Thad Cochran

Mr. COCHRAN

Mr. COCHRAN. Mr. President, my amendment prohibits the authorization of funds to privatize the Federal prison facilities located at Yazoo City, MS, and Forrest City, AR. Mr. President, recent administration proposals regarding the privatization of Federal prison facilities has created a unique problem for Federal prison facilities located in Yazoo City, MS, and Forrest City, AR. I offer this amendment today as a fair and equitable solution to allow the Federal Government to meet its obligations to two communities while not impeding the policy objectives of the administration. Quite a few years ago, a small community in my home State, Yazoo City, and a similar community in Arkansas, called Forrest City, competed with many other communities in our region of the country to site Federal prison facilities in their communities. Yazoo City and Forrest City were successful in their efforts. Each community now has a low and minimum security Federal prison facility ready to begin operation in early 1996. The two facilities are similar in other ways, also. Each site has land and infrastructure in place to accommodate additional medium and high security facilities which the Bureau of Prisons had indicated were a very real possibility for the future. Both communities made substantial financial investments to enhance their respective sites with the understanding that doing so would increase their chances of gaining additional facilities. The Clinton administration's budget contained a directive that the Bureau of Prisons privatize ``the majority of future pretrial detention, minimum and low security Federal prisons.'' Low and minimum security facilities built on the same site as medium and high security facilities are exempt from this proposal. Mr. President all of us understand and many of us support the policy objectives of the privatization effort. However, I submit that the facilities located at Yazoo City, MS and Forrest City, AR do not qualify as future facilities and are thus not appropriate candidates for privatization. First, the administration directed the privatization of future minimum and low security prisons. The facilities in Yazoo City and Forrest City are by no means future facilities. The Federal Government shook hands with the officials in these two communities many years ago. Each of these communities made substantial financial investments and entered contractual obligations based on the Government's agreement to site a federally run facility on their sites. To privatize these facilities at this point would be breaking a commitment to two communities who welcomed and supported the Government's decision to locate facilities among them. The terms of the agreement between the Federal Government and the citizens of these two communities must not be broken at this 11th hour. Second, privatization of these facilities will preclude these communities from being able to compete on an equal footing with other communities for higher security Federal prison facilities. The policy of the Bureau of Prisons and the administration prohibits the locating of federally run and privately run facilities on the same site. It is also the administration's policy not to allow the privatization of medium and high security Federal prisons because of the concern of maintaining security and safety of the facilities and surrounding communities. The administration's own policy dictates that the privatization of the Yazoo City and Forrest City minimum security facilities will forever preclude the location of higher security facilities on those sites. The environmental studies and improvements necessary to accommodate higher facilities at these sites are already complete. To deny these communities the opportunity to eventually compete for higher facilities would be a disastrous waste of time and money. Mr. President, these two communities entered a contract with the Federal Government in good faith and have made expenditures to uphold their obligations under that contract. We only ask that the Federal Government do the same. Privatization of these two facilities is a breach of the faith of these communities and violation of a contractual obligation. I urge my colleagues to accept this amendment as a fair solution to a unique situation. amendment no. 2854 On page 74, 18, after ``Fund'', strike the period and insert the following: ``, and of which $1,200,000 shall be available for continuation of the program to integrate energy efficient building technology with the use of structural materials made from underutilized or waste products.''

