April 14, 2005 - Issue: Vol. 151, No. 44 — Daily Edition109th Congress (2005 - 2006) - 1st Session
FILIBUSTERING OF JUDICIAL NOMINEES; Congressional Record Vol. 151, No. 44
(Senate - April 14, 2005)
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[Pages S3612-S3614] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] FILIBUSTERING OF JUDICIAL NOMINEES Mr. McCONNELL. Mr. President, we as senators have an enormous amount of work to do for the American people. For example, while our economy is strong, unfortunately gas prices are way too high. People are feeling those costs every time they fill up at the pump. This Senate needs to seriously address a long-term energy policy for this country, and reduce our dependence on foreign oil. We have serious work to do to reform America's tax code, so it is fairer for all Americans, and leads to a more robust economy. We have undertaken a debate on how to reform Social Security so it is stronger and more secure for future generations, as it has served millions so well already over the last 70 years. Our road system needs improving. Millions of Americans take to the roads everyday to get to work and keep this country moving. It's critical the Senate pass a highway bill. In short, we have a formidable agenda before us. We welcome that challenge. I think that our constituents sent us here to get things done, not just to sit in these fancy chairs. But the Nation's business may soon come to an abrupt halt. In the face of so much important work to be done, sadly, my Democratic friends on the other side of the aisle are promising to pull the plug on this chamber, and thus shut down the Government. Just because a majority of Senators want to restore the 200-year-old norms and traditions of the Senate, by granting a President's judicial nominees who have majority support the simple courtesy of an up-or-down vote, my colleagues on the other side of the aisle are threatening to stop this Senate dead in its tracks. An energy bill to begin to address the high cost of gasoline and reduce our dependence on foreign oil? They would say: Forget it. A highway bill, to begin desperately needed repairs on bridges and roads across the country? They would say: Not a chance. These and other priorities will not happen if the Democrats shut down the Government. Because they cannot have what no Senate minority has ever had in 200 years--the requirement of a supermajority for confirmation--they threaten to shut the Government down. The American people by now must rightly be asking, ``How did we get in such a mess?'' It was not by accident. The Democrats did not stumble into this position. It was carefully conceived. Four years ago, in May of 2001, the New York Times reported that 42 of the Senate's then-50 Democrats attended a private weekend retreat in Farmington, PA, to discuss a plan of attack against the President's judicial nominees. According to this article, the unprecedented obstruction by the other side is not based on checks and balances, or the rights of the minority. It is about ideology. The Democrats invited speakers to their retreat who warned them that President Bush was planning to, ``pack the courts with staunch conservatives.'' Now, here's the clincher. According to the New York Times, one participant said: It was important for the Senate to change the ground rules, and there was no obligation to confirm someone just because they are scholarly or erudite. Let me make sure that last part came through loud and clear. The Democrats are accusing the Republicans, who merely want to restore the 200-year-tradition of giving judicial nominees with majority support an up-or-down vote, of some kind of power grab. Yet here is a 4-year-old admission that it is the Democrats who are clearly out to ``change the ground rules.'' They knew what they were doing. This was thoroughly premeditated. That quote says it all. If a minority of the Senate does not get its way in obstructing judges from serving on our Nation's Federal courts, they will ``change the ground rules.'' They will shut down the Government. I say to my friends, I wouldn't take the extreme step of shutting the government down. I ask unanimous consent to have this New York Times article of May 1, 2001 printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: [From the New York Times, May 1, 2001] Democrats Readying for Judicial Fight (By Neil A. Lewis) President Bush has yet to make his first nominee to a federal court and no one knows whether anyone will retire from the Supreme Court this summer, an event that would lead to a high-stakes confirmation battle. Nonetheless, the Senate's Democrats and Republicans are already engaged in close-quarters combat over how to deal with the eventual nominees from the Bush White House. Democrats in particular are trying to show some muscle as they insist that they will not simply stand aside and confirm any nominees they deem right-wing ideologues. ``What we're trying to do is set the stage and make sure that both the White House and the Senate Republicans know that we [[Page S3613]] expect to have significant input in the process,'' Senator Charles E. Schumer, New York's senior Democrat, said in an interview. ``We're simply not going to roll over.'' Forty-two of the Senate's 50 Democrats attended a private retreat this weekend in Farmington, Pa., where a principal topic was forging a unified party strategy to combat the White House on judicial nominees. The senators listened to a panel composed of Prof. Laurence H. Tribe of Harvard Law School, Prof. Cass M. Sunstein of the University of Chicago Law School and Marcia R. Greenberger, the co-director of the National Women's Law Center, on the need to scrutinize judicial nominees more closely than ever. The panelists argued, said some people who were present, that the nation's courts were at a historic juncture because, they said, a band of conservative lawyers around Mr. Bush was planning to pack the courts