Patrick Leahy

Mr. LEAHY

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

Mr. LEAHY. Mr. President, as I said earlier, we will continue to move at a faster pace on the nominees for President Bush than the Republicans ever did with nominees of President Clinton. I will continue to move at a faster pace for them. I will continue to try to overcome the objections to hearings on Senator Hatch's nominees, and we will have a hearing. I yield the remainder of my time.

Mr. LEAHY. If the leader wants to, of course, I will yield to him.

Mr. LEAHY. Mr. President, I am going to object. I will tell you why. We have given more than that amount of time. If somebody had told me they wanted to, I would have given time from my own time. We have already given the time.

Mr. LEAHY. Mr. President, this has been a good debate. I might ask the Senate to pass a resolution that just said very simply the Democratic majority will be required to go at the same pace that the Republican majority did under President Clinton. But I have a feeling, if we did that, President Bush would be very upset because I have a feeling he does not want us to go back to the procedures used when his party controlled the Senate. We will not.

Mr. LEAHY. I tried to help, just to be fair. Let me say this, in the remaining 3 minutes. It doesn't have to be this way. We are moving far more rapidly than the Republicans did when they were in charge and President Clinton was President. We have had a lot that has gone on in the past few months. I have not used the events and aftermath of September 11 as an excuse but have instead continued to hold hearings and votes on judicial nominees. Some of the Republican special interest groups pooh-pooh the fact that we even would refer to the events of September 11. They allow it as a justification for many things and an excuse for everybody else but not for the Judiciary Committee. Well, we have not made excuses. Instead, we build a good record. We actually had to put together an antiterrorism bill during that time, which we did, one which the President certainly felt good about. He praised me and Senator Hatch for our work on that. We had to do that. We had this building that we are in right now emptied because of an anthrax scare. Most of our staffs, Republican and Democratic, are in the Dirksen and Hart Buildings. That was vacated for a period of time because of anthrax. The Hart Building was vacated for a very considerable period of time. I was one of those who received an anthrax letter designed to kill me, as was Senator Daschle. Me and my staff--it turns out there was enough anthrax to kill an awful lot more people than that. So this has not been a usual year. But as I pointed out in the charts earlier, in the 9 months the Democrats have controlled this committee, we have done more than during any comparable period during the time when the Republicans controlled the committee. I am assuming--and I pray--this country will not face something similar to September 11 again. I assume and I pray that our Capitol will not face something like that again. I take a moment to applaud the brave men and women of our Capitol Police and the work of our Secretary of the Senate and Sergeant at Arms in protecting us up here. I have talked with the White House about one simple procedure they could do without giving up any of their rights or any of their privileges. One simple procedure they could do, which would take 4 or 5 weeks off many judicial nominations. They could potentially be able to go to hearing 4, 5, or 6 weeks faster if the White House would simply speeding up the process of getting all the paperwork and the reviews done and getting them up here. Those are things that can be done. Mr. President, how much time remains?

Mr. LEAHY. I believe we also gave time to the Senator from Texas, did we not?

Mr. LEAHY. I understand some of my time has already been given to the Republican side previously; is that correct?

Mr. LEAHY. I have tried, again, to include at hearings judges Senators have asked for in both parties, including the court of appeals nominees, including hearings this year. I attempted to comply with the requests of Senators Grassley, Lott, Specter, and Enzi. We did that. One was voted down. I know the Republican leader, who has been my friend for years, was disappointed at the committee vote on the nomination of Judge Charles Pickering. He argued strongly for the judge, as he should. The Senator from Kentucky, Mr. McConnell, argued strongly for him and gave an excellent argument for him before the committee, as did the Senator from Ohio, Mr. DeWine. I tried to afford Judge Pickering--who, incidentally, still has a lifetime tenure as a Federal judge--every courtesy. I extended the time. I had a second hearing. I extended the time for the vote. I was willing to do all that. But I still have to decide how I vote. I remember for a Democratic President and a nominee he very much wanted, I voted against him for some of the same reasons, the exact same reasons, in fact, that I voted against Judge Pickering. He was voted down in the committee--just as Judge Pickering was, and that was the end of it. I do not want to go back to the situation where almost a third of President Clinton's court of appeals nominees waited more than 300 days from nomination to confirmation, an average of 441 days for these individuals; nearly a quarter waited more than a year, 20 percent waited more than 500 days, 6 waited more than 700 days, 2 waited more than 1,000 days, and one waited more than 4 years--if they got hearings at all. Judge Helene White of Michigan waited more than 4 years. She never got a hearing. In fact, 56 percent of President Clinton's circuit court nominees in the last Congress, nominated or renominated in 1999-2000, were not acted upon by the Judiciary Committee. I am trying to repair that damage. That is why we are moving forward--we are moving forward as quickly as we can, and I will continue to do that. No matter what is said on the other side, no matter how much things are taken out of context, no matter how much fiction we hear on the floor from that side, I will move them forward. Mr. President, how much time is remaining?

Mr. LEAHY. Yes.