Mr. COCHRAN

Mr. COCHRAN. Mr. President, I thank the distinguished Senator for his comments, and I appreciate the information that he has made available to the Senate which has not yet been brought up on the floor; that is, that this is a new Congress, this is a new committee, and there are members of the committee and their staffs who have not had an opportunity to become familiar with this nominee. He was reported out during the last Congress, and, frankly, had not been on the screen and had not been something that has been on the minds of members of the committee. As a matter of fact, I have had several Senators ask me who the nominee was and what the [[Page S 14468]] issue was. This is just simply something that has not been discussed around the Senate this year. It may have been remembered by some Senators who were here last year. But it is a matter of first impression, and that is why I think it is important to take a little bit of time to explain why the concerns are being raised and why the motion to recommit this nomination to the committee is being made. The Senator from Delaware was good enough to discuss this nomination from his point of view as a former chairman of the Judiciary Committee and his recollections and his information from his staff about this case, but his attitude about it obviously is different from mine on the question of whether or not this is a serious issue and should be carefully considered by the Judiciary Committee after the new information about whether the judge should have recused himself in that case involving the Times-Picayune or whether this leads to a reasonable conclusion that this is not the kind of judgment that we want to see reflected by judges who occupy the second highest court in the land. The court of appeals is just beneath the supreme court in terms of power and position in the hierarchy of our Federal judicial system. Most cases are disposed of at the court of appeals level which are appealed from the district courts. Very few cases go beyond the court of appeals to the supreme court. So this court, for really all practical reasons, is the court of last resort for most litigants, and so the power and the influence of courts of appeals are immense in our judicial system. So those who are nominated to serve on that court should be subjected to the most careful scrutiny to determine their qualifications to serve on that court, their quality of judicial temperament, how they would approach the role of court of appeals judge, and, third, their adherence to the code of conduct of judges, their own personal judgment about ethical standards and the extent to which they should set a very high standard and an example, so that persons having business before the courts in our Federal judicial system will have confidence in the integrity of the judges, in their impartiality and in their abilities to be able to discharge these responsibilities at a high degree of excellence. That is a pretty tall order when you have clearly laid out here a situation where Judge Dennis refused or neglected to let the Judiciary Committee know about this controversy that had arisen which involved him, not just as a judge on the Supreme Court of Louisiana but as a legislator, where he had actually participated in a decision made by the State supreme court not to grant certiorari in a case being appealed to that court from an intermediate court of appeals in the State, which involved issues in which he was personally involved and his son was personally involved, not to say that they had, either one, done anything illegal but nonetheless the fact that records of information involving their activities were at issue, and the question was whether or not there was a duty under the law to make this information available on the request of the Times-Picayune newspaper. That was the question before the court. He was on the court, and he participated in ruling that they did not want to hear that case. The supreme court did not want to grant the right of appeal on this case to that court. And so the net effect was to affirm or not disturb the decision that had been made by the intermediate court. And one aspect of that intermediate court's decision was not to require legislators to provide that information to the paper. The district court said they had to and they should and granted a writ of mandamus requiring legislators to respond affirmatively to requests and provide that information. They did not have the records in their custody. The testimony at the trial level from the custodian of records at Tulane University was that Tulane did not give this information to anybody who asked for it. They gave the information to the legislators who wanted their records that were kept there about whom they