Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I rise today in strong support of the Enhanced Border Security and Visa Entry Reform Act of 2001, of which I am an original cosponsor. I am relieved that the Senate is finally considering this bill, which the House has passed not once, but twice, and has the strong support of President Bush. With the passage of the USA Patriot Act, Congress resolved some of the ambiguities in the Immigration and Nationality Act as it related to the admission and deportation of terrorists. We also provided the Attorney General the power to detain suspected terrorists before they could do further harm. The changes to the law were very necessary, but more must be done. The Enhanced Border Security and Visa Entry Reform Act of 2001 closes additional loopholes in our immigration law, procedure, and practice that have in the past provided terrorists access to our country. First, it strengthens our initial line of defense--the borders and our embassies abroad--by providing additional staff and training. Moreover, it breaks down some of the barriers that have prevented a comprehensive data sharing operation between intelligence agencies, law enforcement, the State Department, and the Immigration and Naturalization Service and compels the use of biometric technology to enhance our ability to confirm the identity of those seeking admission into our country. Second, it restricts the issuance of nonimmigrant visas to nationals of countries that sponsor terrorism by requiring that our government first conclude that the admission of that person poses no safety or national security threat to the United States. And it repeals that provision of the law compelling a 45-minute clearance time for arriving aliens at our ports of entry, which has, to date, handcuffed the INS's ability to properly screen all incoming travelers. Finally, it solves some of the problems with our foreign student program. The bill provides for increased data collection from students so we can know more precisely who they are and where they will reside while in the United States. Also, under this bill, the State Department must now confirm that the student has been admitted to a qualified educational institution before it can issue any student visa, and the schools themselves will be placed under the affirmative obligation of reporting, every single term, those who fail to attend. Finally, the bill requires the INS to periodically review the educational institutions and other entities authorized to enroll or sponsor foreign students to determine whether they are complying with prescribed reporting requirements. This bill deserves our support. The House of Representatives moved quickly on its passage last December and, again, last month. They recognized the need for its provisions. Likewise we should move, and move quickly, to send this bill to the President for his signature. We can delay no longer. The principal parties, and I commend them, Senators Brownback, Kyl, Kennedy, and Feinstein and their staffs deserve a tremendous amount of credit for the many hours of discussion, meetings, and negotiations which have led to the end result. This bill has the support of our government, the State and Justice Departments, and represents a very common-sense approach to further immigration reform. Thankfully, many of you agree, as evidenced by the nearly 60 cosponsors to the original bill. I am confident, then, that the Senate will pass this profoundly significant legislation and I look forward to that result. Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Playwrights' Licensing Relief Act of 2002. I thank Senator Schumer, my cosponsor on this bill, for his interest and leadership on this important legislation. This bill is necessary both to ensure the continued vitality of American live theater and to protect the intellectual property and artistic rights of playwrights. When the theater is crowded and the curtain rises, it is easy to forget that the entire show began with one person: the lone playwright who put the pen to paper. Playwrights and their voluntary peer membership organization, the Dramatists Guild, operate under the shadow of the antitrust laws, and substantially without the ability to coordinate their actions in protecting their interests. This has impeded playwrights' ability to act collectively in dealing with highly-oranized and unionized groups, such as actors, directors, and choreographers, on the one hand, and the increasingly consolidated producers and investors on the other. I am proud that this legislation enables playwrights to act collectively without violating the antitrust laws. It lets them develop standard form contracts as well as provisions ensuring that certain artists' rights are respected in the production of their plays. These steps will help support playwrights, especially young playwrights, as they enter this increasingly sophisticated and consolidated market. By helping playwrights in the way we encourage the continued vibrance of our American theater and culture. I am pleased to introduce this bill and look forward to working with Senator Schumer on this important legislation. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in support of my amendment to the bipartisan Equal Protection and Voting Rights Act of 2002. First let me thank my colleagues Senators Dodd, McConnell, Schumer, McCain, Torricelli, and Bond for all the hard work that they have put into this bill. I also want to thank Senator Leahy and Senator Cantwell for cosponsoring this amendment, which will lay the groundwork for integrating new technology into the political process. Their expertise on technological issues made their input invaluable. Why is voter turnout so low? According to a recently released Census Bureau report, of the 19 million people who registered but did not vote in the 200 election, more than one in five reported that they did not vote because they were too busy. Despite the close nature of the 2000 election, the 55 percent voter turnout rate was just barely better than the 1996 record low. Registration rates also dropped significantly between the 1996 and 200 Presidential elections. Can technological advances, like the Internet, increase participation in the electoral process by making voter registration easier or by simplifying the method of voting itself? As the elected representatives of the people, we should consider every option available that might help involve more of our country's citizens in America's democratic process. Federal, State, and local governments are duty bound to encourage all eligible Americans to exercise their right to vote. As many of us have seen in the recent past, more and more State are looking at ways to utilize the Internet in the political process. Proposals include online voter registration, online access to voter information, and online voting. State and local officials around the country are anxious to use the Internet to foster civic action. I think that this is a positive step. Real questions remain, however, as to the feasibility of securely using the Internet for these functions. How can we be sure that the person who registers to vote online is whom he or she claims to be? How can we ensure that an Internet voting process is free from fraud? How much will this technology cost? There are also important sociological and political questions to consider. For example, will options like online registration and voting increase political participation, or could the Internet be equitably used in the political process? These and other questions deserve our attention. The Hatch-Leahy amendment neutrally addresses these issues in two ways: one, it establishes a bipartisan advisory committee that will provide a necessary framework for discussing the possible uses and abuses of the Internet in the voting process; and two, it directs the Attorney General to review existing criminal statutes and penalties and report to the Senate and the advisory committee whether additional penalties for interfering with online registration and voting are needed. No American who has exercised his or her right to vote should ever have to wonder if their properly cast vote will be counted. We must preserve the integrity of the voting process and I commend the efforts of those who have drafted this bill. The Hatch-Leahy amendment complements the bill and will help ensure the legitimacy of the voting process. As we continue to address the current problems with our voting process, we can and should take this opportunity to examine the impact of new technologies on our elections.

