Nominations

NOMINATIONS

Mr. DORGAN. Will the Senator from Vermont yield for a question?

Mr. LEAHY. Yes.

Mr. DORGAN. I listened to some of the complaints on the floor recently while I was in my office. They were concerned about not moving ahead on energy. I guess the obvious question is—we didn't bring up the judge; we are not requiring a vote on the judge; we are not requiring a vote on the trade agreements; and there is no requirement to vote on the trade agreements this week. There is no requirement to vote on this judge this week. So isn't the proposition that those who are scheduling this place, who insist on a vote on a judge, insist on bringing up trade agreements in the middle of the discussion on energy, isn't that what is causing the delay?

Mr. LEAHY. Mr. President, the Senator is absolutely right. The distinguished assistant Democratic leader pointed out just a short while ago that we have had a number of votes on the Energy bill, which were very close votes, which could have gone either way. We had a good debate going and we were actually voting. Now, instead we spend more time in quorum calls and bringing up judicial votes that are not going anywhere.

I must say to my friend from North Dakota, as ranking member of the Judiciary Committee, if we would have taken the time that has been wasted on things not going anywhere, if we had taken time to vote through some of the judges, where I believe we could get consensus of both Democrats and Republicans, and vote and confirm them and let them go to the bench, that would be a better way. We spent a whole month, as I mentioned, trying to get the Republicans to allow a vote on Judge Edward Prado for a circuit court of appeals position. He had been nominated by President Bush and was strongly supported by President Bush. For a month, they blocked it from going to a vote. We found out afterward it was because they went to the same members of the press they have gone to this week and they said: This is terrible. The Democrats aren't allowing us to vote.

Democrats, time after time, came on the Senate floor and said we can have unanimous consent to go to a vote, and they objected.

Mr. DORGAN. Mr. President, further inquiring of the Senator from Vermont, is it the case, then, that there are judge candidates that could be brought to the Senate floor without any controversy at all, which would require very little time?
Those are not the ones brought to the floor. Very controversial nominations are brought to the Senate floor, and complaints arise because someone wants to debate it. Isn't it the point that we didn't bring this judgeship to the floor for a cloture vote?

Mr. LEAHY. No. In fact, I say to my friend that the one time we did try to bring one of President Bush's circuit court nominees to the floor and ask to have him considered, for a month we were not allowed to because the Republicans objected. I have not done a whip check, but I am willing to bet that if we brought them to a vote, and they are on the calendar now, they would get confirmed. Even in the time we have had quorum calls and discussions on this today, we could have brought them up and had a series of 10-minute rollcall votes. And I am willing to bet we would have passed them all.

Mr. DORGAN. The Senator indicated we were dealing with very important issues today. Indeed we were. I mention the Cantwell amendment, which lost by two votes. It was a very significant amendment which I think, in the rear view mirror of public policy, will turn out to be one of the most important amendments turned down by the Senate dealing with energy.

We know what is happening on the west coast. Firms bilked people out of billions of dollars. There is substantial criminal investigation still ongoing and the proposition today on the Energy bill was important: Will there be adequate protections for consumers, and will we do something about the scandals that occurred on the west coast and stand up and support the interests of consumers and prevent manipulation of energy markets? That amendment failed by two votes. There was a significant debate, a big amendment. These are big, important issues.

The question is, Why are we not continuing to work on the Energy bill? What interrupted it? Have we done that or has someone else brought something else to the floor of the Senate?

Mr. LEAHY. Mr. President, I answer my friend from North Dakota that we have been willing to move forward on amendments on the Energy bill. We are not the ones who brought up the extraneous cloture votes which are not going anywhere. Maybe some want to get off the Energy bill. I note that the distinguished Senator mentioned Senator Cantwell's amendment. I was very proud to support that amendment. It was excellent and, as the Senator said, it would protect the consumers.

It was interesting because, at one point, she had the amendment won, and you heard the snap, crackle, and pop, not of Rice Crispies but the arms being twisted and snapped as votes were being changed. Most of the power company lobbyists were saying to the leadership on the other side that you cannot allow that to go through, and votes were being changed. It came within two votes.