Mr. LEAHY. Mr. President, I love reading Lewis Carroll. I remember Lewis Carroll and ``Alice in Wonderland.'' When I hear the descriptions of history today and listen to some of the discussion in the Senate, it brings me back to when I was a child. I extend my appreciation to my colleagues on the other side for livening our more serious times with a little bit of fiction. They talk about how terrible it is we have some people--actually several of whom do not have blue slips--who have been here for several months and we have not had a hearing even though they know some of the blue slips are not in. We will be, as we go along, scheduling hearings, as compared to people who did have blue slips in when the Republicans were in charge. I think of Helene White. She waited 1,454 days. I do not recall a single Member of the Republican Party saying should she not at least have a hearing; even if we vote her down, should she not at least have a hearing. She did not even have a hearing or a vote in the committee; 1,454 days, not a word. We have seen the crocodile tears today. Even though we are moving much faster than the Republicans ever did when there was a Democratic President, we see these crocodile tears for people who have been waiting a month or 2 months or even 3 months. No recognition of course that for some of that time the Republicans held the Senate majority and for some of that time they delayed the reorganization of the Senate and no recognition of the numbers of vacancies and problems they left for us to try to remedy. But 1,454 days? I look at the other qualified nominees we had to wait for. There was another one, Fifth Circuit. H. Alston Johnson waited 602 days, no hearing. There was James Duffy, Ninth Circuit, 546 days, no hearing. And Kathleen McCree Lewis, extraordinarily competent attorney, daughter of one of the most respected solicitors general ever in this country, she waited 455 days and never received a hearing. There was Kent Markus of the Sixth Circuit who waited 309 days under the Republicans and never got a hearing. And Robert Cindrich of the Third Circuit who never received a hearing in over 300 days. Then there were the nominations that were held up without a hearing such as Judge James Beaty who waited 1,033 days, no hearing. James Wynn, Fourth Circuit, 497 days, no hearing. Enrique Moreno, Fifth Circuit, waited 455 days, never got a hearing. Jorge Rangel, the Fifth Circuit, 454 days, never received a hearing. Allen Snyder, the D.C. Circuit; now I will give them credit, he waited 449 days and finally did get a hearing. Of course, they never brought it to a vote in the committee, but he did receive a hearing. He and Bonnie Campbell, the former Iowa Attorney General had hearings but never were on the Committee agenda for a vote. So as I say, I enjoy fiction as much as the next person. I heard a great deal of it, along with the crocodile tears. It did enliven an otherwise slow-moving day. On the one hand I know there are a number of Republicans who do want judicial nominees to go forward. I have had a dozen or more Republican Senators come to me and explain the situation they had in their State or their circuit with a judge they needed at home. I think in virtually every one of those cases, certainly in most of them, within a very few weeks, we had the hearings on those judges. They are all Republicans. We held hearings on them. They cooperated in bringing them forward. We put them on the Committee agenda and we voted them out, put them on the Executive Calendar and the Senate confirmed them and every single Democrat voted for them--over 40 judges. They voted for them, and they got through. I remember shortly after the shift in majority last summer when we had nominations pending. We came to the August recess. Normally what we do by unanimous consent is keep the nominations here. The Republican leader said and objected and by Senate rule then all had to go back to the White House. Although we tried to keep them here, he objected. I was put in a bind and had no nominees whatever pending, even though I still held 2 days of hearings in the August recess in anticipation of the names coming back. I got criticized by the Republicans for holding hearings during the August recess. Members get criticized for not holding hearings immediately; Members get criticized for holding hearings. One Republican--one Republican--showed up for 1 day of the 2-day hearings on President Bush's nominees and we got the nominees through. I am looking forward to see where we are by July 10 of this year. That will be 1 year to the day from the time I had a fully organized committee and could start hearings. We held a hearing on judicial nominees, including a court of appeals nominee the very next day on July 11. Incidentally, instead of going--as my friends on the Republican side--month after month after month after month after month after month without even holding a hearing on President Clinton's nominees, within 10 minutes of the time the Senate adopted a resolution reorganizing, I noticed the first set of hearings. They were on the calendar within a few weeks thereafter, notwithstanding the fact that up until July there was not a single hearing on any judge. Democrats were not in charge from the end of January until June and into July. It was July when we took over a committees and had assigned members. The Republicans while in charge did not hold a single hearing. Ten minutes after the Senate reorganized, we started the process to hold hearings. I mentioned what happened in the past not to say this should be tit for tat, by any means. I don't believe in that. The Republicans for 6 years under President Clinton were delaying, stopping hearings and not even allowing nominees to have hearings and not allowing them to have votes in the committee. And I knew if they had a vote in Committee they could be voted down and that would have been the end of it. If they vote them up, they come to the floor. That has been the precedent and practice of the Committee. My concern was that they would not even give the nominees hearings, scores of nominees. Sadly, we did have one judge who they voted through the committee twice, and then on a party-line vote voted him down on the floor, including Senators who voted for him in the committee who then voted him down on the floor. That was done without warning, without notice and on the first party-line vote on the Senate floor to defeat a judicial nominee I can remember. Even with the other controversial nominations of the last several years, such as the nomination of Judge Bork to the Supreme Court, some Democrats voted for him and some Republicans against. I do not believe in tit for tat and have not engaged in pay back. I have been here 27 years, several times in the majority and several times in the minority. I believe we should go forward. That is why I have been moving much faster on judges than the Republicans ever did for President Clinton. I intend to continue to move faster. We set up a process. When we have a hearing, we have at least one court of appeals judge, something not consistently done during the time the Republicans were in charge. I intend to do that. They can try to change what the record is. They can try to change the history. I am stating what I intend to do. We are moving to hold more hearings than they did. We are moving faster on confirmations than the Republicans ever did for President Clinton. I am not going to put us back to the kind of thing they did to President Clinton. Ultimately, it damages the independence of the Judiciary. However, I would like to see at least a modicum of cooperation from the White House. If they send up judges from a circuit or State where they have not sought any consensus from the Senators from that State, of course they will have difficulty. I have been here with six Presidents from both parties. Every one of those Presidents consulted with Senators from the State where the judges came from. That does not mean Senators can nominate the judges; the President nominates judges. But they sought consensus first. When they did this, they always went through. I have already voted for some 40 conservative Republican nominees as judges from President Bush. I have voted for more than 120 of the President's executive branch nominees in the Judiciary Committee, ranging from U.S. attorneys to senior Justice Department officials. I assume the judicial nominations that we have considered were Republicans, and I assume conservative Republicans; I voted for all but one of them so far. However, there has to be consensus. And people that are not ideologues; people who will enforce and apply the laws and not try to remake them, and people who will instill fairness in their courtrooms and those nominees I have always supported, not people who will legislate and make laws--that is our job. We may do it poorly, but that is our job. This year we were talking about cooperation. Senator Grassley is one of the most respected members of the Senate Judiciary Committee, former chairman of the Finance Committee. I served with him both on the Judiciary Committee and the Agriculture Committee for a quarter of a century. He asked if we could proceed with Judge Melloy of Iowa to the Eighth Circuit. In the past, Republicans had held up judges from Iowa. I thought Senator Grassley made a good case. I told him I would proceed, as soon as we came back in session this year. And I did. We have also held hearings this year on Judge Pickering and Judge Smith at the request of Senators Lott and Specter. Senator Enzi asked for a hearing on Terrence O'Brien of Wyoming to the Tenth Circuit. We moved as quickly as we could and held his hearing this week. So the four Court of Appeals nominees on whom we have had hearings this year were each at the request of a Republican Senator. Of the 48 judicial nominations on which we have had hearings --for those who think this is partisan--25 came from States with no Democrats in the Senate and 12 came from States with one Republican Senator. So 37 of the 48 nominees were basically from Republican States. We moved forward. That is the bipartisanship I want. By the way, the other 11 are not all from States with two Democratic Senators. Far from it. The remaining 11 include four nominees to federal courts in the District of Columbia and among them was the former Republican Chief Counsel of the Senate Judiciary Committee for Senator Hatch. It is difficult and takes a certain amount of time to do this, but Senators often ask to move right away on a nomination, and I try to be accommodating. But when Senators then come on the floor and say we are not moving fast enough on somebody else well, we can only do so many. Only 1 of over 160 nominees before the Judiciary Committee over the last nine months has been voted down. When people ask: Why aren't we moving faster and doing more? Part of the answer is that it took 4 days over several weeks to have hearings and a vote on that one controversial nominee. In those 4 days, let alone the hours and hours and days of preparation, we could have gotten a dozen judges through. I dare say that we will spend more time in the debate this afternoon than we have debating the 14 judges confirmed so far this year. I inherited a vast number of judicial vacancies, including longstanding problems, especially political problems. I am doing my best to change that. I am doing my best to move forward. I urged that we get rid of the secret holds and make blue slips public. And now we finally have. Republicans did not do that when they were in the majority. I have urged the Rules Committee to take the position, if the Democrats are in majority next year, to divide the budget 50/50. I have had Republicans chair portions of hearings this year and have reported bills introduced by Republican Senators. These things did not occur in the recent past. If we stop the partisanship and the confrontational tactics of last year and this last week and if we show cooperation, if the White House got involved and did those things, we could speed this up. Consult and work with Senators--we will go forward faster. The President, for whom I have great respect, has had an enormous amount on his plate since September 11. I understand. However, there are some, unfortunately, who advise him who come with the idea they can only have judges they have signed off on by particular special interest groups. Then there will be a confrontational battle. It should not be that way. Check how it was done under the last six Presidents with whom I have served. Find out how it was done. It was done by trying to work together. If we do that, maybe things were work more smoothly. Instead, the President's key political adviser in the White House appeared before an ideological advocacy group last week and committed--actually, recommitted--the administration to selecting judicial nominees to reflect a hard right ideology, an ends-oriented judicial philosophy. That is unfortunate. Can you imagine if Bill Clinton had gone before a group and said: I am only going to select judicial nominees to reflect a hard left ideology, and an ends-oriented judicial philosophy? You thought some had to wait 1,000 days to even have a hearing or were denied a hearing--can you imagine what would have happened if the Clinton administration had done that? It is wrong when the Bush administration does that. All that says is, if that person is confirmed and if you are a litigant before that judge, basically what the President's political adviser was saying is, unless you reflect a hard right ideology and an ends-oriented judicial philosophy, forget about coming before this judge because you are not going to have fair treatment. People ask me if I have a litmus test. I sure do. My litmus test has been the same with the six Presidents with whom I served, and I voted against Democratic nominees when I believed they didn't follow this litmus test. That is, if somebody comes before that judge, whether they are conservative, liberal, rich, poor, white, black, Republican, Democrat, north, south, wherever they are from, plaintiff or defendant--they can look at that judge and say: Whatever happens in this case, I know I have had a fair judge. That is my one litmus test. When the Presidential adviser actually goes before a political advocacy group and says we are not going to do that, we have to have nominees who reflect a hard right ideology and an ends-oriented judicial philosophy, that is wrong. That is wrong. Actually, what that tells me is that rather than succumb to a notion of advice and rubberstamp, we had better do what the Constitution says, advice and consent, and go through the process carefully. I say, again, we are scheduling hearings on judicial nominations and have continued to schedule hearings in spite of the unfair criticism because I do want to get through as many good judges as possible and fill as many of the vacancies I inherited as fast as possible. I will consider a number of factors: Consensus of support for the nominee, the needs of the court for which he was nominated, and the interests of the home State Senators. I have served with 270 Senators, I believe, since I have been here. I have found more and more how important it is to rely on the views of home State Senators, Republican and Democratic alike. Mr. President, how much time remains to the Senator from Vermont?

