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Public Statements

Executive Session

Location: Washington, DC

PAGE S14547
Nov. 12, 2003
[Page S14547]

Executive Session

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

Mr. HATCH. I am glad to yield, without losing my right to the floor.

Mr. McCONNELL. I notice my friend's voice from Utah is cracking a bit, and I thought I might give him a moment's relief by asking him a question or two.

Mr. HATCH. Sure.

Mr. McCONNELL. I would ask the chairman of the Judiciary Committee, was it not the case that the current DC Circuit Judge John Roberts and nominee Miguel Estrada were nominated on the same day in May of 2001?

Mr. HATCH. That is correct.

Mr. McCONNELL. I would ask my friend from Utah, is it not true that the rationale for defeating Miguel Estrada given by the other side was that either he or the Justice Department or both of them refused to turn over the working papers that he had produced during his period as a lawyer in the Solicitor's Office of the Justice Department?

Mr. HATCH. That is correct. These are the most confidential private papers of the Solicitor General's Office, the lawyer who represents all of the public.

Mr. McCONNELL. Right. Was it also not the case, I ask my friend from Utah, that every single living Solicitor, who are either current or former Solicitors, the majority of which are Democrats, concurred with the Justice Department's position that these working papers should not be turned over?

Mr. HATCH. That is correct. Four of the seven former Solicitors General were leading Democrats, who said that what the Democrats are doing is wrong.

Mr. McCONNELL. People such as Seth Waxman and Archibald Cox?

Mr. HATCH. Right.

Mr. McCONNELL. All concurred?

Mr. HATCH. Right.

Mr. McCONNELL. All concurred that these types of working papers should not be turned over?

Mr. HATCH. That is right.

Mr. McCONNELL. Is it not the case, I ask my friend from Utah, that both John Roberts and Miguel Estrada worked in the Solicitor's Office?

Mr. HATCH. They both worked there. They both were excellent appellate lawyers. By the way, Estrada worked not only with the Bush administration but with the Clinton administration. And he had high marks.

Mr. McCONNELL. The same two gentlemen we just discussed, who were nominated on the same day back in May of 2001, by President Bush, for the very same court?

Mr. HATCH. Right.

Mr. McCONNELL. Nominated to the same court, the same experience in the Solicitor's Office. And is it not the case, I say to my friend from Utah, that John Roberts was passed out of committee and subsequently confirmed on a voice vote in the Senate?

Mr. HATCH. A unanimous voice vote on the floor, but only after waiting 12 years through three nominations by two different Presidents.

Mr. McCONNELL. He certainly had to wait a while, did he not?

Mr. HATCH. Right.

Mr. McCONNELL. Is it not the case that you had two nominees nominated on the same day, to the same court, having had the same experience in the Solicitor's Office, and one nominee was rejected because internal papers in the Solicitor's Office were requested and not turned over, and no such request for the same kind of office papers were made of now Judge Roberts?

Mr. HATCH. John Roberts, who was one of the finest appellate lawyers in the country, as was Miguel Estrada, was treated completely differently once the Judiciary Committee considered him. And I had to force them to consider him. Yet he passed this body by unanimous consent.

Mr. McCONNELL. So the request was made for certain papers of one nominee and the precise same papers of the other nominee were not requested?

Mr. HATCH. That is exactly right. They treated Miguel Estrada differently from John Roberts.

Mr. McCONNELL. Let me ask my friend from Utah, is there any conceivable basis for such disparate treatment for the same two people, nominated for the very same court on the very same day, going through the very same Judiciary Committee? Can the Senator from Utah think of any rational reason for this kind of disparate treatment?

Mr. HATCH. Not a legitimate reason. The only reason was they believed him to be pro-life. I don't know whether he is to this day because we do not ask those questions.

Mr. McCONNELL. But the stated reason, I would say to my friend from Utah, you just confirmed a moment ago. The stated reason for not confirming Miguel Estrada was that he would not turn over these papers or the administration would not turn over these papers.

Mr. HATCH. The phony reason.

Mr. McCONNELL. That was the stated reason.