with staunch conservatives. ``They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite,'' a person who attended said. Senator Tom Daschle of South Dakota, the Democratic leader, then exhorted his colleagues behind closed doors on Saturday morning to refrain from providing snap endorsements of any Bush nominee. One senior Democratic Senate staff aide who spoke on the condition of anonymity said that was because some people still remembered with annoyance the fact that two Democratic senators offered early words of praise for the nomination of Senator John Ashcroft to be attorney general. Senators Robert G. Torricelli of New Jersey and Joseph R. Biden Jr. of Delaware initially praised the Ashcroft selection, impeding the early campaign against the nomination. Both eventually acceded to pressure and voted against the nomination. The current partisan battle is over a parliamentary custom that Republicans are considering changing, which governs whether a senator may block or delay a nominee from his home State. Democrats and Republicans on the Judiciary Committee have not resolved their dispute over the ``blue-slip policy'' that allows senators to block a nominee by filing a blue slip with the committee. On Friday, Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, and Mr. Schumer sent a letter to the White House signed by all committee Democrats insisting on a greater role in selecting judges, especially given that the Senate is divided 50-50 and that the Republicans are the majority only because Vice President Dick Cheney is able to break any tie. Senator Trent Lott of Mississippi, the Republican leader, told reporters today that he believed ``some consideration will be given to Democratic input, but I don't think they should expect to name judges from their State.'' Mr. Lott said he expected that Democrats might slow the process but, in the end, would not block any significant number of nominees. Behind all the small-bore politics is the sweeping issue of the direction of the federal courts, especially the 13 circuit courts that increasingly have the final word on some of the most contentious social issues. How the federal bench is shaped in the next 4 or 8 years, scholars say, could have a profound effect on issues like affirmative action, abortion rights and the lengths to which the government may go in aiding parochial schools. Mr. Bush is expected to announce his first batch of judicial nominees in the next several days, and it is likely to include several staunch conservatives as well as some women and members of minorities, administration officials have said. Among those Mr. Bush may put forward to important Federal appeals court positions are such conservatives as Jeffrey S. Sutton, Peter D. Keisler, Representative Christopher Cox of California and Miguel Estrada. The first group of nominees, which may number more than two dozen, is part of an effort to fill the 94 vacancies on the Federal bench while the Republicans still control the Senate. But it remains unclear if there will be a Supreme Court vacancy at the end of the court's term in July. Speculation on possible retirements has focused on Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and John Paul Stevens. But in recent days, associates of Justice O'Connor have signaled that she wants it known that she will not retire after this term. Mr. McCONNELL. the record about who is out to change what is not merely confined to the statements from this article. No, we have 4 years of behavior to corroborate these statements. Soon after that Democrat retreat, and continuing to this day, we have seen our Democratic friends make major changes in the Senate's ground rules for confirming qualified judicial nominees. For example, almost immediately the Democrats began to litmus-test judges in order to strain out the ones they considered too conservative. When they controlled the Judiciary Committee in the 107th Congress, they even held hearings on using ideology in the confirmation process in an effort to legitimize their practice of litmus-testing judges. The Democrats have widely-applied their litmus tests. They have filibustered almost 1 circuit court nominee for every 3 they have confirmed. As a result, in his first term, President George W. Bush had only 69 percent of his circuit-court nominees confirmed. That is the lowest confirmation percentage of any President since World War II. In addition, the Democrats began to demand that they in effect get to co-nominate judges along with the President. The Constitution clearly provides in Article II, Section 2, that the President, and the President alone, nominates judges. The Senate is empowered to give ``advice'' and ``consent.'' The Democrats, however, have sought to redefine ``advice and consent'' to mean ``co-nominate.'' President Bush, rightly so, has not acceded to this attempt to upset our Constitution's separation of powers. Unfortunately, the administration of justice is suffering. In the case of the Sixth Circuit, for example, Democratic Senators are willing to let one-fourth of the circuit seats sit empty in order to enforce their demands. As a result, the Sixth Circuit--which includes Tennessee, Kentucky, Ohio and Michigan--is far and away the slowest circuit in the Nation. My constituents and the other residents of the Sixth Circuit are the victims. Thanks to the other side's obstruction, Kentuckians know too well that justice delayed means justice denied. The Democrats have changed other ground rules in the confirmation process. But all these changes were just precursors to what happened in the last Congress. In 2003, Democrats instituted the ultimate change in the Senate's ground rules: they began to obstruct, via the filibuster, on a systematic and partisan basis, well-qualified nominees who commanded majority support. That is unprecedented in over 200 years of Senate history. Republicans did not filibuster judicial nominees, even though it would have been