Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, am I responding on the time of the Senator from Utah?

Mr. LEAHY. It is obvious that the Senator from South Carolina did not have the whole quote or he would not have quoted me out of context so badly.

Mr. LEAHY. If the Senator would read the whole quote in context, I am happy to answer any questions he has. If he is unwilling--

Mr. LEAHY. I beg your pardon. I apologize. Will the Senator from South Carolina be willing to read the whole quote?

Mr. LEAHY. Mr. President, whose time is this on?

Mr. LEAHY. Would the Senator be willing to state the whole quote? He has left out a very significant part in that quote. Is he willing to put the whole quote, the accurate quote?

Mr. LEAHY. The Senator happened to mention my name. I ask if the Senator will yield?

Mr. LEAHY

Mr. LEAHY. Mr. President, tonight the Senate will vote to confirm Judge Gregory Lynn Frost to the United States District Court for the Southern District of Ohio. This will be the 105th confirmation of a lifetime Federal judicial appointment by President George W. Bush, the fifth so far this year. He is also the second District Court nominee confirmed for Ohio this year, following the confirmation of Judge Adams to the District Court for the Northern District last month, and the third within the last year. Last May, the Senate also confirmed Judge Thomas Rose to the vacancy on the U.S. District Court for the Southern District of Ohio. With the confirmations of Judge Frost, we will have filled all of the vacancies on the Federal trial courts in Ohio. Federal judicial vacancies remain under the level--67--that Senator Hatch termed ``full employment'' in the Federal courts during the years before 2000 when President Clinton's nominees were being considered by the Republican majority in the Senate at a rate of 38 per year. Of course, last year the Democratic Senate majority proceeded to bring vacancies down by confirming 72 of President Bush's nominations, a rate almost double that maintained when the roles were reversed. Judge Frost currently serves the people of Ohio as a Licking County Court Judge in Newark, Ohio. Judge Frost is a graduate of Wittenberg University (B.A. 1971) and Ohio Northern University Law School (J.D. 1974). He is strongly supported by Senator DeWine, who shepherded this nomination through the Judiciary Committee and now to the Senate floor for prompt consideration. After graduating from law school, Frost was appointed to be an Assistant Prosecuting Attorney for the Licking County Prosecuting Attorney's Office. In 1978, Frost joined the law firm of Schaller, Frost, Hostetter & Campbell in Newark, Ohio as a partner. He was appointed in 1979 by Mayor Chet Geller to be an Ohio Civil Service Commission clerk. In the early 1980's, he was elected a Licking Counting Municipal Court Judge. In 1990, Judge Frost was elected to a 6-year term on the Licking County Common Pleas Court and has been reelected twice, most recently in November 2002. According to this Senate Questionnaire, he has no experience in Federal court. Judge Frost is a current or former member of numerous charitable, civic and social organizations. Judge Frost is also a current member of the Newark Elks Club, which currently bases membership on being ``a citizen of the United States over the age of 21 who believes in God.'' Judge Frost states in his Senate Questionnaire that, for four years, he had been a member of the Newark Elks Club, along with the Newark Moose Lodge and Newark Maennerchor, however, he states that, ``when it became apparent that those organizations discriminated against women in their membership practices, I resigned. In 2000, I was asked to re-apply for membership in the Newark Elks Lodge. I advised that organization that I could not subscribe to their membership tenets as a result of their continued discrimination against women. In part, because of my position on this issue, I am proud to say that the Newark Elks Lodge has changed its practices and now permits women as full members.'' Judge Frost belongs to the Moundbuilders Country Club, a private golf club that does not discriminate in its membership. The Committee received a letter of support for Judge Frost from the Ohio Employment Lawyers Association, a nonprofit organization that represents individual employees concerning employment and labor matters. The Ohio Employment Lawyers Association writes that Judge Frost ``is an example of how a jurist should set aside personal and partisan political beliefs to provide justice.'' Supporters of Judge Frost's nomination to the District Court also include the Ohio Academy of Trial Lawyers and Peter W. Hahn, a Democrat who has practiced before Judge Frost, writes that ``Judge Frost has the unique ability and temperament to adjudicate complex cases while maintaining civil and professional decorum both inside the courtroom and in chambers.'' I congratulate Judge Frost and his wife on his confirmation. I ask for the yeas and nays.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join my colleagues Senator Mark Dayton and Senator Larry Craig in introducing the bipartisan Milk Import Tariff Equity Act. Our bill will prevent importers of dairy products from circumventing U.S. trade laws. Although I opposed it at the time, during the Uruguay Round multilateral trade negotiations, the United States agreed to allow a substantial increase in dairy product imports into this country. Tariff rate quotas were established to allow imports of most dairy products to rise from an average of 2 percent of domestic consumption to as much as five percent. At least initially, these controls appeared to be effective. But foreign competitors have found ways to circumvent these quotas by adjusting the protein content of nonfat dry milk so that it is classified by the U.S. Customs Service as milk protein concentrate, MPC. While nonfat dry milk imports are strictly regulated, there are no quotas on MPCs and duties are low. A recent GAO study requested by Congress determined that MPC imports surged by more than 600 percent over a six year period. MPC imports lower prices for U.S. dairy farmers by displacing sales of nonfat dry milk. According to the GAO study, some exporters are blending previously processed dairy proteins, such as casein, whey and nonfat dry milk into MPC solely for the purpose of avoiding the U.S. tariff rate quota for nonfat