Mr. President, earlier today, we had a meeting of the Senate Appropriations Committee. Defense Secretary Gates and Chairman of the Joint Chiefs of Staff General Pace were there. I was at that meeting. I had questions that I asked. I have…
Mr. President, earlier today, we had a meeting of the Senate Appropriations Committee. Defense Secretary Gates and Chairman of the Joint Chiefs of Staff General Pace were there. I was at that meeting. I had questions that I asked. I have been bothered since the meeting, not so much by what they said, but by what has happened in the last few days.
Every one of us, when we turn on our television set, sees the devastation in Kansas by a tornado--something we would not see in my State of Vermont. But even in a State where these are not unusual things, the devastation of this tornado was unique. I thought yesterday about how the President of the United States, through his spokesperson, blatantly dismissed the all too real concerns of the Governor of Kansas, Governor Sebelius, about the equipment levels available to our National Guard for dealing with such emergencies at home as this horrible disaster I spoke of that befell Greensburg, KS.
The White House spokesperson, sitting comfortably at the White House, said: Well, you know, there is no problem. The Guard has considerable equipment stocks still available.
Everybody who has studied the situation with our National Guard around this country knows that assertion is absurd on a number of levels. Maybe they felt they could make a political statement because the Governor is of another party. But the reality is, the Governor spoke the truth. She knows the Guard faces real, incontrovertible shortfalls in vital equipment.
Contrary to what the White House has said, the Governors--I am talking about the Governors; Republican, Democratic Governors alike-- and their adjutant generals--those who are the heads of the National Guard in their respective States--are reporting something quite different than the blase attitude of the White House.
State after State reports missing humvees, medium-sized trucks, generators, dump trucks, communications systems. These are not claims from just any observer of Guard issues; these are the leaders who have been elected by the people to provide for their security and deal with these sometimes terrifying State emergencies.
As the Presiding Officer knows, the Governors command the Guard when operating in a State, and we have to give special credence to what they say. The idea that there is no problem--this kind of dismissive ``there is no problem''--is equally ridiculous because it has been clearly documented there is a very real $24 billion equipment shortfall in Army National Guard equipment alone. Now, those are reports that do not take into consideration the shortfalls within the Air National Guard. But both the Active Army and the National Guard agree on this figure. It was developed together with the National Guard Bureau working closely with the Army staff.
To say there is no problem, on the one hand, and have an arm of the administration, on the other hand, say there is a $24 billion shortfall--to me, that is a problem.
What is a greater problem is there are no plans to address this shortfall in the long-range budget. There are no plans to buy the 18,000 needed humvees, no plans to obtain the 30,000 medium-sized trucks, no plans to purchase the 12,000 required generators, no plans to purchase the 62,000 communications sets--the list goes on and on.
Another reason the White House's assessment of Guard equipment issues is so flawed is that everyone--from the Guard leadership to the Army leadership to Members here on the Hill--knows that, very frequently, that equipment slated for the Guard never actually makes it to the Guard because it is diverted, transferred to the Active Force before it gets into Guard stocks.
Even when the Guard equipment makes it into the Guard stocks, it is often quickly turned around and sent right back off to Iraq, along with deploying Guard units, many of which now face their second Iraq deployment.
It is passing strange to me that while this administration asks for a blank check to resupply the Iraqi National Guard, they do not have 1 cent in their long-range budget to resupply the American National Guard. Now, whether someone is for or against the war in Iraq, you would think our own forces--our own American national guard--could be treated at least on par with the Iraqi national guard, especially as we see the brave men and women of our National Guard not only answering the call in Iraq and Afghanistan, but answering the call when there are dangers here at home. We do not see them, as we have seen in units of the Iraqi national guard, setting out to kill each other or forming death squads. So why do we write blank checks for the Iraqi national guard when we can't take care of our own? I wish the President and the White House would come to fully realize this reality. Here is the real situation when it comes to National Guard equipment: The Guard does not have adequate stocks to deal with emergencies where they can maximize their full potential. In a smaller scale disaster, they cannot respond as quickly to support first responders and local law enforcement.
That is what we saw recently in Kansas. Now, suppose you have another emergency in Kansas or a larger scale emergency or something like Hurricane Katrina or, God forbid, two simultaneous disasters. The Guard is going to be hard pressed to respond as well as it did along the gulf coast almost 2 years ago.
