Orrin Hatch

Mr. HATCH

Mr. HATCH. I would note that the Reagan and Bush nominations that Senate Democrats allowed to expire included the nominations of minorities and women, such as Lillian BeVier, Frederico Moreno and Judy Hope. I do not have any personal objection to the judicial nominees who my Democratic colleagues have spoken about over the last few weeks. I am sure that they are all fine people. Similarly, I do not think that my Democratic colleagues had any personal objections to the 53 judicial nominees whose nominations expired in 1992, at the end of the Bush presidency. Many of the Republican nominees whose confirmations were blocked by the Democrats have gone on to great careers both in public service and the private sector. Senator Jeff Sessions, Governor Frank Keating and Washington attorney John Roberts are just a few examples that come to mind. I know that it is small comfort to the individuals whose nominations are pending, but the fact of the matter is that inevitably some nominations will expire when the Congress adjourns. It happens every two years. I personally believe that Senate Republicans should get some credit for keeping the number of vacancies that will die at the end of this Congress relatively low. As things now stand, 13 fewer nominations will expire at the end of this year than expired at the end of the Bush Presidency.

Mr. HATCH

Mr. HATCH. There are many academics who have not had 1 day of trial experience. There have been a number of Supreme Court Justices who have not had 1 day of trial experience. I do criticize the Senator in one regard, and that is for bringing up the name of Randall Rader because Randy happened to be one of the best members of our Senate Judiciary Committee. He is now one of the leading lights in all intellectual property issues as a Federal Circuit Court of Appeals judge. The fact is, he has a great deal of ability in that area. I agree with that.

Mr. HATCH. I didn't think you were.

Mr. HATCH. I agree with the Senator. Let me just say this. I am in agreement with my friend and colleague from Iowa. I believe it is helpful to have trial experience, especially when you are going to be a trial judge. I do not think it is absolutely essential, however. I also believe some of the greatest judges we have had, on the trial bench, the appellate bench, and on the Supreme Court, never stepped a day into a courtroom other than to be sworn into law to practice.

Mr. HATCH. That isn't the situation. Now, I have to say, I appreciate my two colleagues from Iowa in their very earnest defense, and really offense, in favor of Bonnie Campbell. She is a very nice woman and a very good person. Personally, I wish I could have gotten her through. But it isn't all this side's fault. As the Senator knows, things exploded here at the end because of continual filibusters on motions to proceed and misuse of the appointments clause, holds by Democrats, by the Democrat leader, on their own judges, and other problems that have arisen that always seem to arise in the last days. So I apologize to the distinguished Senator I couldn't do a better job in getting her through. But I agree with him, and I felt obligated to stand and tell him I agreed with him, that some of our greatest judges who have ever served have never had a day in court. I might add, some of the worst who have ever served have never had a day in court also. I think it is only fair to make that clear. But there are also some pretty poor judges who have been trial lawyers, as well. So it isn't necessarily any particular experience.

Mr. HATCH. I understand.

Mr. HATCH. Madam President, I get a little tired of some of these comments about judges when we put through 377 Clinton-Gore judges, only 5 fewer than Ronald Reagan, the all-time high. I get a little tired of the anguishing. There has never been, to my recollection, in my 24 years here, a time where we have not had problems at the end of a Presidential year. Whether the Democrats are in power or we are in power, there is always somebody, and others--quite a few people--who foul up the process. But that is where we are. And to further foul it up is just not in the cards. Senator Harkin has spoken at length about one nominee: Bonnie J. Campbell. Let me respond. It always is the case that some nominations ``die'' at the end of the Congress. In 1992, when Democrats controlled the Senate, Congress adjourned without having acted on 53 Bush nominations. I have a list here of the 53 Bush nominees whose nominations expired when the Senate adjourned in 1992, at the end of the 102nd Congress. By comparison, there are only 40 Clinton nominations that will expire when this Congress adjourns. My Democratic colleagues have discussed at length some of the current nominees whose nominations will expire at the adjournment of this Congress, including Bonnie Campbell. I ask unanimous consent that this list of 53 Bush nominations that Senate Democrats permitted to expire in 1992 be printed in the Record.

Mr. HATCH. I will wait until the Senator finishes.

Mr. HATCH. I object.

Mr. HATCH. Who have served in very distinguished manners who have not had trial experience. I think it is helpful, but it does not necessarily mean you are going to be a great judge. I thank my colleague for yielding.