Mr. LEAHY. Would I then have 2 minutes available to me if I wish to use it?

Mr. LEAHY. I have no objection.

Mr. LEAHY. Madam President, earlier this week when the Senate was considering confirming the 42nd judge since the shift in majority last summer, I came to tell the Senate of the progress we have made filling judicial vacancies in the past 9 months. The pace of consideration and confirmation of judicial nominees in the last 9 months exceeds what we used to see in the preceding 6\1/2\ years. During that 6\1/2\ years under Republican control, vacancies grew from 63 to 105 and were rising to 111. I lay this out so people understand what is happening. Since July, we have made bipartisan progress. This chart shows the trend lines. During the Republican majority, the vacancies were going up to 111; in the short time the Democrats have been in the majority, those vacancies have been cut down. The Democrats have controlled the majority in the Senate Judiciary Committee for 9 months. What did we do during that 9 months? We have confirmed more judges--42, all nominated by President Bush. In those 9 months, we confirmed more judges than the Republicans did for President Clinton in the 12 months of the year 2000. We confirmed more judges in those 9 months than the Republicans did during the 12 months of 1999. In those 9 months, we confirmed more judges for President Bush than the Republicans did for President Clinton during the 12 months of 1997. During those 9 months, we confirmed more judges for President Bush than the Republicans did for the 12 months of 1996. We can compare our 9 months, and we have not finished a full year of being in the majority. In 9 months, we confirmed more judges for President Bush than the Republicans were willing to confirm for President Clinton in 12 months in the years 2000, 1999, 1997, and 1996. Under Democratic leadership, the Senate has filled longstanding vacancies on the courts of appeal. We exceeded the rate of attrition. In less than 9 months, the Senate has confirmed seven judges to the courts of appeals. We have held hearings on three others. We have drastically shortened the average time, by approximately a third, for confirmation of circuit court nominees compared to the Senate under Republican control between 1995 and 2001. And we are committed to holding more hearings on those where we received blue slips and have consensus nominees. Comparing what the Republicans did during 1999 and 2000, they refused to even hold hearings or vote on more than half of President Clinton's court of appeals nominees. I mention this because I have always said let's get these people up, have a hearing, and let the committee vote. In the last 6 years, dozens upon dozens of President Clinton's nominees were never even given a vote in the committee. I have tried to reverse that. Between 1995 and when the Democrats took over the majority, vacancies on the courts of appeal rose to a total of almost 250 percent higher than before. When we finally took over, we were faced with 32 vacancies on the courts of appeal. In spite of this, the Democratic majority has kept up with the rate of attrition by confirming seven judges to the circuit courts in only 9 months and holding more hearings on three more. Particularly, we have been working to improve conditions in the Fifth, Tenth, and Eighth sitting. During the last 9 months, the Judiciary Committee has restored steady progress to the judicial confirmation process. The Senate Judiciary Committee is doing what it has not done for the 6 years before. We are holding regular hearings on judicial nominees. We are giving nominees a vote in committee, in contrast to the practice of anonymous holds and other tactics employed by some during the period of Republican control. In less than 9 months, the Senate Judiciary Committee has held 15 hearings involving judicial nominations. That is more hearings on judges than the Republican majority held in any year of its control of the Senate. Already, 48 judicial nominees have participated in those hearings. In contrast, one-sixth of President Clinton's judicial nominees, more than 50, never got a committee hearing nor a committee vote from the Republican majority. This is one of the reasons why there were so many vacancies when President Bush took office. No hearings were held before June 29, 2001, by the Senate Judiciary Committee, even though they were in control. No judges were confirmed by the Senate from among the nominees received by the Senate on January 3, 2001, or further nominees received from President Bush in May. This is the background for the sense-of-the-Senate amendment that will be offered by Majority Leader Daschle which would confirm that the committee should continue to hold confirmation hearings for judicial nominees as expeditiously as possible. That is true for all judicial nominees, including those first received on May 9 of 2001. The language offered by Senator Daschle also recognizes that with barely 4 weeks in session before May 9, 2002, calling for confirmation hearings on eight controversial courts of appeals nominees is a call that is unheard of. It was certainly never approached during the past 6 years. I would suspect that my friends on the Republican side are most afraid of one thing: They hope the Democratic majority would never do to them and a Republican President what they did as a Republican majority to a Democratic President. I can assure them as long as I am chairman we will not do to them what they did to us. I am not going to do that. It hurts the independence of the judiciary, and I am not going to do that. I remember a whole session, in 1996, in which the Republican majority did not confirm a single judge to the courts of appeals; another in which the committee reported only three courts of appeals nominees all year. But we are not going to go back to those days. We are going to do a lot better. But you cannot call for hearings on eight courts of appeals nominees in 4 weeks. That would be asking the current committee to do in 1 month what the committee under Republican leadership did not do for months, in fact sometimes for years. It is disingenuous to compare the last 9 months with the Senate majority and President of different parties to years when the majority party and the President were the same. A fairer comparison might be with the first 9 months of the 104th Congress, where the parties of the President and the Senate majority were different. That comparison shows we made more progress, held more hearings, confirmed more judges, including courts of appeals judges, than when the party roles were reversed in 1995. In 1995, we had a Democratic President and a Republican majority. Take their 9 months. They had nine hearings in 9 months with a Democratic majority and Republican President. We actually had 15. I will correct this--15, because we had one Tuesday. In their 9 months, they had 36 confirmations; we have had 42. So we have made more progress, held more hearings, confirmed more judges than when the party roles were reversed in 1995. Actually, 1995 was when the Republicans had one of its most productive years on judges. In a comparison made between the beginning of the second session of the 104th Congress when the President was a Democrat and the Senate majority was Republican, with the beginning of this, when roles were reversed, that fair comparison shows that we have already confirmed 14 judges this session, including 1 to the court of appeals, while the Republican Senate ended up confirming only 17 judges all year--none to the courts of appeals. When we finish this first year in the majority, I can assure the Senate our record will be better than the years we saw with the Republicans, by any kind of standard at all. Look at the first 3 months of the session. We have been confirming--we confirmed 14 judges. In March 1995, in their first 3 months, when they were in charge with a Democratic President and Republican majority, they confirmed 9; by March of 1996 when they were in charge, they confirmed zero; by March of 1997 when they were in charge they confirmed 2; by March of 1998 they hit their zenith, they confirmed 12. They made up for it the next year, March of 1999, they confirmed zero. By March of 2000, they confirmed 7; by March of 2001 they confirmed zero. By March of this year, we confirmed 14. Madam President, I see the distinguished ranking member of the Judiciary Committee on the floor, so I will yield the floor and reserve the remainder of my time.

