Nomination of William H. Pryor, Jr., to be United States Circuit Judge

NOMINATION OF WILLIAM H. PRYOR, JR., TO BE UNITED STATES CIRCUIT JUDGE

Mr. LEAHY. Madam President, only the Republican leadership can answer why it refuses to proceed on what all of us know are the real priorities-not hollow priorities-of the American people in these waning days of the legislative session. We have a number of annual appropriations bills on which the Senate has yet to act. We do know the law requires us to finish those by September 30. We are now well into November and we have yet to act on them.

We should look at the purpose of some of these appropriations bills that are being held up while we are wasting time trying to do things for political points. We are holding up the appropriations for America's veterans. What a bad time to send that signal, when our veterans, and many who are about to become our veterans, are serving so bravely in Iraq and Afghanistan.

We are holding up appropriations for law enforcement. As one who served for 8½ years in law enforcement, I know how much our law enforcement people rely on those funds. We are holding up appropriations for the State Department. We are holding up appropriations for the Federal judiciary. We are holding up appropriations for housing. We are holding up appropriations for many other things. But we will talk and talk and talk about three or four judges.

There is unfinished business of providing a real prescription drug benefit for seniors, but we will instead talk and try to make political points. We have the Nation's unemployment, having seen for 8 years adding a million jobs a year, having seen in the last 2½ years losing more than a million jobs a year. We talk about the economy improving. Tell that to the American families who can't find a job, or find two or three jobs because they are so low paying they are working 80 hours a week and not having time to be with their children or their families.

We see the corporate and Wall Street scandals, the mutual funds, and others. Those concern those of us who have invested and placed our trust and financial security at risk in the securities market. I think of a number of people in Vermont who are approaching retirement time and see these scandals where their money is being taken away and they see a Senate unwilling or unable to move legislation addressing that.

Of course, we are not doing oversight on the war in Iraq. We are signing blank checks, but we are not doing oversight.

Lowest Vacancy Rate in 13 Years: I mention this only because, instead of considering these very important matters-matters that seem to be neglected by both the White House and the Congress-Republican leadership insists on rehashing the debate on one of a tiny handful of judicial nominees in which further Senate action is unlikely. Certainly, when the Republican leadership was considering the judicial nominees of a Democratic President in the years 1995 to the year 2000, they showed no concern about stranding more than 60-let me repeat that, more than 60-of President Clinton's judicial nominees without hearings or votes. They did not demand an up-or-down vote on every nominee. They were content to use anonymous holds to scuttle scores of nominees.

This is not a question of having a filibuster or a cloture vote. If one member, just one member of the Republican caucus objected to one of President Clinton's nominees, they didn't have to stand up here and say so. They could just let their side know and the person was never given a hearing, never given a vote.

There were numerous extraordinarily well-qualified people. In fact, they stood by while vacancies rose from 65 in January 1995 when the Republicans took over the majority, to 110 when Democrats assumed Senate leadership in the summer of 2001. Republicans presided over the doubling of circuit court vacancies from 16 to 33 during that time by simply refusing to allow President Clinton's nominees to have a vote. As I said, over 60 of them were never allowed to have a vote.

McCarthyite Smears: So why do they insist that the Senate now consume this precious floor time to rehash the debate on one of the President's most controversial nominees to the independent Federal judiciary, the nomination of William Pryor? Perhaps it is to give some on the Republican side another chance to continue to make false arguments about judicial nominations. Perhaps it is to give some platform for baseless and McCarthyite accusations that Senators oppose Mr. Pryor because of his religion.

This is the worst of religious McCarthyism I have heard, although there are aspects that are actually amusing. We had one of these Republicans go on a Sunday morning show, I guess, to accuse me of being anti-Catholic. When asked about it, we responded I didn't see it because my wife and I were at Mass, as we are on every Sunday morning, and that was when the program was on. But I suspect it is to distract from the real concerns that affect Americans every day.

The facts show the Senate has made progress on judicial vacancies in those areas where the administration has been willing to work with the Senate. Yesterday, the Senate confirmed the 168th of President Bush's judicial nominees.

Incidentally, I should point out, of that 168, 100 of them were confirmed during the 17 months the Democrats controlled the Senate, and I was chairman; 68 of them during the 17 months the Republicans controlled the Senate.