Mr. HATCH

Mr. HATCH. I suggest the absence of a quorum.

Mr. HATCH. Mr. President, I ask unanimous consent that the time during the quorum call be charged equally to both sides.

Mr. HATCH. I ask unanimous consent that the order for the quorum call be rescinded.

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

Mr. HATCH. Mr. President, let me rephrase my question. As ranking member of the Judiciary Committee, I am asking my colleague to consent to 2 minutes of the leader's time to be used by me. I don't think he would be totally displeased with what I have to say.

Mr. HATCH. I agree to that.

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

Mr. HATCH. Mr. President, I personally thank the distinguished chairman the Judiciary Committee for doing the job he is doing on district court nominees. The problem here is not just reporting nominees--although we think more should be approved--it is 31 circuit court vacancies. A number of them are judicial emergencies, as defined by the Administrative Office of the Courts. But I have listened to my colleague's comments about holding hearings when Senators have asked him to do so. I have been patient for many months, but I do believe I have to say this today. I am Ranking Member of the Judiciary Committee. It was just there 2 days ago when one of my judges was given a hearing, Professor Paul Cassell. His nomination had been pending since June of last year. I don't understand waiting this long. And the second judge nominated for a spot in my home state of Utah, Michael McConnell, has not had a hearing even though I have been promised one. I have requested at least 15 times for these two to get hearings, to be marked up in committee, and to be brought to the floor. Michael McConnell's nomination probably enjoys the widest and most vociferous support of legal scholars from all across the political spectrum--Democrats and Republicans of any currently pending nominee. I would like to have the courtesy extended to me that I extended to the distinguished Chairman when he was the Ranking Member. I believe it is time for me to raise this issue because I have been very upset that this hasn't happened. Last, but not least, keep in mind--everybody listening to this debate--that the Senate confirmed 377 Clinton judges, which is only 5 fewer than the all-time champion, Ronald Reagan, who got 382 judges confirmed. And both had 6 years of a Republican Senate--which was the opposite party for President Clinton and the allied party for President Reagan. Both got essentially the same number of judges. In fact, Clinton would have had more had it not been for Democratic holds and objections. I yield the floor.

Mr. HATCH. I am very grateful for the graciousness of the assistant majority leader. If we can have 5 minutes for the distinguished Senator from Kansas, I think those are the last two. I presume the leader may want to say a word or two.

Mr. HATCH. I thank my colleague.

