Nominations
Floor Speech
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Mr. CORNYN. Madam President, I know we have been talking about the nominations process here on the floor and in caucus meetings, but I think it is worth reviewing the facts and comparing President Obama's nominees to how nominees of President Clinton and President George W. Bush have been treated, because I think there is broad misunderstanding. And, of course, when you don't know what the facts are--or the facts you truly believe in are wrong--then you are going to reach the wrong conclusion.
I think a fair look at the facts will demonstrate that President Obama and his nominees have been treated more than fairly. As a matter of fact, 1,560 nominees of President Obama have been confirmed during the 4 1/2 years he has been President, and 4 have been rejected. That is not a bad ratio, 1,560 Ðto 4.
When you start looking at how long it has taken for the President's Cabinet nominees to be confirmed, President Obama's Cabinet nominees have waited, on average, about 51 days from the time they were nominated until the time they were confirmed. For President George W. Bush it was 52 days, and for President Bill Clinton it was 55 days. So certainly President Obama has nothing to complain about, at least relative to President George W. Bush and President Clinton in terms of the amount of time it has taken for his nominees to be voted on by the Senate.
As far as judges are concerned, there have been 199 of President Obama's nominees confirmed to the U.S. District Court; only 2 of them have been defeated. That is a 99-percent success rate, which I think is pretty good in anybody's book.
President Obama has had 28 judges at the district court, circuit court, and other article III courts, so 28 for President Obama and 10 for President George W. Bush at this same point in their Presidency.
Someone once said that facts are stubborn. But if you acknowledge the facts, it is hard for me to understand where this sense of outrage and urgency comes from with regard to the President's nominees.
Indeed, the renewed sense of urgency of our colleagues across the aisle to change the longstanding rules of the Senate is based either on a misunderstanding of the facts or--I am sorry to say--willful ignorance is the only other alternative.
So this is a manufactured crisis with no grounding in objective reality. That is about the nicest way I can say it. The facts show that President Obama's nominees have moved through the Senate at a pace quicker than his predecessors.
So what about the nominees to the National Labor Relations Board? These are a special case, because the Circuit Court of Appeals in the District of Columbia found that the President exceeded his constitutional authority to make an appointment to these NLRB positions in a reported opinion from the court. But--this is important--it wasn't because Congress or the Senate denied the President his choice for these NLRB appointees. In fact, the President nominated them on December 15, 2011, right before Christmas. So the President nominates them right before Christmas, on December 15, 2011, and the President recess-appointed these same nominees on January 4, 2012.
What was so astonishing about that is the paperwork for the nominations hadn't even made its way over to the Senate, and the committee of jurisdiction had not even had an opportunity to have a hearing on these nominees. But in spite of that, the President sought to circumvent the advice and consent function for the Senate that is written in the U.S. Constitution and make what he called a recess appointment.
Another notable fact about that is the President himself decided--not the Senate--when we were in recess, leaving the Court of Appeals, when they reviewed this recess appointment and holding it unconstitutional, to say there is no real difference between what the President did in terms of determining the Senate was in recess and deciding to do it while we were breaking for lunch, and held that it was not constitutional. So Senators were not even given a chance to review his nominees to the National Labor Relations Board, much less block them.
After the court ruled these appointments unconstitutional, the President renominated them this past February. They were reported out of the committee in May, and due to the inaction of the majority leader--who is essentially the traffic cop for the Senate floor--they haven't even been put up for a vote by the majority leader.
This is another important fact that I think most people don't fully appreciate. If I wanted to propose a nominee, I wouldn't have any standing to do so. It is the majority leader of the Senate, representing the majority party, who is the one who determines when these nominees will come up for a vote. So to say that somehow it is the minority's fault these individuals haven't been put up for a vote completely distorts how the Senate operates and is a disingenuous approach, to say the least.
We should recall that Republicans and Democrats came to a genuine compromise on the matter of nominations at the beginning of this Congress and a deal was struck: In exchange for Republican support, the majority leader gave his word here on the Senate floor that he would not attempt to change the Senate rules other than through regular order.
What that means, as the distinguished Senator from Kansas, the ranking member of the Rules Committee, knows, is going through the Rules Committee and coming to the floor, with 67 votes, to change the Standing Rules of the U.S. Senate. So the majority leader gave his word that he would not try to invoke the so-called nuclear option--which we are now threatened with--but would, rather, seek to change the rules through the regular order, which would require 67 votes on the Senate floor.
As it turns out, Senator Reid is apparently willing to go back on his word and is now poised to break the rules of the Senate in order to get his way, in order to change the rules.
We have questioned many of our colleagues about, Why would there be such an extraordinary power grab and breaking of one's word when it comes to how the rules changed, and wondered, what is the rationale for this?
When we have gone through the same facts I described earlier, which show President Obama's nominees have been treated at least as fairly--or even more fairly, one could argue--than President Clinton and President George W. Bush, our Democratic colleagues have said, Well, this is a narrow, modest change that would only apply to nominees to positions in this administration.