gave these scholarships to, but Tulane was not going to respond to a request from the paper. And the legislators were not cooperating. They were not asking Tulane to give them the information so they could give it to the paper. So the question was whether these legislators could be compelled by a court of law or under a writ of mandamus to provide that information to the paper when it was requested. That was the issue. And the distinguished Senator from Delaware says that was resolved before it got to the supreme court. Well, it was decided but it was not resolved. I wish to read from the brief of the appellants who were asking the supreme court to take jurisdiction and to hear this appeal in assigning the errors committed by the intermediate court of appeals on page 9 of their brief. Assignments of error. The Fourth Circuit erroneously reversed that portion of the District Court's judgment which ordered that a writ of mandamus issue directing the respondent legislators to produce to the Times-Picayune those of the legislators' scholarship nomination forms in the possession of the legislators and/or in the possession of Tulane University. That puts at issue the interests of Judge Dennis as a legislator. Forget about the fact that his son has gotten a scholarship from another legislator worth $60,000, and his name is in the records and that will be subject to being produced by that legislator upon request from the Times-Picayune. Forget that. Set that aside. I am talking about the judge's personal interest is at issue in that assignment of error. For the Senate to be told today that that issue was settled, it was not before the State supreme court, is just not true. I am not suggesting it is an intentional misrepresentation, but I am reading from the brief where the assignments of error are laid out, and this is to the Supreme Court of the State of Louisiana. And all supreme court justices reviewed it and decided not to hear the case, and Judge Dennis decided to vote on that case without revealing his personal interests, without discussing his personal interests with litigants. Now, that is an erroneous view of the responsibilities of a judge, under my state of reference, with the code of conduct clearly spelling out here about the duty to remain impartial, the duty to disqualify oneself in cases where there is a personal interest. That is a personal interest. The Judiciary Committee did not know at the time it reported out this nomination that this was even an issue. They did not know about this case. They did not know that it was becoming a controversy. Only after they reported the nomination in the last Congress did this issue really become public. And because this new information came to light after the Judiciary Committee has acted, it is incumbent upon the Senate, in my judgment, to approve this motion to recommit the nomination to the Judiciary Committee and allow Senators like the Senator from Arizona, who spoke, who are new members of the committee, who never had an opportunity to look into these issues, to do so, and, I suggest, to have a hearing, to have a hearing that goes beyond five perfunctory questions that were asked of this nominee when he was before the committee in 1994. The Senate ought to demand that more be done to satisfy us as to whether or not this nominee has the kind of attitude about judicial ethics and personal responsibilities of judges in cases in which they have an interest to deserve confirmation to a lifetime appointment on the second highest court in the land. Mr. President, that is just as clear to me as anything can be, that to require the Senate to vote up or down on this nomination at a time when we have not had a full review of this issue by the committee in a hearing, if that is the disposition of the chairman and other members-- and to give them that opportunity, we ought to vote for this motion. I hope that Senators will look on their desks. I have put a copy or asked the pages to put a copy of an article that was written today by the Times-Picayune on this issue. I did not know the article was going to be written when this was being pushed to be brought up. But it has been written, and we made available copies. There are other newspaper articles that have been published by the Times-Picayune on this issue, and they all point to the fact that this is a case of great notoriety and importance in Louisiana. I think it is a case that we should take a more active interest in than we [[Page S 14469]] have up to this point, and hence the opportunity today for the Senate to review the situation under this motion to recommit. I hope the Senate will look with favor on the motion, and I urge approval of the motion to recommit the nomination. Mr. HATCH addressed the Chair.