Mr. HATCH

Mr. HATCH. Mr. President, it is often said that Canada and the U.S. share the longest undefended border in the world. While this is repeated so often it has become a cliche, like all cliches, there is a fundamental truth in it. In this case, the fundamental truth is a striking geopolitical reality which Americans do not always appreciate. The peace we enjoy in North America is largely a function of this border. With our neighbor to the north, we share a border of approximately 4,000 miles, a border that runs through New England and the Great Lakes, through the great forests, plains, and mountains, and along the Alaskan frontier of this rich North American continent. Mutually respected sovereignty is the fundamental basis of peaceful international discourse. But I will add that an undefended border makes for the warmest of relations, and the greatest of respect. Last Thursday, Canada lost perhaps its best known Prime Minister of recent times, when Pierre Elliott Trudeau died, at the age of 80. For the past week, our neighbors to the north have been in mourning, and I stand today to pay my respects to the family of former Prime Minister Trudeau and to all the citizens of the country he served with singular dedication. Mr. Trudeau and I did not share a common political tradition, nor did we share a political ideology. This does not diminish my respect for the man and his work one bit. I note, with appreciation, that one of Mr. Trudeau's mottos was ``reason before passion,'' a principle I certainly believe conservative lawmakers would share. I admired former Prime Minister Trudeau for his dedication to his country, to the rule of law, and to the betterment of the world. In his moving tribute at his father's funeral earlier this week, Justin Trudeau said, ``My father's fundamental belief never came from a textbook, it stemmed from his deep love and faith in all Canadians.'' Pierre Trudeau led Canada at a tumultuous time in its history and in the history of the world. In 1970, he was confronted with a terrorist, separatist threat from Quebecois extremists. Prime Minister Trudeau-- who, in Canadian history, was at the time, only its third of Quebecois descent himself--was a dedicated federalist and, even more fundamentally, dedicated to the rule of law. He faced down the terrorists, and since then issues of separatism have been dealt with at the ballot box. While he successfully defended the rule of law, Canadians recognize the advances he instituted to preserve Canada's unique cultural diversity. Mr. Trudeau had a different view of geopolitics than did most of the American administrations with which he dealt. It is said that he succeeded, at times, in aggravating U.S. presidents from Nixon to Reagan. Some of this had to do, in my opinion, with the nature of the relationship between our countries. While Canada is the second largest political land-mass in the world, its population is small, approximately one-tenth of ours, and its economy is dwarfed by ours. In fact, the former Prime Minister famously said once: ``Living next to you is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, one is affected by every twitch and grunt.'' While Mr. Trudeau held substantively different views on the world than many American leaders, he demonstrated that policy disputes can exist and nations remain civilized and respectful. And that is how I think of former Prime Minister Pierre Trudeau. In closing, I wish to note another story his son, Justin, told at his father's funeral this week. He recounted how, as a child, his father took him one day for lunch at the cafeteria in Ottawa's Parliament. There, young Justin saw a political rival of his father and made a childish crack about him to his dad. His father sternly rebuked him and, according to his son, said ``You never attack the person. You may be in total disagreement with the person; however, you shouldn't denigrate him.'' That day, Pierre Trudeau taught his son, who is now a teacher, that ``having different opinions from those of another person should in no way stop you from holding them in the greatest respect possible as people.'' That is the principle of a civilized man, and the practice of a civilized nation. As the world bids adieu to Pierre Trudeau, I extend my deepest condolences to his family and to all the good citizens of our great neighbor Canada.

Mr. HATCH

Mr. HATCH. Mr. President, I move to reconsider the vote, and I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. HATCH. Mr. President, I reserve the remainder of our time.

Mr. HATCH. This is a very important bill. This is a bill that both sides have said they wanted for a long time. I have to say it is pitiful that we had to go through three cloture votes because it was filibustered three times. Even the motion to proceed was filibustered by colleagues on the other side. They have tried to make this into a political brouhaha which it doesn't deserve. Further, when they also brought up a bill that they did not even file until July 25 of this year, the Latino and Immigrant Fairness Act, which is anything but fair. They brought that up and asked, without hearings, without 1 minute of consultation, that we have a rolling amnesty for up to 2 million illegal aliens--perhaps even more than that; certainly they admit to at least 500,000. It shows the length to which politics can go in this body. I am glad we are at this point. It took continual effort by our leader to push this bill through. There were many times when we thought we might have to pull it down because of the opposition from the other side. But today, I look forward to an overwhelming vote this morning on this important, bipartisan bill and hope that by week's end, the House of Representatives will have acted favorably and with dispatch as well. One of our greatest priorities, Mr. President, is and ought to be keeping our economy vibrant, and expanding educational opportunities for America's children and its workers. That is my priority for this country and for my own State of Utah. I am proud of the growth and development in my own State that has made Utah one of the leaders of the country and the world in our high tech economy. In Utah and elsewhere, however, our continued economic growth, and our competitive edge in the world economy requires an adequate supply of highly skilled high tech workers. This remains one of our great challenges in the 21st century, requiring both short and long term solutions. The legislation we will pass today, S. 2405, addresses both of these challenges. Specifically, a tight labor market, increasing globalization, and a burgeoning economy have combined to increase demand for skilled workers well beyond what was forecast when Congress last addressed the issue of temporary visas for highly skilled workers in 1998. Therefore, this legislation once again increases the annual cap for this year and the next three years. But increasing the number of H-1B visas is nothing more than a short term solution to the workforce needs in my State and the country. The long term solution lies with our own children and our own workers. Our continued success in this global economy depends on our ability to ensure that education and training for our current and future workforce matches the demands in our high tech 21st century global economy. Working with my colleagues, I have included in this bill strong, effective, and forward looking provisions directing the several hundred million dollars in fees expected to be generated by the visas toward the education and retraining of our children and our workforce. Those provisions are included in the substitute which is before us today. Mr. President there are many to whom I want to express my gratitude this morning. This legislation had, from the beginning, an effective group of Senators at the forefront. That included Senator Abraham, a leader on this issue for many years, as well as Senator Gramm from Texas. On the other side of the aisle, we were joined early on by Senators Graham, Feinstein, and Lieberman, and all have continued their commitment to the continued improvement of our bill. And finally, Mr. President, I want to thank Senator kennedy for his hard work and his tireless dedication to ensuring effective training provisions in this bill for American workers. I would be remiss were I not to also mention Senator Pat Leahy--the committee's ranking member. He approached this bill in the spirit of bipartisanship and facilitated its consideration both here on the floor and in committee. Mr. President. I look forward to working with my colleagues in the other body in the coming days to see that this bill becomes law. I hope we can get this done for American workers and children and for our continued economic expansion. Finally, Mr. President, I want to thank all of the dedicated staffers here in the Senate whose talent and hard work have helped get this bill passed. First, I'd like to thank my own committee staff, including Chief Counsel and Staff Director Manus Cooney, Deputy Chief Counsel Sharon Prost, and Press Secretary Jeanne Lopatto. The conventional wisdom in Washington a few months ago was that this bill was not going to pass. But they kept fighting for its passage. I want to particularly commend Sharon Prost for her tireless efforts. I also want to thank Lee Otis and Stuart Anderson, of the Subcommittee on Immigration for their invaluable technical and legal assistance and Esther Olivarria of Senator Kennedy's staff. My thanks also go to Michael Simmons, of Senator Gramm's staff, Caroline Berver, with Senator Graham, James Thurston, with Senator Lieberman, and Lavita Strickland with Senator Feinstein. I would also like to thank Jim Hecht of Senator Lott's staff for his efforts. Finally, I want to thank Bruce Cohen and Tim Lynch of Senator Leahy's committee staff. Have the yeas and nays been ordered?

