RESTRICT THE ABILITY TO FILL VACANT POSITIONS TEMPORARILY AND
           TO CONDUCT THE PEOPLE'S BUSINESS WHILE AT THE SAME TIME
           IMPEDING THE NOMINATIONS PROCESS AND CONFIRMING NOMINEES AT A
           SNAIL'S PACE. THE SENATE BEARS PARTIAL RESPONSIBILITY FOR THE
           TIME IT TAKES TO NOMINATE OFFICIALS FOR SENATE-CONFIRMED
           POSITIONS. THIS CONGRESS HAS SUBJECTED THE ADMINISTRATION'S
           NOMINEES TO UNPRECEDENTED SCRUTINY, USING ALMOST ANY PRIOR

           ALLEGED INDISCRETION NO MATTER HOW TRIVIAL BY A NOMINEE AS AN
           EXCUSE TO DELAY OR PREVENT A VOTE. SENATORS HAVE ALSO
           INTERJECTED THEMSELVES INTO THE PRESIDENT'S NOMINATIONS PROCESS
           TO AN UNPARALLELED DEGREE. AS A RESULT, THAT FRONT-END PROCESS
           -- THE SELECTION, RECRUITMENT AND VENTING OF CANDIDATES --
           TAKES LONGER THAN EVER BEFORE. THE NOMINATION AND CONFIRMATION
           PROCESS, IT'S BEEN OBSERVED, IS ONE OF -- QUOTE -- "THE
           PRESIDENT PROPOSING, THE SENATE DISPOSING." IF THE SENATE

           EXPECTS ADHERINGS TO THE RIGID PARAMETERS THIS BILL WOULD
           IMPOSE ON ADVANCING CANDIDATES, WE AS SENATE MEMBERS NEED TO BE
           READY AND WILLING TO DILIGENTLY CONSIDER THESE CANDIDATES FOR
           PUBLIC OFFICE AND TO TAKE PROMPT AND DELIBERATE ACTION TO
           CONFIRM OR REJECT THEM. THE SENATE HAS FREQUENTLY DECLINED TO
           EXERCISE ITS ADVICE AND CONSENT RESPONSIBILITY IN A TIMELY AND
           APPROPRIATE MANNER. TOO OFTEN, NOMINATIONS DIE IN COMMITTEE,
           LANGUISH INTERMINABLY ON THE EXECUTIVE CALENDAR, OR SIMPLY TAKE

           MONTHS OR YEARS TO MOVE THROUGH THIS CHAMBER. JUST AS THE
           PRESIDENT AND THE ADMINISTRATION HAVE A RESPONSIBILITY TO
           FORWARD NOMINEES TO THE SENATE IN A TIMELY FASHION, WE IN THE
           SENATE HAVE A CONCOMITANT OBLIGATION TO DISCHARGE OUR
           CONSTITUTIONAL PREROGATIVE OF ADVICE AND CONSENT ON THOSE
           CANDIDATES IN A FAIR, EFFICIENT AND EXPEDITIOUS FASHION. HE WE
           SIMPLY CANNOT CONFRONT PRACTICAL DEFICIENCIES IN THE FRONT-END

           PHASE OF THE PROCESS FOR EVALUATING QUALIFIED CANDIDATES AND
           IGNORE THE SENATE'S OWN RESPONSIBILITIES. WE OWE IT NOT ONLY TO
           THE EXECUTIVE BRANCH BUT TO THE AMERICAN PEOPLE TO OFFER, NOT
           WITHHOLD, OUR ADVICE AND, WHERE APPROPRIATE, OUR CONSENT. I
           HAVE FILED AND CERTAINLY HOPE TO HAVE AN OPPORTUNITY TO OFFER
           SOME RELEVANT AMENDMENTS DESIED TO ADDRESS THOSE INSTANCES OF
           DILATORY SENATE COMMITTEE PROCESSING AND FLOOR INACTION ONCE A
           NOMINEE IS ADVANCED TO THE CALENDAR. ONE OF MY AMENDMENTS WOULD