Let me show you some photographs. You can see from these photographs, these are things our Guard does. You see this capsized tanker, and helicopters trying to rescue the people. Those are National Guard helicopters.
Here we have a forest fire close to an urban area, where homes are in danger. You can see an airplane putting down a fire retardant. That is a National Guard airplane.
Here you see a little child being rescued, carried up to a helicopter in the arms--the embracing arms, the safety of the arms--of a National Guard member.
Here you see the rescue of somebody who was in an accident.
Here you see National Guard in armored personnel carriers in a flooded area. In case you are wondering where that area is, look at the sign in the background that says ``Welcome to New Orleans.'' Much of that sign is under water. First responders--the police, fire departments--in New Orleans were totally overwhelmed, figuratively and literally. The Guard responded.
Look at these firefighters, trudging through a forest, at risk to their own lives, to put out a forest fire. Who are they? National Guard members.
The Secretary of Defense maintained this morning in his appearance before the Defense Appropriations Subcommittee that the Guard has 56 percent of its equipment stocks available. Well, that figure contradicts everything I have heard from other responsible officials, who put the figure closer to 35 percent. Frankly, 35 percent or 56 percent is not adequate, by any means.
In the latest supplemental spending bill, which the President seemed happy to veto, I worked with my colleague on the National Guard Caucus, Senator Bond. We cochair the National Guard Caucus. We also serve on the Defense Appropriations Subcommittee. We added $1 billion for Army Guard equipment purchases. That $1 billion was not requested by the administration. We had virtually unanimous support, Republicans and Democrats, in this body for it. It would go directly for dealing with that $24 billion shortfall. Now, that has been vetoed. We are going to work together in a bipartisan fashion to get it back into whatever spending bill we pass.
We cannot do that unless we work together--unless we work together. This is a case where it almost becomes a cliche to say: We cannot afford to let our Guard down--but we cannot. We do not have tornadoes in Vermont, but we have had some pretty vicious floods--one that nearly wiped out my hometown of Montpelier, VT, the capital. We have had some pretty vicious ice storms--one that almost removed the agricultural sector of a major part of our State.
In each case--as hard working as the local responders were, and they were, the police and the fire departments--the first call of the Governor went to the Guard, the National Guard. And they came. They rescued people. They kept people going.
When you have an ice storm, and it is 10 degrees below zero in your State, you can't wait for them to say: Well, we have 56 percent or we have 35 percent of your equipment. The other equipment you need is in Los Angeles, and we will ship it to you as quickly as we can. That is the old ``check is in the mail.'' If it is 10 degrees below zero, and you have an ice storm, with all the power lines that come down, people are going to die--people are going to die--if they can't get power within a matter of, really, minutes. The Guard can do that.
We know what a fiasco it was with our still dysfunctional Department of Homeland Security after Katrina. We have seen how the Department of Homeland Security and its FEMA division have still not responded to that. But we did respond when the Governors called out the National Guard.
So I rarely ever respond to comments made by the White House and their press operation, even when they take gratuitous swipes at me, but this one, I couldn't pass up. They know what the numbers are. They know the Governor of Kansas was speaking the truth. They know the Guard is woefully undersupplied. They know they have been diverting money to pay for the Iraqi National Guard from our Guard. So I think it would be really helpful for the White House to stop showing contempt for the views of our Nation's elected Governors. Take and consider their input, respect their thoughts about the Guard given their places with the National Guard in their States.
Let's turn the situation around. Let's come up with a new plan to replenish depleted Guard equipment stocks. We can't afford to continue to let our Guard down.
Mr. President, I ask unanimous consent to have printed in the Record the appropriate charts on this matter.
Mr. President, I suggest the absence of a quorum, with the time to be charged to both sides.
Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
Mr. President, I ask for the yeas and nays on the pending judicial nomination.
Mr. President, the Senate continues to make significant progress today with another confirmation of another lifetime appointment to the Federal bench. The judicial nomination we consider is Debra Ann Livingston of New York, who has been nominated to the United States Court of Appeals for the Second Circuit. That is the circuit for New York, Connecticut and, of course, Vermont. Professor Livingston has the support of both her home State Senators. I thank Senator Schumer for chairing the confirmation hearing at which she appeared.
