Orrin Hatch

Mr. HATCH

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

Mr. HATCH. I would like to ask the distinguished Senator, we have seen this poster they have over there: 168, and only 4 stopped. But isn't it true that there are at least 12 circuit court of appeals nominees, ones who correct lower courts who many times make mistakes, who are being held up in filibusters here--not just four?

Mr. HATCH. Right.

Mr. HATCH. The phony reason they hid behind. But let me make this point. Miguel Estrada, as great an attorney as he is, having argued 15 cases before the Supreme Court, having the highest recommendation of the American Bar Association, their gold standard, they did not want him to come through this process because they knew, or at least they perceived, that he was on the fast track to become the first Hispanic on the Supreme Court and they just cannot tolerate having a conservative Hispanic on the Circuit Court of Appeals for the District of Columbia, let alone on the Supreme Court.

Mr. HATCH. That is absolutely right. But even Roberts had to go through a lot of pain to get there--12 years waiting, nominated three times by two different Presidents. We put him out of the committee after a 12-hour hearing. You hardly have that much for Supreme Court nominees. There were two others on that list. They complained because there were three on one day's hearing. They ignored the fact that Ted Kennedy, when he was chairman, had seven circuit nominees one day, and another four. We had at least 10 other times when we had three. Then once we put him out of the committee, I had to bring him back in the committee so they could have another crack at him. They could not touch him. He was that good. So he had to go through an inordinate process to get there. But they knew they did not have anything on him. They know they didn't have anything on Miguel Estrada.

Mr. HATCH. It was a double standard.

Mr. HATCH. Absolutely right. Roberts was treated like all other nominees during the Reagan years, Bush 1 years, and the Clinton years. He was not asked to give his opinions on future issues that might come before the Circuit Court for the District of Columbia. Because Miguel Estrada answered the same way basically as all the other people who had passed in prior years, they held that against him. The big phony issue was knowing that the Solicitor General's Office did not give the most privileged, private documents in that department without making that department unworkable.

Mr. HATCH. That is right. They did treat Roberts differently, no question about it. They gave him a rough time, too. Miguel Estrada is in a league of his own in the way he was mistreated, but Roberts was mistreated, too. Roberts sits on the Circuit Court of Appeals for the District of Columbia after having been unanimously approved here. Let's talk about how important that is. We have had 40 rollcall votes on the floor. You talk about delays. You talk about fouling up this body. We have had 40 rollcall votes on people who got unanimously confirmed. Can you imagine what it takes to go through 40 rollcall votes? It slows down the Senate like you can't believe, and muscles up the Senate like you can't believe. It is all a big game to try and make this President not successful. But Miguel Estrada had to go through that as well.

Mr. HATCH. And, by the way, was never applied to any nominee, to my knowledge, in the past. Miguel Estrada was singled out with a double standard for the sole purpose of defeating his nomination and getting him to withdraw.

Mr. HATCH. Their gold standard.

Mr. HATCH

Mr. HATCH. Will the Senator yield for a unanimous consent request? It will only take a few seconds. Unanimous Consent Agreement I ask unanimous consent at 8:30 a.m. on Friday the Senate begin an hour of debate equally divided prior to the first cloture vote; further, that the last 20 minutes be equally divided, the first 10 minutes under the control of the Democratic leader or his designee and the last 10 minutes under the control of the majority leader or his designee.

Mr. HATCH. I thank my colleague.