dry milk. This practice, specifically cited in the GAO report, circumvents statutory U.S. trade provisions designed to regulate imports of nonfat dry milk powder. It is time to close this loophole. Under our bill, MPCs would be regulated in the same manner as all other dairy products: by imposing tariff-rate quotas on MPC imports. This legislation also closes a similar loophole that exists for casein used in the production of food or feed, while continuing to allow unrestricted access for imports of casein used in the manufacture of glues and for other industrial purposes. Most Americans probably don't realize it, because retail fluid milk prices have hardly changed, but dairy farmers in Vermont and across this Nation are really struggling. Farm-gate milk prices have fallen more than 30 percent over the past 18 months and are now at the lowest levels in 25 years. Even the most efficient producers are unable to make a profit at these prices. Prices are low in part due to these imports. Others will argue that MPC imports represent just a small fraction of U.S. milk production. But when you are dealing with a perishable commodity like milk, even a slight increase in supply can have a dramatic effect on prices. Closing the MPC loophole is one of the most important steps we can take to help our nation's dairy farmers. I commend Senators Dayton and Craig for their leadership on this issue, and I urge my colleagues to join me in cosponsoring this important legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, today we have proceeded with the President's nominations to the U.S. Parole Commission, among others. These individuals were the selections of the White House without consultation with the Democratic leader or with me or other Democratic Senators interested in these matters. We have proceeded on the President's nominees expeditiously and in good faith trusting that the White House will follow through expeditiously to nominate those members to the U.S. Parole Commission that the Democratic leader is recommending to fill the seats allocated to Democrats on what should be a bipartisan commission. This President has too often in the past proceeded unilaterally on what have traditionally been bipartisan boards and commissions. Last year the White House caused significant problems for all nominations when it failed to follow through in a timely way on a commitment made to Senator McCain. That led to objections and cloture votes being required on a series of the President's judicial nominations and unnecessary delays with respect to both judicial and executive nominations because of objections from the Republican side. With respect to all nominations, I urge the President to begin to work with us. Just as this White House has failed to work with Senate Democrats on judicial nominees, it has often failed to work with us on nominations to bipartisan boards and commissions. We would appreciate this White House beginning to work with us rather than dictate to us. Just this week Thomas E. Mann, a distinguished scholar and senior fellow in governance studies at The Brookings Institution, wrote a column about the deteriorating relations between the White House and the Congress with respect to the nomination and confirmation process. While I do not agree with all of his observations, I note that he correctly observed that after the President's campaign as a uniter not a divider, we did expect more cooperation. And after the attack of September 11, when Democrats sought to close ranks and forego partisanship, we were disappointed by the continuing partisanship of the White House. Mr. Mann wrote: ``After the 2000 election and then again after Sept. 11, 2001, Democrats expected something akin to a government of national unity. Instead, they encountered a president who seemed determined to wage institutional, ideological and partisan war.'' Mr. Mann concluded by suggesting: ``The only way to break this cycle of escalation is for Bush to take pre-emptive action by submitting a more balanced ticket of judicial nominees and engaging in genuine negotiations and compromise with both parties in Congress.'' I agree, that would be a useful development. I add that it would be long overdue. Today, on the day the Senate has moved off the Estrada nomination because of the lack of cooperation by the administration, the Senate is with the consent of every Democratic Senators agreeing to the confirmation of another judicial nominee, the 104th for this President, and several executive branch nominees. I ask consent to print Thomas E. Mann's column in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join my colleagues Senator Mark Dayton and Senator Larry Craig in introducing the bipartisan Milk Import Tariff Equity Act. Our bill will prevent importers of dairy products from circumventing U.S. trade laws. Although I opposed it at the time, during the Uruguay Round multilateral trade negotiations, the United States agreed to allow a substantial increase in dairy product imports into this country. Tariff rate quotas were established to allow imports of most dairy products to rise from an average of 2 percent of domestic consumption to as much as five percent. At least initially, these controls appeared to be effective. But foreign competitors have found ways to circumvent these quotas by adjusting the protein content of nonfat dry milk so that it is classified by the U.S. Customs Service as milk protein concentrate, MPC. While nonfat dry milk imports are strictly regulated, there are no quotas on MPCs and duties are low. A recent GAO study requested by Congress determined that MPC imports surged by more than 600 percent over a six year period. MPC imports lower prices for U.S. dairy farmers by displacing sales of nonfat dry milk. According to the GAO study, some exporters are blending previously processed dairy proteins, such as casein, whey and nonfat dry milk into MPC solely for the purpose of avoiding the U.S. tariff rate quota for nonfat dry milk. This practice, specifically cited in the GAO report, circumvents statutory U.S. trade provisions designed to regulate imports of nonfat dry milk powder. It is time to close this loophole. Under our bill, MPCs would be regulated in the same manner as all other dairy products: by imposing tariff-rate quotas on MPC imports. This legislation also closes a similar loophole that exists for casein used in the production