Mr. HATCH. The phony reason they hid behind.
But let me make this point. Miguel Estrada, as great an attorney as he is, having argued 15 cases before the Supreme Court, having the highest recommendation of the American Bar Association, their gold standard, they did not want him to come through this process because they knew, or at least they perceived, that he was on the fast track to become the first Hispanic on the Supreme Court and they just cannot tolerate having a conservative Hispanic on the Circuit Court of Appeals for the District of Columbia, let alone on the Supreme Court.

Mr. McCONNELL. So I say to my friend from Utah, what we have is a situation where a white male nominee, to the very same court, with the very same experience, was treated one way and a Hispanic-American nominee, nominated to the very same court, on the very same day, was treated differently?

Mr. HATCH. That is absolutely right. But even Roberts had to go through a lot of pain to get there-12 years waiting, nominated three times by two different Presidents.

We put him out of the committee after a 12-hour hearing. You hardly have that much for Supreme Court nominees. There were two others on that list. They complained because there were three on one day's hearing. They ignored the fact that TED KENNEDY, when he was chairman, had seven circuit nominees one day, and another four. We had at least 10 other times when we had three.

Then once we put him out of the committee, I had to bring him back in the committee so they could have another crack at him. They could not touch him. He was that good. So he had to go through an inordinate process to get there. But they knew they did not have anything on him. They know they didn't have anything on Miguel Estrada.

Mr. McCONNELL. It sounds to this Senator, I wonder if the chairman concurs, that there was a sort of rule created and applied to Miguel Estrada-

Mr. HATCH. It was a double standard.

Mr. McCONNELL. That was not applied to John Roberts, two nominees considered for the same court at the same time.

Mr. HATCH. Absolutely right. Roberts was treated like all other nominees during the Reagan years, Bush 1 years, and the Clinton years. He was not asked to give his opinions on future issues that might come before the Circuit Court for the District of Columbia.

Because Miguel Estrada answered the same way basically as all the other people who had passed in prior years, they held that against him. The big phony issue was knowing that the Solicitor General's Office did not give the most privileged, private documents in that department without making that department unworkable.

[Page S14550]

Mr. McCONNELL. Which is why, I say to my friend, they didn't ask for those papers on John Roberts.

Mr. HATCH. That is right. They did treat Roberts differently, no question about it. They gave him a rough time, too. Miguel Estrada is in a league of his own in the way he was mistreated, but Roberts was mistreated, too. Roberts sits on the Circuit Court of Appeals for the District of Columbia after having been unanimously approved here.

Let's talk about how important that is. We have had 40 rollcall votes on the floor. You talk about delays. You talk about fouling up this body. We have had 40 rollcall votes on people who got unanimously confirmed. Can you imagine what it takes to go through 40 rollcall votes? It slows down the Senate like you can't believe, and muscles up the Senate like you can't believe. It is all a big game to try and make this President not successful. But Miguel Estrada had to go through that as well.

Mr. McCONNELL. So I say to my friend from Utah, and I will conclude with this, the practical result of that is this immigrant who came to the United States as a teenager, speaking broken English, realized the American dream, went to undergraduate and law school, was a star student, argued 15 cases before the Supreme Court, was denied an opportunity to get an up-or-down vote on the Senate floor by the creation of a standard that was not applied at the very same time to another nominee who was not a minority.

Mr. HATCH. And, by the way, was never applied to any nominee, to my knowledge, in the past. Miguel Estrada was singled out with a double standard for the sole purpose of defeating his nomination and getting him to withdraw.

Mr. McCONNELL. They were having a hard time, I say to the chairman, trying to find some basis upon which to defeat this guy. He was unanimously well qualified by the ABA, right?

Mr. HATCH. Their gold standard.

Mr. McCONNELL. He argued 15 cases before the Supreme Court.

Mr. HATCH. Very few people even argue one case.

Mr. McCONNELL. He received outstanding recommendations from everyone with whom he worked. They were having a real struggle, weren't they, I say to my friend, the chairman, trying to find some basis upon which to reject this truly outstanding nominee.

Mr. HATCH. It shows the lengths they would go to on that side-at least the leaders on that side-to screw up a nomination of a very good person.

Take Janice Rogers Brown. She is a terrific African-American justice on the California Supreme Court. She wrote the majority of the majority opinions on that court last year, and yet they come here and say she is outside the mainstream. They are outside the mainstream when they make arguments such as that.

