Orrin Hatch

Mr. HATCH

Mr. HATCH. Well, I think it is because she is not a liberal. That seems to be the only mainstream the other side is interested in. I cannot say she is all that conservative either. But the fact of the matter is, she is not a liberal Democrat. Here is a woman who has every credential in the world, as the Senator from Texas pointed out, who broke through the glass ceiling for women so women can now become partners in law firms, when that was tough to do. Here is a woman who has fought every day of her life to excel, who has excelled. Yet look how she is being treated, like she is ``outside of the mainstream.'' Since they don't have any real legal arguments, any real philosophical arguments--they don't have any real arguments, and that is why we are getting a filibuster on one of the best nominees I have seen. By the way, she got the highest rating from the not-conservative American Bar Association, which during the Clinton years was called the gold standard. If you got a ``qualified'' from the ABA and you were a Clinton nominee, that meant you were OK, you were in the mainstream. Here is a woman with a ``well qualified,'' the highest rating from the ABA, and they are trying to say she is outside of the mainstream. That is just another misuse of terms because they don't have a real argument against her.

Mr. HATCH. I cannot see a good reason. It is a mystery to me why our Democratic colleagues refuse an up-or-down vote. Like the distinguished Senator from Texas said--and I really admire the Senator from Texas, who is a lawyer, from the University of Texas, and the Senator from North Carolina, Senator Dole, who is a lawyer, who graduated from Harvard Law School. I think the other side ought to be listening to the two of you, especially with regard to an eminent woman jurist named Priscilla Owen, and another jurist named Janice Rogers Brown, and another one named Carolyn Kuhl. To make a long story short, if they don't like these nominees, then vote them down. The reason they are stopping them is because all three of them have a majority of the Senate willing to vote for them. They are flying in the face of the advise and consent clause, refusing to give them the dignity of an up-or-down vote. I think women across this country ought to be outraged by it--liberal women, moderate women, and conservative women. It is a slap in the face to every one of them, the way these three women are being treated by the other side. I have heard for 27 years how much greater they are for women. Don't believe it. If they were, they would not be arguing against these wonderful women nominees. Don't believe that for one second. It is all politics. The only reason they are talking about jobs, in all honesty, is because they don't have the arguments against these eminent women lawyers and judges. It is pathetic.

Mr. HATCH. No question about it. That 168 to 4 doesn't even begin to tell the story, because if it had been up to our colleagues on the other side, there would not be 168. We had to fight for every one of those people, and we had to fight hard fights. We had to force them to vote. They cannot vote against everybody. So there is not just four. We have already got six. We had to file cloture on Carolyn Kuhl and Janice Rogers Brown, which will be up tomorrow. I can name probably another 11 they are going to filibuster. So that is a blatant, outright lie.

Mr. HATCH. Not one. Our side would not permit that because of the detriment to the Senate, the detriment to the Federal judiciary, the detriment to the Constitution, the detriment to just good reasoning. We didn't filibuster one.

Mr. HATCH. That is right. Once they hit the floor, they have had a vote up or down. And 377 Clinton judges are serving in the Federal judiciary today because we had the decency to give them the dignity of votes up or down--something not being accorded our nominees.

Mr. HATCH. It is 2,372.

Mr. HATCH. I thank my colleague. The real number, for the past 11 Presidents of judicial nominees confirmed versus the filibustering they are doing, is 2,372 that were confirmed. None were filibustered, until President Bush became President. He is being treated wrongfully. It is unfair to him, unfair to these nominees. I like what the Senator said earlier. I think he said we gave a fair trial to 2,372--actually 168. We gave a fair trial to them and with regard to the four, we just hung them. That kind of shows in that one sense it is great to give a fair trial, but we are not giving a fair trial to these four. They are arguing it is all right for four because it is only four. Well, it is not all right if people are hung without a fair trial. They are certainly not getting a fair trial.

Mr. HATCH. I surely will.

Mr. HATCH. I ask unanimous consent for 30 more seconds.

Mr. HATCH. Let me just say that it is true.

Mr. HATCH. I don't recognize the number. However, I do recognize the argument.

Mr. HATCH. Let me answer the question, if I may.

Mr. HATCH. May I please finish?

Mr. HATCH. Will the Senator yield?