It is kind of hard to say we are partisan on this when in 17 months we confirmed 100 of the President's nominees and in the 17 months the Republicans confirmed 60. Actually, we could have confirmed several more had the Republican leadership just scheduled votes on these noncontroversial nominations. The truth is, in less than 3 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, who was the all-time champ to get judges confirmed in the first 4 years in office. Everybody acknowledges that President Reagan had more judges confirmed in his first 4 years than any President ever had in the Republican-controlled Congress and Republican-controlled Senate. He confirmed more judges in 4 years than anybody else until President Bush, who has had 7 more Federal judges confirmed in less than 3 years than President Reagan did in 4.

To give you some idea, here are the Clinton nominees over a period of, actually, 5 years: 248 were confirmed, and 63 of them were blocked by the Republicans-63. Some are ones where we had cloture votes and we won on the cloture votes and got them through. Twenty percent of President Clinton's nominees were blocked by the Republican-controlled Senate.

Between 2001 and 2003, President Bush sent 16 through, and 4 were blocked; or 2 percent were blocked. Actually, 2 percent is pretty darned good.

Look at what has happened on vacancies when the Republicans were in the majority. Look at how vacancies skyrocketed because they were blocking usually by a one-person anonymous filibuster. President Clinton's nominee vacancies skyrocketed. During the 17 months when I was chairman and the Democrats were in the majority, look at how we quickly brought down those vacancies of all of President Bush's nominees. Ironically, President Bush nominated people to fill vacancies created because the Republicans refused to allow President Clinton's nominees to go through. Of course, they continue to go down.

If debates like this are staged to give some a platform for repulsive smears that Democrats are opposing Mr. Pryor because
of his religion, they will have to enter a realm of demagoguery, repeating false allegations and innuendo often enough to hope that some of their mud will stick.

Senate Democrats oppose the nomination of William Pryor to the Eleventh Circuit because of his extreme some, with good reason, use the word "radical"-ideas about what the Constitution says about federalism, criminal justice and the death penalty, violence against women, the Americans with Disabilities Act, and the Government's ability to protect the environment on behalf of the American people. Of course, those substantive concerns will not do much to help raise money for the Republican Party or seem provocative in a flyer placed on windshields late on the day before an election and hardly get a mention on the evening news. 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 started in the aftermath of the first rejection of the Pickering nomination in the Judiciary Committee. After the committee voted not to recommend him to the full Senate, insinuations were made on this Senate floor that Democrats opposed him because he is a Baptist. From that time to now, I have waited patiently for Republican Senators to disavow such charges which they know to be untrue.

Just a few weeks ago, Republican Senators on the Judiciary Committee trotted out an offensive cartoon targeting a nominee, and asked us to denounce it. Even though it was taken off a website run by two private individuals, of whom I had never heard before and who have no connection to Democratic Senators, we appropriately denounced it without hesitation.

Abusing Religion For Wedge Politics: But when slanderous accusations were 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, no apologies or denunciations were heard. 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.

These 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 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.

An Extreme and Divisive Nominee: Let us take William Pryor. Many of us opposed his nomination to the Eleventh Circuit because of his extreme-in fact, some would view radical-ideas about what the Constitution says about federalism and what the Constitution says about criminal justice and the death penalty, his views about violence against women, or the Americans With Disabilities Act, or the Government's ability to protect the environment on behalf of all American people-not just the environment to protect just Republicans or just Democrats but all Americans.

I am stunned as I read and reread reports. Just to see how radical his ideas are, just today I learned of the sworn affidavits made under oath by the former Republican Governor of Alabama, Bob James and his son. They explained the circumstances under which Governor James came to appoint Mr. Pryor as attorney general. We keep hearing about how Attorney General Pryor just looks at the law, he will just stand by the law, and he will call them as he sees them. In sworn affidavits, the Governor who appointed him said Mr. Pryor was only hired after making explicit promises-explicit promises-that he would defy court orders up through and including orders of the Supreme Court of the United States.

This is a man we want to give a lifetime tenure on the court of appeals, which is one step below the United States Supreme Court; somebody who would take a job where he has made promises that he would defy court orders, including the Supreme Court of the United States; a person who takes an oath to uphold the Constitution but says give me the job and don't worry about that oath, I promise I will defy them.

These statements were made under the penalty of perjury by a former Republican Governor of Alabama. He recounts how Mr. Pryor persuaded him that he was right for the job by showing them research papers from his time in law school about nonacquiescence in court orders. Indeed, the Governor and his son say that Mr. Pryor's position on defying court orders changed only when he decided he wanted to become a Federal judge.

I have been here 29 years. I don't remember any President, Republican or Democratic, who would think of sending up a nominee who has told people he will get his job with a promise that he will defy courts. This is so violative of even what Mr. Pryor said in sworn statements before the Senate Judiciary Committee.