           PROVIDE ANY NOMINATION SUBMITTED TO THE SENATE THAT IS 1
           PENDING BEFORE A SENATE COMMITTEE FOR 150 CALENDAR DAYS SHALL,
           ON THE DAY FOLLOWING SUCH 150TH DAY, BE DISCHARGED, PLACED ON
           THE SENATE EXECUTIVE CALENDAR AND CONSIDERED AS FAVORABLY
           REPORTED. ANOTHER AMENDMENT WOULD REQUIRE THE SENATE TO TAKE UP
           FOR VOTE ANY NOMINATION WHICH HAS BEEN PENDING ON THE EXECUTIVE
           CALENDAR IN EXCESS OF 150 DAYS. 150-DAY STANDARD IS ESTABLISHED

           BY THIS BILL, IMPOSED ON THE EXECUTIVE BRANCH. FRANKLY, I
           BELIEVE THAT STANDARD SHOULD BE IMPOSED AS WELL ON THE SENATE.
           SUCH SENATE CONSIDERATION MUST OCCUR WITHIN FIVE CALENDAR DAYS
           OF THAT 150TH DAY. IN EFFECT, IT CREATES AN END POINT AFTER
           WHICH WE CAN NO LONGER HOLD UP A NOMINEE. I'M NOT SUGGESTING
           THAT WE WOULD GIVE OUR CONSENT TO ALL THESE NOMINEES. I'M
           CONSENTING -- I'M BASICALLY SAYING THAT THIS PROCESS SHOULD
           COME TO A CLOSE CLOSE, THE SENATE SHOULD VOTE, IT SHOULD MAKE
           ITS DECISION. IF WE WANT TO REASONABLY TIME LIMIT THE FRONT END

           OF THE PROCESS -- THE PRESIDENT -- WITH WHICH I DO NOT
           DISAGREE, AND PROMPTLY FILL VACANCIES, WE NEED TO BE EQUALLY
           WILLING TO BUILD SOME FINALITY IN THE BA END OF THE PROCESS,
           WHERE THE SENATE MUST DO ITS WORK, AND IMPOSE SOME TIME LIMITS
           ON OUR OWN CONSIDERATION OF THESE CANDIDATES. THE FIRST PROBLEM
           I FIND WITH THIS BILL IS THAT FILLING POSITIONS IN THE
           GOVERNMENT REQUIRES TIME FAR LONGER THAN THAT SPECIFIED IN THIS
           BILL. I HAVE AN AMENDMENT WHICH SUGGESTS INCREASING THE 150-DAY

           PERIOD TO 210 DAYS. I'M SURE PEOPLE ARE WONDERING IF THEY'RE
           FOLLOWING THIS DEBATE WHY IT WOULD TAKE SO LONG FOR ANY KIND OF
           PROCESS TO REVIEW A NOMINEE. WELL, AS IT TURNS OUT, THE AVERAGE
           NUMBER OF DAYS THAT A VACANCY EXISTS PRIOR TO A SENATE
           NOMINATION BEFORE THE WHITE HOUSE IS 313 DAYS. WHAT COULD
           POSSIBLY TAKE 313 DAYS IN INVESTIGATING THE QUALIFICATIONS OF
           AN INDIVIDUAL TO FILL THE JOB?
           WELL, CONSIDER ALL OF THE THINGS THAT ARE GOING TO BE

           INVESTIGATED. NOT ONLY THE LENGTHY FORMS THE INDIVIDUAL MUST
           FILL OUT -- ETHICS DISCLOSURES, FINANCIAL STATEMENTS,
           FINGERPRINTS AND THE LIKE -- BUT ALSO AN F.B.I. INVESTIGATION,
           A FEDERAL BUREAU OF INVESTIGATION REPORT ON THAT PERSON, THE
           OPPORTUNITY FOR GROUPS TO COME TO THE WHITE HOUSE TO SAY THEY
           EITHER OPPOSE OR SUPPORT THE INDIVIDUAL, THE OPPORTUNITIES FOR
           MEMBERS OF GROSS COME FORWARD AND SUGGEST TO THE ADMINISTRATION
           -- CONGRESS TO COME FORWARD TO SUGGEST TO THE ADMINISTRATION
           THAT THEY EITHER SUPPORT THAT NOMINEE OR THEY OPPOSE IT. AND AS

