Thanks Stan. My google skills are pretty inefficient, but I did find this:
http://leahy.senate.gov/press/200311/111303b.html
U.S. SENATOR PATRICK LEAHY
CONTACT: Office of Senator Leahy, 202-224-4242
VERMONT
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Full Statement Of Senator Patrick Leahy
Thursday Address
During The Republican ‘Filibuster’ On Judicial Nominees
Congressional Record
November 13, 2003
The Essential Question
Let us boil the issue down to its essence, applying the Socratic method.
Have filibusters been used before on Executive Calendar nominees, including judicial nominees to the lower courts as well as to the Supreme Court?
Yes, they have. Of course they have. The Congressional Record is open for all to read. Three years ago, there were even two simultaneous Republican filibusters on this Senate Floor against Richard Paez and Marsha Berzon, two of President Clinton’s judicial nominees. And do we really have to remind our friends on the other side of the aisle about the dozens more who were blocked NOT through votes, in the open, on the Senate Floor, but through holds by anonymous, Republican Senators. Those nominees did not even get committee hearings or committee votes. Sixty-three of President Clinton’s nominees were blocked, in all. Sixty-three.
So the next question is: Then, and now, have filibusters of Executive Branch nominees, including judicial nominees, been rare?
Yes, they have. The Senate’s rules are intended to protect against abuses by the majority that at any given time controls the Senate. And in this case, the Senate’s rules also protect against abuses of power and of our system of checks and balances by a White House that is so bent on controlling all the levers of power that they would even prevail on the Senate to change its own rules.
And should filibusters be used sparingly?
My own view is that yes, they should be used sparingly. And they have been used sparingly. And today, unlike the times of the recent Republican filibusters used against a Democratic President’s judicial nominees, the White House and the Senate’s current majority have colluded to run roughshod over other safeguards built into our system of government and into the very rules and practices of the Senate and its committees.
This year, with breathtaking arrogance, we have seen the systematic dismantling of the Judiciary Committee’s own rules. One by one, the majority has changed, bent and even broken the longstanding rules and practices that were intended to protect the rights of Senators to defend the rights of their States and their constituents. These are the very rules and practices that Republican Senators themselves used – and many would say, abused – when a Democratic President’s judicial nominees were before the Senate.
Would filibusters be necessary at all if the President lived up to the Constitution’s injunction that he seek not only the Senate’s consent but also its advice in selecting candidates for the independent federal judiciary?
Ah, and this is the real question before us. This is what this entire debate boils down to. Is there a clear way forward without the need to prevent confirmation of any judicial nominee? And the answer is that the President has the ability to prevent impasses over any of his nominees. None of this would be necessary if the President were not provoking it. This process begins with the President. Like other Presidents of both parties have, this President could work with the Senate in naming mainstream nominees to our courts. But he has chosen instead to try to politicize the courts. He and his aides have unabashedly declared that they are out to remake the federal judiciary in the image of ideological activism. Our courts are foundational to our system. Our independent judiciary is the envy of the entire world. We were not meant to have Republican courts or Democratic courts, but independent courts.
It is no small irony that a President who declares his disdain for what he calls “judicial activism” has nominated several of the most committed and opinionated and ends-oriented judicial activists ever nominated to our independent federal courts.
The President said he wanted to be a uniter and not a divider. But in deference to groups on the far right, he has nominated judicial activists who cannot help but raise questions about their abilities to act impartially, with justice for all, as we need in our independent judiciary.
Time and time and time again, Democratic Senators have acted in good faith to fill vacancies that Republicans kept vacant by blocking a Democratic President’s judicial nominees. And time and time again, this White House has responded instead with arrogance.
We have stood up for our principles, and for the independence of the Senate in its constitutional role in the judicial confirmation process.
The process begins with the President, and once again we ask him to work with the Senate in filling judicial vacancies.