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

Mr. HATCH. Mr. President, let me just take a minute to respond to some of the comments of my colleague, Senator Leahy. The so-called Latino Fairness Act has little to do with fairness for immigrants. This is no limited measure to undo a previous wrong to a limited class of immigrants who otherwise might have been eligible for amnesty under the 1986 act. In fact, it is a major new amnesty program with a price tag of almost $1.4 billion. That has major implications for our national policy on immigration. The bill purports to be about ``immigrant fairness,'' but it does nothing to increase or preserve the categories of legal immigrants allowed in this country annually. It does nothing to shorten the long waiting period or remove the hurdles for persons who have waited years to legally enter this country. This so-called Latino fairness is no fairness at all to the millions of immigrants who have and will continue to play by the rules. Moreover, the bill does not even fix a date for the registry. Rather it allows a rolling amnesty. What kind of signal does this send? Our government spends millions each year to combat illegal immigrant and deports thousands of persons each year. With the rolling amnesty, however, if an illegal alien can manage to escape law enforcement for long enough we reward that person with citizenship, or at least permanent resident status. Finally, it should be noted that all of these dramatic changes were proposed in July of this year with no hearings and with no assessment of competing costs and benefits. The Senate appropriately refused to consider this bill because its many consequences were not addressed by its proponents. We are proud of the fine bipartisan work that went into the H-1B visa bill and welcome its passage.

Mr. HATCH

Mr. HATCH. Mr. President, I will submit a resolution, and after these remarks I will spend some time answering my two dear colleagues, Senator Robb of Virginia and Senator Harkin from Iowa, to the best of my ability. (The remarks of Mr. Hatch pertaining to the submission of S. Res. 364 are printed in today's Record under ``Submission of Concurrent and Senate Resolutions.'')

Mr. HATCH. Mr. President, I must respond to the remarks of Senator Robb and Senator Harkin. With regard to the nomination of Roger L. Gregory, the position for which Mr. Gregory has been nominated has been vacant since it was created in 1990. Before nominating Mr. Gregory, the President had not even submitted a name to the Senate for this position in almost 5 years. Despite the longstanding vacancy of this judgeship, the work of the Fourth Circuit has not been adversely affected. Moreover, when the President did submit a name to the Senate for disposition almost 5 years ago, he submitted the name of a resident of North Carolina, J. Rich Leonard. In doing so, the President effectively agreed that this seat should be filled by a North Carolinian.

