropriate. That has, up to now at least, been the major impediment, at least from the perspective of the Senator from Delaware, of Justice Dennis getting a vote on the floor of the Senate. Having said that, let me speak specifically to the question raised by my friend from Mississippi. It has been argued that Justice Dennis should have recused himself from a case that came before the Louisiana Supreme Court involving a suit by a local newspaper against five State legislators. Under Louisiana law, a judge may be recused for five reasons. I might point out that the Federal rules of recusal, and most State rules of recusal, are not designed to encourage judges to recuse themselves automatically. Otherwise, judges would be able to avoid all the tough decisions. So the presumption is that you should not recuse unless you meet a certain standard. Let me tell you what Louisiana law says, because that is the law that Justice Dennis, then on the Louisiana Supreme Court, was obliged under his oath of office to follow. Here are the five reasons for which a Louisiana judge may recuse himself or herself: First, he or she is a material witness in the cause of action before him or her; second, he has been employed or consulted as an attorney in the cause of action prior to being on the bench; third, he has performed a judicial act in the cause of action in another court; fourth, he is related to one of the parties involved in the suit; or fifth, and this is the important piece here, he has an interest in the cause. My friend from Mississippi is making the case that Justice Dennis should have recused himself because of the fifth provision in Louisiana law--that Justice Dennis had an interest in the case before him. Only this last reason--where a judge is interested in the case--could possibly provide grounds for Justice Dennis to recuse himself from the Times-Picayune case. As the nominee explained to the committee, he had absolutely no interest in the case brought by the Times-Picayune. Let me go through the facts, because I think it is very important to know what the specific facts are. For over a century, since 1884, each Louisiana State legislator has had the right to nominate a Louisiana citizen to receive free tuition to Tulane University for 1 year. I might note parenthetically, that this is not something in the last several decades that the press has thought is a good thing. To the best of my knowledge, and I am certainly not a historian or student of Louisiana history, no one questioned this practice for a long time. Along comes the Times-Picayune, which is their right, and they wanted to know who had appointed whom to Tulane University under this 1884 law. Again, no one is questioning whether or not the law of Louisiana permitted a State legislator to nominate a Louisiana citizen to receive free tuition to Tulane University for 1 year. These tuition waivers are, under Louisiana law, as we understand it, privately funded. In 1985, Justice Dennis' son--now, this is 1985, 10 years ago--Steve Dennis, received a tuition waiver from his legislator, a gentleman named Representative Jones. At that time, Justice Dennis' son, Steven, was a 26-year-old married man, financially independent of his father, and living apart from his father. And, I might add, he lived in Representative Jones' district. Now, Steve Dennis received tuition waivers to attend Tulane law school in the years [[Page S 14459]] 1985, 1986 and 1988. He did not attend law school during the 1987-88 academic year. In December 1993, 8 years after Steve Dennis was first nominated to receive this tuition waiver by his State legislator, the Times-Picayune and one of its reporters sued five legislators for failure to turn over copies of forms they used to nominate people for tuition waivers. The five legislators sued were: Emile ``Peppi'' Bruneau, Jr., Naomi White- Warren Farve, Garey J. Forster, Arthur A. Morell, Edwin Murray. The reason I mention their names is that Representative Jones--the person who had nominated Steve Dennis--was not sued. He was not a party. He was not asked to submit the names of people he had, in fact, nominated to receive the tuition waiver. There were two issues involved in this case brought by the Times- Picayune. First, the plaintiffs sought a declaration that the nomination forms of these five legislators were public documents, even if the forms were currently held by Tulane. Second, the plaintiffs sought a writ of mandamus ordering each defendant to produce all nomination forms in his or her custody, including those held by Tulane. Now, in January 1994, the trial court, of which Justice Dennis was not a member, determined that the nomination forms were public and granted the writ of mandamus ordering the defendants, the five State representatives, to produce all the documents and forms held by them or Tulane. The trial court also awarded attorney's fees to the plaintiffs. The legislators then appealed from the trial court. In October 1994, the State fourth circuit court of appeals--not the Federal circuit court of appeals--agreed that the nomination forms were public documents subject to disclosure. However, finding no indication that the defendants would not comply with the court's declaratory judgment, the court of appeal reversed the grant of the writ of mandamus against the defendants. The court felt that it was premature to subject the five legislators to mandamus, given that its declaratory judgment was the first definitive statement of the rights of the parties. The court of appeal also reversed the attorney's fee award. Finally, the case came before the Supreme Court of the State of Louisiana. Enter Justice