of food or feed, while continuing to allow unrestricted access for imports of casein used in the manufacture of glues and for other industrial purposes. Most Americans probably don't realize it, because retail fluid milk prices have hardly changed, but dairy farmers in Vermont and across this Nation are really struggling. Farm-gate milk prices have fallen more than 30 percent over the past 18 months and are now at the lowest levels in 25 years. Even the most efficient producers are unable to make a profit at these prices. Prices are low in part due to these imports. Others will argue that MPC imports represent just a small fraction of U.S. milk production. But when you are dealing with a perishable commodity like milk, even a slight increase in supply can have a dramatic effect on prices. Closing the MPC loophole is one of the most important steps we can take to help our nation's dairy farmers. I commend Senators Dayton and Craig for their leadership on this issue, and I urge my colleagues to join me in cosponsoring this important legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join Senator Dianne Feinstein in sponsoring the Energy Oversight Bill. This bill clarifies the scope of the existing regulatory authority of the Commodity Futures Trading Commission, CFTC, over markets in over-the-counter, OTC, derivatives, including its anti-fraud and anti-manipulation jurisdiction over exempt commodities such as metals and energy. Over-the-counter derivatives markets have assumed an increasingly large role in the U.S. economy. A recent conservative estimate put the size of the global OTC derivatives market at $111 trillion. The U.S. share of that market is estimated to be at least two-thirds. Derivatives based on ``exempt commodities,'' such as energy and metals, make up a small percentage--probably no more than 2 percent--of the total OTC derivatives market. However, derivatives play an increasingly important role in energy and metals markets, which are in turn critical to our overall economy. The energy markets are among the largest and most dynamic in the United States. Hundreds of billions of dollars in energy products-- which include electricity, natural gas, crude oil, and gasoline--are traded each year in the United States--both on-exchange and in the over-the-counter markets. We are all well aware of the tragedies that occurred last fall surrounding the collapse of Enron. For instance, there have been numerous stories in the press regarding allegations of manipulations in energy markets. I understand the CFTC currently is in the process of pursuing a comprehensive, detailed investigation of allegations raised by the Enron collapse. However, some have suggested that following passage of Commodity Futures Modernization Act, CFMA, in 2000 the CFTC does not in fact have authority to effectively and successfully investigate and punish fraud and manipulation in derivatives markets for exempt commodities-- particularly energy and metals. In a hearing held by the Senate Agriculture Committee last July, questions were raised about the CFTC's ability to prevent fraud and manipulation in the first place. If that is the case, not only do these transactions fall outside the jurisdictional reach of the CFTC, but in most cases, they are beyond the reach of any other federal financial regulator. Thus, we have a gap in the oversight of exempt commodity transactions. And plainly, this gap was not something Congress intended when it passed the CFMA. This legislation puts these questions to rest. Our bill clarifies that the CFTCs anti- fraud and anti-manipulation authority applies to all exempt commodity transactions and requires derivatives marketplaces like electronic swap exchanges--like the now- defunct ``Enron Online"--to adhere to certain, minimal regulatory obligations: among them are transparency, disclosure, and reporting. It recognizes the benefits of market innovation by preserving the long-sought legal certainty for swaps--they remain for the most part ``exempt'' from CFTC jurisdiction. At the same time, however, the bill ensures that all derivatives transactions are subject to the commission's fraud and manipulation authorities. It would not require the registration of swap counterparties, but would require that they maintain books and records of transactions--something that should be routine practice in the industry. Finally, the legislation recognizes that all exchange markets serve price discovery and hedging purposes by imposing modest transparency, disclosure, and reporting obligations. Experience has shown that measures designed to increase market transparency instill confidence in markets, attract investment, and increase market integrity by providing regulators with the means to monitor for fraud and manipulation. Application of these principles to derivatives markets generally is sound public policy, prudent business practice, and common sense. The consequent benefits extend not only to market users, but also to consumers. Accountability is important and must be restored because Enron is not alone. It is only a case study exposing the shortcomings in our current laws. Future debacles wait to be discovered not only by investigators or the media, but by the more than one in two Americans who depend on the transparency and integrity of our public markets. The majority of Americans depend on capital markets to invest in the future needs of their families--from their children's college fund to their retirement nest eggs. American investors deserve action. Congress must act now to restore confidence in the integrity of the public markets. Accountability and transparency help our markets work as they should, in ways that benefit investors, employees, consumers and our national economy. Our job is to make sure that there are adequate doses of accountability in our regulatory and legal system to prevent such occurrences in the future. The time has come for Congress to rethink and reform our laws in order to prevent corporate deceit, to protect investors and to restore full confidence in the capital markets. Unfortunately, in the wake of Enron, we are presently witnessing some of the best arguments in favor of such changes. U.S. energy markets are suffering a crisis in confidence. This modest legislation is a good first step toward restoring this lost confidence and returning energy markets to a path of growth and efficiency.

