FILIBUSTERING OF JUDICIAL NOMINEES; Congressional Record Vol. 151, No. 44
(Senate - April 14, 2005)

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[Pages S3612-S3614]
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  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 
  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 
  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 
       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 
  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 
  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. 

[[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 
  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 
  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.