Mr. COCHRAN. Mr. President, I understand there may be one or more other Senators who wish to speak to this motion to recommit the nomination. For the information of those Senators, and others, I am going to again point out the reasons why I am filing this motion and why I think the Senate should approve it. But I do not expect to take much time in arguing this point further. We have had a pretty full discussion of the issue, particularly in the colloquy on the floor with the distinguished Senator from Delaware, the ranking member of the Judiciary Committee. I remain concerned about the attitude of the committee concerning the issue involving the case that was filed in Louisiana that made its way to the supreme court, in which Judge Dennis participated as a member of the Supreme Court of Louisiana, wherein legislators, who had provided tuition-free scholarships to Tulane University to friends and supporters, were sued by the Times-Picayune newspaper to compel the production of documents relating to that scholarship program. I want to be sure the Senate understands exactly what the issues were and why Judge Dennis' refusal to recuse himself and his action in participating in the ruling on that case strikes me as inappropriate and a clear violation of the code of conduct of judges, both U.S. judges and judges who at the time were serving in Louisiana. The Times-Picayune had tried to obtain, as I understand the facts, information from legislators, or from Tulane University itself, about the names of those who had been given scholarships by legislators. I am not suggesting this was violative of the law in itself. As a matter of fact, there was a specific statute authorizing these scholarships to be given. I do not know all the history, but, as I understand it, it had something to do with the fact that Tulane University has certain tax benefits under the laws of the State of Louisiana. The legislators who make the laws of the State of Louisiana were, in the last century, given the right to name certain scholarship recipients each year to attend Tulane without having to pay tuition. Over the years, the tuition at Tulane has become quite substantial. As a matter of fact, Stephen Dennis, who is the son of Judge Dennis, received 3 years of tuition-free scholarship benefits to Tulane University from a member of the legislature in Louisiana, Representative Jones, that is estimated to have a value of about $60,000. The suit involved a refusal of legislators to say or to disclose or provide records of information about who they had given scholarships to. Tulane had likewise refused to give this information to the paper. Tulane took the position that this was information that should be made available by the legislators. They had customarily made it a practice of providing that information to legislators who requested it, but not to others, third parties. So, the case proceeded to a trial. The legislators refused to provide the information, so a district court judge at the trial level ruled that these records were public documents and public access was a matter of right. A second question that had been asked--and relief demanded--was that the legislators be made to turn over those documents to the newspaper. The district court agreed with that and made a part of its judgment an order granting a writ of mandamus. A writ of mandamus requires a public official to do what they ought to do under the law. Having ruled that this was public information, public records to which the Times-Picayune were entitled, the court followed it to the next step and ruled that the legislators who had access to these documents should be required and mandated by the law and by the court to turn those documents over. And the third issue was whether or not the Times-Picayune should be awarded attorneys' fees, having been forced to file the suit by the refusal of the legislators to turn over these documents. And the judge also ruled that they were entitled to attorneys' fees. So the case, because the legislators disagreed with the ruling, was appealed to the next step. It was a fourth circuit court of appeals in the State of Louisiana. That court decided the district court had ruled correctly in the first instance, that these were public documents, but they did not grant the writ of mandamus. So they reversed the decision of the district court as to the writ of mandamus and they also reversed on the question of attorney's fees. So in this situation, the Times-Picayune disagreed with that ruling and they appealed, or filed for a writ of certiorari for a hearing before the State supreme court. Enter Judge Dennis. Judge Dennis' son had been granted a tuition waiver. Of course his name would be among those in the records held by Tulane University. These tuition waivers had a value to his son of about $60,000. Judge Dennis himself had been a member of the legislature and, as such, had the right to grant scholarships himself when he was a member of the legislature, so the records of his own decisions were also among those records that would be subject to being disclosed to the public, not only as a matter of right that the public would have, but as it relates to the responsibility of each legislator. If the supreme court sided with the district court, it would actually rule that the legislators were required to make this information available on request to newspapers such as the Times-Picayune. And, of course, the issue of attorney fees was also raised before the supreme court. Now the Judiciary Committee, not having had any of that information before it but simply the nomination from the President--President Clinton nominated Judge Dennis in the last Congress--had a cursory hearing. Judge Dennis was asked five questions. There was no witness who appeared for him or against him to testify to any other matters. The committee did not inquire into any of these issues raised by that suit, by Judge Dennis' participation in the rulings on that suit at all. No one had heard about it. Judge Dennis knew about it. He had been questioned by the newspaper about it. He did not tell the Judiciary Committee that. [[Page S 14467]] So the Judiciary Committee reported out the nomination. And after they had done that, then the Times-Picayune wrote this story based on the information they had obtained as a result of this lawsuit and other and independent investigations they had undertaken. So the issue, it seems to me, is whether or not Judge Dennis adhered to the rulings of the courts, adhered to the standards of ethical conduct, adhered to the code of judicial ethics that he had to be aware of, that was in effect in Louisiana at the time, and which is in effect for all U.S. courts throughout the land. I am going to read from canon 1 of the Code of Conduct for Federal Judges. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary may be preserved. In the commentary below it says: Deference to the judgments of rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. And in canon 2: A judge should respect and comply with the law, and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. Mr. President, I submit that the circumstances of this case involving the tuition waivers in Louisiana, the legislators and their rights under the law--this case that was filed asking for information about the records and past practices of legislators was acted upon by Judge Dennis in disregard of the canons of code of conduct of judges--that should be reviewed and considered by the Judiciary Committee. I am hopeful that Senators will approve the motion to recommit this nomination to the Judiciary Committee to give the committee an opportunity, each member of the committee an opportunity, to become familiar with the facts, to ask questions of Judge Dennis or others who may have information touching on this subject, so that we in the Senate will have a full report and can base a decision about whether or not to vote to confirm Judge Dennis on a full and complete inquiry, which, in my judgment, ought to be undertaken by the Judiciary Committee at this time. Mr. President, I understand that Senator Kyl is here and is interested in addressing this issue. I ask unanimous consent that I may be permitted to yield the floor so that he may speak, and then I will reclaim my recognition without losing my right to continue my remarks.

