General Practice, Solo & Small Firm DivisionMagazine

Volume 17, Number 3
April/May 2000

Legislative Update

Presidential Appointments in Jeopardy


The administration has continually complained that the confirmation of its judicial appointments has been "held up" by the Republicans in the Senate. In particular, the administration alleges that the GOP Senate has unduly delayed the confirmation process, especially when the nominees are minorities or women. The Republicans contend that President Clinton's nominees are too liberal, and in some cases unqualified.

There seems to be fault on both the Republican and Democratic sides. A bipartisan study indicates that in the past Congress, the GOP Senate took an average of 33 days longer to confirm a female nominee than to confirm a male. It also took 65 days longer to confirm a black nominee than a white nominee. However, President Clinton has taken an average of 315 days to nominate federal judges to the bench, far longer than the previous three presidents.

The situation became heated in October, when Ronnie L. White, a black Missouri nominee for a seat on the federal bench, was rejected by the Senate on October 5, 1999, by a vote of 45-54. White had been charged by Senator John Ashcroft (R-MO) as being anti-death penalty, and several Missouri law enforcement agencies had opposed White's appointment. Immediately following this rejection, President Clinton accused the Republicans of racism for their failure to confirm White. He said, "They treat minority and women judicial nominees unfairly and unequally."

This action of the Republicans caused the Democrats to complain bitterly, and again they raised the issue of the delay in the cases of Richard A. Paez, who is Hispanic, and Marsha Berzon, for appointments to the Ninth Circuit Court of Appeals. While approved by the Judiciary Committee, neither nomination had come to a vote on the floor. However, following a deal between Majority Leader Trent Lott (R-MS) and Minority Leader Tom Daschle (D-SD) that Lott would schedule debate on the Paez and Berzon appointments by March 15, 2000, six federal judges and a dozen ambassadors were confirmed on November 10, 1999. Leading up to this vote, Democrats were pushing President Clinton to make recess appointments after Congress adjourned. Immediately following the confirmation votes on November 10, 17 Republicans sent a letter to the president advising him not to use his recess appointment powers. In the letter they said that "the result would be a complete breakdown between our two branches of government on this issue which could prevent the confirmation of any such nominee next year."

However, Clinton made nine appointments during the recess, including those of Sarah M. Fox to the National Labor Relations Board and Stuart E. Weisberg to the Occupational Safety and Health Review Commission. These two recess appointments were termed by Senator James M. Inhofe (R-OK) as "deliberately" and "clearly" in violation of an agreement to clear recess appointments in advance, reached in 1985 between Senator Robert C. Byrd (D-WV) and former President Ronald Reagan. As a consequence, Inhofe and the other Republican senators moved to put "holds" on all judicial nominees until President Clinton leaves office. How this impasse will be solved is unknown, but a spokesman for Senator Inhofe said that the senator was open to considering solutions. While 34 judicial nominees were confirmed during the first session of the 106th Congress, there remain 67 Article III vacancies-25 in the circuit courts of appeals and 42 in the district courts. How many judges will be confirmed during the second session of the 106th? One White House official said he hoped for 20, provided the Clinton/Lott agreement holds.


The House Bankruptcy Bill (H.R. 833) was approved by the House in the first session of the 106th Congress. The Senate version (S. 625) ran into difficulty during the close of that session, and action was not completed before Congress adjourned. Before adjournment, the Senate had reduced the number of amendments from more than 300 to fewer than 12. Both bills seek to force more debtors to file under Chapter 13, which requires some repayment of debt, rather than Chapter 7, which erases debt after liquidation of assets. Both bills also contain a means test that courts would use to force debtors out of Chapter 7.

The Senate Republicans defeated a Democratic amendment to ease the means test and added a provision that would cap the homestead exemption at $100,000. Some states object to this test as they have unlimited homestead exemptions. An amendment to allow states to opt out of the federal cap, offered by two Republican senators from states that had unlimited exemptions, was soundly defeated. The House bill, however, contains a $250,000 cap and has an opt-out provision for states.

The American Bankers Association contends that bankruptcies cost each U.S. household $400 a year. This is the consequence of credit card companies and other businesses increasing their interest rates and other prices for all their customers to recoup their losses due to bankruptcies.

Probably the most controversial Republican amendment is the one that raises the minimum wage a dollar an hour over a three-year period. The White House wants the increase to occur over two years. Further, the White House complained that this amendment also provides $18.4 billion in tax breaks for small businesses, ostensibly meant to compensate small business owners for their increased costs.

The ABA has urged the Senate to add language that would permit direct appeals of final bankruptcy court orders to the regional courts of appeal. However, Senator Patrick J. Leahy (D-VT) has offered an amendment that would require district courts and bankruptcy appellate panels to examine each case in detail before deciding whether direct appeal to the circuit court would be allowed. The ABA opposes this amendment.

Majority Leader Lott pulled S. 625 on November 18, 1999, and scheduled a cloture vote on it for January 25, 2000. Hearings got under way on that date, and the Senate passed this legislation on February 2, 2000, by a vote of 85-14. Because the House bill is without the minimum wage and tax provisions, the future of the legislation is uncertain. Further, President Clinton has threatened to veto it if the minimum wage increase is spread over three years.


One of President Clinton's legislative successes during the first session of the 106th Congress was the passage of the Foreign Aid Bill. Originally, the president vetoed the bill on October 18, 1999, calling it an inadequate source of funding for the World Bank, the former Soviet Union, and the Middle East. The Republicans agreed to a $2.6 billion increase, and a revised bill (H.R. 3196) was passed in the House by a vote of 316-100 on November 5. While Clinton won in this area, he had to compromise on abortion-related restrictions to international family groups. These groups were already restricted from using government money to perform abortions, but conservatives in the House wanted further restrictions.