Mr. HATCH. Mr. President, we are here today in the crunch of end-of- session business to debate and take time on four noncontroversial judicial nominees. This debate today was demanded by Senate Democrats who, ironically, have stood in the way of these nominations made by President Clinton, their own President. These are Clinton nominees the Democrats are holding up, Clinton nominees whom Democrats are insisting we take precious time to debate. For the past few years, Senate Democrats have threatened shutdowns, claimed the existence of a so-called judicial vacancy crisis, and complained of race and sex bias in order to push through President Clinton's judicial nominees. These allegations are false. First, there is and has been no judicial vacancy crisis. consider, for example, the Clinton administration's statements on this issue. At the end of the 1994 Senate session, the Clinton administration in a press release entitled ``Record Number of Federal Judges Confirmed'' took credit for having achieved a low vacancy rate. At that time, there were 63 vacancies and a 7.4 percent vacancy rate. The Clinton administration's press release declared: ``This is equivalent to `full employment' in the . . . federal judiciary.'' Today, there are 67 vacancies--after the votes today there will be only 63 vacancies, the same as in the 1994. Instead of declaring the judiciary fully employed as they did in 1994. Democrats claim that there is a vacancy crisis. In fact, the Senate has confirmed President Clinton's nominees at almost the same rate as it confirmed those of Presidents Reagan and Bush. President Reagan appointed 382 Article III judges. Thus far, the Senate has confirmed 373 of President Clinton's nominees and, after the votes today, will have confirmed four more. During President Reagan's two terms, the Senate confirmed an average of 191 judges. During President Bush's one term, the Senate confirmed 193 judges. After these four judges are confirmed today, the Senate will have confirmed an average of 189 judges during each of President Clinton's two terms. Second, there has not been a confirmation slowdown this year. Comparing like to like, this year should be compared to prior election years during times of divided government. In 1988, the Democrat- controlled Senate confirmed 41 Reagan judicial nominees. After these four nominees are confirmed today, the Republican Senate this year will have confirmed 39 of President Clinton's nominees--a nearly identical number. In May, at a Judiciary Committee hearing, Senator Biden, the former chairman of the Judiciary Committee, said: ``I have told everyone, and I want to tell the press, if the Republican Party lets through more than 30 judges this year, I will buy you all dinner.'' When he said this, Senator Biden apparently believed that the confirmation this year of more than 30 judges would be fair. Well Senator Biden owes some people some dinners, maybe everybody in the press. After the votes today, the Senate this year will have confirmed 39 judicial nominees. The 1992 election year requires a bit more analysis. The Democrat-controlled Senate did confirm 64 Bush nominees that year, but this high number was due to the fact that Congress had recently created 85 new judgeships. Examining the percentage of nominees confirmed shows that compared to 1992, there is no slowdown this year. In 1992, the Democrat-controlled Senate confirmed 33 of 73 individuals nominated that year--or 45 percent. This year, the Senate will confirm 25 of 44 individuals nominated in 2000--or 57 percent. Those who cite the 1992 high of 64 confirmations as evidence of an election-year slowdown do not mention these details. Nor do they mention that despite those 64 confirmations, the Democrat-controlled Senate left vacant 115 judgeships when President Bush left office-- nearly double the current number of vacancies. Senate Democrats often cite Chief Justice Rehnquist's 1997 remarks as evidence of a Republican slowdown. Referring to the 82 vacancies then existing, the Chief Justice said: ``Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal Judiciary.'' Senators who cite this statement, however, do not also cite the Chief Justice's similar statement in 1993, when the Democrats controlled both the White House and the Senate: ``There is perhaps no issue more important to the judiciary right now than this serious judicial vacancy problem.'' As the head of the judicial branch, the Chief Justice has continued to maintain pressure on the President and Senate to speedily confirm judges. He has not singled out the Republican Senate, however. Selective use of his statements to imply that he has is inappropriate. The Chief Justice made additional comments in 1997, which also undermine the claim of a vacancy crisis. After calling attention to the existing vacancies, he wrote: ``Fortunately for the Judiciary, a dependable corps of senior judges has contributed significantly to easing the impact of unfilled judgeships.'' The 67 current vacancies, in other words, are not truly vacant. There are 363 senior judges presently serving in the federal judiciary. Although these judges' seats are technically counted as vacant, they continue to hear cases at reduced workload. Assuming that they maintain a 25 percent workload (the minimum required by law), the true number of vacancies is less than zero. Third, allegations of race or sex bias in the confirmation process are absolutely false. Just this month, for example, President Clinton issued a statement alleging bias by the Senate. He said: ``The quality of justice suffers when highly qualified women and minority candidates are denied an opportunity to serve in the judiciary.'' The White House, though, also issued a statement boasting of the high number of women and minorities that Clinton has appointed to the federal courts: ``The President's record of appointing women and minority judges is unmatched by any President in history. Almost half of President Clinton's judicial appointees have been women or minorities.'' The Senate, obviously, confirmed this record number of women and minorities. That is hardly evidence of systemic bias--or any bias at all. Last November, Senator Joseph Biden, former chairman of the Judiciary Committee, stated: There has been argumentation occasionally made . . . that [the Judiciary] Committee . . . has been reluctant to move on certain people based upon gender or ethnicity or race. . . . [T]here is absolutely no distinction made [on these grounds]. . . . [W]hether or not [a nominee moves] has not a single thing to do with gender or race. . . . I realize I will get political heat for saying that, but it happens to be true. I personally appreciated Senator Biden's comments on that, while others were trying to play politics with these issues. He knows how difficult it is under the circumstances to please both sides on these matters. The chairman takes pain from both sides on these matters. There is no question there are some on our side who have wanted to slow down this process, and others on the other side have wanted to speed up the process. The important thing is that we do a good process. That is what we have tried to do. The statistics confirm Senator Biden's position. Data comparing the median time required for Senate action on male versus female and minority versus non-minority nominees shows only minor differences. During President Bush's final two years in office, the Democrat- controlled Senate took 16 days longer to confirm female nominees compared with males. This differential decreased to only 4 days when Republicans gained control of the Senate in 1994. During the subsequent 105th and 106th Congresses, it increased. The data concerning minority nominees likewise shows no clear trend. When Republicans gained control in 1994, it took 28 days longer to confirm minority nominees as compared to non-minority nominees. This difference decreased markedly during the 105th Congress so that minorities were confirmed 10 days faster than non-minorities. The present 106th Congress is taking only 11 days longer to confirm a minority nominees than it is to confirm non-minority nominees. These minor differences are a matter of happenstance. They show no clear trend. And even if there were actual differences, a differential of a week or two is insignificant compared to the average time that it takes to select and confirm a nominee. On average, the Clinton White House spends an average of 315 days to select a nominee while the Senate requires an average of 144 days to confirm. Under my stewardship, the Judiciary Committee has considered President Clinton's judicial nominees more carefully than the Democratic Senate did in 1993 and 1994. Some individuals confirmed by the Senate then likely would not clear the committee today. The Senate's power of advice and consent, after all, is not a rubber stamp. But there is no evidence of bias or of a confirmation slowdown. Senate Democrats claim that Republicans have politicized the confirmation process. Republicans, though, have not levied false charges or used petty parliamentary games. In conclusion, it always is the case that some nominations die at the end of the Congress. In 1992, when Democrats controlled the Senate, Congress adjourned without having acted on 53 Bush nominations. Currently there are only 38 Clinton nominations that are pending before the Judiciary Committee. It is not the end of the line for nominees that do not get confirmed this year. Republican nominees who failed to get confirmed have bone on to great careers, both in public service and the private sector. Senator Jeff Sessions, Governor Frank Keating, Washington attorney John Roberts, and law professor Lillian BeVier are just a few examples. Lillian BeVier and a number of other women are prime examples of those who were denied the opportunity of being on the court for one reason or another back in those days. I bitterly resent anybody trying to play politics with this issue. I stand ready to defend our position on the Judiciary Committee, and I look forward to confirming these last four nominees today. And, of course, once we have done that, we will have matched what was done back in 1994, when the President said we had a full judiciary, with a vacancy of 7.4 percent. I reserve the remainder of my time.

Mr. HATCH. I ask unanimous consent I be able to speak for another 15 minutes.