           IT TURNS OUT, SOME OF THESE THINGS, SUCH AS AN F.B.I. REPORT,
           MAY NOT HAPPEN AS QUICKLY AS SOME PEOPLE IMAGINE. WE HAVE
           HEAPED ON THAT AGENCY ADDITIONAL RESPONSIBILITIES EVERY YEAR.
           WE ENTRUST THEM WITH VERY IMPORTANT JOBS. WE TELL THEM THAT WE
           WANT THEM TO FINGERPRINT AND MAKE CERTAIN THAT THOSE WHO WANT
           TO BE CITIZENS OF THE UNITED STATES IN FACT HAVE NO CRIMINAL
           RECORD IN ANY FOREIGN COUNTRY. THAT'S A VALID QUESTION. BUT
           IT'S AN ADDITIONAL ADMINISTRATIVE RESPONSIBILITY. THE LIST GOES
           ON AND ON AND ON ON. AND AS A CONSEQUENCE, WHEN THE

           ADMINISTRATION COMES TO THIS AGENCY -- AND IT'S ONLY ONE
           EXAMPLE -- AND ASKS FOR A TIMELY REVIEW OF AN INDIVIDUAL
           NOMINATED FOR A POSITION, THEY SOMETIMES HAVE TO WAIT IN LINE
           LINE. AND WHILE THEY WAIT, THE CLOCK IS TICKING. AND CONSIDER
           THIS AS WELL -- AS A RESULT OF THIS LEGISLATION SAYING THE
           ADMINISTRATION SHALL ONLY HAVE 150 DAYS, WHAT IF IN THE MIDST
           OF THIS PROCESS PROCESS, WHAT IF, SAY, FOUR OR FIVE MONTHS INTO
           IT -- FOUR MONTHS, FOR EXAMPLE, INTO THE PROCESS, THE
           ADMINISTRATION REACHES A CONCLUSION THAT THE INDIVIDUAL SHOULD

           NOT GO FORWARD, HIS NOMINATION SHOULD NOT BE SENT TO THE
           SENATE, DOES THE CLOCK START TO RUN AGAIN?
           NO. THE CLOCK CONTINUES TO RUN. 150 DAYS. SO THE NEW NOMINEE,
           STARTING OV, GOING THROUGH ALL THESE PROCESSES, TRYING TO CLEAR
           ALL THESE HURDLES IS STILL BURDENED BY THE ORIGINAL CLOCK
           TICKING AT 150 DAYS. I DON'T THINK IT'S REALISTIC. I DON'T
           THINK IT'S FAIR. MERELY BY ADDING 30 ADDITIONAL DAYS TO THE
           CURRENT 120-DAY TIME FRAME WITHIN WHICH AN ACTING OFFICIAL MAY
           TEMPORARILY PERFORM THE DUTIES AND FUNCTIONS OF A VACANT

           OFFICE, UNLESS THE PRESIDENT HAS FORWARDED I A NOMINEE TO THE
           SENATE WITHIN THAT SPAN, IS IM IMPRACTICAL, IT'S UNREALISTIC
           AND I DON'T BELIEVE IT'S ADEQUATE.
           

           MR. BYRD: MR. PRESIDENT, WILL THE SENATOR YIELD?
           
           

           MR. DURBIN: I WOULD BE HAPPY TO YIELD.
           