Dennis. There were only two issues that came up to the Supreme Court. One, whether a mandamus was appropriate, and, two, whether the plaintiffs should receive attorney's fees. It was no longer an issue as to whether the nomination forms were public documents. That was settled. That was not even appealed. The fourth circuit had already established that they were, and that the defendant legislators would have to turn over these documents to the Times- Picayune. Now, in a 6-1 decision in which Justice Dennis was with the majority, the Louisiana Supreme Court denied the Times-Picayune application for review and refused to consider the untimely application of one defendant who challenged the newspaper's standing. Remember what is being laid out, the predicate: That Justice Dennis committed some big ethical violation, and he did not tell the committee about it, either. First, he was hiding something from us, the Judiciary Committee, and, second, he was hiding it because it was unethical behavior. I might add, I doubt whether there is a member of either party who would be willing to let his or her reputation be ultimately written in the great book based on only the headlines he or she has received throughout his or her life. I doubt whether there is a single, solitary person who holds public office who has not spoken to an editor and heard the editor say, ``I am sorry, Bennett, but I don't write the headlines.'' ``I am sorry, Thad, but I don't write the headlines.'' What my good friend from Mississippi read was a headline from the Times-Picayune which I do not know means anything, except it is unintentionally, in my view, misleading about the character of Justice Dennis. Now, it is the Louisiana Supreme Court decision from which some argue that Justice Dennis should have recused himself. As I said earlier, under Louisiana statute, there is only one possible reason why Justice Dennis, may have recused himself--and that is because he had an interest in the case. Justice Dennis, through written and oral statements to our staff, gave three reasons why he determined that there were no grounds under which he should recuse himself. One, he had absolutely no interest in the outcome of the only issues before the court. The only issues before the court were the writ of mandamus and attorney's fees. He had absolutely no interest in that at all or in the petition by a latecomer saying that the Times-Picayune had no standing. Second, his son had no interest in the case's outcome. His son was long out of law school. His son was a married man, 26 years old, living on his own in the district of a legislator who was not named in the lawsuit. What possible interest could his son have had in the outcome of this case? The third point Justice Dennis makes is that Representative Jones, who nominated Steve Dennis for the tuition waiver, did not have an interest in the outcome of the case. Let me review each of these reasons and then I will sit down. First of all, Justice Dennis had no interest in the outcome of the issues before the court. He had no relationship to either party, the newspaper or any of the five legislators. Second, Justice Dennis' son had no interest in the outcome of the case. Steve Dennis was first nominated for a tuition waiver by a Monroe legislator in 1985, 8 years before the suit was filed and 10 years before it came to the Louisiana court. Steve Dennis had no interest in the Times-Picayune application before the State supreme court because the public record status of the nomination forms had already been resolved. The fact that they were public documents meant anybody could go and find out whether or not in 1985 Steve Dennis had been nominated by Representative Jones. Further, Steve Dennis had no interest or stake in the remaining issues: The mandamus order for the defendants to turn over the documents or the attorney's fees awarded to plaintiffs. Last, Justice Dennis did not recuse himself because the Monroe legislator who nominated his son had no interest in the outcome of the case. Representative Jones was not a party to the case. He was not subject to the writ of mandamus or the award of attorney's fees. The supreme court's denial of the Times-Picayune writ application was simply a decision not to review the mandamus and attorney's fees issues any further. The court did not decide any question of law or fact. It established no supreme court precedent that could affect future cases. Nor did the rejection by the court of appeal of the Times-Picayune suit for attorney's fees and mandamus establish any precedent that would have provided grounds for nondisclosure by the Representative Jones, or any other nonparty. Once the court of appeal decision became definitive on March 17, 1995, no custodian of a tuition waiver nomination form could claim that the law was unclear as to whether there was a clear duty to disclose the nomination records. If the custodian refused to respond favorably to a request by an adult person for the records, he or she was subject to mandamus and attorney's fees awards against him. Justice Dennis has explained clearly why he did not recuse himself in this particular case. He made a thoughtful and reasoned decision, after taking all the facts into consideration. And his record shows that he does not have a blithe disregard for Louisiana's recusal law. In fact, there were two cases in which Representative Jones was a party, and from which Justice Dennis did recuse himself. Both cases were bar disciplinary matters against Representative Jones that came before the Louisiana Supreme Court under its original jurisdiction over proceedings relating to disciplinary matters.