There is only one reason they are against Janice Rogers Brown and filibuster her: because she is an African-American woman who is conservative and pro-life. For these inside-the-beltway groups, that is their single issue.

I had friends on the other side tell me, when I asked, "Why are you doing this," say, "Well, the groups will score this as a vote, and then they will come against whoever votes that way in the next election." These guys don't have the guts to take on the groups.

Mr. McCONNELL. Isn't it true, I ask my friend from Utah, in California where the justice to whom you just referred serves on the supreme court, you have to stand periodically for continuation?

Mr. HATCH. That is right.

Mr. McCONNELL. You can be rejected. Is it not true she got three-fourths of the votes?

Mr. HATCH. Better than that. She got 76 percent of the vote. She was the top vote-getter among four supreme court nominees.

Mr. McCONNELL. This is in that bastion of conservatism, California.

Mr. HATCH. I think the Senator makes a very good point.

Mr. McCONNELL. This nominee who was called outside the mainstream-outside the mainstream-gets about three-fourths of the vote in that bastion of conservatism-California-and the other side suggests she is somehow unacceptably conservative? That is absurd on its face, I argue to my friend.

Mr. HATCH. It certainly is. I went to one of my friends on the other side-and I won't mention the name because I don't think that would be proper-and I said: What did you think of Janice Rogers Brown? His answer was: She's terrific-which she was in front of the committee. Yet every Democrat went against her in committee and I think cited horrendously bad arguments to do it.

They can point to 8 or 10 cases with which they didn't agree, but with which a lot of people do agree, and then they say she is outside the mainstream when she has tried hundreds of cases and decided, as a majority opinion writer, the most majority opinions in that court last year and I think in prior years as well.

It is really unseemly, and that is why we are so upset here. Let me tell you, if we continue down this course, we are going to severely harm the Federal judiciary and get only people who really are not only outside the mainstream, but are Milquetoast, who can't make a decision to save their lives. Once you get to the Federal bench, you have to be able to make tough decisions.

Mr. McCONNELL. Isn't it also true, I say to my friend, the chairman, that one of the arguments used on some of the nominees is because they have certain personal beliefs, that they won't uphold the law? Has that been an argument frequently made?

Mr. HATCH. That is a frequent argument. I think the best illustration of that happens to be Bill Pryor.

Mr. McCONNELL. Which is what I was going to ask my friend, the chairman.

Mr. HATCH. They criticized him for cases he won before the Supreme Court, saying he is outside the mainstream because they disagreed with the cases. In fact, they think Rehnquist is out of the mainstream. They think Scalia is out of the mainstream. They certainly think Clarence Thomas is out of the mainstream because they want a single approach, a minority approach to everything that has to be liberal, and if you are not liberal, you are outside the mainstream, even though some of the greatest judges ever to sit on the Federal courts and Supreme Court were conservatives. Some of the great ones were liberals, too, but understood the role of judges.

Mr. McCONNELL. This is the same Bill Pryor who is currently standing up against the Alabama chief justice.

Mr. HATCH. Right.

Mr. McCONNELL. Who has been defying a court order by refusing to remove the Ten Commandments from a public building. It is very unpopular in Alabama to be against that guy.

Mr. HATCH. Bill Pryor is getting savaged by the rightwing because he basically sued to have the chief justice removed for not following the rule of law.

Mr. McCONNELL. A classic example of following the law and not his own personal beliefs; is that not correct?

Mr. HATCH. That is absolutely correct. Just fast forward to this week. As the Atlanta Journal Constitution reported this week, Bill Pryor filed a pretrial brief asking the Alabama Court of the Judiciary to remove Judge Moore from the Alabama Supreme Court because of Moore's defiance of the Federal court order to remove the Ten Commandments display. Bill Pryor's brief stated, quoting from the Atlanta Journal Constitution article: Moore should be removed because "he intentionally engaged in misconduct and because he remains unrepentant for his behavior."

I could go on about Bill Pryor. During his hearing-a lengthy hearing-he was asked over and over by virtually every Democrat who showed up about his deeply held personal beliefs. He answered every question the way a judicial nominee should. Even though he had deeply held beliefs, he would obey the law.

The PRESIDING OFFICER. The time controlled by the majority has expired.