Mr. COCHRAN. If a member, who is a senior member, of the Judiciary Committee staff tells a Senator like I was told during the briefing on this issue that if the committee had had the information that came to light after the nomination had been reported, the committee would not have reported the nomination, does that not seem to the Senator to be sufficient grounds to request reconsideration of the issue by the committee?

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

Mr. COCHRAN. I think the staff has now concluded in another way. I do not know whether there is any evidence that the Senator can give the Senate about what the staff has concluded. But in today's Times- Picayune, there is a statement from a reporter who called and talked with staff members of the Judiciary Committee. And it says, ``At issue is Dennis' vote in a 6-to-1 Supreme Court decision in March to deny'' the newspaper's ``request for access to the . . . forms.'' And it says one staff member says that there was nothing new discovered. Another says there are questions raised about whether he should have recused himself. So the paper has discovered that committee staff has a difference of opinion. I was briefed and I can say that my impression was there is a serious question and that is why this motion is being made.

Mr. COCHRAN. Mr. President, will the Senator yield for a question?

Mr. COCHRAN. How could you have done that if the information about this nomination to Tulane and the scholarships did not come to the attention of anybody until the day after the Judiciary Committee reported the nomination to the Senate?

Mr. COCHRAN. Mr. President, if the distinguished Senator will yield, the distinguished Senator said that the committee had looked into this issue and had come to a conclusion different from the one I came to.

Mr. COCHRAN. Mr. President, will the Senator yield for one more question?

Mr. COCHRAN. I do not want to delay this inordinately. I think there is a question that ought to be clarified; that is, at the point when the case reached the supreme court, none of those legislators, except one, had voluntarily requested Tulane to release the information they had regarding the appointments that legislator made to the scholarship privilege at Tulane. That was Peppi Bruneau. The others--even though the court had ruled at the district court level, and the fifth and the fourth circuit, the intermediate court had confirmed were public records--none of them had acted to respond to the Times-Picayune request. And, as a matter of fact, is not it true that it was only after all of these cases had been acted on did the paper realize they had won the case but they still did not have the records, and they had to sue again to compel delivery of the records? They had to sue Tulane because none of the legislators, including Judge Dennis or any of his colleagues who had given out these scholarships, had asked for the records. So the point is Judge Dennis, in my view, certainly, had an interest in whether he acted on it in deciding the case and the ruling. He did not disclose the interest, but he went on and acted on it nonetheless. It seems to me--does it not seem to the Senator from Delaware--that would be a proper inquiry for the Judiciary Committee to make.

Mr. COCHRAN. Mr. President, I do not intend to prolong the debate. I do want to add to the Record a copy of the newspaper article that has not been printed. I know Senator Lott put a copy of an article from the Times-Picayune in the Record. I think he put in the article dated September 25. There is another article, July 23. I ask unanimous consent that both articles, to be sure we have them in the Record, be printed in the Record.

Mr. COCHRAN. Mr. President, will the Senator answer one other question?

Mr. COCHRAN. It was if they did not overrule the fourth circuit. The fourth circuit had reversed the lower court. The lower court ruled that was public property and that all legislators had control over the files that were held by Tulane. And the Tulane custodian of records, Carolyn LaBlaime, testified in the lower court that, on the request of legislators, she and Tulane would make those records available. So the question was whether all legislators would have this responsibility.

Mr. COCHRAN. One question I have that has not been brought out here was that this suit not only requested a ruling as to these five legislators, but, more important, with respect to Judge Dennis, it involved all legislators' records, as to whether or not they were public records. And the reason this is important as far as Judge Dennis is concerned--and did the committee [[Page S 14460]] know this?--that he was a legislator before he was a judge, and he had awarded scholarships to Tulane and therefore records that he had control over, under the ruling of the lower court, made him a party in interest even though he was not a named defendant?