Assuming that the sworn statement of the former Republican Governor of Alabama and his son are true, this information is consistent with extremism.

Elsewhere, Mr. Pryor's record is shocking. I cannot imagine any President-I have been here with six Presidents, Republican and Democrat-who would send somebody up here with that kind of a record.

I pride myself in voting for nominees of Presidents. President Ford, President Carter, President Reagan, former President Bush, President Clinton, and even the current President Bush, I probably have voted for 98 or 99 percent of all the nominations. But this is one that never should even have come to us. It is not a question of whether to vote it up or down-it shouldn't even be here. In fact, the President ought to withdraw this nomination because, if this affidavit of Governor James is true-and he did make it under pain of penalty of perjury-that means Mr. Pryor sat with Governor James and promised to undermine the very basis of the stability of the United States Government and its legal system.

I don't understand how any Senator, Republican or Democrat, can continue to support this nomination.

There are a whole lot of other reasons.

Again, I cannot believe any President would send a nominee here who has done this.

There are some other reasons he shouldn't be a judge on the Eleventh Circuit. These reasons have prompted a chorus of opposition of individuals and organizations and editorial pages across the Nation, the South, the East, and the West. Organizations and individuals concerned about justice before the Federal courts include Log Cabin Republicans, Leadership Conference on Civil Rights, Alliance for Justice, and many others have provided the committee with their concerns and bases for their opposition. We have received letters of opposition from organizations that rarely take positions on nominations who feel strongly about this one and are compelled to write, including the National Senior Citizens Law Center, Anti-Defamation League, Sierra Club, and others.

I ask unanimous consent that a list of all of the letters that have been sent in opposition to Mr. Pryor's confirmation be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

LETTERS OF OPPOSITION TO THE NOMINATION OF BILL PRYOR, TO THE 11TH CIRCUIT COURTS OF APPEAL

ELECTED OFFICIALS

Congressional Black Caucus

CIVIL RIGHTS MOVEMENT VETERANS

Rev. Fred Shuttlesworth, Leader, Birmingham Movement
Rev. C.T. Vivian, Executive Staff for Dr. Martin Luther King, Jr.
Dr. Bernard LaFayette, Executive Staff for Dr. Martin Luther King, Jr.
Rev. Jim Lawson, Jr., Advisor to Dr. Martin Luther King, Jr., President of Southern Christian Leadership Conference (Los Angeles)
Rev. James Bevel, Executive Staff for Dr. Martin Luther King, Jr.
Rev. James Orange, Organizer for National Southern Christian Leadership Conference
Claud Young, M.D., National Chair, Southern Christian Leadership Conference
Rev. E. Randel T. Osbourne, Executive Director, Southern Christian Leadership Foundation
Rev. James Ellwanger, Alabama Movement Activist and Organizer
Dorothy Cotton, Executive Staff for Dr. Martin Luther King, Jr.
Rev. Abraham Woods, Southern Christian Leadership Conference
Thomas Wrenn, Chair, Civil Rights Activist Committee, 40th Year Reunion
Sherrill Marcus, Chair, Student Committee for Human Rights (Birmingham Movement, 1963)
Dick Gregory, Humorist and Civil Rights Activist
Martin Luther King III, National President, Southern Christian Leadership Conference
Mrs. Johnnie Carr, President, Montgomery Improvement Association (1967-Present) (Martin Luther King, Jr. was the Association's first President. The Association was established in December, 1955 in response to Rosa Park's arrest.)

LETTERS FROM THE ELEVENTH CIRCUIT

Alabama Hispanic Democratic Caucus
Hispanic Interest Coalition of Alabama
Jefferson County Progressive Democratic Council, Inc.
Latinos Unidos De Alabama
NAACP, Alabama State Conference
National Council of Jewish Women Chapter in Florida, Alabama and Georgia
The People United, Birmingham, AL
Petitioners' Alliance
Tricia Benefield, Cordova, AL
Patricia Cleveland, Munford, AL
Hobson Cox, Montgomery, AL
Judy Collins Cumbee, Lanett, AL
Larry Darby, Montgomery, AL
B. Ilyana Dees, Birmingham, AL
Morris Dees; Co-Founder and Chief Trial Counsel, Southern Poverty Law Center
Martin E. DeRamus, Pleasant Grove, AL
Bryan K. Fair, Professor of Constitutional Law at University of Alabama
Joseph E. Lowery, Georgia Coalition for the Peoples' Agenda
Michael and Becky Pardue, Mobile, AL
James V. Rasp
Helen Hamilton Rivas
William Alfred Rose, Mountain Brook, AL
Terry A. Smith (USMC Ret.), Decatur, AL
Harold Sorenson, Rutledge, AL
Carolyn Robinson, Semmes, AL
Sisters of Mercy letter signed by Sister Dominica Hyde, Sister Alice Lovette, Sister Suzanne Gwynn, Ms. Cecilia Street and Sister Magdala Thompson, Mobile, AL