Mr. HATCH. I thank the Senator for his excellent questions.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. Mr. President, I ask the time of the half hour allotted to this side be divided between myself and Senator Dodd and that I may proceed for 15 minutes.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LEVIN. Mr. President, what I wish the majority would be allowing tonight is consideration of legislation that addresses the loss of over 3 million jobs in this country during the last few years, most of them manufacturing jobs.

[Page S14551]

What I wish the majority would be allowing us to do tonight is to consider legislation to extend the unemployment benefits to those Americans who have lost their jobs in this recession, the way we have extended unemployment benefits in previous downturns.

Those needs of the American people and a dozen other needs are what we ought to be spending our time on tonight and every day until those issues, and many other critical issues, are addressed.

Instead, those on the other side of the aisle decided to spend 30 hours rehashing the reasons that 4 out of the 172 of President Bush's judicial nominees have not been confirmed by the Senate. That is their right, but it is wrong.

In my home State of Michigan, the unemployment rate is 7.4 percent. In fact, Michigan has lost and continues to lose more manufacturing jobs than almost any other State in the Nation. Mr. President, 2.5 million of the 3.3 million jobs which the U.S. economy has lost since January 1, 2001, were in manufacturing. We lost over 160,000 of those jobs in Michigan alone. Other States face large job losses, but what we should be doing is helping people who lost jobs, acting to stop the currency manipulation by China, Japan, and other countries, and the one-way street in trade which has been such a large part of the loss of jobs in this country.

The first act of this Congress last January was to extend unemployment benefits through the end of this year because Congress did not act last year. That made the 2002 holiday season mighty grim for those workers whose benefits had expired. Current law provides 13 weeks of additional Federal aid to laid-off workers who have exhausted their 26 weeks of regular State benefits. However, this administration has shown no interest in either extending the deadline for the program or authorizing new benefits. The trust fund that is to be used for unemployment benefits currently has over $20 billion in it. Why this administration balks at extending unemployment benefits is beyond me since that is what the money in that fund is for.

I, along with a number of our colleagues, propose we extend the December 31 deadline for another 6 months so newly unemployed workers can receive Federal assistance, but also making available an additional 13 weeks of Federal unemployment benefits for a total of 26 weeks. That is what we have done in prior recessions. We responded during the 1974 recession. Federal benefits were extended to 29 weeks.

In the 1981 recession, Congress extended benefits to 26 weeks. In the 1990 recession, 26 weeks were provided, 33 weeks to States with high unemployment.

While the unemployment numbers released last week were somewhat of an improvement, in terms of manufacturing jobs, that loss continues, and the long-term economic forecast continues to be pessimistic.

On this track, this administration will be the first administration to lose private sector jobs since Herbert Hoover.

In one moment I am going to propound a unanimous consent request that I know my Republican colleagues will want to hear, and I want to alert them of the fact I will be propounding that request in a moment. I hope our Republican colleagues will give us consent to take up unemployment insurance extension legislation this evening. Perhaps then this 30-hour exercise will be fruitful.

I think I have alerted the Republicans that we would be making this unanimous consent request.


I ask unanimous consent that the Senate proceed to legislative session; that the Finance Committee be discharged from further consideration of S. 1853, which is a bill to extend unemployment insurance benefits for displaced workers; that the Senate proceed to its immediate consideration; that the bill be read a third time and passed; and that the motion to reconsider be laid on the table.

The PRESIDING OFFICER. Is there objection?

Mr. McCONNELL. I object.

The PRESIDING OFFICER. Objection is heard.

Mr. McCONNELL. Mr. President, parliamentary inquiry: The time is controlled how?

The PRESIDING OFFICER. Under the previous order, beginning at 9 a.m., the minority and majority each control 30 minutes.

Who yields time?

The Senator from Kentucky is recognized.

Mr. McCONNELL. Mr. President, I rise today on behalf of my constituents in the Sixth Judicial Circuit to discuss the plight we confront in that circuit. That circuit is made up of Michigan, Ohio, Kentucky, and Tennessee. As you can see by this chart, the Sixth Circuit is currently 25 percent vacant. If you are a litigant in the Sixth Circuit of Kentucky, it takes you 6 months or longer to get your case decided than in any other circuit in America.