The Public’s Priorities v. The Republican Leadership’s Priorities
During this 30-hour talkathon, the Republican leadership of the Senate again is following a script laid out for it by a White House intent on bending all other branches of government to its will. This is a White House intent on establishing some sort of unitary government and intent on removing the checks and balances among our three branches of government that are a foundation of the American system. In furtherance of this script, in these rare final hours of this year’s legislative session, the Republican leadership has decided to abandon work on the real priorities of the American people. They are obstructing those priorities, in favor of repetitive speeches about promoting these four controversial nominees to lifetime positions as federal judges -- four people who already have good, well-paying jobs -- is more important than the three million Americans who have been struggling to find any jobs at all.
The Republican leadership has already overshot the Senate’s adjournment date by more than a month. We have already had to enact three continuing resolutions to keep the Federal Government operating because the appropriations bills that the Congress needs to pass have not been enacted. It is now more than five weeks after the fiscal year began and we should have completed all 13 appropriations bills, but the Republican Congress has enacted a total of only four out of 13.
The remaining annual appropriations bills include the funds that go to improve our schools. The funds that NIH uses to advance our medical knowledge in fighting disease and illness. The resources used by EPA to enforce our clean air and water laws. They include appropriations for our veterans and for law enforcement.
Yesterday evening as the Republicans gathered to accommodate the programming requests of a certain television network, the senior Senator from West Virginia was trying to get the Senate to do its work. Senator Byrd, as the ranking Democrat on the Appropriations Committee, was searching for the Republican leader and urging the Senate to complete its work on the appropriations bill that funds services for our military veterans. He asked that the Senate continue that work so that we could finish Senate consideration of this important bill and proposed that we do so in just two hours. The Republican leadership objected. He renewed his request when the Republican leader did appear on the floor but was, again, rebuffed by Republican objection. Those few minutes may turn out to be the most telling of this entire so-called debate. Republicans chose to sacrifice the work of the Senate, the priorities of the American people and the interests of our veterans to a partisan political stunt.
In one of their many press conferences on this diversion, on November 6, the Republican leader committed to “complete the appropriations process” before beginning this charade. Even the junior Senator from Pennsylvania, agreed with that and said: “The leader’s right. What we’re about to embark in next week, after the appropriations process has run its course, is to enter into a debate . . . .” Well, when given the chance to honor that commitment last night, the Republican caucus chose partisan theater over the work of the Senate.
There is the unfinished business of providing a real prescription drug benefit for seniors. There is the Nation’s unemployment and lack of job opportunities that confound so many American families. With millions of Americans having lost their jobs in the last three years, the Republican Senate is, instead, insisting on spending these final days of this session on a handful of highly controversial judicial nominations that divide the Senate and the American people and ignoring the needs of the almost 10 million Americans who are out of work, including those more than three million Americans who have lost their jobs since President Bush took office.
There are the corporate and Wall Street scandals that concern so many of those who have invested and placed their trust and financial security at risk in our securities markets. While we are listening to Republicans pontificate about a handful of highly controversial judicial nominees, some Republican has an anonymous hold on S.1293, the Criminal Spam Act of 2003. This is a bipartisan bill that can do something about the worst spam abuses. Earlier this week, the Washington Times reported that spam is doing more damage to our economy than hackers or viruses. A few weeks ago the entire Senate joined in adopting a version of S.1293 to the Burns-Wyden bill and we joined to pass that bill. Now some Republican has turned around and under cover of anonymity is holding up the bipartisan bill that can be enacted before adjournment this year that can stem the tide against the worst abuses and fraudulent conduct that is gumming up our internet economy and communications. This is the type of anonymous Republican hold that was likewise responsible for holding up more than 60 of President Clinton’s qualified nominees to the federal judiciary from 1995 through 2001.