GROUPS

The Ability Center of Defiance, Defiance, OH
Ability Center of Greater Toledo
Access for America
Access Now, Inc.
The ADA Committee
ADA Watch
AFL-CIO
AFSCME
Alliance for Justice
Americans for Democratic Action
American Association of University Women
American Jewish Congress
Americans United for Separation of Church and State
Anti-Defamation League
B'nai B'rith International
California Council of the Blind
California Foundation for Independent Living Centers
Center for Independent Living of South Florida
Citizens for Consumer Justice of Pennsylvania letter also signed by: NARAL-Pennsylvania, National Women's Political Caucus, PA, PennFuture, Sierra Club, and United Pennsylvanians
Coalition for Independent Living Options, Inc.
Coalition to Stop Gun Violence
Disabled Action Committee
Disability Resource Agency for Independent Living, Stockton, CA
Disability Resource Center, North Charleston, SC
Earthjustice
Eastern Paralyzed Veterans Association, Jackson Heights, NY
Eastern Shore Center for Independent Living, Cambridge, MD
Environmental Coalition Letter signed by: American Planning Association, Clean Water Action, Coast Alliance, Community Rights Counsel, Defenders of Wildlife, EarthJustice, Endangered Species Coalition, Friends of the Earth, League of Conservation Voters, National Resources Defense Council, The Ocean Conservancy, Oceana, Physicians for Social Responsibility, Sierra Club, U.S. Public Interest Research Group, The Wilderness Society, Alabama Environmental Council, Alliance for Affordable Energy, American Lands Alliance, Buckeye Forest Council, California Native Plant Society, Capitol Area Greens, Center for Biological Diversity, Citizens Coal Council, Citizens of Lee Environmental Action Network, Clean Air Council, The Clinch Coalition, Committee for the Preservation of the Lake Purdy Area, Connecticut Public Interest Research Group, Devil's Fork Trail Club, Dogwood Alliance, Environment Colorado, Environmental Law Foundation, Florida Consumer Action Network, Florida League of Conservation Voters, Florida Public Interest Research Group, Foundation for Global Sustainability, Friends of Hurricane Creek, Friends of Rural Alabama, Kentucky Resources Council, Inc., Landwatch Monterey County, Native Plant Conservation Campaign, North Carolina Public Interest Research Group, Oilfield Waste Policy Institute, Patrick Environmental Awareness Group, Public Interest Research Group in Michigan, Rhode Island Public Interest Research Group, Sand Mountain Concerned Citizens, Save Our Cumberland Mountains, Sitka Conservation Society, Southern Appalachian Biodiversity Project, Taking Responsibility for the Earth and Environment, Tennessee Environmental Enforcement Fund, Texas Public Interest Research Group, Valley Watch, Inc., Virginia Forest Watch, Waterkeepers Northern California, and Wisconsin Forest Conservation Task Force,
Equality Alabama
Feminist Majority
The Freedom Center
Heightened Independence & Progress
Houston Areas Rehabilitation Association
Human Rights Campaign
Illinois-Iowa Center for Independent Living
Independent Living Center of Southern California, Inc.
Independent Living Resource Center, San Francisco, CA
Justice for All Project, letter signed by the following California organizations: Americans United for Separation of Church and State, Los Angeles, California National Organization for Women, Committee for Judicial Independence, Democrats. Com of Orange County, CA, Feminist Majority Foundation, National Center for Lesbian Rights, National Council of Jewish Women/California, National Council of Jewish Women/Los Angeles, National Employment Lawyers' Association, San Diego County National Organization of Women, National Women's Political Caucus, Noe Valley Ministry, Planned Parenthood of San Diego and Riverside Counties, Progressive Jewish Alliance, Rock the Vote, Stonewall Democratic Club of Los Angeles, Unitarian Universalist Project Freedom of Religion, and Women's Leadership Alliance
Lake County Center for Independent Living, IL
Leadership Conference on Civil Rights
Log Cabin Republicans
MALDEF
NAACP
NARAL Pro-Choice America
National Abortion Federation
National Association of Criminal Defense Lawyers
National Association of the Deaf
National Council of Jewish Women letter signed by B'nai B'rith International, Central Conference of American Rabbis, and Union of American Hebrew Congregations
National Disabled Students Union
National Employment Lawyers Association
National Family Planning & Reproductive Health Association
National Organization for Women Legal Defense and Education Fund
National Partnership for Women & Families
National Resources Defense Council
National Senior Citizens Law Center, letter also signed by AFCSME Retirees Program, Center for Medicare Advocacy, Families USA, and Gray Panthers
National Women's Law Center
New Mexico Center on Law and Poverty
Parents, Families, and Friends of Lesbians and Gays
People for the American Way
Pennsylvania Council of the Blind
Placer Independent Resource Services
Planned Parenthood Federation of America
Planned Parenthood of Northern New England
Protect All Children's Environment, Marion, NC
Religious Action Center of Reform Judaism
Religious Coalition for Reproductive Choice
SEIU
Sierra Club
Society of American Law Teachers
Summit Independent Living Center, Inc., Missoula, MT
Tennessee Disability Coalition, Nashville, TN
Vermont Coalition for Disability Rights