Why are we in this situation? We are in this situation because the two Michigan Senators won't allow the Senate to go forward on four nominees from their own State-the Michigan Four. So we languish with a 25 percent vacancy rate. Litigants have a 6-month or longer wait than anywhere in America, while the two Michigan Senators hold up nominees from their own State, presumably because President Bush will not nominate people the Democratic Senators from Michigan are recommending that he nominate to the Sixth Circuit.

It may have been a close election, but President Bush won. He gets to make the nominations. I can tell you as a Senator from the Sixth Circuit, I am not interested in seeing Democratic nominees to our circuit court. So what they have done here is set up a standard that cannot be met and will not be met, and they are punishing the litigants of the Sixth Circuit because of this pique they have that the Republican President won't nominate recommendations of Democratic Senators from Michigan to the circuit court.

My recollection-and I have been here a couple of terms myself-is that Senators don't get to pick circuit judges. We may have a lot of influence on the selection of district judges, but Senators typically don't get to pick circuit judges. Maybe we get to make a recommendation, but we certainly don't get to pick them under Presidents of either party. So what is being asked in this situation is that Democratic Senators get to select circuit judges in a Republican administration.

I can tell you if, as Republican Senators from the Sixth Circuit, we don't even get to pick Republican judges for the Sixth Circuit, there is no chance the Democratic Senators are going to get to pick Democratic judges in a Republican administration.

The National Judicial Conference has designated all four of these seats as judicial emergencies. Not surprising. Twenty-five percent are vacant. It is a judicial emergency. The President nominated four superior jurists to fill these seats. Each of these nominees-all languishing in committee because the Michigan Senators object to them going forward-has gotten an ABA rating of qualified or well qualified. That used to be the Democrats' coveted gold standard.

But despite the President doing his job and trying to fill these seats, the Senate has fallen down on the job. These nominees are from Michigan, and the Senate delegation from that State, as I said, has objected to the Senate considering them, even though the Sixth Circuit is in crisis. It is even rumored that if the nominees were to be reported out of committee, they would join the ranks of the filibustered nominees we have been talking about since yesterday at 6 p.m.

Our friends and colleagues on the other side keep talking about the four they filibustered. There are seven more who we understand are going to get the same treatment. So maybe we ought to be talking about 11 who are going to be subjected to a supermajority.

The wheels of justice in my State and the other States of the Sixth Circuit are turning very slowly. Sometimes they are not turning at all. Cases are going unheard and grievances unredressed because the Sixth Circuit bench is one-fourth empty. Each judge has to handle a much larger caseload.

According to AOC-Administrative Office of the Courts-in 1996, each judge on the Sixth Circuit had to decide an average of 364 cases. That was just 7 years ago. On the Sixth Circuit, each judge had to decide about 364 cases. Last year-in 2002-each judge on the Sixth Circuit had to decide 643 cases-from 364 cases up to 643 cases between 1996 and 2002. That is a 77 percent increase from just 6 years ago. By overworking judges on the Sixth Circuit, the Senate is causing great delays for litigants. It now takes an excruciatingly long time for citizens of the Sixth Circuit to get their appeals decided.

As this chart shows, the national average for the time to decide an appeal is 10.7 months. This is the national average in the circuit courts of a delay in getting your decision made-10.7 months. In the Sixth Circuit, however, it is 6 months longer than that, 50 percent more.

So if you happen to be a litigant in the Sixth Circuit, because of the demand of the Michigan Senators that the Republican President of the United States select Democratic nominees of their choosing to the Sixth Circuit, if you are unfortunate enough to be a litigant in the Sixth Circuit, you are out of luck. I hope your case is not too important because it will take 50 percent longer than the national average to get a decision. It is all because the Michigan Senators believe they should be able to pick one or more circuit judges for a Republican President.

The Sixth Circuit has the dubious honor of being the slowest circuit in the Nation-dead last. The blame for that resides not with the President of the United States, who has had four well-qualified nominees pending before the Judiciary Committee for quite some time; the reason for that is the Michigan Senators' refusal to sign off on any of them, unless they get to tell the President whom to nominate.