Mr. HATCH. Madam President, here we go again: statistics judo being used on the floor of the Senate courtesy of the Judiciary Committee. I am going to always address these statistics with the facts. The bottom line is the facts speak for themselves. We have an unprecedented and shocking 31 vacancies on the Federal circuit courts of appeals in this country. That is not progress. Last Thursday, Senator Lott introduced a resolution calling for the Judiciary Committee to hold hearings on each of the circuit court judges nominated by President Bush on May 9 of last year. We are coming up on the 1-year anniversary of those nominations, and yet only 3 of the 11 nominees have had hearings and confirmation votes. All of these nominees have received well-qualified or qualified ratings from the American Bar Association, which some of my Democratic colleagues have described as the gold standard in evaluating judicial nominees. Why is it so problematic that none of these 8 nominees have received a hearing or vote? It is no secret that there is a vacancy crisis in the Federal circuit courts, and that we are making no progress in addressing it. Let's take a look at some numbers. A total of 22 circuit nominations are pending in the Judiciary Committee. But we have confirmed only one circuit judge this year, and only seven since President Bush took office. When Senate Democrats took over the Judiciary Committee in June of last year, there were 31 circuit court vacancies, and there remain 31 circuit court vacancies today. This does not represent progress--it represents stagnation. In contrast, at the end of 1995, which was Republicans' first year of control of the Judiciary Committee during the Clinton administration, there were only 13 circuit vacancies. In fact, during President Clinton's first term, circuit court vacancies never exceeded 20 at the end of any year--including 1996, a Presidential election year, when the pace of confirmations has traditionally slowed. Moreover, there were only two circuit nominees left pending in committee at the end of President Clinton's first year in office. In contrast, 23 of President Bush's circuit nominees were left hanging in committee at the end of last year. In light of the vacancy crisis, we cannot afford to let only 10 Senators defeat a circuit nominee. This is a question of process, not of seeking favorable treatment. For all these reasons, it is imperative to support Senator Lott's resolution to get hearings and votes for our longest pending circuit nominees. Given the vacancy crisis in our circuit courts, I can't imagine anyone voting against it. I must respond to some of the comments that my colleagues across the aisle have made about the pace of judicial confirmations. These comments have included a gross distortion of my record as chairman of the Judiciary Committee during six years of the Clinton administration. Although we have all heard enough of the numbers, I will not hesitate to defend my record when it is unjustly attacked, as it has been over the past week and I think here today. I believe that the source of many, if not all, of these attacks stems from the defensive posture that many of Democratic colleagues have taken since 10 members of the Judiciary Committee refused to send the nomination of Judge Charles Pickering to the floor for a vote by the full Senate. Some of these colleagues have defended what they call the Senate's fair treatment of judicial nominees in general and Judge Pickering in specific. But the fact of the matter is that the Senate never got the opportunity to vote on Judge Pickering's nomination. The reality is that the 10 Democratic members of the Judiciary Committee determined for the rest of the Senate the fate of Judge Pickering's nomination. We all know that had it been brought to the Senate he would have gone through with flying colors. This is despite the fact--or perhaps because of the fact--that had Judge Pickering's nomination been considered by the full Senate, he very likely would have been confirmed, and I think with flying colors. The committee's treatment of Judge Pickering is problematic for several reasons. First, during the 6 years that Republicans controlled the Senate during the Clinton administration, not once was one of his judicial nominations killed by a committee vote. The sole Clinton nominee who was defeated nevertheless received a floor vote by the full Senate. Judge Pickering was denied that opportunity. Some of my Democratic colleagues have said that their treatment of Judge Pickering was not payback. In one sense, they are right. If they were interested in treating President Bush's nominees as well as the Republicans treated President Clinton's nominees, the they would have sent Judge Pickering's nomination to the floor for a vote by the full Senate. Second, the actions of the Democratic members of the committee were clearly orchestrated by liberal special interest groups that have been doing it for years whenever there is a Republican President. It is no coincidence that these groups asked the committee to demand Judge Pickering's unpublished opinions, then--surprise!--the committee announces that it will compel Judge Pickering to produce all of his unpublished opinions. For judges to go back and go through all their unpublished opinions, if they have been on the bench for very long, is extraordinary. I do not recall another nominee who has been subjected to a production demand of such scope--except, of course, for Judge D. Brooks Smith, another Bush nominee whom the groups have targeted. Let me read the text of the letter to Judge Smith. It simply say, Copies of your unpublished opinions, not previously produced to the committee, have been requested by Members. Please contact our nominations clerk . . . to arrange transmission of the materials. Thank you for your assistance in this matter. That is it. There is no explanation for why the committee is demanding these unpublished opinions, and there was no consultation with the Republicans about taking the drastic step of demanding these opinions. This letter, incidentally, was sent to Judge Smith after his confirmation hearing, just as with Judge Pickering. There is nothing fair about subjecting nominees to fishing expeditions simply because the liberal special interest groups do not like them. The committee's treatment of Judge Pickering's nomination was not an example of the committee doing its job, as one of my colleagues described it last week. Instead, it is an example of special interest groups pulling strings. I am deeply concerned about what this means for the fairness with which future judicial nominees will be treated--especially any Supreme Court justice that President Bush may have the opportunity to nominate. Some of my Democratic colleagues have tried to minimize the effect of their party-line committee vote to defeat Judge Pickering's