Mr. HATCH. The President effectively agreed this seat should be filled by a North Carolinian. By nominating Roger Gregory, a Virginian, for the seat instead of a North Carolinian, the President sought to avoid the traditional practice of seeking the ``advice and consent'' of the Senators from the State where the judgeship is located about which local lawyer should be nominated. It is very late in the session to be considering a circuit court nomination. Some nominations can move through the confirmation process quickly, but only where the White House has dealt with the Senate on nominations in good faith. The Arizona nominations we are debating today moved through the confirmation process quickly because the White House did work closely with Senator Kyl and negotiated in good faith over which Arizonans should get these lifetime appointments. In contrast, the White House has not dealt with the Senate on nominations in good faith. During our August recess, the President determined to recess appoint several executive branch officials over the express objections of numerous Senators. Furthermore, Democrats stood in the way of these four nominees we are debating today, the President's nominees, and they threatened to shut down the work of the Senate. This is hardly good faith. In fact, it was a Democrat hold--a Democrat hold by the minority leader on these four judges who are put forth by this President in accordance with an agreement worked out-- that really caused a lot of angst on our side, plus the fact that these recess appointments that were made without consultation caused a lot of difficulty. Then we have virtually every bill filibustered, even on the motion to proceed. As a matter of fact, the H-1B bill, which just passed 96-1, had three filibusters on it, from the motion to proceed right on up through final passage of 96-1. I must respond to some of the things Senator Robb said here this morning. He used some pretty incendiary language to imply that the Senate majority is biased against Mr. Gregory because he is an African American. Senator Robb said we ``are standing in the courthouse door'' and are refusing to ``integrate'' the Fourth Circuit. These allegations of racial bias are beneath the dignity of a Senator in the U.S. Senate, and they are offensive and politically motivated. When Democrats blocked the nomination of Lillian BeVier to the Fourth Circuit--which is what they did--the first female nominee to the Fourth Circuit, no one on our side accused them of gender bias. I am sure Roger Gregory is a fine man. I have no doubt about that. I have been told that by a number of friends of mine, including former Secretary Coleman. But I have informed my colleagues that because of the atmosphere that has resulted from the President's refusal to consult with the Senators from North Carolina, because of the President's recent recess appointments and disregard of commitments he had made up here, and disregard of the advice and consent because of the petty parliamentary games in which our friends on the other side have engaged, Mr. Gregory's nomination is not going to move forward. And because this is a North Carolina seat. We would have to have somebody nuts, from North Carolina, who would not stand up for a North Carolinian in this seat. There is just no question about it. The President knew that, having nominated a North Carolinian before. I would like to respond to Senator Levin for a few minutes. I don't want to go beyond that. There are other things I could say. But I bitterly resent anybody trying to play racial politics with judges, especially after what we went through in prior administrations. It had always been my intention as chairman of the Judiciary Committee to hold a hearing on judicial nominations during the month of September. I planned on doing that. At that hearing I was fully prepared to consider the nomination of some of these people, and perhaps even Helene White or Kathleen McCree Lewis to the U.S. Court of Appeals for the Sixth Circuit. A number of my colleagues were pressing very strongly for that. I wanted to try to resolve that if I could. However, events conspired to prevent that from happening. First, during the August recess, the President determined to recess appoint several executive branch nominees over the express objection of numerous Senators. He did so notwithstanding the agreement to clear such recess appointments with the relevant Senators. We do not have much power around here in some ways against a President of the United States, but we can demand that he consult with us. These Senators are very aggrieved by the way they were treated on these appointments--I think rightly so. Second, Democrat Senators determined to place holds on the four nominations we are debating today and threatened shutdowns of the Senate's committee work, going as far as to invoke the 2-hour rule and forcing the postponement of scheduled committee hearings, including the Wen Ho Lee hearing, which is an important hearing, a bipartisan hearing, for both sides to look at. Helene White and Kathleen McCree Lewis have only the White House and Senate Democrats to blame for the current situation, I might add, because of some of these petty procedural games we have been going through around here with filibusters of almost everything that comes up, or a threat to bring up all kinds of extraneous amendments if we do happen to bring a bill up that needs to be passed. It is very late in the session to be considering a circuit court nomination. Some nominations can move through the confirmation process quickly, but only where the White House has dealt with the Senate, on nominations, in good faith. The Arizona nominations we are debating today moved through the confirmation process quickly because the White House worked closely with Senator Kyl and others, and myself, and negotiated in good faith over which Arizonans should get these lifetime appointments. Everybody knows there is a tremendous need along the southern border in Arizona to have these judges. There is a tremendous court docket there that needs these judges. Yet they have been delayed for 2 solid months almost. In contrast, the White House and Senate Democrats have not dealt in good faith, given the President's recess appointments in August of several executive branch nominees over the express objection of numerous Senators and Senate Democrats' efforts to hold up these nominees and hold up the work of the Senate. With regard to the nomination of Bonnie J. Campbell, in March, Bonnie Campbell was nominated to the U.S. Court of Appeals for the Eighth Circuit. At the urging of Senator Grassley, the Judiciary Committee held a hearing for Ms. Campbell in May. It had always been my intention for the Judiciary Committee to report Ms. Campbell's nomination. However, events conspired to prevent that from happening. First, during the August recess, as I have explained, the President determined to recess appoint several executive branch nominees over the express objection of numerous Senators. He did so notwithstanding his agreement to clear such recess appointments with the relevant Senators. By the way, this type of an agreement arose out of Senator Byrd's objections in earlier Congresses. His objections were followed here on the part of people on our side of the aisle, and the President