Mr. COCHRAN. Mr. President, I thank the distinguished Senator for his comments. Let me just say for the purpose of putting this in some historical context that Judge James Dennis is a member of the Louisiana State Supreme Court. [[Page S 14457]] He was nominated by President Clinton to serve on the U.S. Court of Appeals for the Fifth Circuit. That nomination was made during the 103d Congress, the previous Congress. The Judiciary Committee had a hearing. At the hearing Judge Dennis appeared. No witnesses appeared other than Judge Dennis, as I am advised. There were four questions asked of Judge Dennis at that time. The committee reported his nomination to the Senate. There was no action on the nomination during the last Congress, and this year his name was resubmitted to the Senate by the President. No other hearings were held, no other inquiries were held, and he was reported out in due course to the Senate. One day after the nomination had been reported by the Judiciary Committee, a Times-Picayune story revealed that Judge Dennis possibly committed a serious ethical violation by participating in a court decision involving Tulane tuition waivers. Tulane tuition waivers involve under Louisiana law the right of a member of the State legislature to bestow a favor on a friend by having the tuition that would otherwise be due and payable to Tulane University waived under an existing authority that goes way back to the last century in that State. The issue was that Judge Dennis had a son who was given a judicial waiver by a member of the legislature for 2 years going to law school. Then he laid out of law school for a year, and he was going to go back to law school, and he contacted the legislator who had given him the waiver in the first instance and asked that he be reinstated. There was some question about the extent to which Judge Dennis may have been involved in contacting or trying to influence the legislator to grant that waiver for his son. Anyway, Judge Dennis knew this story was being written. He had been contacted by the paper. He had been questioned by the reporter. Obviously, it was something that was getting a great deal of attention in the State of Louisiana. This issue had been in the papers. There was some talk about whether this was a practice that needed to be changed, whether it was sort of a buddy system there in the State where legislators were giving friends of theirs tuition waivers. This abuse should be revisited. Well, that is all really beside the point. The point is Judge Dennis knew he was right in the middle of this story being written, and he did not bring it to the attention of the Judiciary Committee, which was about to take action on his nomination to the second highest court in the land, the U.S. Court of Appeals for the Fifth Circuit that is based in New Orleans. There is an obligation--and I think the chairman and the distinguished ranking member of the committee will acknowledge this--there is an obligation and understanding with all nominees who come before the Judiciary Committee in situations of this kind for confirmation for a lifetime appointment to the Federal judiciary that, if they know of any circumstance or facts that would affect the consideration of the committee or the action that the committee is about to take to report out the nomination, they are obliged and under an obligation to bring such facts to the attention of the committee. Judge Dennis did not do this. There is no question in the record Judge Dennis did not do this. There is a suggestion that Judge Dennis contacted someone in the Justice Department. I do not have a copy of any of the transcript, whether it was a letter, whether it was a fax, whether it was a phone call. I do not have the phone log or exactly what was said or to whom. But I am advised that there was contact made. But, nonetheless, the Judiciary Committee proceeded to act without any knowledge of the fact that this issue had arisen and certainly not of the fact that it was going to be big news in Louisiana the next day, after it acted on the nomination. Judge Dennis knew that his ethics were in question and did not bring that knowledge of this to the Judiciary Committee. The ethics of Judge Dennis were being questioned by the reporters who asked the questions. And the reason it was an issue is because the Supreme Court of Louisiana had been called upon to rule on a freedom- of-information request where a request had been filed by the newspaper asking legislators to provide records from their offices to show which citizens of Louisiana had been given these tuition waivers by them under the authority of existing Louisiana law. Well, you can imagine some of the legislators did not want to reveal this information. They did not want to disclose the facts. Anyway, suit was filed by the paper, and that was decided in a lower court and worked its way up. It finally got up to the supreme court. Judge Dennis participated in a decision on the issue affirming a lower court decision that the paper had to make that information available. Judge Dennis did not disclose his potential interest in this case at the time the case was decided by the Supreme Court of Louisiana. He participated in the case. He voted on the case. He did not disclose this information to the Judiciary Committee or the fact that this was an issue and a controversy in Louisiana that might be perceived as affecting his fitness to serve on the second highest court in the land. He knew--he knew--that he had a continuing obligation to reveal any information to the committee which might affect his nomination or the committee's decision in this case. He did not call the committee to report that the story was coming out. He then knew his nomination had been voted out of the committee. There was some communication after he had been reported out of the committee and the nomination was pending here in the Senate. The significance of this story, I think, can be best described in terms of its notoriety and its importance in Louisiana with the headline that was used by the Times-Picayune to call attention to this. As a matter of fact, it had in bold headlines: ``Hall of Shame, Public Confidence in Judge Dennis Is Destroyed.'' I think loss of confidence in a member of the judiciary, of course, affects the judicial system and not just at the fifth circuit, but throughout the country. The question that I think the committee ought to properly answer, and has not had an opportunity to address in any formal way, is: Was Judge Dennis' conduct an ethical violation? I think it was. I think it clearly rises to the level of improper conduct that would affect this committee's decision to report the nomination to the Senate. I frankly do not believe after the committee reviews all the facts, hears all the evidence, calls witnesses who are familiar with this entire situation, I do not believe the committee is going to favorably report this nomination back to the Senate. What I am disturbed about is that there has been pressure to call the nomination up, take action on the nomination. I do not want to personally, just because I am from a neighboring State and we have had discussions about whether this is a seat that should be filled by a Mississippian or a Louisiana person--I do not want that to cloud the real issue here, and that is the fitness of this nominee to serve on the court. That is why I have decided to move to recommit the nomination to the committee. I am prepared to let the committee look further into this in an orderly way and in a deliberate way to determine whether my suspicions are correct, whether the suspicions of many people throughout the Louisiana-Mississippi-Texas area, where this court has jurisdiction, are correct. We have been getting phone calls and letters; people are disturbed about this. And we think that the committee ought to look further into the situation. The Judiciary Committee ought to begin the opportunity to review its decision and either decide to report the nomination in light of this new information--I think the information reveals that Judge Dennis, first of all, failed to recuse himself properly in a case resulting in such an impropriety as to warrant public disapproval and the disapproval of the committee of his nomination. Mr. President, I do not know what the procedure is in terms of being able to speak again, but I ask unanimous consent that I be permitted to yield the floor to other Senators who want to speak and then to speak again at some point under this motion. I do not [[Page S 14458]] want to lose my right to the floor by so yielding.