nomination by declaring that, last year, they held the first confirmation hearing on a fifth circuit judge since 1994. While this is technically true, there is an important fact they leave out: From 1994 to 1997 during the Clinton administration--get this--no fifth circuit nominees were pending for the committee to act on. President Clinton did not nominate another fifth circuit judge until 1997, and that nominee did not have home State support due to lack of consultation from the White House. And that was the problem. He was not renominated after the end of the 105th Congress. The next fifth circuit judge was not nominated until 1999. So to say from 1999 they haven't had any work on that fifth circuit just shows the type of sophistry that is used. This one fifth circuit judge who was nominated in 1999, too, lacked home State support due to lack of consultation from the White House. Finally a third Fifth Circuit nominee was nominated in 1999. So, in reality, only one of President Clinton's Fifth Circuit nominees after 1999 could have possibly moved, and I should say that nominee was not nominated until the seventh year of the Clinton presidency. Now, let's compare this record to the present Bush administration. The Democrats have already killed one of President Bush's Fifth Circuit nominees, Judge Pickering, who enjoys the strong support of both of his home State senators. If they are being guided by precedent, then my Democratic colleagues have no excuses for refusing to move every other Fifth Circuit Bush nominee who has home State support. One such nominee, Justice Priscilla Owen of Texas, has been pending in committee for over 300 days now without so much as a hearing which brings me to another point. My Democratic colleagues have argued at length about how fairly they are treating President Bush's judicial nominees, especially his circuit nominees. In fact, last week one of my colleagues said on the floor, ``We are trying to accord nominees whose paperwork is complete and whose blue slips are returned both a hearing and a fair up or down vote.'' This colleague must have forgotten about the eight circuit judges whom President Bush nominated on May 9 of last year and who have been languishing in committee without so much as a hearing for over 300 days. With one exception, the paperwork on all of these nominees has been complete for months. Each of these nominees has received a rating of well-qualified--the highest rating the ABA can give--or qualified from the ABA, which my Democratic colleagues have referred to as the gold standard in evaluating judicial nominees. The rest of President Bush's circuit nominees have fared just as poorly. As this chart shows, only 9 percent of his circuit nominees awaiting a committee vote have had a hearing thus far. Nine percent are languishing in the committee--for over 300 days. This means that 91 percent of his circuit nominees, including 8 of his first 11 circuit judges nominated on May 9, have been languishing in committee for no reason, but that the liberal interest groups don't want them to move. These are outside groups. The failure of the committee to act on these circuit nominees is particularly disturbing in light of the vacancy crisis in the circuit courts. As this chart illustrates, the number of vacancies in the circuit courts is dramatically higher than it has been during the first 2 years of the most recent Presidential administrations. At the end of the first 2 years of the Herbert Walker Bush administration, there were only 7 circuit court vacancies. At the end of the first 2 years of the first term of the Clinton administration, there were only 15 circuit vacancies. At the end of the first 2 years of the second term of the Clinton administration, there were only 14 vacancies. Incidentally, I chaired the Judiciary Committee during this time, and there were fewer vacancies than there were when Democrats controlled the Senate during the first 2 years of the first time of the Clinton administration when the Democrats controlled the committee. Now, let's look at the present administration. There are currently 31 vacancies in the circuit court of appeals. Is is a disaster. This is the same exact number of vacancies in the circuit courts that existed when the Democrats took control of the Senate on June 5 of last year. This does not represent progress. This does not represent fairness. This does not show a good job being done by the Judiciary Committee. It represents stagnation. It is for this reason that I find it more than a little hard to swallow my colleagues' arguments that their pace of judicial confirmations is keeping up with the vacancy rate. The numbers simply tell another story. We are making absolutely no progress in addressing the vacancy crisis in the Federal judiciary. Even if you look beyond the circuit courts to the full judiciary--and we will just put these numbers up here as shown on the chart--these numbers are not much better. The end-of-session vacancies during the first 2 years of Republican control of the Senate during the Clinton administration never exceeded the vacancies we now face. At the end of 1995--my first year of chairing the committee--there were 50 vacancies in the Federal judiciary. Only 13 of these vacancies were in the circuit courts--only 13. At the end of 1996--my second year of chairing the committee--there were 63 vacancies in the Federal judiciary. I might mention, when Senator Biden led the Democrats and chaired the committee--and I thought he did a great job--when he chaired the committee, in the same period, at the end of 1992, there were 97 vacancies. But there were only 63 vacancies at the end of my second year. Only 18 of those were in the circuit courts. Now, that was too many, I admit, but it is certainly not 31 as we have today. But at the end of last session, there were 94 vacancies in the Federal judiciary. Now, admittedly, the Democrats did not have a full year to take care of it, but, still, 94 vacancies is a high vacancy total at the end of the session. Now we have 95 vacancies after almost a year, which is a dramatic increase from the 67 vacancies that existed at the end of the 106th Congress. As we have seen, 31 of these vacancies are in the circuit courts. What does this mean? It means the Senate's pace under Democratic control in confirming President Bush's judicial nominees is simply not keeping up with the increasing vacancy rate, not even in accordance with the precedence and practices of the committee. I have heard a lot of comments about how they are going to treat Republicans like we treated them, that they are going to treat Republicans just as fairly as we treated them. My gosh, the record shows we are not being treated fairly at all. You might be able to find some things to criticize in any Judiciary Committee chairman's tenure because of the difficulties in working with