Mr. HATCH. Mr. President, I appreciate our colleague's comments about the necessity of jobs. I agree with him. We are debating the third branch of Government, without which there wouldn't be any jobs for anybody, without which the Constitution wouldn't be alive today, without which we wouldn't have the freedoms we have. In all this talk about jobs, I haven't heard any real ideas as to how we get more jobs. It is as though they think Republicans aren't concerned about jobs. Of course, we are. We are debating something that is equally important; in fact, over the long run, much more important than almost anything else we can debate. That is, are we going to have an honest, decent judiciary to uphold the Constitution? I have seen this body and the other body pass unconstitutional legislation many times in my 27 years. I have seen Presidents act unconstitutionally a number of times in my 27 years, and before that. It has been the judiciary that has saved the Constitution. It has been the judiciary that has corrected matters. It has been the judiciary that has helped small business, where the jobs are. It has been the judiciary that has given justice to this country, that has protected Americans from criminals, that has done so much good for this country. That doesn't mean all judges are perfect or right. But by and large, it has worked very well. That is why we make these positions lifetime appointments, so they don't owe anything to anybody but the law. Here we have a distortion for the first time in history, filibustering judges and phony, untrue charts of 168 to 4. Let me tell you, they wouldn't have allowed the 168 to go through had we not been fighting as hard as we could and forcing them to allow those judgeships to be brought up. We would have nowhere near 168. With regard to the four, we are already up to six. We were there last night. We were there months ago when they indicated they were going to filibuster Janice Rogers Brown and Kuhl, in addition to the other four who have been mentioned. Then there are probably at least 13 others who I can name. There will be more, because there is an arrogance here, it seems to me, that goes beyond doing what is right for this country. Very few things rise to the dignity of the importance of judges and getting a good Federal judiciary. I am for jobs like everybody else, but because they don't have any other arguments, that is why they are doing that. I would be happy to listen to my colleagues on any suggestions they have with regard to jobs. Usually it is another big Federal program that literally doesn't create any jobs. It just creates another burden for taxpayers. That is what they think creates jobs. I am happy to yield to the distinguished Senator from Virginia.

Mr. HATCH. That is correct. These are people who know her or who have worked with Justice Owen on the Texas Supreme Court. They are all Democrats. They are all partisan Democrats, by the way. They think she would make a fine judge on the circuit court of appeals.

Mr. HATCH. I surely will.

Mr. HATCH. That is right. Actually, it is more than that. We have two more tomorrow. That gets us up to six. Then probably there are another 11 I can name. I won't take the time to do that now. There hasn't been one filibuster by us. There have been cloture votes, but they were used for time management purposes to get us to a vote. In every case, the Clinton nominee got voted up, except for one.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. I don't know. I knew what the distinguished Senator from Louisiana was driving at. Again, a distortion of the facts.

Mr. HATCH. That is right.