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

Mr. LEAHY

Mr. LEAHY. Mr. President, in June 1999, the U.S. Supreme Court issued a pair of decisions that altered the legal landscape with respect to intellectual property. I am referring to Florida Prepaid versus College Savings Bank and its companion case, College Savings Bank versus Florida Prepaid. The Court ruled in these cases that States and their institutions cannot be held liable for damages for patent infringement and other violations of the Federal intellectual property laws, even though they can and do enjoy the full protection of those laws for themselves. Both Florida Prepaid and College Savings Bank were decided by the same five-to-four majority of the justices. This slim majority of the Court threw out three Federal statutes that Congress passed, unanimously, in the early 1990s, to reaffirm that the Federal patent, copyright, and trademark laws apply to everyone, including the States. I believe that there is an urgent need for Congress to respond to the Florida Prepaid decisions, for two reasons. First, the decisions opened up a huge loophole in our Federal intellectual property laws. If we truly believe in fairness, we cannot tolerate a situation in which some participants in the intellectual property system get legal protection but need not adhere to the law themselves. If we truly believe in the free market, we cannot tolerate a situation where one class of market participants have to play by the rules and others do not. As Senator Specter said in August 1999, in a floor statement that was highly critical of the Florida Prepaid decisions, they ``leave us with an absurd and untenable state of affairs,'' where ``States will enjoy an enormous advantage over their private sector competitors.'' This concern is not just abstract. Consider this. In one recent copyright case, the University of Houston was able to avoid any liability by invoking sovereign immunity. The plaintiff in that case, a woman named Denise Chavez, was unable to collect a nickle in connection with the university's alleged unauthorized publication of her short stories. Now, just a short time later, another public university funded by the State of Texas is suing Xerox for copyright infringement. The second reason why Congress should respond to the Florida Prepaid decisions is that they raise broader concerns about the roles of Congress and the Court. Over the past decade, in a series of five-to- four decisions that might be called examples of ``judicial activism,'' the current Supreme Court majority has overturned Federal legislation with a frequency unprecedented in American constitutional history. In doing so, the Court has more often than not relied on notions of State sovereign immunity that have little if anything to do with the text of the Constitution. Some of us have liked some of the results; others have liked others; but that is not the point. This activist Court has been whittling away at the legitimate constitutional authority of the Federal Government. At the risk of sounding alarmist, this is the fact of the matter: We are faced with a choice. We can respond, in a careful and measured way, by reinstating our democratic policy choices in legislation that is crafted to meet the Court's stated objections. Or we can run away, abdicate our democratic policy-making duties to the unelected Court, and go down in history as the incredible shrinking Congress. Just last month, the Court decided to intervene in another copyright dispute, to decide whether Congress went too far in 1998, when we extended the period of copyright protection for an additional 20 years. Many of us on the Judiciary Committee cosponsored that legislation, and it passed unanimously in both Houses. A decision that the legislation is unconstitutional could place further limits on congressional power. About 4 months after the Florida Prepaid decisions issued, I introduced a bill that responded to those decisions. The Intellectual Property Protection Restoration Act of 1999 was designed to restore Federal remedies for violations of intellectual property rights by states. I regret that the Senate did not consider my legislation during the last Congress. It has now been nearly 3 years since the Court decisions opened such a troubling loophole in our Federal intellectual property laws. We should delay no further. Last month, the Judiciary Committee held its first hearing on the issue of sovereign immunity and the protection of intellectual property. I want to thank again everyone who participated in that hearing, which helped greatly to clarify the issues and challenges posed by the Court's new jurisprudence. Today, I am pleased to be reintroducing the Intellectual Property Protection Restoration Act with my friend and fellow Judiciary Committee member, Senator Brownback. I commend the Senator from Kansas for taking a stand on this important issue. I am also proud to have the House leaders on intellectual property issues, Representatives Coble and Berman, as the principal sponsors of the House companion bill, H.R. 3204. This bill has the same common-sense goal as the three statutes that the Supreme Court's decisions invalidated: To protect intellectual property rights fully and fairly. But the legislation has been re- engineered, after extensive consultation with constitutional and intellectual property experts, to ensure full compliance with the Court's new jurisprudential requirements. As a result, the bill has earned the strong support of the U.S. Copyright Office and the endorsements of a broad range of organizations including the American Bar Association, the American Intellectual Property Law Association, the Business Software Alliance, the Intellectual Property Owners Association, the International Trademark Association, the Motion Picture Association of America, the Professional Photographers of America Association, and the Chamber of Commerce. In essence, our bill presents States with a choice. It creates reasonable incentives for States to waive their immunity in intellectual property cases, but it does not oblige them to do so. States that choose not to waive their immunity within 2 years after enactment of the bill would continue to enjoy many of the benefits of the Federal intellectual property system; however, like private parties that sue States for infringement, States that sue private parties for infringement could not recover any money damages unless they had waived their immunity from liability in intellectual property cases. This arrangement is clearly constitutional. Congress may attach conditions to a State's receipt of Federal intellectual property protection under its Article I intellectual property power just as Congress may attach conditions on a State's receipt of Federal funds under its Article I spending power. Either way, the power to attach conditions to the Federal benefit is part of the greater power to deny the benefit altogether. And no condition could be more reasonable or proportionate than the condition that in order to obtain full protection for your Federal intellectual property rights, you must respect those of others. I hope we can all agree on the need for corrective legislation. A recent GAO study confirmed that, as the law now stands, owners of intellectual property have few or no alternatives or remedies available against State infringers, just a series of dead ends. We need to assure American inventors and investors, and our foreign trading partners, that as State involvement in intellectual property becomes ever greater in the new information economy, U.S. intellectual property rights are backed by legal remedies. I want to emphasize the international ramifications here. American trading interests have been well served by our strong and consistent advocacy of effective intellectual property protections in treaty negotiations and other international fora. Those efforts could be jeopardized by the loophole in U.S. intellectual property enforcement that the Supreme Court has created. The Intellectual Property Protection Restoration Act restores protection for violations of intellectual property rights that may, under current law, go unremedied. We unanimously passed more sweeping legislation earlier this decade, but were thwarted by the Supreme Court's shifting jurisprudence. We should enact this legislation without further delay. I ask unanimous consent that the text of the bill and a section-by- section summary of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, in June 1999, the U.S. Supreme Court issued a pair