Mr. HATCH. I have a question.

Mr. HATCH. I object to that, Mr. President.

Mr. HATCH. Mr. President, it has been a good debate. But I have noticed the folks on the other side of the aisle want to shut down the debate on judges because they don't have an argument. Jobs is where it seems their only argument is, and more Federal Government programs. In fact, they don't even have very good arguments there. It is ``increase the minimum wage.'' I am not sure it will create jobs. And ``re-up insurance,'' which certainly doesn't create more jobs. On the other hand, I am not saying they are not compassionate. They are decent people wanting to do those things. But when you do not have any arguments against the judges we are talking about, then you change the subject. That is exactly what they have done. If the distinguished Senator from Louisiana were here, I would ask her why she took the number 129 because, of course, that is a number of confirmed judges that were left off her chart. We have had distortions of the facts. We have had distortions of the statistics. You can prove anything with statistics if you want to manipulate them. There are 129 judges left off that chart she was showing. We confirmed 377 Clinton judges--not 248. If you want to be factual, be factual. Don't distort the facts. I was a little surprised that now at the 29th hour of debate an awful lot of Democrats come on the floor without any arguments that are really valid against these nominees we are talking about. They are changing the subject because their arguments don't hold water. As for Democrat claims that they have been blocking only the most extreme Bush judicial nominees, let us look at the facts. Priscilla Owen won 84 percent of the vote in her last election for the Texas Supreme Court. Bill Pryor won 58 percent in his last election for the Alabama attorney general's position. Janice Rogers Brown won 76 percent in her last election for the California Supreme Court. And Charles Pickering was confirmed to the Federal district court in 1998 by this body by unanimous vote. Yet he has been treated like dirt. You wonder why people in the South are getting sick of it. By the way, the unanimous consent vote included the support of 24 of the Democrats currently in the Senate, 23 of whom now refuse to give him the dignity of an up-or-down vote. Why? Because they know he would be confirmed. These nominees are hardly extremists as painted by the other side who claim that is what they are talking about. Give me a break. Let us look at this a little differently. What is more extreme? Receiving 84 percent of the votes in Texas, the second most populous State in the Nation, as Judge Priscilla Owen did in her last election? They are filibustering a qualified nominee for the Fifth Circuit for the first time in American history. That is what they are doing, without any real arguments against her. They don't have any. They do not have the facts on their side so they change the subject. I think jobs are important. I will tell you, there will not be any jobs in this country if we lose our freedoms because we don't have the Federal courts staffed by competent and decent judges.

Mr. HATCH. I would be happy to yield.

Mr. HATCH. We are not going to let these people through.

Mr. HATCH. The President has nominated 209 judges; 168 have been approved. So 20 percent of his nominations have not made it.

Mr. HATCH. Absolutely right. In every case it was Democrats who led the filibuster. In every case, including this one. It is not the truth. Janice Rogers Brown, 76 percent of the vote, State of California Supreme Court; Priscilla Owen, 84 percent; William Pryor, 59 percent of the vote. What is more extreme, receiving 76 percent of the vote in California, the most populous State in the Nation, as Janice Rogers Brown did in her last election to the California Supreme Court--filibustering a brilliant nominee to the DC Circuit, the Nation's second highest court? If Justice Brown is so extreme and leftwing, California voters certainly would have recalled her, but they didn't. Three-quarters of them voted to keep her on the bench. By the way, the late Justice Stanley Mosk on the California Supreme Court was the California Supreme Court's well-known liberal voice for decades. In that same election, she got 76 percent. He only got 68 percent of the vote in the last retention election. Does anyone want to guess whether the Senate Democrats would call him more extreme than Justice Brown in left-leaning California if he were up for the District of Columbia Court? Of course not. He would be in the mainstream. Once more, extreme--receiving 59 percent of the votes in Alabama, as Bill Pryor did in his 2002 election to the office of attorney general of that State. They are filibustering a nominee with broad bipartisan support across the Eleventh Circuit for a judicial emergency vacancy on that appellate court. In each of these cases, these unprecedented filibusters of qualified nominees to the appellate courts are undoubtedly extreme. There is extreme action by our colleagues on the other side. There is nothing else you could call it. It is demeaning to this body. I don't care how excited someone gets on the other side. Sooner or later they run out of arguments and start talking about jobs because they have to change the subject and hopefully get the American people off of the importance of putting people on the Federal bench. The Senator brings up a very important point. Every one of those unjust filibusters was conducted by Democrats. It was the Republicans who basically pushed through the civil rights law, along with some good Democrats as well. I want to make sure credit is given on both sides. The fact is, the leaders of those filibusters were Democrats. But in this case, 168 to 4, virtually all Democrats--not all. I know one or two who do not believe filibustering should be done to the judges. But all the rest of them are leading this unjust filibuster.