Mr. HATCH. This chart is just the beginning of what they intend to do to the Federal judiciary. Democrats have also implied that it is just fine to prevent an up-or-down vote on at least these four nominees because we blocked 60 or so of President Clinton's nominees. That is extremely misleading. I think their number is 63. Let me briefly break that down. First, 18 of those nominees were withdrawn by Clinton himself--18 of them. Second, 25 of these nominees were either nominated after the August 2000 recess, do not have home- State support because the Clinton administration did not consult at all with the relevant Senators, or there were confidential investigative reasons that prevented the nominations from moving forward. At most, there were about two Clinton nominees who the Republican Senate did not confirm. The numbers are even more stark. If you look at the difference between 168 and 209, you can see that it is about the same. The numbers are even more stark when you compare the number of nominees left hanging at the end of the first Bush administration by Senate Democrats with the number of Clinton nominees awaiting confirmation at the end of the Clinton administration. Let me refer to this chart. There were 54 judicial nominations not confirmed at the end of Bush 1. That is when the Democrats controlled the Senate. Fifty-four of the first President Bush's nominees were unconfirmed at the end of 1992. In contrast, at the end of the Clinton administration, only 41 nominees remained unconfirmed. But 9 of those were put up so late there was no way we could have confirmed them. There were really only 32. At almost the end of the Presidencies you have that or more who just can't get through the system. Looking at that, according to the Senate Democrats, they don't even deserve the dignity of an up-or-down vote. Contrast this with the prior 3 Presidents' confirmations for their first 11 circuit nominees. In every case, less than 100 days, Senate Democrats in the 107th and 108th Congress have been the most obstructionist of the President's judicial nominees in recent U.S. history. It is that simple. Confirmation times for the first 11 circuit nominees, Reagan-Bush, it was one. George Bush, look at how much that has gone up, and it is growing. This President is not being treated fairly. Neither are his nominees. Furthermore, there are more Federal appellate vacancies today, 18, during President Bush's third year in office, than there were at the end of former President Clinton's second year in office, where there were 15. Over half of President Bush's appeals court nominees in this Congress have not been confirmed. There are 41 total vacancies on the Federal district and appellate benches, 22 of which are classified as judicial emergencies by the nonpartisan Administrative Office of U.S. Courts. A staggering 67 percent of the vacant appeals court slots are judicial emergencies. There is a different scorecard that I find more significant. That is the 377 to zero. President Clinton, with 6 years of a Republican Senate after 1994, had 377 of his judicial nominees confirmed without a single filibuster by Republicans, even though Republicans had to swallow hard on a lot of them. Only President Reagan, with 382, had more of his judges confirmed, 5 more than President Clinton. But Reagan had 6 years of a Republican Senate to help him. Clinton only had 2 years of a Democrat Senate. Yet he came out with almost the same number as Ronald Reagan. He was treated fairly. Clinton is No. 2 in U.S. history, even though his opposition controlled the Senate for 75 percent of his term. Just to give you a sense of how unprecedented Democrat current filibusters are, here is another scorecard we have talked about: 2,372 judges have been confirmed in the last 11 Presidents and zero were filibustered. The 11 Presidents that precede the current President Bush, back to President Franklin Delano Roosevelt, never had a judicial nominee filibustered and had 2,372 nominees confirmed. So these filibusters are empirically unprecedented. How about this scorecard? Years since the Judiciary Act in 1789 that we have gone without filibustering judges until this President. Since the beginning of the year, beginning with Miguel Estrada, there have been four, and there will no doubt be two more tomorrow. How many more? Up 10 percent, 15, 17? Up to 10 percent as Senator Schumer suggested last week in the Judiciary Committee? If there is some filibuster percentage the Democrats have in mind, what is it? The majority of the Senate and President Bush would really like to know. I think the American people would really like to know, too. One final word on the Democrat scorecard. Even one filibuster of a judicial nominee is too many, because every judicial nominee who reaches the Senate floor should be afforded the dignity of an up-or- down vote. We owe our third branch of government no less. By way of analogy, would it be acceptable to enforce all but four of our criminal laws? Would it be acceptable to defend all but four of the constitutional amendments that comprise the Bill of Rights? Of course not. It is no more acceptable to allow up-or-down votes on all but four and counting of the President's judicial nominees. Vote them up or vote them down. But just vote. That is all we are asking. The Democrats have a right to consent. They have a right to advise. If they don't want to give their consent, then they have a right to vote against any of these nominees. That I will find no fault with. I might disagree, but they have a right to do that. What they don't have a right to do is to subvert the Constitution for the first time in history and allow 41 Senators to prevent an up-or-down vote of these judicial nominees. The distinguished Senator from Minnesota, with his chart on the terribly wrong filibusters, brought out a very good point. I don't want to compare rankings or anything, but this one is just as important as the others because without a good Federal judiciary, our civil rights would not be enforced. Explain the chart one more time, because I think people need to hear it. But in all four of those, those filibusters were conducted by Democrats, and every one of them was wrong, especially this 168 to 4 we are going through right now, but especially the other three as well.

Mr. HATCH. I am happy to yield.