of decisions that altered the legal landscape with respect to intellectual property. I am referring to Florida Prepaid versus College Savings Bank and its companion case, College Savings Bank versus Florida Prepaid. The Court ruled in these cases that States and their institutions cannot be held liable for damages for patent infringement and other violations of the Federal intellectual property laws, even though they can and do enjoy the full protection of those laws for themselves. Both Florida Prepaid and College Savings Bank were decided by the same five-to-four majority of the justices. This slim majority of the Court threw out three Federal statutes that Congress passed, unanimously, in the early 1990s, to reaffirm that the Federal patent, copyright, and trademark laws apply to everyone, including the States. I believe that there is an urgent need for Congress to respond to the Florida Prepaid decisions, for two reasons. First, the decisions opened up a huge loophole in our Federal intellectual property laws. If we truly believe in fairness, we cannot tolerate a situation in which some participants in the intellectual property system get legal protection but need not adhere to the law themselves. If we truly believe in the free market, we cannot tolerate a situation where one class of market participants have to play by the rules and others do not. As Senator Specter said in August 1999, in a floor statement that was highly critical of the Florida Prepaid decisions, they ``leave us with an absurd and untenable state of affairs,'' where ``States will enjoy an enormous advantage over their private sector competitors.'' This concern is not just abstract. Consider this. In one recent copyright case, the University of Houston was able to avoid any liability by invoking sovereign immunity. The plaintiff in that case, a woman named Denise Chavez, was unable to collect a nickle in connection with the university's alleged unauthorized publication of her short stories. Now, just a short time later, another public university funded by the State of Texas is suing Xerox for copyright infringement. The second reason why Congress should respond to the Florida Prepaid decisions is that they raise broader concerns about the roles of Congress and the Court. Over the past decade, in a series of five-to- four decisions that might be called examples of ``judicial activism,'' the current Supreme Court majority has overturned Federal legislation with a frequency unprecedented in American constitutional history. In doing so, the Court has more often than not relied on notions of State sovereign immunity that have little if anything to do with the text of the Constitution. Some of us have liked some of the results; others have liked others; but that is not the point. This activist Court has been whittling away at the legitimate constitutional authority of the Federal Government. At the risk of sounding alarmist, this is the fact of the matter: We are faced with a choice. We can respond, in a careful and measured way, by reinstating our democratic policy choices in legislation that is crafted to meet the Court's stated objections. Or we can run away, abdicate our democratic policy-making duties to the unelected Court, and go down in history as the incredible shrinking Congress. Just last month, the Court decided to intervene in another copyright dispute, to decide whether Congress went too far in 1998, when we extended the period of copyright protection for an additional 20 years. Many of us on the Judiciary Committee cosponsored that legislation, and it passed unanimously in both Houses. A decision that the legislation is unconstitutional could place further limits on congressional power. About 4 months after the Florida Prepaid decisions issued, I introduced a bill that responded to those decisions. The Intellectual Property Protection Restoration Act of 1999 was designed to restore Federal remedies for violations of intellectual property rights by states. I regret that the Senate did not consider my legislation during the last Congress. It has now been nearly 3 years since the Court decisions opened such a troubling loophole in our Federal intellectual property laws. We should delay no further. Last month, the Judiciary Committee held its first hearing on the issue of sovereign immunity and the protection of intellectual property. I want to thank again everyone who participated in that hearing, which helped greatly to clarify the issues and challenges posed by the Court's new jurisprudence. Today, I am pleased to be reintroducing the Intellectual Property Protection Restoration Act with my friend and fellow Judiciary Committee member, Senator Brownback. I commend the Senator from Kansas for taking a stand on this important issue. I am also proud to have the House leaders on intellectual property issues, Representatives Coble and Berman, as the principal sponsors of the House companion bill, H.R. 3204. This bill has the same common-sense goal as the three statutes that the Supreme Court's decisions invalidated: To protect intellectual property rights fully and fairly. But the legislation has been re- engineered, after extensive consultation with constitutional and intellectual property experts, to ensure full compliance with the Court's new jurisprudential requirements. As a result, the bill has earned the strong support of the U.S. Copyright Office and the endorsements of a broad range of organizations including the American Bar Association, the American Intellectual Property Law Association, the Business Software Alliance, the Intellectual Property Owners Association, the International Trademark Association, the Motion Picture Association of America, the Professional Photographers of America Association, and the Chamber of Commerce. In essence, our bill presents States with a choice. It creates reasonable incentives for States to waive their immunity in intellectual property cases, but it does not oblige them to do so. States that choose not to waive their immunity within 2 years after enactment of the bill would continue to enjoy many of the benefits of the Federal intellectual property system; however, like private parties that sue States for infringement, States that sue private parties for infringement could not recover any money damages unless they had waived their immunity from liability in intellectual property cases. This arrangement is clearly constitutional. Congress may attach conditions to a State's receipt of Federal intellectual property protection under its Article I intellectual property power just as Congress may attach conditions on a State's receipt of Federal funds under its Article I spending power. Either way, the power to attach conditions to the Federal benefit is part of the greater power to deny the benefit altogether. And no condition could be more reasonable or proportionate than the condition that in order to obtain full protection for your Federal intellectual property rights, you must respect those of others. I hope we can all agree on the need for corrective legislation. A recent GAO study confirmed that, as the law now stands, owners of intellectual property have few or no alternatives or remedies available against State infringers, just a series of dead ends. We need to assure American inventors and investors, and our foreign trading partners, that as State involvement in intellectual property becomes ever greater in the new information economy, U.S. intellectual property rights are backed by legal remedies. I want to emphasize the international ramifications here. American trading interests have been well served by our strong and consistent advocacy of effective intellectual property protections in treaty negotiations and other international fora. Those efforts could be jeopardized by the loophole in U.S. intellectual property enforcement that the Supreme Court has created. The Intellectual Property Protection Restoration Act restores protection for violations of intellectual property rights that may, under current law, go unremedied. We unanimously passed more sweeping legislation earlier this decade, but were thwarted by the Supreme Court's shifting jurisprudence. We should enact this legislation without further delay. I ask unanimous consent that the text of the bill and a section-by- section summary of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Parliamentary inquiry, Mr. President. When is the vote scheduled?

Mr. LEAHY. Is there time reserved to the Senator from Vermont?

Mr. LEAHY. I understood the Senator from Vermont had 10 minutes.