Mr. COCHRAN. I will be happy to yield for a question.

Mr. COCHRAN. My response to the distinguished Senator from Delaware is I have no problem with his describing the committee's action. I know the chairman of the committee would probably want to do that at some point in this discussion. Let me just say, if I can, in support of the motion that this is not a fight between two States. This is a question that is being presented to the Senate today under this motion to recommit on the basis of newly discovered information about the fitness of this judge to serve on the fifth circuit court of appeals. The motion to recommit is to give the Judiciary Committee an opportunity to review the facts, the evidence and the investigation that has just recently been concluded by the staff of the Senate Judiciary Committee, at the request of the chairman of that committee. I have been briefed by the staff on the findings of that investigation, and I was advised at the time I was briefed that no other Senator had requested a briefing, no member of the committee had been briefed, other than the chairman had been given information from the investigators. I am convinced on the basis of what I heard that the Judiciary Committee should reconvene and reconsider the nomination. That is the reason this motion is being made. If this were just a debate on the merits of the nominee or the fitness of this nominee on the basis of the record as already made by the Judiciary Committee-- whether or not one State was being overly represented on the Court-- these are all facts that we would debate at that time, and it may be a subject, a proper subject, for discussion at a later time. But this motion is directed to the fact that after the committee reported the nomination, information became available which brought into question the fitness of this judge to serve and whether or not he should have disqualified himself from participating in a case before the Louisiana Supreme Court and related matters. That is the point we will address this morning. We hope the Senate will agree with us that this is clearly a situation where the committee ought to reconsider the nomination.

Mr. COCHRAN. That is why I made the request.

Mr. COCHRAN. I do not want to violate the two-speech rule. You cannot under the rules of the Senate make two speeches on one legislative day. Is it because we are in executive session that the legislative day two- speech rule does not apply, I ask the Chair?

Mr. COCHRAN. I am happy to yield to the Senator for a question.

Mr. COCHRAN. Mr. President, I am prepared to describe to the Senate the reasons for my motion, and to give other Senators an opportunity to discuss this. We had undertaken to work out an agreement on the basis of time constraints allocating time for one side and the other because some did not want to set a precedent for doing the time agreement on a motion to recommit on the Executive Calendar. We have not reached that agreement in any formal way. But, for the information of Senators, it is my expectation that there will be debate on this motion for at least 1 hour on this side in support of the motion to recommit. I expect that there will be a corresponding amount of time, or at least certainly the availability of that kind of time, on the other side. Then there would be a request for the yeas and nays on the motion to recommit the nomination. We expect to be able to get a record vote on that motion.

Mr. COCHRAN. Mr. President, I suggest the absence of a quorum.

Mr. COCHRAN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. COCHRAN. Mr. President, I suggest the absence of a quorum.