With UN rules forcing the United States to give up its seat in the UN General Assembly unless Congress paid at least $111 million of what it owes, a compromise was reached between the president and House Speaker J. Dennis Hastert (R-IL). The president agreed with a provision that prohibits aid to international groups that perform abortions, except in cases of rape, incest, or where the life of the woman is in danger. Lobbying by international planning groups for more lenient abortion laws, even if they use their own money, is also prohibited.

With this sticky problem out of the way, both Senator Jesse Helms (R-NC) and Senator Joseph R. Biden (D-DE) agreed to legislation that would repay $819 million in U.S. debts to the UN over a three-year period and forgive $107 million owed to the United States by the UN. However, the UN must first agree to a number of conditions. The most important ones are that the U.S. share of the regular budget be reduced from 25 percent to 20 percent in three years, and that the U.S. share of the peacekeeping budget be reduced from 31 percent to 25 percent. Congress decided upon the latter condition in 1994. The repayment money was placed in the Commerce-Justice-State spending bill, and that bill, along with the State Department Authorization bill and the Foreign Operations Spending Bill, was included in the fiscal 2000 omnibus budget packet (H.R. 3194). The omnibus budget bill was passed on November 19, 1999, and was signed into law by President Clinton as P.L. 106-113.

Subsequent to the passage of P.L. 106-113, on January 20, 2000, Senator Helms became the first American legislator to address the Security Council. After stating, "It is my intention to extend to you my hand of friendship," he went on to say that "if the UN were to reject this compromise, it would mark the beginning of the end of U.S. support for the United Nations.... Many Americans...see the UN aspiring to establish itself as the central authority of a new international order of global laws and global governance. This is an international order the American people will not countenance."

The following day, Senator Biden, the top Democrat on the Senate Foreign Relations Committee, addressed the UN Secretary General and other top UN officials. While not as strident as Helms, Biden said that Congress had imposed a set of conditions on the repayment of its dues, and that the UN had to undergo fundamental structural changes. "I know it, you know it, we all know it," he reiterated.


On January 25, the day before the State of the Union address, President Clinton announced plans for a $50 billion college tuition tax credit, $110 billion in health care proposals, $5.5 billion to put more children in the Medicaid program, and $5.4 billion to lure workers into the Medicare program. House Majority Whip Tom DeLay (R-TX) said, "We could never afford everything he is talking about.... There's no way to pay for it unless he raids the Social Security surplus, and we're not going to let him do that." Senate Majority Leader Lott said that Republicans will focus on passing annual spending bills and legislation already moving through Congress, rather than try to introduce new legislation in the final days of the 106th congressional session.

However, with the Congressional Budget Office (CBO) estimating as much as a $3 trillion Social Security surplus over the next ten years, some GOP leaders believe it is time to get around the 1997 balanced-budget amendment. In fact, during the last week of January, Speaker Hastert said that the deep spending cuts mandated by that budget deal were no longer practical. He also said, "I think it is not realistic to say we are going to freeze the budget for the next 10 years." He stated that it was possible to have future budgets show some government growth, but also savings to help pay down the debt and give the American people some tax relief.

Robert J. Samuelson, a noted American economist, warns that "we are at one of those times when doing nothing-or, at any rate, doing very little-is preferable to doing something. This applies especially to budget surpluses. We now have a lame duck government....Almost everyone in Washington is more focused on short term politics-who gains control of Congress and the White House-than on the long-term national interest. In this climate, the President and Congress could easily squander sizeable segments of the surpluses on vote-getting programs of little enduring value." Samuelson also points out that the CBO has presented a forecast based on lower economic growth and higher health costs. "This gloomier forecast transforms a $3.2 trillion surplus between 2001 and 2010 into a $1.1 trillion deficit." He continued, "Prudence dictates that we shouldn't spend hypothetical money."

Achievements of the First Session, 106th Congress

As the year ended, neither the White House nor the Republicans were boasting very loudly of their great accomplishments during 1999. With a bare majority in the House, and a united Democratic opposition, Republican leaders were barely able to hold their own this session. House Speaker Hastert stated he would bring order to the budget process by enacting the 13 annual spending bills by the end of fiscal 1999. He and other Republican leaders wanted to avoid at all costs the disaster of 1998, when a massive omnibus spending bill was passed and signed into law by President Clinton. Both sides had considered this a major White House victory, and Hastert wanted to avoid a similar situation this year by passing each of the 13 appropriation bills as separate measures.

But as the year was ending, and with squabbles in the Senate, the Senate Appropriations Committee Chair, Ted Stevens (R-AK), was forced to create another omnibus spending bill. He said, "I have no alternative but to try it if we want to finish this before Christmas." So four bills, those funding the departments of Labor-HHS, Interior, Commerce-Justice-State, and Foreign Operations, were added into the District of Columbia bill (H.R. 3194). That bill was passed by Congress and signed into law by the President as P.L.106-113. While running contrary to Hastert's desire, the Republicans were saying that the five bills were worked out separately.

At the close of the first session, what had been accomplished? Congress passed and the president signed the Financial Services bill, a historic overhaul of the financial services industry. Congress also agreed to pay the U.S. dues debt to the UN of just under $1 billion, with certain conditions attached, and with additional antiabortion restrictions. It extended federal health benefits for disabled workers once they return to work. It launched a program to subsidize 100,000 new teachers and called for the deployment of a national missile-defense system. Matters that did not result in legislation were revision of the campaign finance laws, enactment of new gun control curbs, hardening of penalties for juvenile offenders, and revision of bankruptcy laws. More important, at year's end neither Medicare nor Social Security had been overhauled.

E. E. Anderson, a retired general in the U.S. Marine Corps, is a member of the ABA General Practice, Solo and Small Firm Division

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