Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, while the Senator from New York is here, and he is such a good advocate, as we say in Alabama, you make soup out of slop. A motion to postpone is not a filibuster. It is an up-or-down vote to delay. I was in negotiations with the Senator from California and the White House to say we can let Berzon and Paez go but at least put more decent, more mainstream judges in California. We didn't get that agreement, and they moved forward with the vote. That was not a filibuster. I want it to be clear that the leadership on this side, the chairman of the Judiciary Committee, the majority leader, and this Member of the Senate did not vote to maintain any kind of extended debate but voted for cloture which would have guaranteed a vote and did guarantee a vote for them. That is not a classic filibuster.

Mr. SESSIONS. Yes.

Mr. SESSIONS. That is certainly a distinct and obvious difference. Both of these nominees were moved forward by the action of Trent Lott, the Republican leader, to move a Clinton nominee for an up-or-down vote. He got the up-or-down vote. Both those nominees were confirmed. That is exactly correct. And you want to talk about consistency, I ask the Senator from New York if he still stands by his statement he made that the basic issue of holding up judgeships is the issue before us, not the qualifications, which we can always debate; it is an example of Government not fulfilling its constitutional mandate because the President nominates and we are charged with voting on the nominees? And Patrick Leahy, the chairman of the Judiciary Committee----

Mr. SESSIONS. I will for a question.

Mr. SESSIONS. I would certainly agree, and as the Senator from Georgia suggested, we do that a lot around here.

Mr. SESSIONS. I will.

Mr. SESSIONS. I agree, if a hold is a filibuster, then there are a lot more Bush nominees now being filibustered than have been suggested. I think there are four being held by Senator Levin.

Mr. SESSIONS. I yield for a question from the Senator from Virginia.

Mr. SESSIONS. I thank the distinguished chairman of the Armed Services Committee, Senator Warner. He has brought wisdom here and helped us to keep from going around in circles. There is an argument that can be made by the Senator from New York that holds that were ended by cloture votes are filibusters, but they were not really filibusters in the sense we are facing them today. What we are seeing today is a sustained deliberate attempt by the leadership of the Democratic Party to block judges by having less than 50 votes to do so. They block judges by requiring through the procedural rules of the Senate that we have to have 60 votes to confirm a judge instead of 51. We know that in each one of these nominees that have been held up that more than 50, usually as many as 55, 54, 53 votes are there to confirm the nomination, but they have been blocked by a sustained filibuster led by the Democratic leadership and Tom Daschle and his team. That is what has brought us to this point. I think we have clarified that issue. I say on the question of are we changing our views on this side, I reject that point. This side was principled during the Clinton years. This side did not resort to the filibuster as a tool of the opposition, as the Democrats have. There can be no debate about that. Their nominees were moved forward. We did not adopt this policy. I see the Senator from Texas is here. She has some thoughts she would like to share with us about a particular comment that was made about the nominee from California, Judge Kuhl. I yield time to her.

Mr. SESSIONS. I am not exactly sure of the way we have done it.

Mr. SESSIONS. En bloc.

Mr. SESSIONS. Mr. President, I thank the Senator from Texas so much for those comments. I remember when that came up in the Judiciary Committee. We heard these allegations that this woman, Carolyn Kuhl, was insensitive about the rights of women and she had made this big error in this case. What she said simply was, as the Senator mentioned, the doctor allowed this man to come into the room, and not the drug company who hired this gentleman. They did not even know about it, I am sure. The permission was given by him, and if anyone committed a wrong, it was that doctor. She allowed the case to go forward, and under California law, the full recovery can come out of any one defendant who is liable, and the full recovery did come in fact from the doctor. It is an important matter to note. I will just share, since the issue was raised, about this side not being principled and I pointed out during the 8 years of President Clinton's administration, the leadership on this side of the aisle absolutely rejected filibusters. During that same time when President Clinton was seeking to get judges confirmed, the Democratic Senators also were attacking filibusters and used a lot of language that would make that clear. For example, Senator Boxer on May 14 of 1997 said: It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the floor. Senator Feinstein said: A nominee is entitled to a vote. Vote them up, vote them down. Senator Daschle, now the Democratic leader, said: I find it simply baffling that a Senator would vote against even voting on a judicial nomination. Senator Leahy, the chairman of the Judiciary Committee during the time of the Democratic majority, said: I think the Senate is entitled to a vote in this matter. I think the President is entitled for the Senate to vote--he is talking about President Clinton--and I think the country is entitled for the Senate to vote. Now Senator Leahy is leading the filibuster. So is Senator Daschle. They are completely changing their position, and this side did not do that. Senator Hatch explained to us why filibusters were bad, so this side rejected that and did not go forward. Senator Kennedy said: It is true that some Senators have voiced concerns about these nominations, but that should not prevent a rollcall vote which gives every Senator the opportunity to say yes or no.