Professor Livingston is the Paul J. Kellner Professor of Law and vice dean of the Columbia Law School, where she has been a professor for 13 years, teaching criminal procedure, evidence, and national security law. She previously taught at the University of Michigan Law School. Prior to her academic career, Professor Livingston served as a Federal prosecutor and deputy chief of appeals for the U.S. Attorney's Office for the Southern District of New York and worked in private practice for the Wall Street law firm of Paul, Weiss, Rifkind, Wharton & Garrison. I congratulate Professor Livingston and her family on what I am sure will be her confirmation today.
Coincidentally, this is the anniversary of the date 6 years ago, in 2001, on which this President began his assault upon the courts by announcing his first list of nominees. With the help of Senate Republicans, this President has sought to pack the courts and tilt them decidedly in one direction. To a great extent, he has succeeded. After Republican Senators stalled President Clinton's nominees to the Fourth, Fifth, Sixth, D.C., and other circuits, the Senate proceeded to confirm this President's nominees to the very vacancies that had previously been maintained by pocket filibuster in the Senate.
In my time as chairman from mid-2001 to the end of 2002, I worked hard to reach out to this President and tried hard to change the tone and get the confirmation process back on track. We succeeded in confirming 100 nominees in 17 months, including 17 to the circuit courts. But I could not change the tone alone. This White House chose, instead, to use judicial nominations to divide and to seek political gain in the ensuing confrontations.
I have tried, again, this year to restore order and civility to the process. In spite of all our progress and all our efforts, we are still confronted by shrill complaints. More ominous are the signals and rumors that the White House is, again, gearing up to nominate more extreme nominees and more who do not have the support of their home State Senators. That is wrong. It may be the good politics to appeal to the Republican base, but it is wrong to use our courts in that way-- just as it is wrong to corrupt the law enforcement responsibilities of the Department of Justice.
Some will undoubtedly repeat the current Republican ``talking point'' that the Senate must confirm 15 circuit judges this Congress, this year and next, because that is a ``statistical average'' of selected years. Well, during the 1996 session the Republican-led Senate refused to confirm a single circuit court nominee, not one. That meant that in the 104th Congress, in 1995 and 1996 combined, only 11 circuit nominees were confirmed.
It is true that during the last 2 years of this President's father's term, a Democratic-led Senate confirmed an extraordinary number of circuit nominees--20--in fact. That action was not reciprocated by the Republican majority during the Clinton years.
It is true that during the last 2 years of the Reagan administration, a Democratic-led Senate confirmed 17 circuit court nominees. That action was not reciprocated by the Republican majority during the Clinton years.
Instead, the last 2 years of President Clinton's two terms witnessed a Republican-led Senate confirming only 11 circuit nominees and then, with vacancies skyrocketing to historic highs, 15 circuit nominees in the 106th Congress.
Thus, to get to the supposed ``historical average'' that Republicans like to talk about, they take advantage of the high confirmation numbers during Democratic-led Senates and thereby inflate and excuse their own actions from the Clinton years.
There are three more factors that the Republican talking point ignores: The first is the number of vacancies. The second is adding additional judgeships by congressional action. The third is the number of qualified circuit nominees.
The last Congress of the Reagan administration, the one in which a Democratic-led Senate confirmed 17 circuit nominees, the circuit court vacancies went down from 13 to 8 during the course of the Congress. Seven circuit nominations were returned to the President without action. In fact, in addition to filling vacancies that were arising in the regular course, the Democratic-led Senate was working to fill many of the 24 additional circuit judgeships created in 1984. By the end of the Reagan Presidency all circuit vacancies, those from existing judgeships and those created during his Presidency, were reduced from a high of 25 down to 8.
During the last Congress of the first Bush administration, the one in which a Democratic-led Senate confirmed 20 circuit judges, the circuit vacancies again went down, from 18 to 16. Again, the Senate was filling both existing and newly created vacancies. In 1990, during President Bush's term, Congress authorized an additional 11 circuit judgeships. That was why vacancies at the beginning of the 102nd Congress rose to 18.