           MR. BYRD: HE HAS SUGGESTED AN AMENDMENT, MADAM PRESIDENT, THAT
           AS FAR AS I'M PERSONALLY CONCERNED, I COULD ACCEPT. WHY NOT LET
           US INVOKE CLOTURE. THAT AMENDMENT IS CERTAINLY A GERMANE
           AMENDMENT. AND HAVE THE SENATOR PUT IT UP FOR ACTION BY THE
           SENATE. I'M ONE WHO WOULD VOTE FOR IT.
           

           MR. DURBIN: WELL, I THANK THE SENATOR FROM WEST VIRGINIA AND I
           CERTAINLY APPRECIATE THOSE COMMENTS. BUT WE ARE TOLD BY THE
           SENATE PARLIAMENTARIAN THAT THE AMENDMENT WOULD BE RELEVANT BUT
           NOT GERMANE AND, THEREFORE, ANY ACTION FOR CLOTURE WHICH WOULD
           PUT A BURDEN ON THE SENATE TO ACT WITHIN A CERTAIN PERIOD OF
           TIME ON NOMINEES THAT ARE SENT WOULD BE WIPED AWAY OR COULD BE
           WIPED AWAY BY THE CLOTURE MOTION.
           

           MR. BYRD: MADAM PRESIDENT, WOULD THE SENATOR YIELD FURTHER?
           I MAY HAVE MISUNDERSTOOD THE SENATOR. I THOUGHT THAT THE
           SENATOR WAS SUGGESTING THAT 150 DAYS IS NOT ENOUGH AND THAT HE
           WOULD LIKE TO SEE 30 ADDITIONAL DAYS DAYS. THAT WOULD CERTAINLY
           BE -- SEEM TO BE GERMANE AS FAR AS I'M CONCERNED.
           

           MR. DURBIN: IF THE SENATOR WOULD ALLOW ME TO RESPOND, THAT
           AMENDMENT IS GERMANE. AND THE ONLY OTHER AMENDMENTS WHICH WOULD
           IMPOSE A RESPONSIBILITY ON SENATE TO MOVE A NOMINEE OUT OF
           COMMITTEE WITHIN 150 DAYS AFTER IT'S SENT FROM THE WHITE HOUSE
           OR TO MOVE IT OFF THE EXECUTIVE CALENDAR FOA VOTE WITHIN 150
           DAYS I'M TOLD BY THE SENATE PARLIAMENTARIAN MAY NOT BE ALLOWED
           IF CLOTURE IS IS INVOKED.
           

           MR. BYRD: WELL, YES, I EXPECT THE PARLIAMENTARIAN IS RIGHT ON
           THAT. I WOULDN'T ARGUE WITH THAT. NOR WOULD I PROBABLY SUPPORT
           IT IT. IF THE SENATOR WOULD ALLOW ME, THE CONSTITUTION DOESN'T
           SAY THAT THE SENATE HAS TO CONFIRM THE NOMINEES. IT SIMPLE SAYS
           THAT THE PRESIDENT CANNOT HAVE THE FULL RESPONSIBILITY AND
           POWER HIMSELF TO NAME PEOPLE TO IMPORTANT POSITIONS. THIS IS A
           MATTER THAT HAS TO BE SHARED UNDER THE CONSTITUTION BETWEEN THE

           PRESIDENT AND THE SENATE. AND THIS CONSTITUTIONAL PROVISION IS
           WHAT I'M BEING -- TRYING TO PROTECT TODAY. IT'S BEING GIVEN THE
           RUNAROUND BY THE JUSTICE DEPARTMENT AND SEVERAL OTHER
           DEPARTMENTS, AND I WANT TO PROTECT THAT CONSTITUTIONAL POWER
           THAT IS GIVEN TO THE SENATE. AS TO HOW -- WHETHER OR NOT THE
           SENATE ACT, THE CONSTITUTION DOESN'T REQUIRE THE SENATE TO ACT.
           BUT I THINK THAT THE SENATE DOES ACT AND WOULD CONTINUE TO ACT
           ON NOMINATIONS WITHIN A REASONABLE PERIOD OF TIME. HAVING BEEN
           MAJORITY LEADER OF THE SENATE UPON THREE DIFFERENT OCCASIONS, I
           CAN SAY TO THE DISTINGUISHED SENATOR THAT WHEN I WAS MAJORITY