Mr. SESSIONS. I would be pleased to yield to the Senator from Georgia.

Mr. SESSIONS. Mr. President, I agree so strongly with the Senator from South Carolina that this has the real danger of undermining the independence of the judiciary and injecting politics into the judiciary in a way we do not want to do. I had the opportunity to obtain information from one of our greatest understanders of Senate rules on holds. I think I would like to share that with the Presiding Officer, Senator Enzi, who is as skilled on the history of the Senate as anyone. He just notes this: What is a hold? A hold is a request by a Senator to be notified so a unanimous consent request can be objected to. If somebody is going to move a bill, legislation, or a judge, and you want to talk more about it or so forth, you put a hold. They have to call you before they will do a unanimous consent without your knowledge and slip something through you want to talk about or debate. It is not a filibuster. A filibuster would be a continuous success by less than a majority of the Senators to stop progress to a vote in an action or a matter. It is a success continually by a minority of the Senate to stop the majority from bringing a matter to a vote. A cloture, more than a majority, stopped by a minority, 55 votes for cloture to stop debate, can be defeated by 45 Senators who vote contrary to that, is a filibuster, as has been admitted by the Senators on the other side. I think we have been playing some games with words, but the bottom line is what has occurred this year is unprecedented. It is a systematic, organized filibuster by the Democratic leader, Tom Daschle, and his team and the assistant leader and most of the Members on the other side--but not all--but on these now six nominees to date we have not had 60 votes to shut off debate. That is what we are talking about. You can call a hold a filibuster if you choose. Maybe you could justify that. But I do not think it is.

Mr. SESSIONS. I object.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, the Senator from Alaska is prepared to speak.

Mr. SESSIONS. What is the time situation?

Mr. SESSIONS. I yield to the Senator from Ohio for 10 minutes or so.

Mr. SESSIONS. They have been saying there are four judges being held up. But there are four being held up in the Sixth Circuit. This is a resolution just passed I believe yesterday by the Michigan State Senate, expressing concern about this. I would just like to read from it. I know the Senator from Ohio was concerned about this circuit. It is his circuit. They say: Whereas, The Senate of the United States is perpetuating an injustice and endangering the well-being of many Americans. Its actions are jeopardizing our system of justice in 6 out of the 12 federal judicial circuits that have been declared ``judicial emergencies,'' including the 6th Circuit Court of Appeals which includes the state of Michigan. . . . They say: Whereas, The Senate of the United States is allowing the continued, intentional obstruction of the judicial nominations of all these nominees put forth by the President of the United States, including four fine Michigan jurists: Judges Henry W. Saad, Susan B. Nielson, David W. McKeague, and Richard A. Griffin, nominated to serve on the United States 6th Circuit Court of Appeals. . . . I ask the Senator from Ohio, isn't it true that the chart they have been putting up says four judges are being mentioned; it does not include these four judges whom they are also obstructing?

Mr. SESSIONS. I will just point out, Mr. President, if the Senator will yield the floor----

Mr. SESSIONS. Mr. President, I will just conclude by noting this is a very strong resolution from the Michigan State Senate. They say: Resolved by the Senate-- That is the Michigan Senate-- That we memorialize the United States Senate and Michigan's United States Senators to act to end the filibusters of the federal circuit court nominees pending on the Senate floor, to release those being upheld in the Judiciary Committee of the Senate of the United States, and to vote for the bipartisan Frist-Miller Resolution. . . . I ask unanimous consent that this resolution be printed in the Record.