There is the need for Congress to continue the federal highway programs that build and repair our roads and highways and bridges. There is the need to perform real oversight of the USA PATRIOT Act and to provide real oversight for the war in Iraq. Just as Republicans objected to the Senate Judiciary Committee investigating the factors that led to September 11, Republicans are now objecting and preventing a full investigation by the Select Intelligence Committee of what led the Bush Administration to contend that Saddam Hussein had weapons of mass destruction and was about to use them against the United States and that we had to embark earlier this year on a preemptive war.
Nor has the Senate taken any action on the misrepresentations made to us by Bush Administration officials about their efforts to gut Clean Air Act enforcement. When they appeared and testified before us, they declared that their policies would not affect enforcement of the Clean Air Act and ongoing cases. Over the last two weeks we have seen how far from the truth that testimony was.
For the last three years this Administration has run roughshod over environmental protection and the Republican Senate has done nothing to stem the tide. They have catered to special interests in rolling back protections for clean water, clean air, toxic cleanups and public health. The Senate should be focusing attention on these attacks upon the environment and these rollbacks, but nothing could be farther from the agenda of the Republican Senate leadership.
Forty-two environmental rollbacks by the Bush Administration that have been announced on Fridays is the number the Senate should be working on. There have now been more environmental rollbacks than there are vacancies throughout the entire federal judiciary. The Bush administration’s announcement that they are halting enforcement actions against industrial polluters under the New Source Review provision of the Clean Air Act flatly contradicts the assurances by Justice and EPA officials to the Senate last year. The toxic pollutants that will cause asthma and heart disease for our children and grandchildren is apparently of little interest to the Republican leadership of the Senate. That would be worthy of serious inquiry, debate and Senate action.
Last week the House passed by an overwhelming bipartisan margin the Advancing Justice through DNA Technology Act of 2003, H.R. 3214. This landmark legislation provides law enforcement with the training and equipment required to effectively, and accurately, fight crime in the 21st Century. More specifically, the bill would enact the President’s DNA Initiative, which authorizes more than $1 billion over the next five years to eliminate the backlog crisis in the nation’s crime labs, and to fund other DNA-related programs. It also includes the Innocence Protection Act, a death penalty reform effort I launched three years ago with Senators and Congressmen on both sides of the aisle.
The House vote was a major breakthrough in finding solutions to the flaws in our justice system. I understand that Republican Senators are now blocking action on the bill in the Senate. This bill is the result of extensive, exhaustive negotiations among Democratic and Republican leaders in the House and the Senate. It has broad support, both in the Congress and across the country and deserves the Senate’s immediate attention and passage.
We have shown that the death penalty system is broken, we know that the reforms in this bill will help, and we know that every day we delay action may be another day on death row for some innocent people. These mistakes in our system of justice carry a high personal and social price. They undermine the public’s confidence in our judicial system, they produce unbearable anguish for innocent people and their families and for the victims of these crimes, and they compromise public safety because for every wrongly convicted person, there is a real criminal who may still be roaming the streets. This matter is also being stalled by Senate Republican inaction.
The Senate has yet to take up the Anthrax Victims Fund Fairness Act of 2003, S.1740, which Senator Daschle and I introduced with a number of other Senators because we are concerned that the citizens harmed by the anthrax letters addressed to Senator Daschle and to me in October 2001 are the forgotten victims of the aftermath of September 11. They, too, should have access to the Victim Compensation Fund. The Senate has yet to consider the September 11th Victim Compensation Fund Extension Act, S.1602, which must be passed before we adjourn or hundreds of families who suffered on 9/11 will likely be left out in the cold without the compensation Congress and the American people intended to provide. Nothing will take away the pain and loss of September 11 and its aftermath for the victims but we owe them the Senate’s attention before we adjourn.
New Rules For Republican Nominees
Rather than consider those important matters, why would the Republican leadership insist on rehashing the debate on the handful of judicial nominees on which further Senate action is unlikely? When they were considering the judicial nominees of a Democratic President in the years 1995 through 2000, they showed no concern about stranding more than 60 of President Clinton’s judicial nominations without hearings or votes. They did not demand an up or down vote on every nominee but were content to use anonymous holds to scuttle scores of qualified nominees. Indeed, they stood cavalierly by while vacancies rose from 65 in January 1995 to 110 when Democrats assumed Senate leadership in the summer of 2001. They presided over the doubling of circuit court vacancies from 16 to 33 during that time.