Mr. LEAHY. I thank the Chair. Mr. President, we are voting on our 42nd judicial nominee to be confirmed since last July when the Senate Judiciary Committee reorganized after the Senator majority changed. With the confirmation of Robert Randall Crane to the U.S. District Court for the Southern District of Texas--and I predict we will accept him--the Senate will have resolved 7 judicial emergencies since we returned to session a few short weeks ago, 14 judicial emergencies since I became chairman. As of this week, the Senate has confirmed more judges in the last 9 months than were confirmed in 4 out of 6 years under the Republican leadership. I have heard some inaccurate statements--I am sure innocently enough but mistakenly--by my friends on the other side of the aisle. As of this week, we will have confirmed, in 9 months, more judges than were confirmed in 4 of the 6 total years under the Republican leadership. In fact, the number of judicial confirmations over these past 9 months exceeds the number of judicial nominees confirmed during all 12 months for the years 2000, 1999, 1997, and 1996. During the 6\1/2\ years the Republicans controlled the Senate, judicial nominations averaged 38 a year. We have done more than that in 9 months. In the past 9 months, we have had more hearings for more nominees and had more confirmations than the Republican leadership did for President Clinton's nominees during the first 9 months of 1995. On the chart we took 9-month increments. In the first 9 months that the Republicans led the committee, they had 9 hearings; we had 14; they confirmed 36 and we confirmed 42. Looking at the first 3 months of the session, we will have confirmed 14. During the first 3 months of each session they were in charge the following occurred: In March 1995, they confirmed 9; in March of 1996, they confirmed 0; by March of 1997, they confirmed 2; by March of 1998, the high-water mark, they had 12; by March of 1999, they had 0; by March of 2000, they had 7; by March of 2001, they had 0; we have done 14. We tried to have a pace faster than the Republicans when they chaired the Judiciary Committee, when they controlled the Senate, and so far we have done that. Some have expressed concern how this Senate, under this leadership, has handled nominations of President Bush. So far he will have won 41 out of 42 nominations. As great as the football team is in Nebraska, they would be delighted to win 41 out of 42, as would any team. In 1999, when the Republicans controlled the Senate, in the whole year, they confirmed 26 district judges and 7 circuit judges. In the year 2000, for the whole year, they confirmed 31 district judges and 8 circuit judges. In the first 6 months of last year, when they controlled the Senate, they had 0. In the past 9 months--remember, these are comparing whole years--in the past 9 months, we have had 35 district judges, 7 courts of appeal. Take the average number of days between nomination and confirmation, figuring we have to wait extra time for the ABA: they took 182 one year; 212 days another year; 232, another; 178, another; 196, another. The Democrats average considerably less. Reviewing today's nominations illustrates the effect of the reform process that the Democratic leadership has spearheaded.

Mr. LEAHY. Mr. President, I see no other Member seeking recognition. I ask consent the vote still be at 5:50 and I be allowed to use the time until 5:50.