agreed to it and then violated that agreement. Second, after the August recess, Democrat Senators determined to place holds on the four nominations we are debating today, even though everybody admits--I think everybody admits --that they are important nominations and this arrangement that has been worked out has been fair. Again, they threatened to shut down the Senate's committee work, going as far as to invoke the 2-hour rule and enforce the postponement of scheduled committee hearings. And we went through that because of pique. For these reasons, Bonnie Campbell's nomination has stalled. Ms. Campbell has only the White House and Senate Democrats to blame for the current situation. I might add, it did not help at all on our side for these petty filibusters on everything. It used to be when I got here, there might be one or two or three filibusters a year at the very most, and then they were on monumental issues that involved a wide disparity of belief. It was not every little motion to proceed, every little bill we were going to pass, like the one we just passed 96-1. To go through three filibuster cloture votes on that bill was beyond belief. But that irritated a lot of people. It made it more difficult to get these judges through. Mr. Harkin, the Senator from Iowa, claimed that his review of history led him to believe we are ``playing politics with the judges.'' I strongly disagree. In President Reagan's last year, the Democrat- controlled Senate confirmed 41 nominees. After the votes today, the Senate this year will have confirmed 39 nominees. And there have been some indications there might be some games played with one of the four judges here today. If that is the case, boy, Katie bar the door, after what we have been trying to do here. The committee worked sincerely to try to get these nominations out, and they have been here for quite a while. Finally, few nominees are confirmed when the White House and Senate are controlled by different political parties. From 1987 to 1992, the Democrat-controlled Senate confirmed an average of 46 Reagan and Bush nominees per year. Things changed when President Clinton was elected. In 1994, the Democrat- controlled Senate pushed through 100 Clinton nominees. They could not have done that without cooperation from Republicans, but they did that. In 1992, at the end of the Bush administration when Democrats controlled the Senate, the vacancy rate stood at 11.5 percent. Now at the end of the Clinton administration the vacancy rate after the votes today will stand at just 7.4 percent. Also in 1992, Congress adjourned without having acted on 53 Bush nominations, or should I say nominees who were sitting there waiting to be confirmed. After the votes today, there will be only 38 Clinton nominations that are pending. Under both Democrats and Republicans, the Senate historically confirms 65 to 70 percent of the President's nominees. In his last 2 years, President Bush made 176 nominations, and the Democrat-controlled Senate confirmed 122 of them, yielding a confirmation rate of 69 percent. During the last 2 years, President Clinton made 112 nominations, and after today's votes, the Senate will have confirmed 73 of them. He has a confirmation rate of almost the same, 65 percent. In May, at a Judiciary Committee hearing, Senator Biden indicated he did not believe we would do even 30 judges this year. He is wrong. We will have now done, at the end of the day, 39 judicial nominees confirmed by the Senate. There has been much debate today about everything but the four nominees we ostensibly are debating. I fully support these nominees and want to say a few words about them. They are supported by their home State Senators--Senators Kyl, McCain, Fitzgerald, and Durbin. The nominees we are supposedly debating today are as follows: Susan Ritchie Bolton from Arizona: Ms. Bolton has served as judge in the Maricopa County Superior Court since 1989. Before that, from 1977-89, she worked in private practice at a Phoenix law firm. From 1975-77, she clerked for the Hon. Laurance T. Wren of the Arizona Court of Appeals. Ms. Bolton received her law degree, with high distinction, from the University of Iowa Law School in 1975, and her undergraduate degree, with honors, from the University of Iowa in 1973. Mary H. Murguia: Since 1998, Ms. Murguia has served in the Executive Office of U.S. Attorneys, first as Counsel and then as Director. Before that she served as an Assistant U.S. Attorney in the District of Arizona from 1990-98. From 1985-90, she was an Assistant District Attorney in Wyandotte Country, Kansas. She received her law degree from the University of Kansas Law School in 1985, and her undergraduate degree from the University of Kansas in 1982. Michael J. Reagan: Mr. Reagan has worked in private practice since graduating from law school in 1980; since 1995, he has been a sole practitioner at the Law Office of Michael J. Reagan. In addition, he has served as an Assistant Public Defender (part time) since 1995. He received his law degree from St. Louis University Law School in 1980, and his undergraduate degree from Bradley University in 1976. James A. Teilborg: Mr. Teilborg has been a partner at the Phoenix law firm of Teilborg Sanders & Parks since 1972; before that he was an associate at another Phoenix firm from 1967-72. He received his law degree from the University of Arizona School of Law in 1966. Some have complained the Arizona nominations have moved more quickly while others have not. Some nominations can move through the confirmation process quickly, there is no question about that, but only where the White House has dealt with the Senate on nominations in good faith. The Arizona nominations we are debating today moved through the confirmation process quickly because the White House worked closely with Senator Kyl and negotiated in good faith over which Arizonans should get these lifetime appointments. All four are Democrats, all four are supported by the President, all four came through the appropriate committee--the Judiciary Committee-- and all four will be voted on today, and I expect all four to be confirmed unanimously. If there are no politics played, they will be confirmed unanimously. In contrast, the White House and Senate Democrats have not dealt in good faith, given the President's recess appointments in August of several executive branch nominees over the express objection of numerous Senators and Senate Democrats' efforts to hold up these nominees and obstruct the work of the Senate--the filibusters that have occurred on almost everything that comes up here and, of course, the holds that have been placed on these four nominees who are President Clinton's nominees. It does not take long until people on our side know there are too many games being played on judicial nominees. We have done a good job. President Reagan had the all-time highest confirmation of judges during his 8 years. That was 382 judges. By the end of the day, when we confirm these 4, President Clinton will have the all-time second highest, as far as I know, and that is 377 judges, 5 fewer than President Reagan. Had we not had all these games played, I believe I could have held a hearing in September, which I no longer can hold, and we would have confirmed probably enough to draw President Clinton equal to President Reagan.