Mr. LEAHY

Mr. LEAHY. Mr. President, as I have previously mentioned before the Judiciary Committee and here before the Senate, I have significant concerns about Mr. Estrada's nomination. Significant concerns have been raised and not answered. Many of us would like to have sufficient confidence based on a record and a strong confidence about the type of judge he would be. Sadly that record is not there and the administration continues to deny us access to Government files that might be helpful to us. While he has some experience arguing appeals in criminal cases, he appears to have little experience handling the types of civil cases that make up the majority of the docket of the D.C. Circuit, a court on which Republicans blocked appointments during the last 4-year term of the Clinton administration in order to shift the ideological balance of the court. His confirmation has been opposed by many including people and groups who represent the Latino community. The opposition of so many Hispanic organizations and the Congressional Hispanic Caucus should be of concern. Mr. Estrada's selection for this court has generated tremendous controversy across the country and within the Hispanic community. For more than 2 years I have been calling upon the President to be a uniter and not a divider. Here is another matter on which the White House has chosen divisive, partisanship and narrow ideology over what is best for the Senate, the D.C. Circuit, the Hispanic community and the American people. This has been yet another in a string of controversial nominations that has divided, not united, the American people and the Senate. Senate Democrats demonstrated in the last Congress that we would bend over backwards to work with the Administration to fill judicial vacancies. We proceeded with more than 100 nominations in 17 months, held hearings and confirmed nominees at a pace almost twice that of Republicans with a Democratic President. Unlike President Clinton, however, this President has continued to insist on doing things his way and only his way and simply refuses to work with us. Last May, at the behest of a number of Senators seeking a solid basis on which to evaluate this nomination, I wrote to the nominee and to the Attorney General requesting access to his work while employed by the Government at the Department of Justice between 1992 and 1997. In that capacity he worked for the government of which Congress is a part. Similar papers have been provided to the Senate in connection with a number of previous nominations, including those of William Rehnquist, Robert H. Bork, William Bradford Reynolds, Benjamin Civiletti, and Stephen Trott. Despite this precedent, over 300 days have passed without cooperation from the administration. The administration has unfortunately, chosen to treat the request for relevant information of a coequal branch like a litigation discovery request that it must resist at all costs. Their approach reminds me of how the tobacco companies treated requests for information about what they knew about the cancer causing properties of cigarettes for years and years. In connection with this nomination, the administration took three weeks to study the files then dismissed the request out of hand and called it without precedent. The administration claimed that no administration had ever provided such materials in connection with a nomination. As we have now demonstrated over and over that precedent exists going back over the last 20 years. When presented with irrefutable evidence that these types of materials had been provided, the administration shifted its defense to trying to distinguish those past nominations and even claimed that the documents previously produced by the Department of Justice to the Senate had, instead, been ``leaked'' to the Senate. They all but called Senator Schumer a liar in response to his January letter seeking to resolve the matter. Then we provided documents from the Department of Justice that conclusively demonstrate that the materials had been furnished in response to Senate requests. This refutes the second round of misrepresentations by the Department of Justice. The proof is in a letter from Acting Assistant Attorney General Thomas Boyd to Chairman Biden in May 1988 which notes that: [M]any of the documents provided to the Committee, `reflect or disclose purely internal deliberations within the Executive Branch, the work product of attorneys in connection with government litigation or confidential legal advice received from or provided to client agencies within the Executive Branch.' We provided these privileged documents to the Committee in order to respond fully to the Committee's request and to expedite the confirmation process. It is now beyond dispute that ``the work product of attorneys in connection with government litigation or confidential legal advice'' has provided to the Senate in connection with past nominations. Rather than admit their errors and work with us to resolve this impasse, the administration simply shifts ground while remaining recalcitrant. The longstanding policy of the Justice Department, until now, has been a practice of accommodation with the Senate in providing access to materials requested in connection with nominations. On February 11, the Democratic leader and I wrote the President urging cooperation. Instead, we received another diatribe from the White House Counsel's office. It is as if this administration thinks it has a blank slate and a blank check notwithstanding tradition, history, precedent or the shared powers explicitly provided by our Nation's Constitution. There is certainly a nexus between our request and the powers committed to the legislative branch, yet the Department has failed to take any efforts to try to resolve this dispute. There is part of a pattern of hostility by this administration to requests for information by Congress acting pursuant to powers granted to it by the Constitution, regarding nominees and other important matters. Despite the stonewalling by the administration, the Judiciary Committee proceeded with a hearing on the Estrada nomination toward the end of the last session. I had said in January that I intended to proceed with such a hearing. The administration took advantage of my good faith declaration and my willingness to proceed on some of their most controversial nominees, including Mr. Estrada. Of course, in addition to Mr. Estrada we also proceeded with hearing on Judge Dennis Shedd, Professor Michael McConnell, Judge Charles Pickering, Judge D. Brooks Smith, Justice Priscilla Owen and many others. In spite of all our good faith efforts to make progress, the administration continues its hostile and partisan ways. Confirmation of 100 judicial nominations in record time, proceeding on nearly twice as many confirmations as Republicans had in the recent past, confirming new judges for the Fifth, Sixth and Tenth Circuits after years of Republican delays, counted for naught with this administration. Still, in spite of the administration's stonewalling, the committee fulfilled my commitment by proceeding with a hearing last September after waiting in vain for six months for the Administration to show some sign of accommodation to us. Senator Schumer chaired that hearing for Mr. Estrada last September. I was hoping that the hearing might allay concerns that have been raised about this nomination, but I was left with more questions than answers after all of the steps Mr. Estrada took to avoid answering questions at that hearing. I was also left with little hope that he would ever answer any of the concerns raised about entrusting him for the rest of his life