Mr. LEAHY. Mr. President, we will have a vote today on Randy Crane. There are Members who have stated, because the Democrats took over the full committee in July of last year, we would try to do the same thing to the Republicans that the Republicans did to the Democrats; that is, slow up and refuse to confirm judges. Of course, the figures show the opposite. The speedy confirmation of Randy Crane to the district court in Texas illustrates the effect of the reforms on the process that the Democratic leadership has spearheaded. Despite the poor treatment of too many Democratic nominations through the practice of anonymous holds and other tactics employed during the past 6\1/2\ years, Randy Crane will be filling a judicial emergency vacancy seat that has been vacant since the year 2000 when the new position was created. I worked with the Senators from Texas and other Senators along the southwestern border to fill this vacancy. In fact, Randy Crane is the second Federal judge confirmed from Texas in just the past few months. Not too long ago when the Senate was under Republican control, it took 943 days to confirm Judge Tagle to the Southern District of Texas. She was nominated in August of 1995 and made to wait until March of 1998, stalled for 3 years, then passed unanimously--a lot different than the nomination of Michael Schattman to a vacancy on the Northern District of Texas. He never got a hearing. I recall 2 years ago, Ricardo Morado, who served as mayor of San Benito, TX, was nominated for a vacancy and never got a hearing or vote. They could have had those votes. We could have moved forward to fill those vacancies. This Senate and this Judiciary Committee is trying to fill them. They could have long ago been filled by nominees from President Clinton, but the fact is the Republicans refused to even allow a vote. We are not doing the same. Unlike the many judicial nominees who were given a hearing but never allowed to be considered by the committee, we try to make sure President Bush's nominees get both a hearing and a vote by the committee. Until Judge Edith Clement of Louisiana received a hearing on her nomination to the Fifth Circuit last year, after the shift in majority, there had been no hearings on Fifth Circuit nominees since 1994 and no confirmations since 1995. In fact, we confirmed the first new judge of the Fifth Circuit in 6 years, even though there was a judicial circuit emergency. Jorge Rangel was nominated to the Fifth Circuit in 1997 and never received a hearing on his nomination, or a vote, in 15 months. Enrique Moreno was nominated for the Fifth Circuit in 1999 and he never received a hearing on his nomination or a vote by the committee. H. Alston Johnson was also first nominated to the fifth circuit in 1999 and never received a hearing on his nomination or a vote by the committee in 1999, 2000, or the beginning of 2001. Despite the support of both of his home State Senators, his nomination to a Louisiana seat on the fifth circuit also languished without action for 23 months. In contrast, under the Democrat-led Senate, President Bush's nominees to the fifth circuit, Judge Edith Brown Clement and Judge Charles Pickering, were treated fairly. Both received hearings less than 6 months after their nominations. In fact, Judge Clement was the first fifth circuit nominee to receive a hearing since Judge James Dennis had a hearing, when Senator Biden chaired the Senate Judiciary Committee in 1994. She is the first person to be confirmed to that circuit since Judge Dennis' confirmation in 1995. In contrast to recent, past practices, we are moving expeditiously to consider and confirm Randy Crane, who was nominated in September, received his ABA peer review in November, participated in a hearing in February, was reported by the committee in March and is today being confirmed. This nominee has the support of both Senators from his home State and appears to be the type of qualified, consensus nominee that the Senate has been confirming to help fill the vacancies on our Federal courts. I congratulate Mr. Crane and his family on his confirmation today. Following the votes on the Pickering nomination last Thursday by the Judiciary Committee, there have been a number of unfounded and unfair attacks against Democratic members of the Judiciary Committee. Reasonable people can disagree about whether Judge Pickering deserved a promotion, given his record as a judge. I am sorry, however, that some have chosen to make that committee action into an unfortunately acrimonious fight. It is unfortunate that some are going out of their way to intervene, for example, in a matter before the Rules Committee, and objected to a bipartisan request for oversight funds--to be evenly divided between the committee's majority and minority--in order better to fulfill our increased oversight responsibility and make sure that agencies such as the FBI and the INS are doing their jobs appropriately. In the wake of September 11, Senator Hatch and I submitted the joint request on behalf of the committee with oversight jurisdiction over the Department of Justice and its components. We wanted to assess the management, training, and resource lapses in the FBI, INS, and in the other Department of Justice agencies to ensure that these agencies know what they did wrong and to avoid a recurrence of those tragic events. We were reminded just last week of the need for this kind of oversight when additional problems at the INS surfaced. It is too bad that some are choosing to obstruct this important effort. That retribution is now threatening the important work of the committee and the functioning of the Senate. I hope we are not entering an era in which any disagreement is vilified, and harsh, inappropriate rhetoric, is employed to make political points with the extreme elements. This scorched earth campaign in which unrelated nominations and bills and oversight responsibilities are being compromised is not in the best interests of the Senate. I recall that even in our disappointment after the Republicans rejected the nomination of Judge Ronnie White in a party-line floor vote in 1999, I proceeded to vote for the confirmation of Ted Stewart of Utah. The committee vote on the Pickering nomination was not a sneak attack or a ``lynching.'' It was not a nomination of which Senators had indicated that would vote one way and then went into a closed party caucus and were instructed to vote another. It was not a party-line vote insisted upon by party leaders. It was not a matter in which the committee held a pro forma hearing and then refused over a period of weeks and months to bring the matter to the committee agenda for an up or down vote. It was not a circumstance where the nominee was not afforded the opportunity to hear Senators' concerns and respond to those concerns. It was not a circumstance where the nominee was not asked about concerns and cases and his own actions at his hearing. This was a case in which I responded to the request of a Senator to proceed to schedule a quick hearing on a judicial nomination. As Senators reviewed this nomination, they had concerns. They asked the nominee about those concerns. The committee assembled a record, which was the record of the nominee's official actions as a Federal judge. The committee then held a follow-up hearing to allow the nominee another opportunity to make his best case and respond to Senators' concerns and then provided a further opportunity through written questions and answers. After delaying committee action for 2 weeks at the request of the Republican leader and the ranking Republican on the committee, we met and debated the merits of the nomination for over 4 hours before voting. I believe that the members of the Judiciary Committee based their votes on their review of the record and their having measured the nominee against the standard each Senator must develop for voting on lifetime appointments to the Federal courts. I regret that some are questioning the motives of Senators. The Senators on the Judiciary Committee, both Republican and Democratic, are seeking to exercise their responsibilities with respect to their votes appropriately, on the merits and in accordance with their standards for such matters. In spite of fair treatment, hearings and a vote, on Thursday, attacks arose suggesting that Senate Democrats have imposed an unconstitutional religious test to the nomination of Judge Pickering to the appellate court. I hesitate to dignify such a scurrilous allegation with a response, but I feel I must set the record straight. The Democratic members of the committee have never inquired into Judge Pickering's religion. It had no place in the deliberations. These charges, that the Democratic Senators on the committee have voted against Judge Pickering based in any way based on his religion are outrageous, unfounded, and untrue. Whether a nominee goes to church, temple, or mosque, or not, has not been used by anyone in this Senate in the consideration of a judicial or any nominee. Article VI of the United States Constitution requires that ``no religious test shall ever be required as a qualification to any office or public trust under the United States.'' In accordance with the separation of church and state embodied in our Constitution, no religious test has been applied to this nominee or any other. I recall the recent reports indicated that Justice Scalia had recently commented on the religion of judges and suggested that Federal judges who are Catholic should consider resigning if imposing the death penalty was a moral problem for them. But no Senator, at any time during the consideration of the Pickering nomination, commented unfavorably on his religion. The responsibility to advise and consent on the President's nominees is one that I take seriously and the other members of the Judiciary Committee take seriously. Senator Schumer and Senator Feinstein chaired fair hearings on Judge Pickering's nomination. I regret that they and others on the committee have been subjected to unfair criticism and attacks for fulfilling their duties. Some of our Democratic Senators have been receiving calls and criticism based on their religious affiliations. That is wrong. Other Senators have been insulted and called names for asking questions of the nominee and for disagreeing with this choice for the court of appeals. That is regrettable. There are strongly held views on both sides. But while Democrats and most Republicans have kept to the merits of this nomination, it is unfortunate that some have chosen to vilify, castigate, unfairly characterize, and condemn without basis Senators working conscientiously to fulfill their constitutional responsibilities. I also want to express concerns about recent statements from the administration, including from the President, that the Senate's treatment of judicial nominees ``hurts our democracy.'' This statement reveals an unsettling misunderstanding of the fundamental separation of powers in our Constitution and the checks and balances in the Founder's design. In our democracy, the President is not given unchecked powers to pack the courts and to give lifetime appointments to anyone who shares certain ideological views. Instead, the Constitution provides a democratic check on the power of appointment by requiring the advice and consent of the Senate. Each Senator on the committee made up his or her own mind on whether to vote for the promotion of Judge Pickering to the Court of Appeals. The Senators on the committee studied Judge Pickering's record as a judge. The committee's vote was part of our democratic process. This democratic check on the President's appointment power demonstrates our democracy in action, not action that ``hurts our democracy.'' By having fair hearings and voting on nominees, up or down, the Judiciary Committee is proceeding as it should. The administration should not throw gasoline onto this combustible situation. It could, instead, recognize its role in sending division nominations to the Senate and seek to work with us to find and appoint consensus nominees. Unlike the many judicial nominees who did not get hearings or were accorded a hearing but were never allowed to be considered for a vote by the committee, we are trying to accord nominees whose paperwork is complete and whose blue slips are returned both a hearing and a fair up or down vote. Those who assert that the Democrats have caused a vacancy crisis in the Federal courts are ignoring recent history. There were an unusually high number of retirements taken by Federal judges after the November 2000 election. Moreover, by the time the Senate was permitted to reorganize after the change in majority, the number of vacancies have