Mr. HATCH. I reserve the remainder of my time.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a Senate resolution commending Sydney, Australia on the success of the 2000 Summer Olympic Games and congratulating the U.S. Olympic Team on their outstanding performance. Once every two years, we have the great opportunity to witness the world's finest athletes display astonishing feats of speed, strength, flexibility and grace. There is no main event quite like the Olympics and the 2000 Summer Olympic Games in Sydney, Australia, left a remarkable impression on all of us over the past several weeks. On behalf of the United States Senate, I express deep appreciation to the city and residents of Sydney, Australia, for being such superb hosts for the Summer Olympic Games. Planning and organizing such a two- week, multi-venue event--which is immediately followed by the Paralympic Games--is a daunting and monumental task. The Australians can be extremely proud of their efforts, which, by all accounts, were extraordinary. We in Salt Lake City will be striving to put on an Olympic Winter Games that equals Sydney in both efficiency and hospitality. We can also be very proud of the U.S. Olympic Team's outstanding accomplishments. Our athletes turned in exciting and memorable performances. All together, the U.S. Team earned 39 gold medals, 25 silver medals, and 33 bronze medals--a total of 97 medals, which was the most of any country! This demonstrates extraordinary commitment to excellence. These athletes trained hard just to participate at this level of sport; many sacrificed other pursuits to attain the honor of competing in this premier sporting competition--the Olympic Games. There were many ``Olympic moments'' during these Games. For instance, who will ever forget Rulon Gardner, the Greco-Roman wrestler from Wyoming, who realized his Olympic dream by defeating the one-time invincible, and still great, Aleksandr Karelin, of Russia. Following the match, Gardner said, ``all I could do was do my best.'' Isn't that the beauty of the Olympic Games? Athletes all over the world giving it their all in competition against tremendous odds. Who could forget Misty Hyman upsetting the world favorite Susie O'Neill in the 200 meter butterfly? Those of us watching on television could plainly sense the sheer surprise and joy of this achievement. And, the athletes from other national teams captured our attention as well. Cathy Freeman of Australia, who stole the heart of her nation in the 400 meter race. China's Fu Mingxia, who made an amazing comeback to win gold in diving. And, Aleksei Nemov, who celebrated the birth of his child by winning a gold medal in gymnastics. I am very proud of the athletes from my home state of Utah, who represented our state with dignity and honor during the Olympic Games. Marcus Jensen and Doug Mientkiewicz, both of the Utah Buzz, were members of the U.S. baseball team that defeated the heavily favored Cuban baseball team--the first time in Olympic history that the Cuban team did not win the gold medal in baseball. Natalie Williams, also of Utah and a key player for the Utah Starzz, led the U.S. women's basketball team with 15 points in the Olympic basketball final to help the U.S. win its fourth gold medal in women's basketball since women's basketball became an Olympic sport in 1976. But, the Olympics is not only about winning medals. Logan Tom, from Salt Lake City who now attends Stanford University, led the U.S. Women's volleyball team to a terrific--and unexpected--fourth place finish. None of the sports handicappers gave this team much of a chance. Yet, they fought their way to the semifinals and through a tough five-set match with Russia. Utah is proud to be the host of the upcoming 2002 Winter Olympic Games in Salt Lake City. We hope to follow the example of the 2000 Games in Sydney, Australia, with the same enthusiasm and excitement and the same devotion to the ideal of the Olympic movement, which is ``a belief that sport can break down barriers of language, culture, nationality, age and sex and build bridges between people all over the world as a means of promoting world peace.'' Some have derided the Olympic Games as nothing more than commercialism run amok. They say that the news coverage is too positive. They say that the media glosses over the negative elements of the Games--doping, for example. They claim that the only thing that drives athletes is the prospect of product endorsements or professional contracts. Yes, Mr. President, these elements exist at the Games. It is sad that they do. There were displays of poor sportsmanship. There were cases of doping. There are, no doubt, those whose goals extend far beyond the Olympics just concluded. But, Mr. President, we can look at such incidents and say they taint the Olympics as a whole endeavor. Or, we can brush them aside as few in number and unrepresentative of our athletes as a body. We can erase one embarrassing spectacle of bad manners with the sight of Dot Richardson embracing her Japanese opponent. We can remember Marion Jones graciously congratulating the winner of the women's long jump, although Marion Jones is world class in every way. In conclusion, Mr. President, I strongly believe that the people of Sydney, New South Wales, Australia, deserve our official recognition. I know what a monumental effort this was. And, let us commend our U.S. Olympic Team for their successes on the field as well as for their fine representation of our country. I urge my colleagues to join me in supporting this Senate resolution. Mr. President, I ask unanimous consent that the resolution be placed on the Calendar.