the other 99 people, but the fact is, this isn't fair. For anyone who doubts that the vacancy crisis represents a problem, let me point out that the Sixth Circuit Court is presently functioning at 50-percent capacity--50 percent. That is a disaster. Eight of that court's 16 seats are vacant. President Bush nominated seven well- qualified individuals to fill the vacancies on that court. Two of these nominees, Deborah Cook--a wonderful woman lawyer--and Jeffrey Sutton--one of the finest appellate lawyers in the country-- have been pending since May 9 of last year. They were among the first 11 judges that President Bush nominated. Yet they have languished in committee without so much as a hearing, while the Sixth Circuit functions at 50-percent capacity. Although the Michigan Senators have blocked hearings for the three Bush nominees from Michigan by refusing to return blue slips, the paperwork on the remaining four nominees is complete. Again, nothing stands between them and a confirmation hearing except my Democratic colleagues. Let me also say that I find it highly unusual that blue slips withheld in one State should be used to denigrate or to hold up judges from another State. I do not think Senators should be given that kind of authority, but that is what is being done here. Another appellate court that is in trouble is in the DC Circuit, the Circuit Court of Appeals for the District of Columbia, which is missing one-third of its judges. It has only 8 of its 12 seats filled. That is one of the most important courts in our country. It hears cases that other circuits do not hear. It hears an awful lot of administrative law cases. It is a busy court. Yet we only have 8 of the 12 seats filled. President Bush nominated two exceedingly well-qualified individuals to fill seats on the DC Circuit on May 9 of last year, better than 300 days ago. Miguel Estrada, a Hispanic, who has a remarkable record, and has argued 15 cases in front of the Supreme Court of the United States, could not even speak English when he came to this country, and is one of the most articulate, impressive, intelligent advocates in our country today--not even given a hearing. Well-qualified by the American Bar Association. John Roberts: I talked to one of the Supreme Court Justices just a short while ago. He said he is one of the two top appellate lawyers in this country today. He is not particularly an ideologue. This man is a great lawyer. He has Democrat and Republican support. So does Miguel Estrada, by the way. They are among the most well-respected appellate lawyers in the country. And I should say that Miguel Estrada would be the first Hispanic to ever serve on the Circuit Court of Appeals for the District of Columbia, to sit on this important court. My friends on the other side talk a lot about diversity, but apparently it is diversity only if the candidates agree with the extreme liberal views of the special interest groups in this town. And they are in this town. They really do not represent the people at large--narrow interest groups. This troubles me. The Judiciary Committee has not granted them a hearing, much less a vote. If the DC Circuit and the Sixth Circuit are any indication, it appears the committee is doing what it can to avoid filling seats on the courts that need judges the most. Part of the problem is a reluctance by the committee to move more than one circuit judge per hearing. In fact, I do not believe the Democrats have moved more than one circuit judge per hearing during the entire time they have had control of the Senate. When I was chairman, I had 10 hearings with more than one circuit nominee on the agenda. In fact, I had hearings with more than one circuit nominee on the agenda in every session in which I was chairman except for the Presidential election years. That is the precedent and the practice of the committee. Let's stop making excuses. Let's confirm these judges. If we are going to get serious about filling circuit vacancies, then I encourage my Democratic colleagues to move more than one circuit judge per hearing. One of the more ludicrous charges I have heard is that the Republicans did not confirm any judges while they held the majority in the Senate last year. Let me set the record straight on this. President Bush announced his first 11 judicial nominations on May 9. I scheduled a confirmation hearing on 3 of those judicial nominees--all circuit court nominees--for May 23. However, some Democratic members of the committee claimed to need more time to assess the nominees. Out of an abundance of caution, a recognition of their feelings, and in the interest of fairness, I agreed to cancel the hearing despite widespread speculation that the Republicans' loss of the majority in the Senate was imminent. As we all know, control of the Senate shifted to the Democrats shortly thereafter on June 5. So while the Republicans were ready to hold a hearing on 3 circuit judges within 2 weeks of their nomination in May, it took the Democrats until the end of August to hold confirmation hearings on 3 circuit judges. By the way, 2 of them were Democrats, so it is not hard to understand why they would want to get them through. And I wanted to get them through, too. And I want to get them through before, at least one of them, now Judge Gregory. I have to admit, when these special interest groups on our side came to me, some of the far right groups, I told them: Get lost. And I made some real enemies in the process. But, by gosh, I wanted to do my job as Judiciary Committee chairman. I know it is a difficult job. And I know my colleague has a very difficult time with colleagues, with outside groups, with all kinds of problems. I had the same problems. But sooner or later, we have to do something about these problems. I have also heard my Democratic colleagues complain that I was unfair because almost 60 Clinton nominees never received a hearing or vote. I have two responses to this charge. Let me just go to this chart. First, as the following chart shows, the Democrat who controlled the Senate during the first Bush administration left 59 judicial nominees total, circuit and district nominees, without a hearing or vote at the end of 4 years--59. And they are complaining? In contrast, only 53 Clinton nominees were not confirmed over my 6 years as chairman. But that was in 4 years that they left 59. Now, mine was 53. Yet my Democratic colleagues claim that I was unfair to the Clinton nominees despite the fact they left more Bush 1 nominees unconfirmed in an actual shorter period of time. Second, many of the Clinton nominees who were not confirmed had good reasons for not moving. As I have mentioned, not including withdrawn nominees, there were only 53 Article III judicial nominees who were nominated by President Clinton during my 6 years as chairman who did not get confirmed. Of those, nine were nominated