CITIZENS

Carol Baizer, Santa Barbara, CA
Daily Dupre, Jr., Lafayette, LA
Don Beryl Fago, Evansville, WI
Barry S. Gridley, Santa Barbara, CA
Greg Jones, Parsons, KS
Catherine Koliha, Boulder, CO
Donald R. Mitchell, Bourbonnais, IL
Patricia Murphy, Juneau, AK
Elizabeth A. Patience, Watertown, NY
Jason Torpy, Marietta, OH
Randy Wagoner, New England
Rabbi Zev-Hayyim Feyer, Murrieta, CA
Joan Claybrook, President, Public Citizen
Nick Nyhart, Executive Director, Public Campaign
John Bonifaz, Executive Director, National Voting Rights Institute

LETTERS OF SERIOUS CONCERN

The Interfaith Alliance

Mr. LEAHY. Madam President, the ABA indicates concern about this nomination. The Standing Committee of the Federal Judiciary gave Mr. Pryor a partial rating of not qualified to sit on the Federal bench. And indications from these peer reviews have been enough to raise red flags in the confirmation process.

Let me talk about some more of the reasons we oppose William Pryor. Like Jeffrey Sutton, Mr. Pryor has been a crusader for the federalist revolution, but Mr. Pryor has taken an even more prominent role. Having hired Mr. Sutton to argue several key federalism cases in the Supreme Court, Mr. Pryor is the principal leader of the federalist movement, promoting state power over the Federal Government. A leading proponent of what he refers to as the "federalism revolution," Mr. Pryor seeks to revitalize state power at the expense of Federal protections, seeking opportunities to attack Federal laws and programs designed to guarantee civil rights protections. He has urged that Federal laws on behalf of the disabled, the aged, women, minorities, and the environment all be limited.

Limiting Worker And Environmental Protections: He has argued that the Federal courts should cut back on the protections of important and well-supported Federal laws including the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Civil Rights Act of 1964, the Clean Water Act, the Violence Against Women Act, and the Family and Medical Leave Act. He has repudiated decades of legal precedents that permitted individuals to sue states to prevent violations of Federal civil rights regulations. Mr. Pryor's aggressive involvement in this "federalist revolution" shows that he is a goal-oriented, activist conservative who has used his official position to advance his "cause." Alabama was the only state to file an amicus brief arguing that Congress lacked authority to enforce the Clean Water Act. He argued that the Constitution's Commerce Clause does not grant the Federal Government authority to prevent destruction of waters and wetlands that serve as a critical habitat for migratory birds. The Supreme Court did not adopt his narrow view of the Commerce Clause powers of Congress. While his advocacy in this case is a sign to most people of the extremism, Mr. Pryor trumpets his involvement in this case. He is unabashedly proud of his repeated work to limit Congressional authority to promote the health, safety and welfare of all Americans.

Mr. Pryor's passion is not some obscure legal theory but a legal crusade that has driven his actions since he was a student and something that guides his actions as a lawyer. Mr. Pryor's speeches and testimony before Congress demonstrate just how rooted his views are, how much he seeks to effect a fundamental change in the country, and how far outside the mainstream his views are.

Mr. Pryor is candid about the fact that his view of federalism is different from the current operation of the Federal Government and that he is on a mission to change the Government to fit his vision. His goal is to continue to limit Congress's authority to enact laws under the Fourteenth Amendment and the Commerce Clause-laws that protect women, ethnic and racial minorities, senior citizens, the disabled, and the environment-in the name of sovereign immunity. Is there any question that he would pursue his agenda as a judge on the Eleventh Circuit Court of Appeals-reversing equal rights progress and affecting the lives of millions of Americans for decades to come?