Mr. HATCH

Mr. HATCH. Mr. President, in the last decade, DNA testing has become the most reliable forensic technique for identifying criminals when biological evidence of the crime is recovered. While DNA testing is standard in pre-trial investigations today, the issue of post- conviction DNA testing has emerged in recent years as the technology for testing has improved. Because biological evidence, such as semen or hair from a rape, is often preserved by authorities years after trial, it is possible to submit preserved biological evidence for DNA testing. In cases that were tried before DNA technology existed, and in which biological evidence was preserved after conviction, post-conviction testing is feasible. While the exact number is subject to dispute, post-conviction DNA testing has exonerated prisoners who were convicted of crimes committed before DNA technology existed. In some of these cases, the post- conviction DNA testing that exonerated a wrongly convicted person led to the apprehension of the actual criminal. In response to these cases, the Senate Judiciary Committee has examined various state post- conviction DNA statutes, held a hearing on post-conviction DNA testing, and sought the expertise of federal and state prosecutors and criminal defense lawyers. To ensure that post-conviction DNA testing is available in appropriate cases, I, along with Senators Lott, Nickles, Mack, McCain, Thurmond, Grassley, Kyl, Abraham, DeWine, Sessions, R. Smith, G. Smith, Collins, Fitzgerald, Helms, Santorum, Hagel, Shelby, Warner, Inhofe, Snowe, Allard, Brownback, Grams, Bennett, Cochran, T. Hutchinson, and Frist are introducing the Criminal Justice Integrity and Law Enforcement Assistance Act today. This Act authorizes post-conviction DNA testing in federal cases and encourages the States, through a grant program, to authorize post-conviction DNA testing in a consistent manner in state cases. In addition, the Act provides $60 million in grants to help States reduce the backlog of DNA evidence to be analyzed and to conduct post-conviction DNA testing. The Criminal Justice Integrity Act was based in large part on the successful post-conviction DNA testing statute in Illinois. The Illinois statute has worked particularly well, as Illinois has the most post-conviction DNA exonerations in the Nation. Like the Illinois statute, the Criminal Justice Integrity Act authorizes post-conviction DNA testing only in cases in which testing has the potential to prove the prisoner's innocence. This standard will allow testing in potentially meritorious cases without wasting scarce prosecutorial and judicial resources on frivolous cases. It is significant that the Illinois statute has worked well without overburdening the State's law enforcement or judicial systems. Mr. President, given that post-conviction DNA testing is a complex legal issue, I would like to discuss the legal standard to obtain testing in the Illinois statute and in the Criminal Justice Integrity Act. While the Illinois statute is somewhat vague, several Illinois Court of Appeals decisions have interpreted the standard for obtaining post-conviction testing under the statute. See People v. Gholston, 697 N.E.2d 375 (1998); People v. Dunn, 713 N.E.2d 568 (1999); People v. Savory, 722 N.E.2d 220 (1999). As these decisions make clear, post- conviction testing is allowed under the Illinois statute only if the testing has ``the potential to establish the defendant's innocence.'' For example, in People v. Gholston, the defendant and five companions were convicted of raping a woman and assaulting and robbing her two male companions in 1981. In 1995, the defendant filed a motion to compel DNA testing of the victim's rape kit to prove that he did not participate in the gang rape. The trial court dismissed the motion for testing, and the appellate court affirmed. In affirming the denial of testing, the court ruled that a ``negative DNA match would not exculpate defendant Gholston due to the multiple defendants involved, the lack of evidence regarding ejaculation by the defendant Gholston and defendant's own admission of guilt under a theory of accountability.'' Id. at 379. In People v. Dunn, the defendant was convicted in 1979 of a rape in which there was only one attacker. The defendant petitioned for post- conviction relief, and the trial court dismissed the petition. On appeal, the court remanded the motion to determine whether post- conviction testing was appropriate under the Illinois statute. In remanding the motion, the court distinguished the facts in Dunn from Gholston, noting that post-conviction testing was denied in Gholston because ``the test results could not have been conclusive of defendant's guilt or innocence.'' Id. at 571. Under the facts in Dunn, the court held that the decision in Gholston would not prevent post- conviction testing ``where DNA testing would be determinative'' of guilt or innocence. Id. The court remanded the motion to the trial court to determine ``whether any conclusive result is obtainable from DNA testing.'' Id. The most extensive discussion of the standard for obtaining post- conviction testing under the Illinois statute occurred in People v. Savory. In Savory, the defendant was convicted of stabbing two people to death in 1977. In 1998, the defendant sought DNA testing of bloodstained pants that were recovered from his home. The trial court denied the motion for DNA testing, and the appeals court affirmed. The court held that DNA testing on the bloodstained pants could not exonerate the defendant because a negative DNA match could merely indicate that the defendant did not wear those pants during the murders. At trial, Savory's father testified that the pants were his and that he, not the defendant, was responsible for the bloodstains. In addition, there was other, overwhelming evidence of the defendant's guilt. The court in Savory noted that in Gholston, post-conviction testing was denied because ``DNA testing could not conclusively establish defendant's guilt or innocence.'' In discussing the Illinois statute, the court stated: Based on the plain language of [the Illinois statute] and on the interpretation of [the statute] in Gholston and Dunn, we believe that the legislature intended to provide a process of total vindication . . . [I]n using the term ``actual innocence,'' the legislature intended to limit the scope of the [Illinois statute], allowing for scientific testing only where it has the potential to exonerate a defendant. Id. at 224. Under the facts in Savory, the court denied post-conviction testing because ``although DNA testing carries the possibility of weakening the State's original case against the defendant, it does not have the potential to prove him innocent.'' Id. at 225. In short, post-conviction testing is allowed under the Illinois statute only where testing ``could be conclusive of the defendant's guilt or innocence''; only where ``DNA testing would be determinative''; only if ``any conclusive result is obtainable from DNA testing''; and only where post-conviction testing ``has the potential to exonerate a defendant.'' The Criminal Justice Integrity Act has a similar legal standard to obtain testing. The Act authorizes testing if the prisoner makes a ``prima facie showing'' that identity was at issue at trial and DNA testing would, assuming exculpatory results, establish actual innocence. A ``prima facie showing'' is a lenient requirement that is defined as ``simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.'' See Bennett v. U.S., 119 F.3d 468 (7th Cir. 1997). Thus, under the Criminal Justice Integrity Act, post-conviction testing is ordered if the prisoner makes a ``sufficient showing of possible merit'' that identity was at issue at trial and DNA testing would, assuming exculpatory results, establish actual innocence. In other words, the Act requires a showing that post- conviction testing has the potential to prove innocence. This is consistent with--and no more difficult than--the legal standard in the Illinois statute. If post-conviction DNA testing can establish a prisoner's innocence, such a prisoner can obtain testing under the Criminal Justice Integrity Act. If post-conviction DNA testing is performed and produces exculpatory evidence, the Criminal Justice Integrity Act allows the prisoner to move for a new trial based on newly discovered evidence, notwithstanding the time limits on such motions applicable to other forms of newly discovered evidence. In so doing, the Act relies on established judicial procedures. In addition, the Criminal Justice Integrity Act prohibits authorities from destroying biological evidence which was preserved in cases in which identity was at issue for the duration of the Act, and it authorizes the court to appoint counsel for an indigent prisoner who seeks post-conviction testing. Mr. President, the Criminal Justice Integrity and Law Enforcement Assistance Act is the only federal post-conviction DNA legislation that is supported by the law enforcement community. The Criminal Justice Integrity Act was unanimously endorsed by the bipartisan board of the National District Attorneys Association. In addition, the International Association of Chiefs of Police, the Fraternal Order of Police, and the National Sheriffs' Association have endorsed the bill. I am proud to have the support of the law enforcement community for this important legislation. In closing, I would like to note that advanced DNA testing improves the just and fair implementation of the death penalty. While the Criminal Justice Integrity Act applies both to non-capital and capital cases, I think the Act is especially important in death penalty cases. While reasonable people can differ about capital punishment, it is indisputable that advanced DNA testing lends support and credibility to the accuracy and integrity of capital cases. For example, earlier this year, Texas Governor George W. Bush, granted a temporary reprieve to a death row inmate, Ricky McGinn, to allow post-conviction DNA testing on evidence recovered from the victim. In 1995, McGinn was convicted of raping and murdering his 12-year-old stepdaughter. McGinn's lawyers had argued that additional DNA testing could prove that McGinn did not rape the victim, and therefore, was not eligible for the death penalty. The DNA testing was recently completed, and the test results confirmed that McGinn raped the victim, in addition to murdering her. In short, as the McGinn case demonstrates, we are in a better position than ever before to ensure that only the guilty are executed. All Americans--supporters and opponents of the death penalty alike--should recognize that DNA testing provides a powerful safeguard in capital cases. We should be thankful for this amazing technological development. I ask unanimous consent that the endorsements of this legislation be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, let me highlight our intent about how the Immigration and Naturalization Service (INS) should implement this legislation with respect to physicians who seek H-1B visas. The INS currently requires that each applicant for an H-1B visa who wishes to work as a physician must have passed the three parts of the United States Medical Licensing Examination (USMLE) and, if required by the state in which he or she will be practicing, be licensed. Due to the increased number of physicians who may work in the U.S. under H-1B visas with the passage of this legislation, it is even more important that the INS confirm successful completion of all parts of the USMLE each time an individual physician applies for, or seeks renewal of, an H-1B visa.