too late in a Congress for the committee to feasibly act on them or were lacking paperwork. That leaves 44. Seventeen of those lacked home State support, which was often the result of a lack of consultation with home State senators. There was no way to confirm those, no matter how much I would have liked to, without completely ignoring the Senatorial courtesy that we afford to home State Senators in the nominations process, as has always been the case. That leaves 27. of the original 53. One nominee was defeated on the Senate floor, which leaves only 26 remaining nominees. Of those 26, some may have had other reasons for not moving that I simply cannot comment on. So in all 6 years that I chaired the committee while President Clinton was in office, we are really only talking about 26 nominees who were left. Now I heard one of my Democratic colleagues on the floor last week comparing their pace to mine in increments of months--9 months to 12 months, 9 months to 9 months, 3 months to 3 months, and so on. I must admit that I had a tough time following his argument in light of the astronomical vacancy rate that we now face in the Federal judiciary. but in terms of fairness, let me set forth what I consider to be the bottom line. President Clinton enjoyed an 85 percent confirmation rate on the individuals he nominated. A total of 377 Clinton nominees sit on the Federal bench today. That was with my help in every case. This number is only 5 short of the all-time confirmation champion, President Reagan, who had 382 judges confirmed by the Senate. I believe President Clinton would actually have had more, had it not been for Democratic holds in the Senate that I knew about at the end of that last session. Keep in mind, President Clinton had 6 years of a Republican Senate, the opposition party, yet had virtually the same number of people confirmed as the all-time champion, President Reagan, who had 6 years of his own party in control of the Judiciary Committee in the Senate. It is astounding to hear some of these arguments against what we did. Go over it again. President Clinton, with a 6-year opposition party, and me as chairman, had 377 judges confirmed in his 8 years, during 6 of which Republicans controlled the Senate. President Reagan, the all- time champion, got 5 more, 382, and he had 6 years of a favorable party Senate. I don't think there is much room to be complaining about what happened during the Clinton years. When President Bush's judicial confirmations start approaching these numbers, then I may be ready to agree that the Democrats are treating President Bush's nominees fairly. Let me add something more. If you look at this chart, it is pretty important because it shows that the total vacancies at the end of the 102nd Congress were 95. But if you go to the pending nominees not confirmed at the end of Bush 1, there were 11 circuit court nominees and 48 district court nominees, for a total of 59 circuit and district court nominees. If we go to the end of President Clinton, it really tells the story. In President Clinton's first 4 years, we had a total of 202 judges confirmed. When the Democrats controlled the committee in 1993, there were 112 vacancies at the end of the session. Mine was 54--53, actually. At the end of 1994, when they controlled the committee, there were 63 vacancies. I remember President Clinton saying that was a full judiciary. Senator Biden was the chairman, and I agreed. Somewhere around 60 judges is basically a full judiciary. There may be problems in certain areas, but basically that is a full judiciary. In 1995, the first year after we took over, there were 50 total vacancies left and only 13 circuit court nominees left. Keep in mind, when the Democrats controlled, on circuit court nominees, there were 20 at the end of 1993 and in 1994 there were 15. That is what you have to do at the end of session--not just choose any 3 months you want to in any year. Let's talk in terms of fairness here and statistics. Let's go down it again. President Clinton in 1993 nominated five to the circuit court. President Bush has nominated 31--actually more than that. He had 3 nominees confirmed, but there were 20 circuit court nominees at the end of that session. In 1994, he nominated 17, submitted 17; there were 16 who were confirmed. There were 15 left over at the end of 1994. The Democrats controlled the committee. In 1995, he nominated 16; there were 11 confirmed of the 16. That is a far better record than we are hearing about the complaints from the Democrats on what happened under my leadership. There were only 13 left, a 7.3- percent vacancy rate. In 1996, I was chairman again. We only had four nominations. That is why none was confirmed. It was an election year. Eighteen were left over. If you stop and think about it, that is still 13 fewer than the vacancy rate right now, or the vacancy rate that existed last May 9, 31 vacancies. In the district courts, if you want to go through it, in 1993 there were 42 nominations submitted; 24 were confirmed. That is when the Democrats controlled the committee. There were 92 vacancies at the end of the session. In 1994, there were 77 nominations in the district court; 84 were confirmed. And there were only 48 left at the end of that session. In 1995, when I took over, there were 68 nominations; 45 were confirmed. And there were 37 vacancies. In 1996, there were 17 nominations submitted; 17 were confirmed. In that year, 45 at the end of that session. But if we go to circuit and district courts combined, in 1993, when the Democrats controlled the Senate, there were 47 total nominations submitted. There were 27 that were confirmed when the Democrats controlled the committee and their own President was there. And there were 112 vacancies at the end of that session. In 1994, there were 94 total nominations submitted; there were 100 nominations confirmed. And there were only 63, which is still 10 higher than it was at the end of my tenure, at the end of the session when President Clinton left office. In 1995, there were 84 nominations submitted; 56 were confirmed. And there were 50 left over at that time. Then in 1996, there were 21 total nominations submitted; 17 confirmed. There were 63 left over. As you can see, if we compare the statistics, the Democrats were not mistreated. They were treated fairly. Admittedly, it is a tough job being chairman of the Judiciary Committee. These are hot issues. There are always some people in the Senate, whether liberals or conservatives, who don't like certain judges. Let's face it. It is not easy to handle some of those problems. But I have to admit, the Democrats have been treated very fairly. I would like to see us treated just as fairly as they were. With 95 vacancies existing today, it is apparent that the job is not getting done. I reserve the remainder of my time and suggest the absence of a quorum.