Looking at it another way, if you are lucky to have to be in one of the other circuits, if you file your appeal by the beginning of the year, you may get a decision by Halloween. If you file at the same time in the Sixth Circuit, you will wait until Easter of the following year to get a decision. We have all heard the old saying that justice delayed is justice denied. So let's put a human face on those statistics.

[Page S14616]

In the area of criminal justice, Ohio Attorney General Betty Montgomery has said that numerous death penalty appeals are experiencing prolonged delays. In the area of civil rights, attorney Elizabeth McCord had been waiting 15 months just to have an oral argument scheduled for her client's appeal in a job discrimination suit-15 months to get an oral argument in a job discrimination suit because the Michigan Senators won't allow any of the President's nominees to go forward. In the interim, her client died. He waited so long, he simply passed away.

According to the Cincinnati Post, delays such as this have become commonplace because vacancies have left the court at half strength and created a serious backlog.

Commenting on this sorry state, Mary Jane Trapp, president of the Ohio Bar Association, said:

Colleagues of mine who do a lot of Federal work are continuing to complain. When you don't have judges appointed to hear cases, you really are back to the old adage, "justice delayed is justice denied."

Mr. President, this situation is completely and totally unacceptable. I am astonished that our Democratic colleagues want to filibuster qualified judicial nominees who could address the problem.

My Democratic colleagues try to justify their obstructionism based on a grievance they believe they have suffered with respect to two of these seats. Bear in mind, there are four vacancies. This grievance goes back two Congresses and involves an intradelegation spat. The "you started it" excuse is more than just a little wanting in light of these troubling statistics and unfortunate stories.

As I said earlier, let's get back to the first principle: Democratic Senators don't get to pick circuit judges in Republican administrations. In fact, Republican Senators don't get to pick them in a Republican administration. We get to make recommendations. Presidents of both parties have long believed circuit court appointments were their prerogative.

So I say to my friend from Idaho, who has joined us on the floor, here you have a situation where the Democratic Senators in Michigan, with a Republican administration, are demanding that the Republican President appoint someone of their choice to the circuit courts when even we as Republican Senators don't get to make such selections. I think it is safe to say that that is never going to happen. That is never going to happen.

So in the meantime, four nominees the President has made-all from the State of Michigan-which would solve this 25 percent vacancy problem on the Sixth Circuit, languish because of this desire on the part of Democratic Senators to pick circuit court nominations in a Republican administration.

It is important to remember that Michigan doesn't own these seats. They don't belong to any particular State. Certainly, historically, at least in recent history, these four seats have belonged to Michigan. They belong to the people of the United States. If anybody has a particular claim, it is the people of the Sixth Circuit, all of whom are suffering because of this obstructionism. I know the people of Ohio, Kentucky, or Tennessee would be more than happy to have these judges if Michigan doesn't want them. If the Michigan Senators don't want Michigan judges on the Sixth Circuit, goodness, we would be happy to have a good Ohio, Kentucky, or Tennessee lawyer fill the vacancies. My people in Kentucky didn't have anything to do with this spat up in Michigan. They are having to pay for it, as are the people of Ohio, Tennessee, and Michigan.

I said there are four vacancies in Michigan. Two of the four seats the Michigan Senators are blocking don't have any connection to any prior intradelegation dispute. There were two of the four judges who were involved in all of this dispute during the Clinton years, but there are four vacancies. All four of them are being held up. President Clinton did not even nominate anyone. Let me repeat, President Clinton didn't even nominate anyone for the seat to which Henry Saud has been nominated. Henry Saud, if confirmed, would be the first Arab American to sit on a circuit court in U.S. history. That is one of the nominations they are holding up. President Clinton didn't even nominate anyone for the seat to which Henry Saud has been nominated. The seat to which David Mackey has been nominated didn't even become vacant until the first year of the current President's term. Two seats are being held up by the Michigan Senators, one of whom President Clinton nominated, and one didn't become vacant until President Bush took office. These two vacancies had nothing to do with whatever the spat was that went on earlier, and all four seats remain vacant.

This is simply an unacceptable situation. The American people should be aware of what is going on. They should demand that this obstructionism cease. This outrage that is occurring in the sixth judicial circuit puts a human face on what has been going on around here this year.