Mr. BIDEN. Mr. President, if I can respond, we did make that inquiry and reached a totally different conclusion than the Senator from Mississippi. Again, let me make clear why. First, there was no question. The records were public documents. The issue was whether a mandamus should be issued. Second, the fact that only one of the five legislators, turned over these records further underscores the point that they were the only five people involved in this matter. No one was asking for, in this court, case records from any other legislator. Third, the question that the intermediate court responded to differently than the upper court was whether or not the vehicle to get these records from Tulane would be a writ of mandamus or a lawsuit. That was the issue; not just how do you get the records. And that issue did not go to whether or not they would have to be produced, but when and under what legal document would they have to be produced. And on that score, Justice Dennis affirmed the intermediate court's ruling along with five other justices.

Mr. BIDEN. Certainly.

Mr. BIDEN. I know there is no agreement. What I am asking, does the Senator know of anyone who would have an interest in not allowing us to get to a vote today?

Mr. BIDEN. No. It would.

Mr. BIDEN. Mr. President, I love to hear the Senator speak. If the two-speech rule applied to this place, I imagine we would have only one or two Senators who ever spoke. I will be delighted to hear him again. I would like to make several points to him, and I will not take long. I would like to ask him a question, if I may. If I may ask the Senator from Mississippi, is it his--I realize there is no unanimous consent in any of this--but just as he postulated what he hoped would happen in terms of procedure here this afternoon, is it the Senator's intention that, if his motion to recommit fails, that we would go then to a vote up or down on the nominee?

Mr. BIDEN. If I may respond to my friend, he is again partially correct. That was the issue in the lower court. That was the issue in the court of appeal. But that was not an issue which was appealed to the Louisiana Supreme Court. The supreme court did not speak to, nor was it asked to rule on, or affirm or overrule the question of whether or not these were public records.

Mr. BIDEN. If I can respond to my friend, the factual statement he made about Justice Dennis having been a legislator, that this affected all legislators, and the writ of mandamus would have affected all legislators, is absolutely accurate except for one big problem. That issue was not before the supreme court on which Justice Dennis sat.

Mr. BIDEN. Reserving the right to object. Parliamentary inquiry. The Senator has an opportunity to regain the floor at any time under any circumstance, is that not correct?

Mr. BIDEN. The way the Judiciary Committee has operated for the roughly 20 years, I guess, that I have been on it is that the investigative staffs of the majority and minority work together and share all information. I wish to inform my friend from Mississippi that in addition to the Senator from Mississippi and the chairman of the committee, Senator Hatch, the Senator from Delaware has also been briefed on all of the investigative matters including the one to which the Senator refers. I will be prepared and am ready to speak to that, but I will yield back. I do not have the floor. I thank my friend for his time, but assure him that I am aware the committee has been briefed. I see absolutely no need to refer this back to the committee, but I will speak to that in response to my friend's arguments.

Mr. BIDEN. If the Senator will yield without losing his right to the floor----

Mr. BIDEN. Mr. President, that is a legitimate question. Let me respond to that--the way we do in every such case. The standard operating procedure is, if we get something that even has the potential color of conflict, the majority and the minority get together. The standard procedure is they go back and investigate. Sometimes we call the FBI back in. ``Would you take a look at this? Is it specious? Is there anything to it? Is it real or not real?'' Staff may also call the person making the allegation. And the staff makes a judgment as to whether it is specious, whether it warrants further investigation, or whether or not they have enough information to make a recommendation to the committee. The third thing we may do is call the nominee. We call the nominee and say, ``OK, look. This was raised. Here is the deal. These are the facts as we know them. Explain yourself.'' That is what we did here. The explanation was given. The nominee wrote a letter to the committee and he was interviewed by staff. We read the briefs that were filed and the newspaper accounts. The staff concluded that Judge Dennis made the right decision, that he did nothing unethical.

Mr. BIDEN. Correct.

Mr. BIDEN. I would be happy to. But let me finish this point. I respectfully suggest, if the Senator looks at what the law says, what the court had said and what was before Judge Dennis, the matter that concerns him most, as it should, was resolved.

Mr. BIDEN. Parliamentary inquiry: Does that call for immediate action, or is that a debatable motion?