Mr. HATCH. Mr. President, I ask for the yeas and nays.

Mr. HATCH. I yield 3 minutes to the Senator from Alabama.

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

Mr. HATCH. I suggest the absence of a quorum, Mr. President, until the minority leader arrives.

Mr. HATCH. I know Senator Hutchison wishes to speak, and I also believe Senator Brownback.

Mr. HATCH. Mr. President, I have been listening to my colleague. It has been very interesting to me. Of course, they brought up Ronnie White. Ronnie White was voted out of the committee. His nomination was at least brought to the floor where he had a vote. Both of his home- State Senators voted against him. Under those circumstances, it is pretty hard to say that other Senators were acting improperly in supporting the home-State Senators. I can tell you right now that when two Senators from any State fail to return a blue slip for a district court nominee, that is basically the end of that district court nominee. If they were split, that nominee might come to the floor. I do not know if that is the position the current Judiciary Committee is taking. But at least White had a vote. Judge Pickering didn't even get that. I think the reason was that Judge Pickering would have been confirmed on the floor because he is a fine man. Everybody knows it. To bring up Bill Lann Lee, who was not a lifetime appointment, seems to me goes a little bit far here. I like him. He is a good man. I would have supported him for any other position. But he was a recess appointment. I predicted that one reason we couldn't support him was that he said he was against race-based quotas. Yet his whole experience in California had been built upon bringing actions against municipalities and other bodies on behalf of the organization he represented. The municipality either had to spend millions of dollars in defending itself, even though they probably would have won in the end, or they would have to settle the case. And guess what? Race-based quotas would be imposed upon them. So some of the defendants just settled the case to get rid of the extra expenses they did not want to go through. That is the way it is done. I predicted he would use the Civil Rights Division to do exactly that. I think, of course, there was more than a better case that he would do exactly what he did. That doesn't negate the fact that he is a terrific human being and somebody for whom I personally care. But we are talking about a volume of law. Again, I come back to all the screaming and shouting about how badly Clinton judges were treated. Reagan, the all-time champion with 382 confirmed judges, had 6 years of a Republican Senate. Clinton had 5 fewer, 377 judges, and with 6 years of a Republican Senate, the opposition party. Where is the argument? I have to say this: We never had 112 vacancies at the end of a session. We never had 95 vacancies at the end of the session, which is where we are today--95 vacancies. Let me go a little bit further. I truly do love the Senator from New York. We all laughed in committee because he said he loved me and I said I loved him. He is a fine man, and he is a very good advocate. I respect him. His argument is that we should go right to the middle and we should just appoint moderates. I have to tell you that if that had been the rule when President Clinton was President, we wouldn't have many Clinton judges on the bench today. They weren't exactly moderates. Some were. Some in the Bush administration--in fact, probably a majority will be moderate nominees. To say that you can't have a liberal on the bench, or you can't have a conservative on the bench, or someone in the mainstream just because one side or the other doesn't want him or her, I think is wrong. Admittedly, we have right-wing groups come in here and start demanding that I stop all these judges. I told them to get lost. I would like to see the Democrat side tell those liberal, left-wing groups to get lost--not that they cannot speak out in this country; of course, they can. But when they start character assassinations as they did with Judge Pickering, I think they ought to be told to get lost. Whenever conservative groups did it, I told them to get lost. The Senator from New York said the White House has not consulted with Democrats about judicial nominees. But I can count on the fingers of one hand the number of circuit court nominees of President Bush who do not have blue slips supporting their nominee. This goes for numerous States with Democrat and Republican Senators alike. Of course, Judge Pickering had the support of his home-State Senators. There were no blue slips withheld in that case. Both Senators wanted Judge Pickering. I think a majority of the Senate wanted Judge Pickering. I am not sure what kind of White House consultation my colleagues have in mind. Surely they are not talking about veto power over all of President Bush's nominees regardless of whether they are from their own State. This would fly in the face of the committee blue slip process and precedents we have always had. But that seems to be what they are asking for. If the White House doesn't come up and consult with Senators who are not from the State that the nominees are coming from--are they are using that as an excuse? The White House does have an obligation to consult. I have told them they have to consult, and I expect them to. I know Judge Gonzales and his team consult with Senators who have people from their States. Are we going to go as far as Abner Mikva went? The former distinguished judge on the Circuit Court of Appeals for the District of Columbia recently wrote an article stating that he thought President Bush should not nominate anyone to the Supreme Court because he really doesn't have a mandate; he is not really the President of the United States. That is like saying the Defense Department shouldn't really operate; that we should leave it to up to the Senate Committee on Armed Services to solve these problems. That is how ridiculous these arguments get. The fact of the matter is that liberal Presidents generally appoint more liberal judges; conservative Presidents generally appoint more conservative judges. I don't think you can categorize George Bush's judicial nominees as purely conservative. They have been in the middle of the mainstream. That doesn't mean because some are conservative that they are outside of the mainstream. The mainstream includes from the left to the right-- reasonable people who want to do what is right, who literally are willing to abide by the law, and who deserve these positions. The Republicans didn't take the position that we just have moderates in the Federal judiciary when President Clinton was President. Frankly, if we had taken that position, we would have been excoriated like you couldn't believe here in the Chamber, or, in fact, anywhere. The fact of the matter is that all we are asking is fairness. We have 95 vacancies. Last May 9, we had 31 Federal Circuit Court of Appeals vacancies. Today, we have 31 Federal circuit courts of appeals vacancies--a year later. And we have 8 of the original 11 nominees still sitting in committee without a hearing, some of the finest nominees I have ever seen, none of whom would be categorized as far right, in my opinion, all of whom are in the mainstream, and all of whom have been approved by the ABA either with a ``qualified'' or a ``well qualified'' rating, and some of the most important nominees in history. I am also compelled to respond to a severe mischaracterization that some of my Democratic colleagues have perpetrated about judges. They have repeated that they noticed their first confirmation hearing within minutes of reaching a reorganization resolution in July. While technically true, this declaration leaves out an important fact: The Democrats took charge of the Senate on June 5 of last year, but failed to hold any confirmation hearings during the entire month of June. There is simply no basis for asserting that the lack of an organizational resolution prevented the Judiciary Committee from holding confirmation hearings in June, which is precisely what my colleagues have implied. The lack of an organizational resolution did not stop other Senate committees from holding confirmation hearings in June. In fact, by my count, 9 different Senate committees under Democratic control held 16 confirmation hearings for 44 nominees during the month of June. One of these committees--Veterans' Affairs--even held a markup on a pending nomination. But in the same period of time, the Judiciary Committee did not hold a single confirmation hearing for any judicial and executive branch nominees pending before us--despite the fact that some of those nominees had been waiting nearly 2 months. What's more, the lack of an organizational resolution did not prevent the Judiciary Committee from holding five hearings in 3 weeks on a variety of other issues besides pending nominations. Between June 6 and June 27, the committee held hearings on the Federal Bureau of Investigation, charitable choice, and death penalty cases. There were also subcommittee hearings on capital punishment and on injecting political ideology into the committee's process of reviewing judicial nominations. Although several members were not technically on the committee until the Senate reorganization was completed, there was no