Mr. Pryor's comments have revealed insensitivity to the barriers that disadvantaged persons and members of minority groups and women continue to face in the criminal justice system.

Attacking the Voting Rights Act: In testimony before Congress, Mr. Pryor has urged repeal of Section 5 of the Voting Rights Act-the centerpiece of that landmark statute-because, he says, it "is an affront to federalism and an expensive burden that has far outlived its usefulness." That testimony demonstrates that Mr. Pryor is more concerned with preventing an "affront" to the states' dignity than with guaranteeing all citizens the right to cast an equal vote. It also reflects a long-discredited view of the Voting Rights Act. Since the enactment of the statute in 1965, every Supreme Court case to address the question has rejected the claim that Section 5 is an "affront" to our system of federalism. Whether under Earl Warren, Warren Burger, or William Rehnquist, the United States Supreme Court has recognized that guaranteeing all citizens the right to cast an equal vote is essential to our democracy-not a "burden" that has "outlived its usefulness."

His strong views against providing counsel and fair procedures for death row inmates have led Mr. Pryor to doomsday predictions about the relatively modest reforms in the Innocence Protection Act to create a system to ensure competent counsel in death penalty cases. When the United States Supreme Court questioned the constitutionality of Alabama's method of execution in 2000, Mr. Pryor lashed out at the Supreme Court, saying, "[T]his issue should not be decided by nine octogenarian lawyers who happen to sit on the U.S. Supreme Court."

Aside from the obvious disrespect this comment shows for the Nation's highest court, it shows again how results-oriented Mr. Pryor is in his approach to the law and to the Constitution. Of course, an issue about cruel and unusual punishment ought to be decided by the Supreme Court. It is addressed in the Eighth Amendment, and whether or not we agree on the ruling, it is an elementary principle of constitutional law that it be decided by the Supreme Court, no matter how old its members.

Mr. Pryor has also vigorously opposed an exemption for persons with mental retardation from receiving the death penalty, exhibiting more certainty than understanding or sober reflection. He authored an amicus curiae brief to the Supreme Court arguing that the Court should not declare that executing mentally retarded persons violated the Eighth Amendment. After losing on that issue, Mr. Pryor made an unsuccessful argument to the Eleventh Circuit that an Alabama death-row defendant is not mentally retarded.

Mr. Pryor has spoken harshly about the moratorium imposed by former Illinois Governor George Ryan, calling it a "spectacle." Can someone so dismissive of evidence that challenges his views be expected to hear these cases fairly? Over the last few years, many prominent Americans have begun raising concerns about the death penalty, including current and former supporters of capital punishment. For example, Justice O'Connor recently said there were "serious questions" about whether the death penalty is fairly administered in the United States, and added: "[T]he system may well be allowing some innocent defendants to be executed." In response to this uncertainty, Mr. Pryor offers us nothing but his obstinate view that there is no problem with the application of the death penalty. This is a position that is not likely to afford a fair hearing to a defendant on death row.

Mr. Pryor's troubling views on the criminal justice system are not limited to capital punishment. He has advocated that counsel need not be provided to indigent defendants charged with an offense that carries a sentence of imprisonment if the offense is classified as a misdemeanor. The Supreme Court nonetheless ruled that it was a violation of the Sixth Amendment to impose a sentence that included a possibility of imprisonment if indigent persons were not afforded counsel.

Like Carolyn Kuhl, Priscilla Owen and Charles Pickering, Mr. Pryor is hostile to a woman's right to choose. There is every indication from his record and statements that he is committed to reversing Roe v. Wade. Mr. Pryor describes the Supreme Court's decision in Roe v. Wade as the creation "out of thin air [of] a constitutional right," and opposes abortion even in cases of rape or incest.

Mr. Pryor does not believe Roe is sound law, neither does he give credence to Planned Parenthood v. Casey. He has said that "Roe is not constitutional law," and that in Casey, "the court preserved the worst abomination of constitutional law in our history." When Mr. Pryor appeared before the Committee, he repeated the mantra suggested by White House coaches that he would "follow the law." But his willingness to circumvent established Supreme Court precedent that protects fundamental privacy rights seems much more likely.

Mr. Pryor has expressed his opposition to fair treatment of all people regardless of their sexual orientation. The positions he took in a brief he filed in the recent Supreme Court case of Lawrence v. Texas were entirely repudiated by the Supreme Court majority just a few months ago when it declared that: "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private conduct a crime." Mr. Pryor's view is the opposite. He would deny certain Americans the equal protection of the laws, and would subject the most private of their behaviors to public regulation.