Real litigants, real people, are paying the price for senatorial pique, for senatorial demands for something that is totally unreasonable-where Democratic Senators, in a Republican administration, get to pick circuit judges. In the meantime, the lawyers and litigants of the Sixth Circuit continue to suffer under this 25 percent vacancy crisis, this judicial crisis of the highest order, as a result of Senate obstructionism.

Let me also add, just a month ago, both houses of the Michigan Legislature passed resolutions that noted the negative effects of the vacancy crisis and urged the U.S. Senate in general, and Michigan Senators in particular, to act on the Michigan nominees. The Michigan Legislature is passing resolutions asking the Michigan Senators to let the nominations go forward.

Mr. President, I thank the Chair for the opportunity to address the crisis in the Sixth Circuit. It is a very serious crisis confronting my State. I see the Senator from Oklahoma here.

I yield the floor.

The PRESIDING OFFICER (Mr. SUNUNU). The Senator from Oklahoma is recognized.

Mr. McCONNELL. Mr. President, how much time remains?

The PRESIDING OFFICER. The majority controls 12 and a half minutes.

Mr. McCONNELL. Mr. President, I reserve the remainder of our time.


Mr. McCONNELL. Will the Senator from Oklahoma yield for just a moment? The Senator from Kentucky is here. I don't know how much time we have remaining.

The PRESIDING OFFICER. The majority holds an additional 6 minutes on this side.

Mr. NICKLES. I will be happy to yield to my very good friend from Kentucky.

Mr. McCONNELL. Thank you. I yield the remaining time on this side, during this hour, to the Senator from Kentucky.

The PRESIDING OFFICER. The Senator from Kentucky.

Mr. BUNNING. I thank for yielding my good friend from Kentucky and my good friend from Oklahoma. I have a question for the senior Senator from Kentucky.

I ask my friend from Kentucky: The Michigan Senators argue that they have not been properly consulted on these, the Michigan nominees. Yet I understand the White House Counsel's Office consulted extensively with the Michigan Senators. This chart reproduces a letter from the White House Counsel that shows from April to November 2001, the White House consulted with the Michigan Senators no fewer than 13 times. So I ask my friend from Kentucky, in light of the record, does it not seem that the Michigan Senators are defining consultation as picking the nominees, rather than the President picking them?

Mr. McCONNELL. I would say to my friend from Kentucky, he is exactly right. I think what is clearly happening here is the Michigan Senators want to pick circuit judges in a Republican administration.

I remind everyone, the two Michigan Senators are Democrats. My recollection is that the Senator from Kentucky and I may get to recommend judges for the circuit court but we don't get to pick them in a Republican administration, so why should any Democrat Senator expect they would get to pick circuit judges in a Republican administration?

Mr. BUNNING. On the Sixth Circuit Court of Appeals, where these Michigan circuit judges are needed so desperately, isn't it true right now that Federal district judges are having to go to the Sixth Circuit and be seated because of the judicial crisis we have on the Sixth Circuit?

Mr. McCONNELL. My friend from Kentucky is absolutely right. We have a 25 percent-25 percent of the Sixth Circuit is vacant. Not because of the President of the United States. Four Michigan nominees were sent up here some time ago. They have been in the Judiciary Committee. They are having to draft district judges. It is the slowest circuit in America because it is 25 percent vacant.

Mr. BUNNING. I only say to my good friend, the senior Senator, that even some of the newer judges with whom you and I are familiar are now having to do 2-week tours of duty over at the Sixth Circuit Court of Appeals-they have only been on the district bench for 2 years-to try to catch up the backlog we have at the Sixth Circuit Court. If we could only get a little better cooperation out of certain Senators from Michigan, maybe we could fill those four vacant seats in a rational and reasonable way.

Mr. McCONNELL. I thank my friend from Kentucky for pointing this out. It is an outrageous situation.


Mr. McCONNELL. Mr. President, reserving the right to object, and I will object, we hope to complete that bill, in the next few days. Therefore, for the moment, I object.

The PRESIDING OFFICER. Objection is heard.

Mr. McCONNELL. Mr. President, let me suggest another consent agreement that might make more sense. I ask unanimous consent that the Senator modify his previous request so that just prior to proceeding as requested, the three cloture votes would be vitiated and then the Senate immediately proceed to three consecutive votes on the confirmation of the nominations with no intervening action or debate.

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