with the responsibility for deciding cases fairly and without favor toward any ideological agenda. When President Clinton was nominating moderates to judicial vacancies, Republicans insisted on considering the judicial philosophy and ideology of the nominees. Many took a pledge not to vote for anyone that might turn out to be an activist. In those years any concern among Republicans could forestall a hearing or committee vote. Anonymous holds were the order of the day. The committee proceeded with few hearings on few nominees and voted on even fewer. In the entire 1996 legislation session not a single circuit judge was approved by the Republican-led Senate all year not one. Overall, during the 6\1/2\ years of prior Republican control, the Senate averaged only seven circuit court confirmations a year. During the recent 17 months in which Democrats led the Senate, by contrast we confirmed 17 circuit court nominees for a President of another party who nominated a string of highly controversial nominees. In fact, we held hearings on 20 circuit court nominees. Two of the most controversial, on whom we proceeded at the request of Republican Senators, were voted down before the committee last year. This year Mr. Estrada's nomination was reported even though all Democrats on the Committee voted against it. Much like the administration's false claim that materials like those requested with regard to the Estrada nomination had no precedent when, if fact, there is ample precedent, the administration and Senate Republicans are now claiming that this Senate debate is without precedent. That, too, is false. In fact, a number of judicial nominations have been subjected to extensive debate over the years since Senator Thurmond filibustered the nomination of Justice Fortas to be Chief Justice in 1968. More than a dozen nominations have resulted in almost one and one-half dozen cloture votes on judicial nominations. Among those nominations ``filibustered'' by Republicans were Stephen G. Breyer's nomination to the First Circuit; Rosemary Barkett's nomination to the Eleventh Circuit; H. Lee Sarokin's nomination to the Third Circuit; Marsha Berzon's nomination to the Ninth Circuit; and Richard Paez's nomination to the Ninth Circuit. In addition, the Democratic leadership of the Senate had to overcome Republican objection and obtain a cloture to proceed with three of President Bush's nominations in 2002, Richard Clifton to be a Ninth Circuit judge, Julia Smith Gibbons to be a Sixth Circuit judge, and Lavenski Smith to be a Eighth Circuit judge. Of course, during the previous six and one-half years of Republican control of the Senate, Republicans often chose less public methods to end nominations. Almost 80 of President Clinton's judicial nominations were not confirmed by the Congress during which they were first nominated and more than 50 were never accorded a Senate vote. Most often Republicans would just refuse to proceed to a hearing or a committee vote on a nomination without explanation. Anonymous holds before the committee ended almost a dozen Clinton judicial nominations without anyone having to take a vote. Anonymous holds on the Senate floor delayed consideration of nominations for months and months without debate, explanation or accountability. Democratic opposition has not taken that route. Instead, we ended the secrecy of the home State Senators' blue slips and did not allow anonymous holds to long delay Senate consideration of nominations. The Republican spin machine is repeatedly asserting that cloture votes and the use of the filibuster are ``unprecedented'' with respect to judicial nominees. Such assertions are false and misleading. Cloture, the Senate's procedure to end a filibuster, was sought on more nominations during the 103rd Congress, from 1993 to 1994, when President Clinton was President and Republicans used the filibuster when they were in the Senate minority than at any other time in our history. In that Congress, cloture was sought on 12 nominations-- judicial and executive. For the remainder of President Clinton's presidency, Republicans controlled the Senate and defeated scores of judicial nominations by deliberate inaction or anonymous holds in committee and on the floor. By using other extreme delaying tactics, they did not need to use filibusters, they defeated nominations without public explanation through other tactics available to them in the Senate majority. Individuals from all parties have sought cloture and used the filibuster in response to judicial and other nominees. In fact, the use of the filibuster and cloture has increased in recent years. Congressional Research Services reports that the filibuster and cloture are used much more regularly today than at any time in the Senate's past. Approximately two-thirds of all identifiable Senate filibusters have occurred since 1970. Cloture votes on judicial nominees are well-precedented in recent history. Both Democrats and Republicans have sought cloture in response to debate or objections to judicial nominees since the cloture rule was extended to nominations in 1949. I would note that cloture was not sought on any nomination until 1968, because, prior to then, concerns over nominees were resolved, or the nominee was defeated, behind closed doors. From 1968 to 2000, there were 13 cloture attempts on judicial nominees. For the record, I should also note that last Congress, cloture was sought on four of President Bush's circuit court nominees. I further note that it was the Democratic leadership of the Senate that sought to invoke cloture and proceed. The objection that was overcome last Congress was that of a Republican Senator who was concerned with the White House's refusals to act on certain executive nominations. Cloture votes have occurred on judicial nominees submitted by Presidents of both parties and on nominees to the U.S. District Courts, the U.S. Courts of Appeal, and the U.S. Supreme Court. Of these 13 cloture attempts on judicial nominees, in six of them, the Democrats were in the majority and in seven the Republicans were in the majority. The opposition has been based on objections to the judicial philosophy of the nominee, concerns about whether the nominee would treat all parties fairly and on procedural grounds. I would like to take a moment to shed some light on filibusters and the practices used to block nominees when the Republicans were last in the majority. Some Republicans have been taking a quote of mine out of context from June 1998 about judicial nominations, replacing my actual words with an ellipse, then distributing it widely and misusing it. Here is what Republicans keep quoting: ``I have stated over and over again . . . [ellipse] that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported.'' What the Republican talking points omit with their ellipse is the essential context of that quote. My actual comment was made during floor discussion about an anonymous Republican hold on yet another of President Clinton's nominees. Here was his actual comment: I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. The context of my comment--the subject of that very debate--and my reference even within the quote itself were about anonymous holds used by Republicans to defeat President Clinton's judicial nominations-- anonymous filibusters, in essence. This was another instance in which sometimes only one or a handful of Republican Senators prevented Senate votes on President Clinton's judicial nominations. The process of the anonymous holds with which Republicans prevented action on Clinton judicial nominees required not just a majority or a super-majority for the Senate to proceed