I agree with the Senator from North Dakota that people are going to look in the rear view mirror and say Senator Cantwell was right, and that should have been allowed to go through.

Mr. DORGAN. If the Senator will yield further, and I am sorry to continue to inquire, at this point, is there a cloture vote that is now scheduled on Mr. Pryor? Is there a vote scheduled and, if so, when is it scheduled?

Mr. LEAHY. Mr. President, it is scheduled for tomorrow under the normal circumstances, unless there has been an
agreement entered into otherwise. That would be an hour after we come into session. Unless the established quorum is waived, we could go to a vote.

Mr. DORGAN. Mr. President, I inquire further, if a cloture motion has been filed and it ripens tomorrow and we presumably would have a cloture vote on this nomination tomorrow, for those tonight who are concerned about not moving ahead on energy, we could resolve that by vitiating the cloture motion vote tomorrow.

I was sitting in my office listening to those complaining that we are not moving ahead on energy, understanding it was not us who brought this judgeship forward. We did not put forward the proposal that we have to do two free-trade agreements this week.

It seems to me, at least with respect to the judgeships, perhaps what ought to be done is unanimous consent ought to be entertained to vitiate the cloture vote tomorrow on this judge and move on. After all, there is no reason that we have to vote on this judge tomorrow. This nomination has not been waiting a great length of time. It can be done in September. For those who are worried about moving ahead on energy—and we should—it seems to me what we probably ought to do is join together and vitiate this cloture vote, move on, and continue with the Energy bill tonight. Does the Senator think that is an appropriate course?

Mr. LEAHY. Mr. President, I tell my friend from North Dakota, not only would it be an appropriate course because cloture is not going to be invoked primarily because, for one major reason because of his qualifications, but also because the rules of the Judiciary Committee were not followed in having this nomination go out.

We could very well at that time, if we want to get judges through, not have this cloture vote, which is not going to go anywhere. We have James Cohn, of Florida. During this time we could have voted on him to be a judge. We could have voted on Frank Montalvo, of Texas. These are nominees I would support and I think a majority of us would support.
Xavier Rodriguez, of Texas, could have been voted on. The Republicans have made no effort to bring them up, even though
we told them they could. H. Brent McKnight, of North Carolina—these are people we would allow to being brought up. We would allow the home State Senators to take a few minutes to speak about them. In fact, they could bring them all up and do them in a stack of 10-minute rollcall votes. They would have gone through in the amount of time of some our quorum calls today.

Mr. DORGAN. Mr. President, if I may address the Senator from Vermont with one final inquiry, it seems to me if the issue in the Senate is we have limited time and we have a substantial amount of work to do on energy—I was at the White House yesterday. President Bush called a number of us down to the White House to talk about the urgent need to pass this Energy bill. If that is, in fact, the case—and I believe it is and the majority leader has said it is—in order to get back on this Energy bill, it seems to me what we should do—and I encourage the majority leader to do this—is vitiate the cloture vote on the judgeship. We do not need to do it this week. We all know we do not. He can decide we do not have to bring up the two free-trade agreements this week. There is nothing urgent about those agreements. That need not be done this week.

If the President is correct—and I believe he is—and if the majority leader is correct—and I believe he is—that this Energy bill ought to move, it is urgent public business, then let's move back to the Energy bill and do it now. I encourage the majority leader to make that decision.

Mr. SANTORUM. Will the Senator from Vermont yield?

Mr. DORGAN. The Senator from Vermont has the time. I thank the Senator from Vermont for yielding to me. I, again, say to the majority leader, I do not want to hear people complaining about the fact that we are not on the Energy bill. We are not making progress on the bill because the majority leader and others said we have to move to the judgeships and then move to the trade agreements.

The fact is, they are the ones taking us off the Energy bill, not us. We ought to offer the next amendment right now on the Energy bill and vitiate the cloture vote tomorrow morning on the judgeship. That will solve the problem.

The PRESIDING OFFICER. The Senator may yield for questions but not for comments. The Senator from Vermont has the floor.

Mr. LEAHY. Mr. President, the distinguished Senator from Pennsylvania has asked if I will yield for a question. I will yield without losing my right to the floor or my right to reclaim the floor within 1 minute.