That is not the way the Senate works. If you break the rules in order to change the rules, in this instance, there is a slippery slope, to say the least, to extend this same practice not only to executive nominations but also to Federal judges and to ordinary legislation, which would allow the tyranny of the majority and deny the minority an opportunity to influence ordinary legislation or to make sure its voice was heard when it comes to nominees. So the argument that this is some sort of a narrow fix designed to break some imaginary logjam with regard to this administration's executive nominees is false.
The fact is, if the majority leader goes through with this nuclear option, as it is called, he will have set a new precedent in the Senate--one that says it is permissible to break the rules of the Senate at any point simply to get your own way, if the majority has the gumption to do it.
I hope the majority leader is aware of the magnitude of this decision. Even more importantly than that, I hope Members of the Democratic caucus understand what this means.
I have been here long enough to have been in the majority and the minority. I can tell you that being in the majority is a lot more fun. But I can also tell you that majorities and minorities are fleeting. The shoe will be on the other foot. It is simply shortsighted and, I believe, an abuse of our process to try to jam these nominees through based on some manufactured and imaginary crisis and change the Senate as we know it forever.
I hope the majority leader understands the consequences will forever alter the nature of this institution--and not one based on just the rules but based on the relationships that are so important to getting anything done here.
We all understand the rules are important. But fundamentally, the way the Senate operates--regardless of whether Republican or Democratic, regardless of where we come from--is your word is your bond. We have to be able to believe it. No matter what their political differences may be, when colleagues across the aisle give their word, you have to be able to depend on it. And if we can't depend on your word and we can't depend on the majority leader's word when he said he won't invoke the nuclear option, it forever undermines the important relationship and bonds of trust and confidence we should be able to have in this institution.
Just to go over a few other short points:
According to the Congressional Research Service, the Senate is considering President Obama's executive nominations faster than any other recent President. I talked about that recently. But here are some of the President's Cabinet nominees who have been confirmed recently:
The Energy Secretary, confirmed 97-0. The only reason we had to vote on it is because the majority leader finally decided to put that nomination on the floor. It was unanimous, 97-0. Everybody who was here voted in favor of that nomination.
The Secretary of Interior was 87-11; Secretary of Treasury, Jack Lew, 71-26; the Office of Management and Budget, 96-0; Secretary of State John Kerry was confirmed 94-3--and he was confirmed only 7 days after the Senate got his nomination; the Administrator for the Centers of Medicare and Medicaid Services was confirmed 91-7; the Chair of the Securities and Exchange Commission was confirmed by voice vote. There wasn't even a recorded vote. That is essentially a unanimous decision of the Senate; Secretary of Transportation, 100-0; Secretary of Commerce, 97-1.
It is worth recalling some of the words that were spoken by different Members of the Senate, because this is the kind of thing that will come back to haunt you if you flip-flop and take a different position later on.
This is Senator Harry Reid, December 8, 2006:
As majority leader, I intend to run the Senate with respect for the rules and for the minority rights the rules protect. The Senate was established to make sure that minorities are protected. Majorities can always protect themselves, but minorities cannot. That is what the Senate is all about.
Then there is the majority whip Senator Durbin. This is April 15, 2005:
Those who would attack and destroy the institution of the filibuster are attacking the very force within the Senate that creates compromise and bipartisanship.
Well, if that is true--and I agree it is true--why in the world would any Senator vote to destroy the very force within the Senate that creates compromise and bipartisanship, particularly when we are making decisions here that affect 319 million Americans.
Then there is the President of the United States when he was in the Senate, April 13, 2005. Then-Senator Barack Obama said:
If the majority chooses to end the filibuster, if they choose to change the rules and put an end to the democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.
I realize we are passionate about our positions on the various issues that come before the Senate, and that is entirely appropriate. We all have convictions about these important issues. But this is the only place perhaps left in the country, I believe, where we can actually debate these in an open and responsible way and be held accountable by the people who send us here--in my case, 26 million Texans.
But if we are willing to engage in this sort of shifty behavior, if we are willing to break our word in order to get momentary political advantage, then I think the public's confidence in the Senate is going to be completely undermined, and we will have lost our effectiveness. Also, perhaps just as significantly, the very bonds of trust that are so important in order to get things done around here will have been broken.
For what? For a temporary advantage over five or six or seven executive nominees. I daresay if Senator Reid had put these nominations on the floor, we would have seen the vast majority of them confirmed a long time ago. The only reason they were not is because he chose not to do so. What he has done is to put them on the floor now, in this period of time before the August recess, to create a manufactured crisis so he can then invoke the nuclear option and somehow convince Members of his own caucus that they ought to be party to breaking the Senate rules in order to gain temporary advantage. It is incredibly shortsighted, and I think it will exacerbate the gridlock and the divisions here rather than help us try to find ways to build consensus and work together in the best interests of the American people.
I yield the floor.
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