Indeed, the Republican leader at that time famously came to the Senate floor to defiantly declare that the Senate had confirmed too many of President Clinton’s judicial nominees as far as he was concerned. That was when the Senate was considering less than half as many judicial nominees and had more than twice as many judicial vacancies as there are today. During those days the Republican leader said he only had one regret, one apology regarding his obstruction of President Clinton’s judicial nominees: “I probably moved too many already.” Four years ago, toward the end of the third year of President Clinton’s term, a year in which only 34 judges were confirmed, the Republican leader left no doubt that Republicans and the Republican leadership were unrepentant about their delays and obstruction of scores of qualified judicial nominees when he proclaimed: “Getting more federal judges is not what I came here to do.” That Republican leader would not schedule votes on President Clinton’s judicial nominees when vacancies were much higher and growing in the summer of 2000 and, ironically, sought to use appropriations bills as an excuse. The Senator from Mississippi said: “[S]pending bills must move first . . . . Until we get 12 appropriations bills done, there is no way any judge, of any kind, or any stripe, will be confirmed.” Of course, now the Republican caucus shows little interest in completing the Senate’s work on appropriation bills, even though we are no longer in the summer but four months later in the year, well past the deadline and already into the next fiscal year without having even had the Senate initially consider these fundamental legislative matters. As I have noted, just last evening the Republican leadership rebuffed Democratic efforts to complete action on appropriations for our veterans, which could have been done in two hours.
In those years, the Republican chair of the Senate Judiciary Committee repeatedly argued that 67 vacancies in the federal judiciary was “full employment” as far as he was concerned. He wrote in USA Today in September 1997, when there were more than 100 judicial vacancies, that there was no judicial vacancy crisis and that the 742 active judges were sufficient. Over the last three years, Democrats have cooperated in confirming 168 judges nominated by this President, including 68 this year; we have reduced judicial vacancies on an expanded federal judiciary to 40; and we have 837 active judges, the most in U.S. history. We have 40 percent fewer vacancies than what Republicans used to call “full employment” for the federal judiciary and almost 100 more active judges than just a few years ago when Republicans were content to delay and obstruct President Clinton’s nominees and argue that there was no problem.
So why do Republican partisans insist that the Senate now devote its time to rehashing the debate on some of this President’s most controversial nominees to the independent federal judiciary? Is it merely coincidence that the Republican leadership has chosen to schedule these proceedings for the week of the Federalist Society’s National Convention in Washington? Perhaps this is to give Republicans the opportunity to preen and posture while such an important segment of their base activists are in town. Perhaps it is to give the Republican leadership another chance to make false arguments about judicial nominations. Perhaps it is to give some a platform for baseless and McCarthyite accusations against Democratic Senators. Or perhaps it is to distract from the real concerns that affect Americans every day. Newspapers this week report that this exercise is precipitated because of a “brewing rebellion by conservative activists.” Reportedly partisan diehards “are accusing the Senate GOP leaders of going too easy” and apparently when Republicans appear on conservative radio talk shows “they are often barraged with questions” about why the GOP is not successfully ramming every judicial nominee through the Senate that they control. Apparently this dissatisfaction has even begun to affect Republican fundraising and, according to the Washington Post, “a recent mailing [by a conservative group] to raise money for candidates yielded empty envelopes” from those who had formerly contributed. Let us hope that this is not the real reason for this grandstanding. Let us hope that when something begins to affect Republican fundraising, it is elevated to the top of the agenda -- the public, the responsibilities of the Senate be dashed.