to votes; Republicans were defeating President Clinton's nominees by requiring unanimity. And they were doing it anonymously, without accountability to the public. In the case of the Estrada nomination, Senate Democrats are seeking the information that the Judiciary Committee began requesting nearly a year ago, before proceeding to a vote. It is clear from the language Republicans deliberately omit that what I was referring to the widespread Republican practice of blocking a nominee anonymously. The debate from which my comment was taken was over the anonymous Republican hold on a Hispanic nominee, Judge Sonia Sotomayor, who was nominated by the first President Bush to a district court and who President Clinton nominated to the Second Circuit Court of Appeals. Immediately after making this comment, I placed in the record a newspaper editorial criticizing these anonymous holds as ``Partisan Nonsense.'' That editorial notes that, ``In blunt terms, Leahy has criticized the Republicans who, behind the scenes and not for attribution, are seeking to scuttle Sotomayor's nomination.'' That editorial goes on to note: ``Their reasons are stupid at best and cowardly at worst,'' Leahy told a New York Times reporter. ``What they are saying is that they have a brilliant judge who happens to be a woman and Hispanic and they haven't the guts to stand up and argue publicly against her on the floor. They want to hide in their cloakrooms and do her in quiet.''' This again makes clear that I was talking about--anonymous holds. Judge Sotomayor was reported out of the Judiciary Committee on March 5, 1998, but anonymous Republican holds had prevented her nomination from being scheduled for a vote. On June 18, after her nomination had been pending on the floor for more than three months, I went to the floor to protest the anonymous hold against her. Republicans refused to bring her to a vote for four more months. That is, Judge Sotomayor's nomination was pending on the floor for seven months, seven times longer than Mr. Estrada's nomination, and no Republicans claimed that denying an immediate vote was somehow unconstitutional or amending the Constitution, as they have claimed in these recent days. Once Judge Sotomayor was finally allowed a vote, 23 Republicans voted against her, yet none put any statement in the record or made a statement accounting for their holds or votes. The real double standard evident during the Estrada debate is that during the prior years of Republican control, Republicans in practice required unanimous consent to allow a vote on a judicial nominee--not a majority or even a super-majority. One or more Republicans could refuse to allow an up or down vote on a nominee, with no accountability to the public. Thus, even if as many as 80 or 90 or even 99 Senators did not object to a judicial nominee, the objection of any Republican was used to prevent an up or down vote. Republican complaints about Democratic objections and insistence on following Senate rules ring hollow in light of their own repeated practices with President Clinton nominees. They often required the consent of 100 Senators, and certainly all of the Republicans, to bring a judicial nominee to a vote. To hold a nominee anonymously, without any accountability, is what I objected to in my full statement and full comment and in the full context of my statement during that debate. In contrast, the extended debate on the Estrada nomination is occurring in the light of day. Republicans and the White House can bring this matter to resolution by providing the documents requested and by providing responsive answers to Senators' questions. This is not a filibuster through anonymous holds. This is a public debate that Republicans can end through cooperation. The nomination of Judge Richard Paez starkly displays this Republican double standard. Judge Paez is a Mexican American who had served for years on the bench in Los Angeles before being appointed to the Federal district court by President Clinton in 1994. Judge Paez was nominated to the 9th Circuit in January 1996. He was one of only four circuit court nominees to get a hearing that year. His hearing was in July but he was not allowed to be reported to the floor that year. No circuit court nominees were given floor votes that year by the Republicans. Only 17 judges were confirmed that session, none of them circuit judges. This was the lowest number of confirmations during an election year in modern history. Judge Paez was then renominated in January 1997, after President Clinton's reelection. Chairman Hatch required a second hearing on the Paez nomination in 1998, 25 months after his initial nomination. Judge Paez was reported to the floor again in March 1998, but Republicans did not schedule him for a vote in April, May, June, July, August, September, or October that year. So in contrast to the Estrada nomination, by the end of that year, Judge Paez's nomination had waited on the floor for more than 8 months. That is eight times longer than the Estrada nomination has been pending on the floor and Judge Paez still did not get a vote, due to anonymous, unaccountable Republican holds. His nomination was returned to the President without action at the end of that Congress. By then his nomination had been pending for almost three years. Judge Paez was renominated again in January 1999. Chairman Hatch refused to place him on the committee's agenda for a vote until July 1999--another 6 months of delay, after his nomination had then been pending for more than 1000 days. Republicans continued anonymously to block a vote on the Paez nomination and refused to schedule him for a vote in July, August or September. By that time his nomination had been before the Senate for more than 1,300 days. On September 21, 1999, Democratic Senators, having spent months and then years pleading for a vote on the Paez nomination, made a motion to proceed to his nomination. All Republicans voted against bringing his nomination up for a vote, including Chairman Hatch. Finally, in March 2000, after his nomination had been pending for more than 1,500 days, Republicans failed in their effort to stop cloture from being invoked. The next day, Judge Paez was confirmed, and 39 Republicans voted for confirmation--two shy of the number necessary to prevent cloture or to filibuster the nomination. If they had two more votes, I wonder whether they would have ever allowed Judge Paez's nomination to come to a vote. Mr. Estrada's nomination has been pending on the floor for less than one month. Judge Paez's nomination was pending on the floor for more than 20 months before Republicans allowed him a vote. The result was that Judge Paez's nomination waited on the floor for a vote for almost two years, and his nomination was before the Senate for more than four years, before he was given an up or down vote on confirmation. Mr. Estrada's nomination has been on the floor for less than one month--not 20 months--and Senate Democrats have raised serious and legitimate concerns about the Senate proceeding to a final vote, concerning the incompleteness of the record, the lack of responsive answers to basic questions and the refusal to turn over memos equivalent to those provided in other nominations. It was no secret that the Republicans delayed the nominations of Judge Marsha Berzon and Judge Richard Paez to the U.S. Court of Appeals for the Ninth Circuit for years, culminating in filibusters in 2000, just three years ago. After the Republican-controlled Senate repeatedly delayed action on their nominations--over four years for Judge Paez and over two years for Judge Berzon--Republicans engaged in a filibuster