easy for us to do so. Let me give you the names of some very controversial Democratic judicial nominees whom we could have easily filibustered, during the Clinton and Carter years: Richard Paez, William Fletcher, Susan Oki Molloway, Abner Mikva. None of these nominees had 60 votes for confirmation. Other controversial Democratic nominees, like Marsha Berzon, barely had 60 votes for confirmation, but we did not whip our caucus to try to filibuster them either. Indeed, just the opposite occurred: Senators Lott and Hatch, to their great credit, argued that we ought not to set such a precedent, no matter ow strongly we oppose the nominee. I remember voting for cloture myself, voting to shut off debate on Paez and Berzon both, and then voting against them when they got their up- or-down vote, which they were entitled to get. Our friends, the Democrats, are driving a double standard: The nominees of a Democratic President only had to garner majority support, as had every other judicial nominee in history until Democrats sought to change the ground rules. But nominees of a Republican President have to get a much higher level of support. That is the ultimate in hypocrisy. Because the majority may seek to restore the norms and traditions of the Senate--norms and traditions that my Democratic friends have upset--the Democrats are now threatening to shut down the Government. That is not right. We need to recommit ourselves to the 200 year principle that in a democracy an up-or-down vote should be given to a President's judicial nominees. It is simple. It is fair. It has been that way for over 2 centuries. And it's served us well. I yield the floor. Mr. COCHRAN, Mr. President, the continual controversy over Senate confirmation of Federal judges needs to be resolved. It promises to hang as a cloud over the Senate unless we reach an understanding of the appropriate role of the Senate. I had been hopeful that the Senate leadership would be able to resolve this issue by reaching an agreement that would be acceptable to both sides. However, that does not now appear likely. Therefore, I have advised the distinguished majority leader, Mr. Frist, [[Page S3614]] that I will support him in his effort to bring this confrontation over judicial filibusters to an end. There should be no question in anyone's mind about my intentions. I will work in concert with our leader, and with the distinguished majority whip, Mr. McConnell, to end filibusters of judicial nominations in the Senate. The PRESIDING OFFICER (Mr. Coleman). The Senator from North Dakota. Mr. DORGAN. Mr. President, how much time remains? The PRESIDING OFFICER. There remains 14 minutes 20 seconds. Mr. DORGAN. My colleague from Connecticut is here. Let me take a couple of minutes and then yield to my colleague for the remaining time. I must confess, it is hard sometimes to listen on the floor of the Senate without a big broad smile at the irony of this debate. Restoring the normal traditions of the Senate? There is a debate going on in the Senate, but that is not what it is about. This is about changing the rules in the middle of a game because one party in control doesn't get everything they want on every issue all the time. We have confirmed 205 judges for this President and opposed the confirmation of only 10 of them. Because of that, the other side has an apoplectic seizure and decides they want to turn this Senate into the House, where there is no unlimited debate and one party can treat the other party like a piece of furniture they can sit on. The Framers of this Constitution did not consider the Senate should be a compliant body during one-party rule. The minority has rights. One of those rights is unlimited debate. I think it is very interesting to hear on the floor of the Senate how generously the Republicans treated nominees under the Presidency of President Clinton, when they--in 50 cases of people who were notified by the President they were nominated for a lifetime appointment on the Federal court--did not even have the courtesy of giving them 1 day of hearings. Not even a day of hearings. They didn't get to see the light of day in this Congress, let alone a filibuster. What a shameful thing to do to someone to whom the President says, I am going to nominate you for a lifetime appointment on the court. They didn't give them 1 day of hearings. Now they complain because we approved 204 and didn't approve 10. Now they complain the President didn't get every single judgeship he wanted. Have they ever heard of the words ``checks and balances''? Did they take a course at least in high school to understand what it means? No. If this nuclear option, as it is called in this town, is employed by the majority party, with an arrogance that I have never seen in the years I have served in the Congress--if they do that, they will rue the day because they, one day, will be in the minority and they, one day, will wonder what on Earth did we do, to eliminate the unlimited debate provision in the United States Senate that George Washington and Thomas Jefferson said represents the cooling of the passions in this country, represents the one location of reasoned debate in this Government of ours. I hear all these discussions about how this is about traditions and norms. Nothing could be further from the truth. What the majority is trying to do is change the rules of the Senate because the minority didn't approve 10 out of 215 judges. What an arrogant attitude and what damage they will do to this institution if they employ a tactic to change the rules at this point and turn this Senate into another House of Representatives. They will have done damage for the long term and damage I believe they themselves will regret because one day they, too, will be in the minority. Then they will again understand what this Constitution provides with respect to minority rights. I yield the floor. The PRESIDING OFFICER. The Senator from Connecticut. ____________________