Mr. SANTORUM. Mr. President, I ask if the Senator from North Dakota and the Senator from Vermont will agree to a unanimous consent request that we have a final vote on the Energy bill by noon on Friday and in exchange for that, we will vitiate the cloture votes on the two judges that are in the queue right now. I think we can probably get unanimous consent on that on our side fairly quickly.

If the Senator from North Dakota agrees with that, we will be happy to move forward.

Mr. LEAHY. Mr. President, I have the floor. I am not on the Energy Committee.

Mr. SANTORUM. I think that is what the Senator from North Dakota suggested.

Mr. DORGAN. Mr. President, if the—

The PRESIDING OFFICER. The Senator from Vermont has the floor.

Mr. LEAHY. Mr. President, let me respond this way. I have been in the Senate for 29 years. I love the Senate. I love following our normal course of doing business. The Senator from Pennsylvania has raised an appropriate question. I suggest that is a question that should be directed to the Republican leader and the Democratic leader and the chairman and the ranking member of the committee, which is the normal course of doing business, the way we have always done it.

Naturally, I would be guided by the direction of the Republican and Democratic leaders, not only in the Senate but in the
committee.

Obviously, I am not in a position to speak for the Republican or Democratic leaders or the Republican chairman or Democratic ranking member on this issue. The Senator from Pennsylvania is perfectly within his rights in raising the issue, and I hope that might prompt a discussion with them.

Mr. DORGAN. Mr. President, I ask the Senator to yield for one more question.

Mr. LEAHY. I yield.

Mr. DORGAN. Mr. President, I ask the Senator, would it make the most sense to have a final vote on the Energy bill when we have finished our work on the Energy bill? And wouldn't that best be accommodated by not going off and on to come up with judgeships and trade agreements? Wouldn't the best approach to reaching a final vote on the Energy bill be to stop bringing to the floor of the Senate other business, business that need not be done now?

Mr. LEAHY. Mr. President, I will answer this way: We have diverted some 6 to 10 hours off the Energy bill now. I see my friend, the senior Senator from Nevada. I know over the years he has worked very closely with his counterpart on the Republican side and usually tried to work out a finite list of amendments to the Energy bill. Again, based on my experience, my years in the Senate—almost three decades—I find usually if we stay on a bill that is your important bill, if you do not keep going off it for the trade agreements about which the Senator from North Dakota spoke, or these various cloture motions, if we keep going off these bills, then nobody feels the pressure to work things out.

On the other hand, if we just stay on the bill and people bring up amendments, we will find which ones are close amendments and actually have a chance of being adopted and which ones are not going to be adopted. Usually the Republican and Democratic leadership get together and whittle down the finite number. Then, as the Senator from Pennsylvania suggested, we are usually in the position to find a time for a final vote.

My suggestion is that we use what he has suggested but stay on the Energy bill, work toward a finite list of amendments.
We will then know when they are going to take place and how much time they are going to take. And then we will know when we are going to have final passage. We can do that and then go back to anything else they want.

If we are going to keep going back to these judges—as I said, we so far stopped two of President Bush's judges and confirmed 140, unlike the 60 of President Clinton's judges who were stopped by the Republicans, usually because someone objected anonymously. We have done it out here on the floor where we stood up on the nomination.

I am one Senator who actually takes seriously the role of the Senate. There are only 100 of us, and we are given the privilege to represent 270 million Americans. But we also have a very unique place. There is no other parliamentary body in the world quite like the Senate. We have this unique spot where we have checks and balances, especially on
confirmations. The Constitution does not say advise and rubberstamp; it says advise and consent.

Nobody should underestimate our commitment to the independence of the Federal judiciary and to our constitutional duty to advise and consent on these lifetime appointments. Nobody should underestimate our commitment to the protection of the rights of all Americans—Republicans and Democrats, Independents—in every part of this Nation.

The Senate was intended to serve as a check and balance in our unique system of Government. We fail our oaths of office as Senators if we allow the Federal judiciary to be politicized, if we cast votes that would remove their independence.

Mr. President, I ask unanimous consent that it be in order to yield to the distinguished senior Senator from California.