168 Nominees Confirmed
If the Republican leadership has staged this vote in order to try to persuade the American people that Democrats are obstructing the President’s judicial nominees, they are going to have to stray far from the facts, because the facts show that Senate has made dramatic progress on judicial vacancies when and where the Administration has been willing to work with the Senate. Indeed, last week the Senate confirmed the 168th of this President’s judicial nominees – 100 of them, confirmed by the previous Democratic-controlled Senate, in just 17 months. We could confirm several more if the Republican leadership would just schedule the votes. There are other nominees who were reported unanimously by the Judiciary Committee and are just waiting to be confirmed. The number of confirmations could easily total 170 or more if the Republican leadership were truly interested in filling vacancies. Of course, more progress might undercut the partisan message that some are trying to peddle. Maybe that is why for weeks at a time the Republican leadership in the Senate has repeatedly refused to schedule votes on judicial nominees who will be approved, and have chosen, instead, to focus on the handful of the President’s most extreme and divisive nominees.
The truth is that in less than three years’ time, the number of President Bush’s judicial nominees the Senate has confirmed has exceeded the number of judicial nominees confirmed for President Reagan, the “all time champ” at getting federal judges confirmed, in all four years of his first term in office. A handful of the most extreme and controversial nominations have been denied consent by this Senate in the proper exercise of its duties under the rules. Only four. One-hundred-sixty-eight to four. That is in stark contrast to the more than 60 judicial nominees from President Clinton who were blocked by a Republican-led Senate.
McCarthyite Smears
If this show is being staged to give some a platform for repulsive smears that Democrats are opposing nominees because of their religion, Republicans will have entered a realm of demagoguery, repeating false allegations and innuendo often enough to hope that some of their mud will stick.
Of course, substantive concerns about what activist judges would do to undercut individual rights, environmental protection and the separation of powers will not do much to help raise money for the Republican Party, seem provocative in a flyer placed on windshields late on the day before an election, get a mention on the evening news, or satisfy strident right-wing extremists. So some Republican partisans will be putting the truth to one side. They dismiss the views of Democratic Senators doing their duty under the Constitution to examine the fitness of every nominee to a lifetime position on the federal bench and choose, instead, to use smears and the ugliest accusations they could dream up.
This week rumor is that the Republican public relations machine will be cranking overtime to try to make Democratic Senators appear anti-woman. Led by Senators Mikulski, Feinstein, Boxer, Murray, Landrieu, Lincoln, Cantwell, Clinton, and Stabenow, it is hard to see how Democrats can be subjected to such allegations with a straight face, but that is what the rumor is.
The facts are that under Democratic leadership, the Senate confirmed 100 judicial nominees, including 21 women, nominated by President Bush in just 17 months, including four to our Courts of Appeal. During the 107th Congress, President Bush nominated only 18 women to district court seats, out of 98 district court nominees (18 percent), and only 8 women to circuit courts out of 32 circuit court nominees (25 percent). This year Democrats have supported the confirmation of 12 additional women nominated to the federal bench, including three to our Courts of Appeal. This President’s nominees have included only one woman in each five judicial nominees. The 33 women judges confirmed represent 20 percent of the 168 judges confirmed.
By contrast, nearly one of every three of President Clinton’s judges are women. Of course, the Republicans who controlled the Senate and the Judiciary Committee during the Clinton Administration also blocked 18 women nominated to federal judgeships by President Clinton. Women who were blocked from getting Senate action on their judicial nominations include Kathleen McCree-Lewis, Elena Kagen, Elizabeth Gibson, Helen White, Christine Arguello, and Bonnie Campbell, all of whom were nominated to the circuit courts. These six outstanding women lawyers were not extreme or ideologues. They were outstandingly qualified women lawyers whose nominations were blocked anonymously by Republican Senators, without explanation, without a vote, without accountability.