and cited the filibusters of Justice Fortas, Justice Rehnquist and others as precedents. At that time, Republicans argued that they were not setting new precedent. As Senator Robert Smith stated during the debate on these two nominees: [I]t is no secret that I have been the person who has filibustered these two nominees, Judge Berzon and Judge Paez. The issue is, why are we here? What is the role of the Senate in judicial nominations? The Constitution gave the Senate the advise-and-consent role. We are supposed to advise the President and consent if we think the judge should be put on the court. . . . I was criticized by some for filibustering, that `we are on a dangerous precedent' of filibustering judges. . . . Filibuster in the Senate has a purpose. It is not simply to delay for the sake of delay. It is to get information. It is to take the time to debate and to find out about what a judge's thoughts are and how he or she might act once they are placed on the court. So, those who came before the Senate just prior to our recent recess and said that no Republican ever filibustered a Clinton judicial nominee were wrong, dead wrong. Senator Smith was characteristically forthright about what he was doing. Senator Smith went on to explain: As far as the issue of going down a dangerous path and a dangerous precedent, that we somehow have never gone before, as I pointed out yesterday and I reiterate this morning, since 1968, 13 judges have been filibustered by both political parties appointed by Presidents of both political parties, starting in 1968 with Abe Fortas and coming all the way forth to these two judges today. It is not a new path to argue and to discuss information about these judges. In fact, Mr. President . . . [w]hen William Rehnquist was nominated to the Court, he was filibustered twice. Then, after he was on the Court, he was filibustered again when asked to become the chief Justice. In that filibuster, it is interesting to note, things that happened prior to him sitting on the Court were regurgitated and discussed. So I do not want to hear that I am going down some trail the Senate has gone down before by talking about these judges and delaying. It is simply not true. This straight-forward Republican from New Hampshire proclaimed: Don't pontificate on the floor and tell me that somehow I am violating the Constitution . . . by blocking a judge or filibustering a judge that I don't think deserves to be on the court. That is my responsibility. That is my advise-and- consent role, and I intend to exercise it. Thus, the Republicans' claim that Democrats are taking ``unprecedented'' action, like the White House claim that our request for Mr. Estrada's work while paid by taxpayers was ``unprecedented,'' is simply untrue. Republicans' desire to rewrite their own history is understandable but unavailing. They cannot change the plain facts to fit their current argument and purposes. I note in passing how many Republicans now demanding a vote on Mr. Estrada, opposed cloture on Judge Berzon and Judge Paez. I have already noted how every Republican, many of whom are now insisting on a vote on the Estrada nomination, opposed even proceeding to consider the Paez nomination. I also recall a motion that truly was unprecedented, the motion of Senator Sessions to recommit the Paez nomination to the Judiciary Committee after it had twice been voted out over a period of four years. In fact, Senator Sessions made a motion to indefinitely postpone the nomination of Judge Paez, and 31 Republicans voted in support of that motion, including most of the people on the other side of the aisle who have come to the floor to claim that the Constitution requires an immediate up or down vote on Mr. Estrada's nomination. After cloture was invoked, Senator Sessions made a motion to indefinitely postpone a vote on Judge Paez's nomination. The motion to indefinitely postpone failed by a vote of 31 to 67. After this motion failed on March 9, 2000 the day Paez was ultimately confirmed--Senator Hatch spoke about the unprecedented nature of that motion and admitted that there had been a filibuster on Paez's nomination. Here is what he said: I have to say, I have served a number of years in the Senate, and I have never seen a ``motion to postpone indefinitely'' that was brought to delay the consideration of a judicial nomination post-cloture. Indeed, I must confess to being somewhat baffled that, after a filibuster is cut off by cloture, the Senate could still delay a final vote on a nomination. A parliamentary ruling to this effect means that, after today, our cloture rule is further weakened. While some Republicans would prefer to ignore that filibuster of this Ninth Circuit nominee in their quest to move as quickly as possible on the Estrada's nomination, but that would be to ignore the recent history of their conduct. There were likewise two judicial nominees in 1994 whom the Republicans filibustered. Judge H. Lee Sarokin, nominated by President Clinton to the Third Circuit, was a qualified nominee who served as a Federal district judge for 15 years. He was opposed by conservative Republicans who argued, among other things, that he was too liberal. Senator Thurmond led the filibuster against Judge Sarokin in calling him a ``liberal judicial activist.'' That effort to defeat Judge Sarokin failed. In 1994, the Republicans also used delay tactics to block the nomination of Judge Rosemary Barkett to the U.S. Court of Appeals for the Eleventh Circuit. Judge Barkett was criticized by those on the other side of the aisle as being a judicial activist. Senators Thurmond and Specter led the opposition to Barkett. After announcing the Republican intention to filibuster the nomination, Democratic Majority Leader George Mitchell stepped in and filed a cloture motion. I could describe other filibusters in detail, such as the Republican filibuster of Justice Breyer to be on the U.S. Court of Appeals for the First Circuit in 1980. And I could quote those on the other side of the aisle, who have said time and time again how important it is to debate a nominee and to scrutinize a nominee's record and views. In 1997, Senator Hatch said that he had ``no problem with those who want to review these nominees with great specificity'' and, in fact, he supported such efforts while chairman of the Judiciary Committee and reviewing the nomination of a Democratic President. So, when Republicans say that a filibuster or extended debate on judicial nominees is unprecedented, I would like to ask them about their filibusters and extended debates on Judge Berzon, Judge Paez, Judge Sarokin, Judge Barkett. And, I would like to ask them about all the other judicial nominees and executive nominees that they defeated through deliberate inaction, anonymous holds, or other extreme delaying tactics. Of course, this debate on the Estrada nomination is not, given the definition used by Republicans, a ``true filibuster.'' As the statements of the Democratic Leader and the exchange that I had with Senator Bennett and Senator Reid on February 12 made clear and as should be plain to all, we are seeking cooperation and information before proceeding to a vote. The current debate could have been shortened had the Administration at any time since last May shown any interest in working with us. It has not. Despite the efforts we have made, including the Democratic leader's letter on February 11 seeking accommodation and pointed the way out of this impasse, the Administration has steadfastly refused all of our efforts to work through these difficulties. The administration is intent on forcing this confrontation and division. That is too bad.