Mr. SESSIONS. Mr. President, there has been a lot said here. I just want to share a few thoughts. This matter is, at its core, about the rule of law in this country. We have a system that believes judges are here to apply the law as written, they are not here to enforce their rules, their personal political agenda, do what they think is nice in every case. Clients have rights. If the rights they have protect them from lawsuits, they should be protected. If they are entitled to recover or be successful, they ought to be successful. It is up to the judge to apply the law fairly and objectively. President Bush has his hand on the heart of the problem. He understands what is wrong with the judiciary in America. He knows it is out of control. He knows we are allowing verdicts to run wild. He knows we have a radical secularization of America that is occurring through the power of the Federal courts. It is not healthy. We have things such as the Pledge of Allegiance being struck down. He knows criminal cases are being tossed over at record rates. Two judges we confirmed--Berzon and Paez--and I voted to give them an up-or-down vote, and I voted against them on the merits--these two nominees, in separate cases, struck down California's highly effective ``three strikes and you are out'' law that has helped drive down the crime rates significantly in California. And I say that as a former prosecutor of over 15 years. Absolutely, that has had an impact in the reduction of the crime rate in California. They struck those down as unconstitutional. Mr. President, 170 death penalty cases have been overturned, as the Senator noted, by this Ninth Circuit, the most liberal circuit in America, and they struck down the Pledge of Allegiance. The U.S. Supreme Court has reversed the Ninth Circuit--in 1 year--in 27 out of 28 cases; in another, 14 out of 17 cases. In fact, the New York Times several years ago, in a news article, said a majority of the Supreme Court considers the Ninth Circuit to be a rogue circuit. So what we are trying to do is come back to the mainstream. I am shocked that the distinguished Senator from New York, Mr. Schumer--who is really the point man on the advocacy of judicial activism in the Senate--I would submit this is what he said in this debate earlier, and I am just shocked by it. No wonder when I came in, I saw Senator Specter having his feelings hurt. Senator Schumer said: No one except a far right militant extreme minority believes that the courts are being obstructed when 168 judges are approved and 4 are not. So that is not the language of moderation. That is not the language of collegiality. They are accusing Members over here of being far right extremists because they do not agree with the filibuster tactics that are going on here. In another comment recently, on the Internet site 365Gay.com: New York's other Senator, Democrat Chuck Schumer [was quoted as saying he] launched a broadside at conservatives, accusing the President of ``loading up the judiciary with right-wingers who want to turn the clock back to the 1980s.'' Schumer said America is under attack from ``the hard right, the mean people,'' and said ``They have this sort of little patina of philosophy but underneath it all is meanness, selfishness and narrow-mindedness.'' That hurts my feelings. Mr. President, these nominees who are here who are being held up are not extreme. Janice Rogers Brown, an African American, who grew up in Alabama under racial discrimination, went to California, got her law degree at UCLA, a single mom, got elected to the Supreme Court of California, not a conservative State. She got 76 percent of the votes. Are these mean-spirited, selfish, narrow-minded people? Not Janice Rogers Brown, if you saw her testify, as I did. Carolyn Kuhl went to Duke Law School, graduated on the Law Review, clerked with Justice Anthony Kennedy on the Ninth Circuit when he was on the Ninth Circuit, and has served for a number of years on the courts out there and has won bipartisan praise from those courts. Mr. President, I ask unanimous consent that I be given an additional 3 minutes to be deducted from the majority time in the next section.

Mr. SESSIONS. And Priscilla Owen. I guess they claim she is a right- wing, mean-spirited person. Priscilla Owen graduated at the top of her class in law school, made the highest possible score on the Texas bar exam. She was one of the most successful legal practitioners in all of Texas. They asked her to run for the supreme court. She did. She won reelection with 84 percent of the vote and the support of every major newspaper in Texas. Bill Pryor, the attorney general from Alabama, got 59 percent of the vote in his reelection bid. These are people out of the mainstream of this country, right-wing extremists? No, sir. The values this country holds dear with regard to the legal system, that were bequeathed to us from the English tradition, need to be cherished and protected and valued. America understands this. Mainstream America is very troubled by courts that do not adhere to the traditions of how to interpret law in America. They do not believe judges are entitled to reinterpret the meaning of words and statutes, and in our Constitution to legitimate the perpetuation of a political agenda. That is what it is all about. President Bush understands that. The American people understand that. That is mainstream. The kind of allegations we have had here against these fine nominees is not mainstream. It is typical of the hard left that comes from the People for the American Way, the American Civil Liberties Union, and those kinds of groups. Mr. President, I feel really strongly about it. I believe the majority acted responsibly during the Clinton years. We did not maintain a filibuster against Clinton judges, as has been done now for the first time in history. That is what is occurring today, a filibuster, systematically, of a number of highly qualified judges for whom there is no basis to object on the merits. I yield the floor and I reserve the remainder of the time.

Mr. SESSIONS. Will the Senator yield for a question?

Mr. SESSIONS

Mr. SESSIONS. Will the Senator yield for a question?