Mr. HATCH

Mr. HATCH. I thank the Senator for that answer. tanker provision

Mr. HATCH. Mr. President, today I rise in support of the fiscal year 2004 Defense authorization conference report. This report is not only a tribute to the Congress's hard work, in particular that of my good friend, Chairman John Warner, but it is also a reaffirmation of our commitment to meet the challenges of this War on Terror. The conference report contains a number of provisions designed to alleviate some of the burdens placed on our fighting men and women. For example, I am proud to state that the report deals directly with a concern of many service members, including Utah National Guard and Utah-based Reserve families, by continuing payment through December 31, 2004, of special pay for duty while subject to hostile fire or imminent danger in the amount of $225 a month and $250 a month for family separation allowance. Additionally, all service members will receive at least a 3.7 percent pay raise. In order to help retain our mid-career service members, their pay will be increased between 5.25 and 6.25 percent. The burden for many of our Reserve forces will also be lifted regarding healthcare. The report provides TRICARE coverage for members, and their families, of the Selected Reserve of the Ready Reserve and each member of the Individual Ready Reserve, if they do not already have health insurance. Keeping our word to our Nation's veterans is vital to maintaining the honor of our country. No other issue is as important to our veterans as that of concurrent receipt, that is, simultaneously paying veterans a military pension and providing them with disability benefits. Under the current law, many veterans' retirement pay is reduced or offset dollar- for-dollar for any disability benefit they receive. Unfortunately, proposals to remedy this situation remain controversial due to cost. Therefore, I must commend and congratulate Chairman Warner once again for devising a compromise plan that boldly expands upon his previous efforts by providing full concurrent receipt for those veterans suffering disabilities from combat or combat-related operations and by phasing in this benefit, over a 10-year period for those retirees whose disability is rated at 50 percent or greater. This legislation is also important because it reaffirms our transformation policy. Many at home will ask what is ``transformation'' and what does it mean to the future of our Nation's military? Simply put, transformation is a process of reform that will revolutionize the way the military conducts operations. We saw a glimpse of this emerging reality during the Iraqi conflict where information was gathered from a variety of sensors, whether on the ground or in the air, and that information was transmitted very quickly to commanders who could then exploit the weakness of our enemy. It was a remarkable operation and it reflects the high level of competence and expertise of our Nation's service men and women. This Defense bill will accelerate transformation and ensure that our forces maintain their decisive edge. It is an important accomplishment and the chairman, ranking minority member and all the members of the committee deserve our thanks. Their efforts to make military transformation a reality have led them to fund the research and development of such revolutionary systems as the Army's Future Combat System, or FCS. FCS will allow our forces to deploy an army brigade anywhere in the world within 96 hours. The DDX and the Littoral Combat Ship will also be revolutionary in their stealth characteristics, automation systems, and command and control capabilities. The committee is also continuing its support for the Joint Strike Fighter, which will bring a stealth fighter to all of our air and naval/marine air forces. That being said, I was disappointed to see that the President's request for full funding of the F/A-22 did not occur, although the report did authorize the President's request for the procurement of 22 F/A-22s. This is a system that is a transformational aircraft at its core. The F/A-22's supercruise engines allow for extended supersonic flight--a magnitude longer than its after-burner predecessors. Using stealth capabilities, the F/A-22 is able to penetrate an opponent's airspace and engage enemy aircraft at great ranges. Additionally, unlike our current air superiority fighter the F-15C, the F/A-22 will be able to engage integrated surface-to-air missile systems. Once again using stealth technology, the F/A-22 will be able to approach these missile sites and destroy them, utilizing internally carried GPS-guided bombs. The F/A-22, using this bombing capability, will also have the ability to track and launch attacks against ground-fixed and mobile targets. However, the truly transformational aspect of the aircraft is that it can accomplish all of these missions almost simultaneously. Paraphrasing the Air Force's motto, no aircraft comes close to the F/A- 22's capabilities. I cannot say how proud I am and the rest of the State of Utah is that the sustainment and maintenance work on this extraordinary aircraft will be handled at Hill Air Force Base/Ogden Air Logistics Center. I am also grateful that the committee was able to maintain the momentum toward transformation regarding our industrial policies. Instead of reverting to a protectionist posture, the report enables the Department of Defense and Congress to gather information on this issue. I believe that as the cost of research and development of our Nation's weapons systems continues to grow that it will become increasingly in our interests to harness the strengths of other nations in joint ventures. The future belongs to programs such as the Joint Strike Fighter, where the United States has been joined by the United Kingdom, Canada, the Netherlands, Italy, Turkey, Singapore and Israel to develop this stealthy and capable aircraft that will protect the forces of freedom at an affordable price. I commend the committee for its foresight on this matter. As I close, once again I wish to congratulate my colleagues on the Armed Services Committee, especially Chairman Warner, on this fine piece of legislation. It was a hard road, but once again the committee has risen to the challenge and supported our men and women in uniform. The Nation is in their debt.

Mr. HATCH

Mr. HATCH. As I understand it, I have 11 minutes left; is that correct?