           LEADER LEADER, WE HAD NOMINATIONS LEFT ON THE CALENDAR AT THE
           END OF A CONGRESS IN ALL THREE OF THE CONGRESSES IN WHICH I
           SERVED AS MAJORITY LEADER. WHEN WE ADJOURNED SIGNDIE -- SINE
           DIE, THAT EXECUTIVE CALENDAR WAS NOT WIPED CLEAN. WE ALL DID
           THE BEST WE COULD BUT WE DID LEAVE SOME NOMINATIONS ON THERE.
           AND I CERTAINLY SHARE THE SENATOR'S FEELING THAT THE SENATE
           OUGHT TO ACT, ACT EXPEDITIOUSLY, IN REASONABLE FASHION AND SO
           ON. BUT WHEN IT COMES TO REQUIRING THE SENATE TO ACT ON ALL

           NOMINATIONS, I DON'T THINK THE CONSTITUTION REQUIRES THAT. AND
           I MIGHT HAVE TO PART COMPANY WITH THE SENATOR AT THAT POINT.
           BUT SOME OF HIS OTHER SUGGESTIONS I THINK ARE ARE VERY
           WELL-MADE.
           

           MR. DURBIN: I THANK THE SENATOR FROM WEST VIRGINIA. AND IT
           PAINS ME TO BELIEVE THAT WE WOULD HAVE A DIFFERENCE OF OPINION,
           BUT THOSE THINGS DO OCCUR. AND I'M CERTAIN THAT THE SENATOR, AS
           MAJORITY LEADER, DID HIS CONSTITUTIONAL RESPONSIBILITY. THERE'S
           NEVER BEEN A DOUBT ABOUT THAT. AND ALSO ACTED WITH DISPATCH IN
           A TIMELY MANNER. AND I THINK THE SENATOR MAKES A GOOD POINT. WE
           NOT ONLY WANT TO PROTECT THE CLEAR CONSTITUTIONAL
           RESPONSIBILITY AND RIGHT OF THE SENATE IN THIS PROCESS, WE WANT
           TO BRING THE BEST MEN AND WOMEN FORWARD TO CONTINUE SERVING OUR
           GOVERNMENT AND WE WANT IT ALL DONE IN A TIMELY FASHION. MY

           CONCERN WITH THIS BILL IS THAT IT ADDRESSES ONE SIDE OF THE
           EQUATION. IT SAYS TO THE EXECUTIVE BRANCH, YOU HAVE TO MOVE IN
           A MORE TIMELY FASHION TO BRING THESE MEN AND WOMEN TO THE
           SENATE FOR CONSIDERATION. IF WE ARE CLEARLY LOOKING FOR FILLING
           VACANCIES IN A TIMELY FASHION, THAT IS ONLY HALF THE PROCESS.
           ONCE THE NOMINATION IS BROUGHT TO THE SENATE, WE SHOULD MOVE IN
           A TIMELY FASHION, TOO, OTHERWISE, USING THE OLD REFERENCE TO
           EQUITY, WE DON'T COME TO THIS ARGUMENT WITH CLEAN HANDS. AND
           THAT'S WHY I THINK THERE SHOULD BE SOME SYMMETRY HERE IN THE
           REQUIREMENT OF THE EXECUTIVE AS WELL AS THE LEGISLATIVE BRANCH.
           

           MR. BYRD: WOULD THE SENATOR YIELD?
           
           

           MR. DURBIN: I WOULD BE HAPPY TO YIELD.
           