By contrast, during the last Congress of the Clinton administration, the one in which a Republican-led Senate confirmed 15 circuit judges, circuit court vacancies skyrocketed from 17 to 26. This rise in circuit vacancies had nothing to do with Congress creating additional circuit judgeships, however. Unlike during the Reagan administration and during the Bush administration, during the Clinton administration the Republican-led Congress refused to act in accordance with the previous 6-year cycle for reviewing needed judgeships. Not a single new circuit judgeship was created during the Clinton administration that I can recall. Instead, the Republican-led Senate engaged in strenuous efforts to keep circuit judgeships vacant in anticipation of a Republican President. Indeed, at the end of the 106th Congress, the last in the Clinton Presidency, 17 circuit court nominees were returned to President Clinton without action. More circuit nominees were returned without action that Congress than were acted upon by the Senate for the first time in modern history.
Likewise, during the last Congress of the first term of President Clinton, the one in which a Republican-led Senate confirmed only 11 circuit judges, circuit court vacancies went up, from 16 to 19. Again, this was without the addition of new circuit judgeships.
Despite the carping and the clamor, the vacancies on the circuit courts have gone from 26--where a Republican-led Senate forced the circuit vacancies at the end of the Clinton administration--steadily downward during the Bush administration. With the confirmation of Judge Livingston, circuit vacancies will be at half that amount today 13--and approaching a historic low.
Judge Livingston will be the third circuit court nomination confirmed this year. It is only May, but we have already equaled the total circuit nominees confirmed in the entire year of 1993. We have far surpassed the total confirmed during the entire 1996 session when the Republican majority would not consider or confirm a single circuit nomination of President Clinton's.
This will be the 20th circuit court nomination confirmed while I presided as Judiciary chairman. It is a little
known fact that during the more than 6 years of the Bush Presidency, more circuit judges, more district judges and more total judges have been confirmed while I served as Judiciary chairman than during either of the two Republican chairmen working with Republican Senate majorities.
This will be the 18th judicial confirmation this year. It is spring and we have already confirmed more judges than were confirmed during the entire 1996 session when President Clinton's nominees were being reviewed by a Republican Senate majority. This is the 118th judicial confirmation while I have served as Judiciary chairman. That exceeds by more than a dozen the confirmations Senator Hatch presided over during the more than 2 years he was Judiciary chairman.
The Administrative Office of the U.S. Courts lists 47 judicial vacancies, yet the President has sent us only 24 nominations for these vacancies. Twenty-three of these vacancies--almost half--have no nominee. Of the 15 vacancies deemed by the Administrative Office to be judicial emergencies, the President has yet to send us nominees for six of them. That means more than a third of the judicial emergency vacancies are without a nominee.
This is the third factor I mentioned above, the lack of nominees.
This President has shown that he would rather pick politic fights than good judges. I was encouraged at the beginning of this Congress that a few of the most controversial nominees from the last Congress were not renominated. That sensible approach seems to have ended, however, and this White House seems to be returning to its old, bad habits.
Despite the harping and the criticism, the Judiciary Committee has been working hard to make progress on those nominations the President has sent to us. Of course, when he sends nominees that he knows are unacceptable to home State Senators, it is not a formula for success. Sadly, that is what appears to be happening, again.
Before the consideration of the Second Circuit nominee today, we had already proceeded with committee and Senate consideration of the nominations of Randy Smith and Thomas Hardiman. They were confirmed to the Ninth and Third Circuits, respectively.
Some may recall that I had been working for more than a year to make progress on the Smith nomination. When the President finally renominated Judge Smith for an Idaho vacancy, we were able to make quick progress with that nomination.
Our circuit court confirmations so far this year are in addition to the 15 lifetime appointments to the Federal district courts we have proceeded to confirm. During the entire 1996 session only 17 judges were confirmed. We are doing pretty well with 18 confirmations before the middle of May.
With respect to circuit nominees, after this confirmation there will be only 13 vacancies. Eight of those are without a nomination. Of the five remaining current circuit nominees, one was only nominated a few weeks ago. Having consulted with the home State Senators from Mississippi, I have scheduled our next judicial confirmation hearing to be held tomorrow to include Judge Leslie Southwick of Mississippi.