Mr. HATCH. Mr. President, we should be voting on judges tonight. Instead we are debating judges tonight because a vocal minority of Senators is preventing us from doing our constitutional duty to vote on judicial nominees. The American people need to know that. That is why we are here. If you stop and think about this sudden new set of arguments or at least arguments they have used for a long time, the Democratic leadership has been blocking all kinds of passage of bills that are America's priorities for the whole year. Now they are complaining because we want to let the American people know how bad they have been about Federal judges, which, after all, is one of the most important things we do around here. Just think about it. The long overdue fiscal year 2003 appropriations bills were finally enacted on February 20, 2003. For the first time in history, there were filibusters to defeat the President's circuit court nominees, now up to six who are actually filibustered, and at least another nine whom, I have been told, they will filibuster. The sign they have is an absolute outright falsehood. We needed legal reforms to stop lawsuit abuse against doctors, businesses, and industries that have been virtually banned by the tactics of the minority. Medical liability, class action reform, gun liability, and asbestos reform: they have all been subject to delays or filibuster by the minority. Similar delays led to a record number of days spent on the budget resolution and the near record number of rollcall votes on amendments, many of which were virtually identical. The distinguished Senator from Alaska understands that as chairman of the Appropriations Committee. The most innovative waste of time came on the Energy bill. After spending 22 days on the Energy bill last year, we spent 18 days on the Energy bill this year, only to pass the same version of the Energy bill that passed the Senate last year. Bioshield legislation necessary to ensure proper vaccines in medicine to counter bioterrorism attacks has still not cleared. The State Department reauthorization has been stalled by Democrats insisting upon unrelated poison pill amendments be voted on prior to passage. I could go on and on. The fact is, there has been a steady slowdown, steady slow walk around here, ever since we became the majority. Now, the issues we are highlighting tonight could not be more fundamental to our country, to democracy, to the rule of law: separation of powers. All are at stake in this ongoing debate. Among the constitutional Framers' conceptual breakthroughs was that the judicial branch would receive equal status to that of the executive and legislative branches. An independent judiciary is the thread that binds the country together and ensures law and order. It is important. It is indispensable to the survival of a civilized society. If it had not been for the restraining force of an independent judicial branch, either the executive or the legislative branches would have usurped incredible power and destroyed the checks and balances that are at the very foundation of our constitutional form of government. So we all have a stake in this debate tonight, and it is my hope that our opponents across the aisle will act to restore the constitutionally required up-or-down vote for judicial nominees. Ultimately, through the ballot box, the people in my home State of Utah and across America will decide who nominates and who confirms judges. Let me repeat that our Nation's founding document requires that every judicial nominee who reaches the Senate floor receive an up-or-down vote. It is a simple, clear, and fair fact that lies at the heart of this debate. Once they hit the floor, they have always gotten a vote. Every one of President Clinton's judges who hit the floor got a vote up or down, and only 1 out of 377 was defeated. But a minority of the Senate is rigging the system by engaging in an unfair set of unprecedented filibusters which are the culmination of an outright assault on the independence of the Federal judiciary. When our colleagues across the aisle controlled the Senate, we saw nominees with the full support of their home State Senators denied hearings and votes for months and months. We saw nominees stalled by demands for unpublished opinions and volumes of written questions. We saw this become more and more serious since the beginning of this year. We have continued to see ideology used to threaten the independence of our Federal judiciary by essentially requiring nominees to announce their views on issues that may come before them as Federal judges, something that has not happened in the past. But that is what they are requiring of President Bush's nominees, at least some of them. They treated Miguel Estrada like dirt, while they allowed John Roberts to go through. Roberts was also in the Solicitor General's office. They did not ask for the highly privileged confidential matters for Roberts, but they did for Miguel Estrada. By the way, most all of these people have high ratings from their gold standard, the American Bar Association. We have seen for the first time in American history true filibusters of judicial nominees which are preventing the Senate from exercising its constitutional right and duty of advice and consent. This is harmful to the Nation, it is harmful to the judiciary, and it is certainly harmful to our institution. It is harmful to the President. It is harmful to these people who are willing to put their names up and to do this. Article II of the Constitution of the United States invests in the President alone the power to nominate judges. There is no room for interpretation. The words are explicit. Yet we have seen efforts to usurp the President's constitutional