A record of activism: On all of these issues-the environment, voting rights, women's rights, gay rights, federalism, and more-William Pryor's record of activism and advocacy is clear. That is his right as an American citizen, but it does not make him qualified to be a judge. As a judge it would be his 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 this controversial nomination is not whether Mr. Pryor is a skilled and capable politician and advocate. He certainly is. The question is whether-not for a 2-year term, or a 6-year term, but for a lifetime-he would be a fair and impartial judge. Could every person whose rights or whose life, liberty or livelihood were at issue before his court, have faith in being fairly heard? Could every person rightly have faith in receiving a just verdict, a verdict not swayed by or yoked to the legal philosophy of a self-described legal crusader? To read Mr. Pryor's record and his extreme views about the law is to answer that question.

The President has chosen to divide the American people, the people of the Eleventh Circuit, and the Senate with this highly controversial nomination. He should clean the slate and choose a nominee who can unite the American people.

BREAK IN TRANSCRIPT

Mr. REID. Madam President, I direct a further question to my friend. Is he telling me then, in the waning days of this legislative session of the National Legislature that we are spending time on a vote that has already been taken-there will not be a single vote changed-when we have appropriations bills to complete, we have Internet taxation, and many other items we are trying to complete in a matter of days; that we are, for lack of a better description, wasting the Senate's time on a nomination that has already been rejected by the Senate?

Mr. LEAHY. Madam President, the senior Senator from Nevada is absolutely right. In fact, of those appropriations, we have held up the appropriations for our veterans, and we can't find time to vote on the floor. Appropriations for our law enforcement people are being held up and we can't find time to vote on the floor. Appropriations for the Federal judiciary, for the State Department, for housing, and a number of others are being held up, and we can't seem to find time to vote on the floor. But we are doing this revote when everybody knows the result will be precisely what it was the last time.

Mr. REID. Madam President, I further direct the Senator's attention to an article-I am not confident he has had time to read it because it is from a western newspaper, the L.A. Times. Is it true the vacancy rate on the Federal bench is at a 13-year low, as indicated in the headlines of today's L.A. Times?

Mr. LEAHY. Madam President, the Senator is absolutely right. The vacancy rate in the judiciary is at a 13-year low. It was at a high at the end of President Clinton's term because the Republican majority in the Senate had blocked over 60 of President Clinton's nominees, usually by either threatening filibusters or not even allowing them to have a vote.

In the 17 months that the Democrats were in charge of the Senate, we confirmed 100 of President Bush's nominees, which brought down that rate. In the 17 months the Republicans have been in charge, they have confirmed another 68. So the vacancy rate is at a 13-year low. In fact, I say to my friend from Nevada, President Bush, in less than 3 years, has seen more of his nominees confirmed than President Reagan did in his first 4 years, with a Republican majority in those 4 years, and he was the all-time champ.

Mr. REID. Madam President, I further direct a question to my friend, it is true, then, that this article written by David Savage states that experts who track Federal judgeships say Republican complaints about a Democratic filibuster has skewed the larger picture. The article further goes on to say, and I ask the Senator if he is aware of this, that 168 Federal judges have been approved and 4 turned down-168 to 4; is that the record as the Senator understands it?

Mr. LEAHY. Madam President, it is. As a good friend of mine in the Republican Party said the other day: Pat, I know this whole argument is bogus. I guess we are making it for fundraising letters. But I do know President Bush has had far more of his nominees confirmed with both Democrats and Republicans in the Senate than anybody has in decades.

Yes, it is true, and I do agree with my Republican friend that the argument is bogus. But the only objection I have to the bogus argument being made is that we should be voting on the money for our veterans. We should be voting on the money for our law enforcement. We should be voting on the money for housing. And, we should be passing those bills that, by law, we were supposed to have passed way back in September.

I ask unanimous consent that the entire L.A. Times article that has been referred to by the distinguished Senator from Nevada be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

[From the Los Angeles Times, Nov. 6, 2003]

VACANCY RATE ON FEDERAL BENCH IS AT A 13-YEAR LOW
(By David G. Savage)

WASHINGTON.-The vacancy rate on the federal bench is at is lowest point in 13 years, because of a recent surge of judges nominated by President Bush and confirmed by the Senate.

The intense partisan battle over a handful of judges aside, Bush has already won approval of 168 judges, more than President Reagan achieved in his first term in the White House. And with 68 of his nominees winning confirmation in 2003 as of Wednesday, President Bush has had a better record this year than President Clinton achieved in seven of his eight year in office.