Abusing Religion For Wedge Politics
Slanderous accusations have already been made by Republican Senators, and ads run by a group headed by the President’s father’s former White House counsel and a group whose funding includes money raised by Republican Senators and even by the President’s family when they falsely claimed that judicial nominees were being opposed because of their religion. These contentions are despicable and unfounded. Other Republican members of the Judiciary Committee and of the Senate have either stood mute in the face of these McCarthyite charges, or, worse, have fed the flames. Such accusations are harmful to the Senate and to the Nation and have no place in this debate or anywhere else.
Just a few weeks ago, President Bush rightly told the Prime Minister of Malaysia that his inflammatory remarks about religion were “wrong and divisive.” He should say the same to members of his own party. Today, Republican Senators have another chance to do what they have not yet done and what this Administration has not yet done: Disavow this campaign of division waged by those who would misuse religion, race and gender by playing wedge politics with it. I hope that the Republican leadership of the Senate will finally disavow the contention that any Senator is being motivated in any way by religious bigotry or for racial or gender-based reasons.
Records Of Activism
On important issues to the American people -- the environment, voting rights, women’s rights, gay rights, federalism, privacy rights, equal rights, civil rights and more – too many of this President’s nominees have records of activism and advocacy. That is their right as American citizens, but that does not make them qualified to be judges. As a judge it would be their duty to impartially hear and weigh the evidence and to impart just and fair decisions to all who come before the court. In their hands, we entrust to the judges in our independent federal judiciary the rights that all of us are entitled to enjoy through our birthright as Americans.
The President has said he is against what he calls “judicial activism.” How ironic, then, that he has chosen several of the most committed and opinionated judicial activists ever to be nominated to our courts.
The question posed by his controversial nominations is not whether they are skilled and capable advocates. The question is whether -- not for a two year term, or a six year term, but for a lifetime -- they would be fair and impartial judges. Could every person whose rights or whose life, liberty or livelihood were at issue before their courts, have faith in being fairly heard? The President has chosen to divide the American people and the Senate with his highly controversial nominations. If Republicans want to clean the slate and start fresh, we should do so with nominees who unite the American people, nominees who can be supported by a strong bipartisan majority in the Senate.
We are also hearing the claim by Republicans that the filibuster of a judicial nomination in unprecedented. Republicans themselves filibustered the nominations of Judge Richard Paez and Marsha Berzon as recently as 2000. They previously filibustered the nominations of Judge Rosemary Barkett and Judge H. Lee Sarokin. Of course, while in the majority, Republicans took full advantage of the secret hold and of their control of the agenda to prevent a vote on 63 nominations by not scheduling hearings and votes on them. Many of those now claiming that Senate filibusters are unprecedented participated in them and voted against cloture just a few years ago.
Indeed, as the Senate’s own website notes in an articled entitled “Filibuster Derails Supreme Court Appointment,” the 1968 nomination of Abe Fortas to be Chief Justice was filibustered with the help of Republicans: “Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.” The attempt at cloture on the Fortas nomination was rejected by the Senate.
In addition, Republican Senators turned the filibuster of President Clinton’s nominees and of legislation into a destructive art form. A nomination to be Surgeon General, Dr. Henry Foster, was defeated by a Republican filibuster, ambassadorial nominations were filibustered and bill and bill was filibustered as Republicans obstructed the work of the Senate and the legislative agenda. For Republicans to claim foul now, after their use of the filibuster tactic, may earn them the political equivalent of an Oscar, Tony or Grammy.
For three years I have asked the President and Senate Republicans to join with us to fill the vacancies on the federal courts with qualified, fair, nonideological judges. Democrats have bent over backwards to support a record number of nominees. When the White House will work with all Senators, we have been able to identify and confirm judges quickly and by consensus. When the President has chosen to select ideological activists and try to pack the courts, we have opposed a handful of his most extreme nominees.
The federal courts should not be an arm of the Republican Party, nor should they be an arm of the Democratic Party. The Senate should continue to honor its constitutional responsibilities to this third branch of our federal government and to the American people whose rights are protected by our federal courts. No President, with or without the complicity of any current majority in the Senate, can be allowed to relegate the Senate to the role of rubber stamp.
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