authority not by constitutional amendment but through various proposals on how nominations should be made and demands on who should be nominated that exceed any reasonable interpretation of consultation. We have also seen the filibusters of judicial nominees that brought us here tonight and prevent us from exercising our constitutional obligation of an up-or-down vote. This assault on the judiciary is not without victims. There is no question that it is harmful to the Federal judiciary. More than half of its existing vacancies are considered judicial emergencies. So it is harmful to the President. He is not being treated fairly compared to all Presidents before him. And it is harmful to the Senate, whose constitutional roles are turned on their heads. It is perhaps most harmful to the individual lives of the nominees who have been denied a simple up-or-down vote, which they have always gotten before when they have been brought to the floor on the Executive Calendar. Now let me talk about some of these nominees because I think it is important to remember that they are very real people who want to get on with their very real lives instead of hanging in the limbo of what has become the Senate's confirmation stall. Let me turn to this particular picture. Former DC Circuit nominee Miguel Estrada, who is an American success story, unanimously gets the highest rating from the American Bar Association, the Democrats' gold standard. He was stopped for over 2 years--actually 3 years. Priscilla Owen broke through the glass ceiling for women and made it so women could become partners in major law firms, one of the most brilliant people in our society. She was an excellent witness, but they just do not want her. William Pryor, of course, in my opinion, the outside groups tried to smear Pryor, and they did so with regard to his strongly held personal beliefs on abortion. I might add that Charles Pickering, who I mentioned before, was passed by this body unanimously in 1990. Yet all of a sudden in the next 13 years he is unworthy to be on the circuit court of appeals? No. It all comes down to abortion. We can go further. We can go further than just these nominees. I have mentioned a whole raft of others. I could name at least 15 colleagues on the other side who have indicated they are going to filibuster. Now that is abominable. All four of those nominees have been waiting years, and in some cases many years, for confirmation. All of them have been denied up-or-down votes. On Friday, the Senate will consider the nomination of two more outstanding jurists, and let me just put up this second chart. Carolyn Kuhl served in the Reagan administration. She was only 28 years old at the time and they have tried to act like she had all kinds of authority to do things with which they disagree. She has virtually unanimous support from her fellow judges in California, many of whom are Democrats, who say she will make a terrific addition to the Ninth Circuit Court of Appeals. Take Janice Rogers Brown, this African American woman who was the daughter of sharecroppers. She put herself through college and law school as a single mother--just think about that--and yet she is being treated in a very improper fashion. I might add that nearly 100 of her fellow judges on the Los Angeles County Superior Court are in support of Carolyn Kuhl. She is a terrific nominee, but they suspect that she is probably pro-life. I do not know what she is. I do not know what Janice Rogers Brown is. They may be right on that, but so what? I think if a person is otherwise qualified, no single issue should stop them from being able to serve their country on the Federal bench, and if we had taken the attitude they are taking, my gosh, President Clinton would have got very few judges. Instead he got 377, the second all-time record for confirmations. DC Circuit Court nominee Janice Brown has spent nearly a quarter century in public service, including nearly a decade as a judge in the California State courts. This daughter of a sharecropper became the first African American woman to sit on the California Supreme Court in 1996. Why are they against her? Because they know she is conservative, and they want just one way of thinking among African Americans. She does not qualify because she happens to be conservative. No matter that she won 76 percent of the vote in the last election, more than any other nominee for the California Supreme Court, and wrote most of the majority opinions in the last year. On Friday, we will have the opportunity to give these two nominees the up-or-down vote they deserve, but it is apparent the minority whip has said they are going to filibuster them. I am proud to say in my 27 years in the Senate, some of my Democratic colleagues expressed similar views when a different President was in the White House. For example, the distinguished minority leader stated: As Chief Justice Rehnquist has recognized: The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. An up-or-down vote, that is all we ask. That was their philosophy when they had the Presidency and they had the Senate Judiciary Committee and were the leaders in the Senate. On this point, I agree with Senator Daschle. All we ask for is an up- or-down vote. If they want to vote against these people, that is their right, but they need to have an up-or-down vote. Why are they afraid of allowing simple up-or-down votes in the cases of these excellent nominees? Well, because we think--I think--there is more than adequate evidence that on a bipartisan set of votes these nominees would be confirmed by the Senate. If not, let the chips fall where they may. But these nominees deserve a vote. Vote them up or vote them down, but just vote. I yield the floor.