           MR. BYRD: AND I THANK HIM FOR YIELDING. THE SENATOR, AS I THINK
           I UNDERSTAND, SUGGESTED THAT IF WE'RE GOING TO DEAL WITH ONE
           PART OF THE EQUATION -- NAMELY, THE NOMINATING PROCESS -- AND
           PROTECT OURSELVES IN THAT REGARD, WE OUGHT TO BE EQUALLY
           INTERESTED IN DEALING WITH THE OTHER HALF OF THE EQUATION,
           WHICH REQUIRES THE ACTION BY THE SENATE TO CONFIRM OR REJECT
           NOMINEES. MAY I, WITH GREAT RESPECT, SUGGEST -- AND I'M DOING

           THIS FOR THE RECORD. I'M SURE I'M NOT AHEAD OF THE SENATOR IN
           THINKING THIS. I'M TRYING TO ADDRESS THE CONSTITUTIONAL SIDE OF
           THE EQUATION AND STOP THE ADMINISTRATION -- NOT ONLY THIS
           ADMINISTRATION BUT PREVIOUS ADMINISTRATIONS -- FROM CONDUCTING
           A RUNAROUND OF THE CONSTITUTIONAL POWERS OF THE SENATE. I'M
           SUGGESTING WE DEAL WITH THAT CONSTITUTION SIDE OF THE EQUATION.
           NOW, THE OTHER SIDE WITH WHICH THE DISTINGUISHED SENATOR

           MENTIONS, IF HE WILL PARDON MY SAYING SO, I THINK WHAT HE'S
           TALKING ABOUT IS THE POLITICAL SIDE OF THE EQUATION. THAT
           PART'S NOT INCLUDED IN THE CONSTITUTION. THE CONSTITUTION
           DOESN'T REQUIRE THE SENATE TO ACT ON ANY NOMINATION. BUT THAT'S
           THE POLITICAL SIDE. I'D LIKE TO DEAL WITH THE CONSTITUTIONAL
           SIDE, AND THAT'S THE PURPOSE OF THIS LEGISLATION. AND THEN WE
           COULD DO THE BEST WE CAN IN DEALING WITH THE POLITICAL SIDE.
           THE SENATOR IS QUITE RIGHT -- NEITHER SIDE COMES INTO THIS

           MATTER WITH PERFECTLY CLEAN HANDS. THAT'S AN OLD EQUITY AXIOM.
           THEMISTCLES ONCE SAID TO ARISTIDES THAT A GOOD GENERAL SHOULD
           BE ABLE TO FORESEE WHAT THE DEMANDS AND REQUIREMENTS WOULD BE
           ON HIS TROOPS AND ARISTIDES SAID THAT IS QUITE RIGHT, I AGREE
           WITH THERMISTICLES. BUT A GOOD GENERAL SHOULD ALSO COME IN --

           ALSO ARE HAVE CLEAN HANDS. THEMISTCLES WAS NOTED FOR NOT BEING
           ABLE TO CONTROL HIS HANDS. I HAVE THAT PROBLEM. MINE IS A
           BENIGN ESSENTIAL TRERM. I HAVE TROUBLCONTROLLING MY HANDS. BUT
           I DON'T THINK THAT WAS THEMISTICLES TROUBLE, BEING ABLE TO
           CONTROL HIS HANDS. I THINK HE WAS ATTEMPTING TO PUT HIS HANDS
           IN OTHER PEOPLE'S POCKETS PROBABLY. AND HE WAS VERY AVORICIOUS.
           HE WANTED TO ACQUIRE ALL OF THE WEALTH THAT HE COULD. I CAN'T
           ESPECIALLY BLAME HIM FOR THAT. BUT HE -- BUT ARISTIDES WAS

           REMINDING THEMISTICLES THAT A GOOD GENERAL SHOULD ALSO BE
           HONEST, FORTHRIGHT AND, THEREFORE, COME WITH CLEAN HANDS. AND
           SO WE DO FAIL IN THAT REGARD, AS I SAID IN MY STATEMENT. WE DO
           FALL SHORT OF COMING IN WITH CLEAN HANDS. WE DON'T COME FORWARD
           AND ACT
{END: 1998/09/28 TIME: 17-00 , Mon.  105TH SENATE, SECOND SESSION}