reached 105 and was rising to 111, including 32 vacancies on the courts of appeals. That is the situation I inherited and the Democratic majority in the Senate was faced with last summer. Since then this is the 42d judicial nominee to be confirmed, including seven judges to the courts of appeals. Contrary to what some might say, the Democratic majority has actually been keeping up with attrition and we have started moving the vacancy numbers in the right direction--down. By contrast, from January 1995, when the Republican majority took over control of the Senate until they relinquished it in June 2001, Federal judicial vacancies rose by 65 percent, from 63 to 105. Already, in less than 9 months in the majority, we have made more progress than was made in 4 whole years of Republican leadership, 2000, 1999, 1997, and, of course, 1996. Within the past 9 months, after the change in majority, we have confirmed 42 judges, including 7 to the courts of appeals. In all of 2000, the Senate confirmed fewer, only 39 judges, and in 1999 fewer still, only 33 judges, with 7 to the courts of appeals. We are doing what the Republican majority did not do: keeping up with the rate of attrition and moving the numbers in the right directions. Tomorrow we are scheduled to hold another hearing on another court of appeals nominee, at the request of Senator Enzi. I hope this nominee will turn out to be uncontroversial and well- regarded by people from both sides of the aisle. Our task is made easier when the President works with members of both parties to nominate consensus nominees who are not outside of the mainstream and whose record demonstrates that they will follow precedent, not try to find a way around it. Tomorrow's hearing will be our 15th for judicial nominees within the last 9 tumultuous months. That is more hearings on judges than the Republican majority held during any full year. In only 9 months we have confirmed as many court of appeals nominees, seven, as the Republican majority averaged per year while they were in control. Indeed, in the 76 months in which a Republican majority recently controlled the pace of judicial confirmations only 47 judges were confirmed to the 78 vacancies that existed on our Federal courts of appeals. We have confirmed seven in less than 9 months already. The Republicans went one entire congressional session, 1996, refusing to confirm even a single court of appeals nominee. We are holding more hearings for more nominees than in the recent past. We have moved away from the anonymous holds that so dominated the process from 1996 through 2000. We have made home State Senators' blue slips public for the first time. We have drastically shortened the average time for confirmation proceedings. What had grown during Republican control to over 230 days on average is now down to 74 days from receipt of the ABA peer review to confirmation for the 42 judges we have confirmed over the last 9 months. However, because the Republicans refused to hold hearings on so many of President Clinton's nominees there were an enormous number of vacancies we inherited. Under Democratic leadership, we have tried to fill those vacancies as quickly as possible. By moving first on the nonideological and well qualified of President Bush's nominees we can fill the most vacancies in the least amount of time. With controversial, less qualified judges we spend much more of time. With consensus, well-qualified nominees we could have confirmed a dozen judges in the same amount of time the committee devoted over the last 5 months to the Pickering nomination. It is not possible to repair the damage caused by long standing vacancies in several circuits overnight, but we are contributing to improved conditions in the 5th, 10th, and 8th circuits, in particular. We will do our best to remedy as many circumstances as possible. I understand we have time before the vote. The distinguished ranking member has come to the floor. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am proud to be an original cosponsor of this resolution to honor our Federal, State, and local law enforcement officers who gave the ultimate sacrifice for our public safety. I commend Senator Campbell for his leadership in submitting Senate Resolution 221, which recognizes May 15, 2002, as Peace Officers Memorial Day, in honor of Federal, State, and local officers killed or disabled in the line of duty. I want to recognize the other cosponsors of this resolution: Senators Hatch, Biden, DeWine, Cantwell, Allard, Allen, Bingaman, Bunning, Cochran, Gregg, Hutchinson, Rockefeller, and Thomas. Since my time as a State prosecutor, I have always taken a keen interest in law enforcement in Vermont and around the country. Vermont has the reputation of being one of the safest States in which to live, work and visit, and rightly so. In no small part, this is due to the hard work of those who have sworn to serve and protect us, and we should do what we can to honor them and their families. Our Nation's law enforcement officers numbering more than 700,000 men and women--put their lives at risk in the line of duty everyday. No one knows when danger will appear and what form it will take. Unfortunately, in today's violent world, even pulling over a driver for speeding may not necessarily be ``routine.'' The events of the past year and the ensuing relentless vigilance on the part of our peace officers in guarding against further such attacks have proven this. Guardians of the peace face more risks than ever in these times. All law enforcement officers across the Nation deserve our heartfelt respect and appreciation on Peace Officers Memorial Day.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, the Senate is voting on the 41st judicial nominee to be confirmed since last July when the Senate Judiciary Committee reorganized after the Democrats became the majority party in the Senate. With the confirmation of David C. Bury to the U.S. District Court for the District of Arizona, the Senate will have resolved 6 judicial emergencies since we returned to session just a few short weeks ago and 11 since I became chairman this past summer. As of this week, the Senate has confirmed more judges in the last 9 months than were confirmed in 4 out of 6 years under Republican leadership. The number of judicial confirmations over these past 9 months--41--exceeds the number of judicial nominees confirmed during all 12 months of 2000, 1999, 1997, and 1996. During the preceding 6\1/2\ years in which a Republican majority most recently controlled the pace of judicial confirmations in the Senate, 248 judges were confirmed. The larger number, the total judges confirmed during President Clinton's two terms, includes 2 years in which a Democratic majority proceeded to confirm 129 additional judges in 1993 and 1994. During the 6\1/2\ years of Republican control of the Senate, judicial confirmations averaged 38 per year--a pace of consideration and confirmation that has already been exceeded under Democratic leadership over these past 9 months. The Republican majority did not proceed on any of the judicial nominations resent to the Senate in January by President Clinton or those initially sent to the Senate in May by President Bush. In the past 9 months, we have had more hearings, for more nominees, and had more confirmations than the Republican leadership did for President Clinton's nominees during the first 9 months of 1995. In each area--hearings, number of nominees given hearings, and number of nominees confirmed--the Judiciary Committee has exceeded the comparable period when Republicans were in power. And 1995 was one of their most productive years. Beginning in 1996, the Republican majority really began stalling the judicial confirmation process. In the 1996 session, only 17 judges were confirmed all year. Judge Bury will be the 13th judge confirmed since January 24 this year, and it is only March. Under Democratic leadership, we have reformed the process and practices used in the past to deny Committee consideration of judicial nominees. Almost 60 judicial nominees never received a hearing by the Senate Judiciary Committee or received a hearing but were never voted on by the Committee. We are holding more hearings for more nominees than in the recent past. We have moved away from the anonymous holds that so dominated the process from 1996 through 2000. We have made home State Senators' blue slips public for the first time. I do not mean by my comments to appear critical of Senator Hatch. Many times during the 6\1/2\ years he chaired the Judiciary Committee, I observed that were the matter left up to us, we would have made more progress on more judicial nominees. I thanked him during those years for his efforts. I know that he would have liked to have been able to do more and not have to leave so many vacancies and so many nominees without action. The speedy confirmation of David Bury to the District Court for Arizona illustrates the effect of the reforms to the process that the Democratic leadership has spearheaded, despite the poor treatment of too many Democratic nominees through the practice of anonymous holds and other obstructionist tactics employed by some in the preceding 6 years. David Bury will be filling a judicial emergency vacancy seat that has been vacant since 2000, when the new position was created by public law to handle the greater number of criminal and immigration cases in the courts along our Southwest Border. I have worked with the Senators from Arizona, Texas and other Senators from the Southwestern Border States to fill these new judgeships. It is a shame, however, that the Congress did not see fit to create the judgeships needed so desperately in the Southern District of California. Perhaps Senator Feinstein will succeed in doing that this year. I know that I am supporting her efforts and will be trying to help her finally achieve that goal. David Bury is the second Federal judge confirmed from Arizona in a little more than a month and the third since the change in majority. On February 26th, the Senate confirmed by a vote of 98 to zero Judge Cindy Jorgenson and last December we confirmed Judge Frederick Martone. There are some who insist that circuit court nominees are being treated unfairly. Nothing could be farther from the truth. By having fair hearings and voting on nominees, up or down, the Judiciary Committee is proceeding as it should. Unlike the many judicial nominees who did not get hearings or were accorded a hearing but were never allowed to be considered by the Committee, we are trying to accord nominees both a hearing and a fair up or down vote. Until Judge Edith Clement received a hearing on her nomination to the 5th Circuit last year, there had been no hearings on 5th Circuit nominees since 1994 and no confirmations since 1995. Last year we were able to confirm the first new judge to the 5th Circuit in 6 years and help end the Circuit emergency that had been declared in 1999 by the Chief Judge. Jorge Rangel was nominated to the 5th Circuit in 1997 and never received a hearing on his nomination or a vote by the Committee. His nomination to a Texas seat on the Fifth Circuit languished without action for 15 months. Enrique Moreno was first nominated to the 5th Circuit in 1999 and never received a hearing on his nomination or a vote by the Committee. His nomination to a Texas seat on the Fifth Circuit also languished without action for 17 months. H. Alston Johnson was also first nominated to the 5th Circuit in 1999 and never received a hearing on his nomination or a vote by the Committee in 1999, 2000, or the beginning of 2001. His nomination to a Louisiana seat on the Fifth Circuit also languished without action for 23 months. In contrast, under the Democrat-led Senate, President Bush's nominees to the 5th Circuit, Judge Edith Brown Clement and Judge Charles Pickering, were treated fairly. Both received hearings less than 6 months after their nominations. In fact, Judge Clement was the first Fifth Circuit nominee to receive a hearing since 1994, when Senator Biden chaired the Senate Judiciary Committee. She is the first person to be confirmed to that Circuit since 1995. In contrast to recent, past practices, we are moving expeditiously to consider and confirm David Bury, who was nominated in September, received his ABA peer review in November, participated in a hearing in February, was reported by the Committee in March and is today being confirmed. This nominee has the support of both Senators from his home State and appears to be the type of qualified, consensus nominee that the Senate has been confirming to help fill the vacancies on our federal courts. I congratulate Mr. Bury and his family on his confirmation today.