Experts who track federal judgeships say Republican complaints about Democratic filibuster of four judges have obscured the larger picture.

"The Bush administration has been spectacularly successful in getting the overwhelming proportion of its judicial nominations confirmed," said political scientist Sheldon Goldman at the University of Massachusetts, Amherst. "There are only a relative handful being filibustered and held up. And this contrasts with the dozens of Clinton nominees who were held up by the Republicans in the last six years of the Clinton administration. The truth is the Republicans have had an outstanding record so far."

The Republican-controlled Senate Judiciary Committee lists 39 vacancies among the 859 seats on the U.S. district courts and the U.S. courts of appeal-a 4.5% vacancy rate.

This is the fewest number of vacancies since 1990. During Clinton's term in office, the number of vacancies on the federal bench was never fewer than 50, according to the Administrative Office of the U.S. Courts.

Today, the Senate committee is set to vote on four more judicial nominees, including California Supreme Court Justice Janice Rogers Brown. She is likely to be opposed by almost all of the panel's Democrats, one of whom called her a "right-wing judicial activist" during a hearing two weeks ago.

If confirmed by the full Senate, Brown would fill a seat on the U.S. Court of Appeals in the District of Columbia that is vacant in part because Republicans blocked two candidates that Clinton nominated in 1999.

Washington lawyer Allen Snyder, a former clerk to U.S. Supreme Court Chief Justice William H. Rehnquist, had a hearing in the committee, but despite a lack of opposition, he failed to gain a confirmation vote in the Senate. White House lawyer Elena Kagan was denied even a hearing in the GOP-controlled Judiciary Committee. She has since become a dean of Harvard Law School.

Upon taking office, President Bush named Washington lawyers John Roberts and Miguel A. Estrada to the same appeals court. Roberts, also a former clerk to Rehnquist, won confirmation this year and is now the junior judge on the U.S. Court of Appeals for the District of Columbia. Democrats filibustered and blocked a final vote on Estrada, who subsequently withdrew.

In July, President Bush chose Brown to fill the vacancy.

Even if she wins a narrow approval today, the minority Democrats may block her from a final vote in the Senate. Besides Estrada, they have blocked votes on Mississippi Judge Charles W. Pickering Sr., Texas Supreme Court Justice Priscilla R. Owen and Alabama Atty. Gen. William H. Pryor Jr. Also waiting a final confirmation vote is Los Angeles Superior Court Judge Carolyn B. Kuhl, Bush's nominee to the U.S. 9th Circuit Court of Appeals.

Administration officials concede that most of Bush's judges are being approved, but they point to the blocking of the appeals court nominees as extraordinary.

The vacancy rate "has been getting lower, but the real problem is the showdown at the circuit courts. We have seen an unprecedented obstruction campaign against the president's nominees for the circuit courts," said John Nowacki, a Justice Department spokesman. The department's Web site says there are 41 vacancies on the federal bench, if the U.S. Court of Claims and the International Trade Court are included in the total.

The administration says Bush has made 46 nominations to the appeals court, but only 29 have won confirmation. "That's a 63% confirmation rate.

Clinton had an 80 percent confirmation rate at the same time," Nowacki said. "There is something different going on here. It's an obstruction at entirely different level."

Goldman, the University of Massachusetts professor, said both parties have blocked prospective judges they viewed as extreme, but they have done it in different ways.

"The Republicans obstructed quietly in the committee," Goldman said. "If they didn't want to approve you, you just didn't get a hearing. The Democrats have obstructed through the use of the filibuster, which is very open and visible."

During Clinton's final six years in office, Republicans controlled the Senate, and they refused to confirm more than 60 of his judicial nominees.

BENCH STRENGTH

Here's how President bush's confirmed nominations to Federal judgeships compares with his three predecessors:

President George W. Bush: 2003: 68; 2002: 72; and 2001: 28**.

President Bill Clinton: 2000: 40*; 1999: 33*; 1998: 65*; 1997: 36*; 1996: 20*; 1995; 55*; 1994: 101; 1993: 28; and 1992: 66*.

President George H. W. Bush: 1991: 56*; 1990: 55*; and 1989: 15*.

President Ronald Reagan: 1988: 41*; 1987: 43*; 1986: 44; 1985: 84; 1984: 43; 1983: 32; 1982: 47; and 1981: 41.

• Senate controlled by opposition.

** Senate evenly divided until Sen. James M. Jeffords of Vermont left the Republican Party to become an independent.

Sources: Administrative Office of the U.S. Courts.