Mr. HATCH. Yes, I would.

Mr. HATCH. That is right. Frankly, yes. It is as important as these four and tomorrow's six. Next week, who knows how many nominees are being filibustered. It is demeaning to the Senate. It is detrimental to the country. It is detrimental to the judiciary. It is unfair to the President. It is unfair to these qualified nominees who have been rated so highly by the ABA--their gold standard, by the way, during the Clinton years. If you got a qualified rating from the ABA, that is all you needed, you should be confirmed. We did confirm 377 of them, the second highest total number of confirmations in the history of this country--Bill Clinton's judges. We did it because we were fair. We didn't filibuster those judges. Every one of them got a vote. It was 377 to 0. We didn't filibuster them. For all I have heard from the other side--I heard some of the emotional remarks--I was the one, along with Senator Lott, who made sure we didn't filibuster their nominees. I don't think they are in a position to criticize me. By the way, in the past, there were 11 Presidents' judicial nominees confirmed versus those who were filibustered, the past 11 is when the filibuster rule came into being in the current filibuster rule. We can go all the way back to the beginning of this country 214 years ago. We have never had a filibuster before these folks on the other side have been doing it this year, 2,372 judges have been confirmed to zero filibustered. The history of the successful Senate filibuster, from July 4, 1789, to March 6, 2003, there is no question about the successful or unsuccessful because there were not any until March 6, 2003. March 2, to the present, we have had four so far as successful filibusters. We are apparently going to have two more tomorrow even though all six of these folks would win an up-or-down vote in the Senate. One of the Senators said we are going to vote on these judges tomorrow. No, we are not going to vote on the judges. We will be voting granting the right to vote on these judges. Since only 41 Senators are necessary on this side to stop us from granting that right for these judges to have an up-or-down vote, there will be six of them tomorrow. I suppose when we go down the line there will be as many at 17. Let me make a couple of other points that I think are important. Look at three of the President's nominees who have been accused by the Democrats of being out of the mainstream. They don't look to me like outside the mainstream. They have received overwhelming support in each of their home States. Apparently, these are not only a majority of the Members of the Senate outside the mainstream who support them but a vast majority of the citizens of California, Texas, and Alabama are all outside the mainstream, too, I guess. Democrats seem very fond of their 268-to-4 chart and believe this number 168 of President Bush's judges who have been confirmed since he took office will distract people from the important fact that the Democrats have filibustered four appellate nominees, Miguel Estrada, Priscilla Owen, William Pryor, Charles Pickering, and now Janice Rogers Brown and Carolyn Kuhl for the first time in American history. The point is that no raw number of confirmations means anything in and of itself while these unprecedented filibusters continue. While the number of filibusters as of today stands at four, Senate Democrats are virtually certain to add others to the list, including Janice Rogers Brown nominated to the District of Columbia Circuit and Judge Carolyn Kuhl nominated to the Ninth Circuit. That makes a total of six. There are other filibuster targets on the horizon, a Fourth Circuit nominee Claude Allen and Terrence Boyle, North Carolina District Court nominee, James Dever and Bob Conrad. They are also potential for filibuster. These are just some of them who we have already been told will be filibustered. That figure is extremely misleading, all the while more vacancies in our Federal courts continue to be classified as judicial emergencies.

Mr. HATCH. I would be happy to yield.

Mr. HATCH. The Senator is absolutely correct. Here we have a situation where we have a terrific African-American justice on the California Supreme Court who won 76 percent of the vote, who came from nowhere to somewhere, who fought her way throughout life to be what she is, who has ruled in favor of plaintiffs, civil rights claimants, the poor, the disadvantaged throughout her career, who is being treated in this shabby fashion with a filibuster.