All three of the other circuit nominations are renominations that were not considered last Congress with a Republican majority. Two are renominations that the White House made knowing full well that they did not yet have the support of their home State Senators. When I previously chaired the committee, I was able to break the blockade of Sixth Circuit nominations that was established by the Republican majority when it pocket filibustered several of President Clinton's outstanding nominations to the Sixth Circuit. Once we broke through with two Sixth Circuit confirmations in 2002, President Bush was left with seven appointments to the Sixth Circuit during his term in office. Given the White House's unwillingness to work with the home State Senators of the two current nominees, however, it will be very difficult to make more progress.
With respect to the nomination of Peter Keisler, that renomination is controversial. He was previously nominated in June of 2006 but was not considered by the Republican majority then in control. The Republican majority did not seek to proceed with this controversial nomination at that time. In fact, the President and the Republican Senate majority insisted, instead, to proceed over the last several years on other nominations to the important D.C. Circuit, which were, themselves, highly controversial. The nominations of Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh were each apparently a higher priority for this White House and the Republican majority than the nomination of Mr. Keisler. The others have each been confirmed to lifetime appointments on this very important court. At the end of the last Congress, the Keisler nomination was returned to the President without action in accordance with Senate Rules.
The Republican Senate majority pocket filibustered more than 60 of President Clinton's qualified and moderate judicial nominees. I have proceeded on more judicial nominees far faster than Republicans did on President Clinton's nominees.
With the cooperation of the President, with his working with Senators from both parties in making his nominations, with the cooperation of the committee and the Senate, we can continue to make progress.
I will yield the floor and reserve the remainder of my time.
Mr. President, while the Senator is still on the floor, I wish he had heard my statement. I can assure him that neither the chairman of the Judiciary Committee nor the majority leader intends to emulate what the Republicans did, with a pocket filibuster of more than 60 of President Clinton's nominees. I know of nobody on this side of the aisle who expects the Democrats to do a pocket filibuster of 60 of President Bush's nominees, as the Republicans did of President Clinton's.
It is interesting, when I hear this talk about historical averages, they weren't only--when you bring up the number of times there was a Democratic majority with a Republican President, a Republican President was treated far better than the Republicans treated a Democratic President. At no time were the Democrats ever pocket-filibustering 60 of the President's nominees.
There has been talk about President Bush withdrawing some of these nominees he had last year. I point out he had a Republican majority throughout the year, and they didn't pass through many. One was opposed by organizations that had never taken a position on a judge before--the Wildlife Federation--and all the Native American councils. Another one was not only involved in running the torture memos, but after swearing under oath and telling us information, he broke that oath by never giving or bringing the information. That was a person who would not have gotten a majority under a Republican-controlled committee. He would not have gotten out of committee because both Republicans and Democrats would have opposed him. So no big deal withdrawing people who were not going to go forward. In fact, in one instance, because somebody was nominated in the wrong State for a circuit court, that person was withdrawn. We moved very quickly to put the next nominee in that came from the right State.
I remember once that I got criticism from the White House, Karl Rove, and Vice President Cheney for holding up because a person asked about a nominee. I must admit, to their credit, they withdrew his name after he was indicted and pled guilty to fraud. They are probably kind of happy I didn't let him go forward.
The Senator from Texas says we should compare. I wish he would stay with me one more moment. If the Senator from Texas doesn't want to listen and we have closed minds, I can't do anything about it.
I will say this: I have been chairman for 21 months during President Bush's Presidency. During that time, counting today's, we have confirmed 20 circuit judges and 98 district judges. One of the other chairmen was there for 2 years, there were 18 circuit judges. They were there longer than I have been with less judges; 85 district judges compared to my 98 in less time. Another chairman, 16 circuit judges compared to my 20; 35 district judges compared to the 98 we put through.
What we have done, of course, is the distinguished ranking member, as chairman, put together strenuous debate on two Supreme Court nominees. I think he knows full well the Democrats cooperated with him, whether they supported the nominee or not, to get them through.
Frankly, I am tired of misstatements of the record, and I will take time--I probably will have to have time on every single judge that comes up--to correct that. So people understand, we will not do as the Republicans did and pocket filibuster 60 or more of President Bush's nominees and, secondly, obviously we know when the Republican rule, the Strom Thurmond rule, kicks in next April, that changes all the rules.
I will point out, the proof is in the pudding. In less than 2 years, with the Democrats in control, we have moved faster on the President's nominees than during comparable times with Republicans.
I yield the floor.