Mr. LEAHY

Mr. LEAHY. My point being, there are checks and balances in here.

Mr. LEAHY. Mr. President, I would hope that the distinguished Senator, my good friend from Alabama, would state Judge Sessions' ruling accurately. Judge Sessions has stated he feels the death penalty is constitutional. He has a matter that has been very thoroughly ruled on in a particular case and the way it was handled in that particular case and did it in a way so that the courts of appeals can rule on it, not the least of which has been done by a number of other judges. In fact, among those judges who would rule on it, several were appointed by President Reagan and by former President Bush and the current President Bush. I am sure if the Senator suggests there might be something political in this, it is being set up in such a way that still the ultimate decision would be decided by a majority of judges appointed by Republican Presidents.

Mr. LEAHY. Mr. President, what is the parliamentary situation?

Mr. LEAHY. In that case, when that went on appeal to the same court that will be hearing the Sessions case, they overruled the judge the Senator referred to; is that not correct?

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

Mr. LEAHY

Mr. LEAHY. Mr. President, today we consider the nomination of Judge Marion Blank Horn to the U.S. Court of Federal Claims. Although this is not a so-called ``Article III'' court with lifetime appointments, it is an important court with 15-year terms for its members. Judge Horn has been serving on the court for almost 15 years and I do not oppose her re-appointment. What I do take issue with, however, is the Administration's unilateral actions, in spite of the bipartisan cooperation and appointments of other Presidents to this and other courts. The process for nominating judges to the Court of Federal Claims has traditionally included accommodation and compromise. For more than 2 years Senate Republicans blocked President Clinton's appointment of Larry Baskir to the court until a compromise could be reached. They refused to give him a hearing and refused to allow any of the other vacancies to be filled unless the administration promised to keep conservative Judge Loren Smith as the Chief Judge. Republicans also insisted on the reappointment of another Republican appointee, Judge Christine Miller. Finally, Senator Hatch agreed to allow five Clinton nominees to have hearings and votes if the administration also named his staffer Edward Damich to the court and promised to retain Judge Smith as Chief until his retirement into lifetime senior status at the end of his term appointment. Upon Chief Judge Smith's ``retirement,'' President Clinton named Judge Baskir the Chief Judge. Shortly after his inauguration, President George W. Bush summarily removed Judge Baskir as chief judge and installed Judge Damich as the Chief Judge. Last fall when the Democrats were in the majority, we took the exceptional action of quickly moving the nomination of Larry Block to the Court of Federal Claims at the request of the ranking Republican, Senator Hatch. At that time, I noted that we would expect fairness and consideration in return, including true bipartisan consultation with respect to Federal Court of Claims nominations. Despite our accommodation on Mr. Block's nomination, the White House refused to act on the nomination of Judge Sarah Wilson who, up until a few months ago, was already serving with distinction on the Court of Federal Claims. Judge Wilson is a well-respected and talented lawyer who graduated from Columbia Law School, clerked for a Federal judge, was a fellow with the Administrative Office of the Courts, and served in the Department of Justice and in a prior White House. Yet, the administration and the Senate Republicans refused to accommodate our request to consider her nomination for a continued position on the court. It troubles me that despite a long history of compromise and accommodation regarding appointments to this court, there has been no consultation with the Democratic leadership regarding the remaining nominations to the Court of Federal Claims. Instead, the White House proceeded as it does with most things--unilaterally. The same is true with respect to the Parole Commission, the Federal Election Commission and many other bipartisan boards and commissions. I can count on one hand the number of States that have any sort of bipartisan selection commission for their district court judges. The importance of such organizations is paramount. They ensure that nominees for judicial office are selected based upon professional merit and experience. The recommendations of such commissions have the support of members from their community on both sides of aisle. Accordingly, these bipartisan commissions preserve the independence and integrity of the judicial branch of government and ensure the fair and equal administration and enforcement of justice. Unfortunately, this President has thwarted the development of bipartisan boards and commissions for judicial appointments. The White House Counsel has indicated publicly that he does not favor bipartisan committees because they ``usurp the president's constitutional authority to choose judges.'' This unilateral and uncompromising view disregards the constitutional role of the Senate. It also fails to acknowledge that these commissions simply make recommendations to the President. They do not make nominations in lieu of the President. The administration's disdain for bipartisan commissions ignores past precedent and tradition. It is one thing for a President to appoint members of his Cabinet to carry out his political agenda but it should be different with respect to judicial appointments. When a President makes nominations for positions to a co-equal branch of government, he should not be able to tip the scales of justice by packing the courts with ideologues who are selected to implement his political agenda. Recently, Walter Dellinger noted that the President's ``slate of nominees, considered as a whole, . . . [is] a list tilted to the right and from which any other views have been carefully culled.'' I agree that we need to broaden the slate. This could be best accomplished with the creation of new judicial selection commissions who could make recommendations to home State Senators and to the President. I urge the White House and Chairman Hatch to work with us to assemble the type of bipartisan panel that Senator Hatch helped assemble in 1997 and 1998 to fill the remaining vacancies on the Court of Federal Claims in a way that respects the tradition of compromise and accommodation that has marked appointments to this court. I also look forward to working with Senate Republicans to preserve our constitutional role in advising the President on judicial nominations to all courts through the use of bipartisan selection commissions.

Mr. LEAHY

Mr. LEAHY. I thank the Chair.

Mr. LEAHY. Mr. President, I ask again, through the Chair, to my friend from California, is it not a fact that the chairman then, notwithstanding the fact that there has not been a proper vote to cut off debate, went ahead and held the vote just the same?

Mr. LEAHY. I ask my friend from California, and I say this because she has laid out this debate so well and the history of it so well, in this case was it not a fact there were not 10 votes, with one of those 10 votes being the minority, to cut off debate?

Mr. LEAHY. If the Senator would yield further for another question, was it not made clear during the markup that she was speaking about, the executive meeting she was speaking about, that it was stated at that meeting there was very clearly an objection to going forward by at least a couple of Senators, and because of that objection rule IV would fall into place, which says debate shall be terminated if the motion to bring the matter to a vote without further debate passes with 10 votes in the affirmative, one of which must be cast by the minority? So rule IV would apply such an objection being made, unless there were 10 votes to cut off the debate, with one of those votes coming from the minority; is that not correct?

Mr. LEAHY. I mean, that might be.

Mr. LEAHY. Mr. President, I have listened to the comments of the distinguished Senator from California. I strongly compliment her for what she has been saying. Is it not a fact, Mr. President, I ask my friend from California, that simply because a Senator wishes more time to debate a particular nominee that does not mean that Senator is going to vote against the nominee; is that not correct?