reason why Senators who were slated to become official members of the committee upon reorganization could not have been permitted to participate in any nomination hearings. This was successfully accomplished in the case of the confirmation hearing of Attorney General Ashcroft, which was held when the Senate was similarly situated in January. Instead, we lost the chance to move nominees in June, not because of nominations over reorganization, but because of the failure of the Democratic leadership to schedule hearings. So, I would hope we can get to confirming judges, rather than offering excuses for why they are not--and having 31 vacancies on the circuits. Mr. President, I would like to take just a few minutes to address some of the comments that my democratic colleagues have made about Judge Pickering's nomination. It is no secret that two very different pictures of Judge Pickering emerged from his confirmation battle. One picture was that of a man who took courageous stands against racism at times when doing so was not merely unpopular, but also when it put him and his family at great personal risk. This man endured political and professional sacrifice to stand up for what he believed was right. And, in his more than a decade on the federal bench, this man demonstrated an ability and willingness to follow the law even when he personally disagrees with it. This is the picture of Charles Pickering that I know and the picture I am convinced is accurate. The other picture of Charles Pickering that emerged was far less flattering. But I am just as convinced that this picture was groundless. It was the product of engineering by extreme left Washington special interest groups who are out of touch with the main stream and have a political axe to grind. Make no mistake about it-- these groups have their own political agenda, which is to paint President Bush's nominees as extremists and block them from the federal bench. These are the same groups who came out against General Ashcroft, Justice Rehnquist and even Justice David Souter, when he was nominated to the Supreme Court. They were all then, as they are now singing the parade of horribles. The groups are committed to changing the ground rules for the confirmation process. There is a new war over circuit nominees, and they demand that the Democrats do whatever possible to stop or slow the confirmation of these fine nominees. For them, the means justify the ends at whatever the cost--including the gross distortion of a man's record and character. The overwhelming bipartisan support we received for Judge Pickering's nomination from his home state of Mississippi speaks volumes about him. It is very telling that those who know Judge Pickering best, including prominent members of the African-American community in Mississippi, came out in droves to urge his confirmation. In contrast, those who most vociferously opposed his confirmation do not know him, but rather spent the past 7 months combing through his record for reasons to oppose him. They developed chain letters, mass faxes, and Washington position papers. Why? In the words of the leader of one liberal interest group, ``We think he (Judge Pickering) is an ideologue.'' It doesn't matter to these groups that Judge Pickering had the qualifications, the capacity, the integrity, and the temperament to serve on the federal circuit court bench. He is a judge that would have followed the law and left the politics to the people on the circuit court, just as he has on the district court. But I know that is not what the groups want. They want activists on the bench that support their political views regardless of the law. That is wrong. What matters to them is that Judge Pickering did not meet their litmus test of supporting the right causes, regardless of his demonstrated commitment to following the law. Although I am deeply troubled by the smear campaign that was waged against Judge Pickering, I am convinced that the accurate picture of Judge Pickering was the one of a man who was committed to upholding the law and who would have been a sterling addition to the Fifth Circuit. I regret that the inaccurate and unfair portrait painted by people whose purpose is to obscure the truth rather than to reveal it persuaded my Democratic colleagues to oppose his nomination. Of course, the defeat of Judge Pickering's nomination is significant for other reasons as well. He represents the first judicial nominee defeated in committee in over a decade--in fact, since the Democrats last controlled the committee. When the Republicans were in charge of the Judiciary Committee during 6 years of the Clinton administration, we did not defeat a single nominee in committee. In fact, the only Clinton nominee who was defeated--and who, incidentally, lacked the support of his home state senators--was nevertheless granted a floor vote. I find it ironic that a number of my Democratic colleagues actively lobbied to get floor votes for Clinton nominees, yet they now have denied a floor vote for Judge Pickering, who has the support of both of his home state Senators and who would very likely be confirmed if his nomination received a floor vote. And let me talk about Judge Pickering's record. We have talked about ideology. The key here is that a nominee's personal or political opinion on social issues is irrelevant when it comes to the confirmation process. The real question is whether the nominee can follow the law. Last Thursday, we demonstrated that Judge Pickering has shown in his nearly 12 years on the federal district court bench his ability and willingness to follow the law. He has handled an estimated 4,000 to 4,500 cases, but he has been reversed only 26 times. This is a reversal rate of less than 1 percent. His reversal rate is better than the average for district court judges both nationwide and in the Fifth Circuit. This is a record to be proud of--not a reason to vote against him. Some of my Democratic colleagues have complained that Judge Pickering was reversed on well-settled principles of law in 15 cases where he was reversed by the Fifth Circuit in unpublished opinions. This argument is nonsense. Circuit courts reserve publication for the most significant opinions. Reversal by unpublished opinion means that the district judge made a run-of-the-mill mistake. In other words, nobody's perfect--not even federal judges. They do get reversed on occasion. The bottom line is that there is simply nothing remarkable about Judge Pickering's 26 reversals. I suspect that many of my colleagues' misperceptions about Judge Pickering's record as a district judge stem from the gross distortion of that record by the liberal special interest groups. For example, one often-cited area of concern is Judge Pickering's record on Voting Rights Act cases. But the bottom line here is that Judge Pickering has decided a total of four such cases. The only one that was appealed involved issues pertaining solely to attorney's fees. None of the other three cases--Fairley, Bryant, and Morgan--was appealed, a step that one can reasonably expect a party to take if it is dissatisfied with the court's ruling. Moreover, the plaintiffs in the Fairley case--including Ken Fairley, former head of the Forrest County NAACP--have written a letter to the committee in support of Judge Pickering's nomination. Another case my colleagues have complained about is the Swan case. But there, Judge Pickering was rightly concerned that Swan's co- defendants--one of whom had a history of racial animus and had fired a gun into the victims' home--got off with a relative slap on the wrist while Swan faced seven years' incarceration. As one legal ethics expert noted, ``Judge Pickering was clearly concerned that no rational basis had been demonstrated for the widely disparate sentencing recommendations in Swan. Without such a basis, justice does not appear to be unbiased and non-prejudiced.'' Judge Pickering's qualifications are also reflected in his ABA rating, which some Members of the Committee have referred to as the gold standard in evaluating judicial nominees. The ABA, of course, rated Judge Pickering well qualified for the Fifth Circuit. I also find it ironic that many of the complaints that Judge Pickering's opponents have lodged against him pertain to events that occurred before he became a federal district court judge--a position for which he was unanimously confirmed by both this committee and the full Senate. In any event, I fear that the smear campaign we saw waged against Judge Pickering was only a warm-up battle for the ideological war the liberal interest groups are prepared to wage against any Supreme Court nominee that President Bush has the opportunity to appoint. I stood up to conservative special interest groups who tried to influence the committee while I was chairman, and I will continue to stand up to liberal special interest groups who seek to defeat President Bush's judicial nominees now. I urge my Democratic colleagues to join me in this effort. Thank you, Mr. President. I yield the floor.

Mr. HATCH. How much time does the Senator need?

Mr. HATCH. How much time remains?

Mr. HATCH. I have two others who need to speak also. Can the Senator do with 3 minutes?

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

Mr. HATCH. Mr. President, I ask unanimous consent to take 4 minutes of the leader's time.