Drug Quality and Security Act - Motion to Proceed - Continued

Floor Speech

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Mr. MERKLEY. Mr. President, I rise to address an issue that should be of concern to all Americans; that is, the advice and consent function of the Senate regarding nominations. This is the critical check envisioned by our Founders in which the President has the power to nominate for the executive branch positions and for judicial nominees, and the Senate is held responsible to provide a check to make sure there are not outrageous nominees that are placed in positions.

That is the advice and consent function which throughout our history has basically been a simple majority function with very rare exceptions. This issue comes up at this moment because 2 weeks ago the minority of this body in the Senate would not allow there to be a vote on whether to confirm Mel Watt. They did that by preventing there being enough votes to close debate.

So that blockade was basically put in place without respecting, if you will, the fact that Mel Watt is highly qualified for his position at the Federal Housing Finance Agency, a position he would hold, and giving the entire Senate the ability to weigh in about whether they agreed with that judgment, the judgment of the President that Mel Watt was well qualified.

In the same week, this body also blocked an up-or-down vote on Patricia Millett, who was a nominee for the DC Circuit Court. On this occasion, it was not because folks said she was not qualified. They said, instead: We do not want to put any more of President Obama's nominees onto the DC Circuit Court because we want it to be dominated by the judges who were confirmed when President Bush was President.

Then, just yesterday, this pattern of blockading up-and-down votes on nominees continued with the minority filibustering, blocking the closing of debate on Cornelia Pillard--again, a highly qualified individual. An argument was not made that there was some exceptional circumstance in her background that left her unprepared for this position. The argument was simply made: We do not want to let the President put any judges on this DC Circuit Court.

That is of extreme concern. I must say that it has caused folks who have been scholars in this area to look at it. Norm Ornstein of the American Enterprise Institute basically said: It is ridiculous for the minority to block up-and-down votes, not on the basis that there is something wrong with her qualifications, but just they want to take away the President's ability and constitutional responsibility to nominate individuals to fill vacancies.

So this obstruction, exercised over the last almost 5 years now, has done significant damage to the court. It has done significant damage to the executive branch. It prevents qualified nominees to get a vote on this floor so that they can--if they receive a simple majority vote of support--work on behalf of the American people either in their executive branch capacity or addressing the huge backlog in our judicial system.

The Senate has the advice and consent role which is a treasured responsibility. It is a weighty responsibility. I think everyone in this body--I think all 100 Senators--could agree that under advice and consent the Senate must exercise a significant check on the quality of Presidential nominees, whether for the courts or for the executive branch.

The Senate should vet nominees. The committees that are related to a particular position should explore their background, they should hold a hearing, they should ask tough questions, they should debate the nominees, and then once recommended on the floor of the Senate, we should continue that vetting and debating process. Then, having shared our insights on their background, we need to vote to confirm or reject.

It should be on very rare exceptions, when there are extraordinary circumstances that make someone unworthy that they should be blocked from having a final vote. Advice and consent must not become ``block and destroy.'' But advice and consent has become block and destroy. The Senate nomination process is broken.

A minority of one branch of government, the Senate, should not be able to systematically undermine the other two branches of government. Yet that is what we see today. President Obama's district court nominees have waited, on average, more than twice as long as President George Bush's nominees to be confirmed by the Senate after being reported out of committee.

So we have the challenge of getting up-or-down votes. We also have basically a process of dragging feet in order to make it more difficult to actually get to the votes on these individuals in the first place. For the circuit courts, that comparison is even worse. President Obama's nominees have waited 3 1/2 times longer than the nominees of his predecessor--3 1/2 times longer.

The Congressional Research Service notes that of the last five Presidents, President Obama is the only one to have his district and circuit court nominees wait, on average, more than 6 months for confirmation. So those delays, in combination with ultimately denying the possibility to hold an up-or-down vote--to hold a final vote on whether to confirm or not confirm--they constitute a systematic undermining of the function of the other two branches of government.

Now, this was not envisioned in any possible way by the creators of our Constitution. They argued there should be three coequal branches. But this outcome, in which the Senate minority seeks to undermine an executive branch nominee, is inconsistent with the constitutional design of coequal branches. They are not coequal if one branch can systematically undermine another.

In regard to the courts, in an outcome in which the Senate minority is seeking to ideologically pack the courts by having insisted on up-or-down votes for President Bush's nominees and then blocking up-and-down votes on President Obama's nominees, it politicizes our judicial system. It undermines the integrity of our court system.

The Senate has confronted this abuse of advice and consent three times in recent history. In 2005, the Democratic minority was blocking up-and-down votes on a series of President Bush's nominees. They were doing the same thing that we see today. A gang of 14 gathered to debate this, because essentially the Republican majority said: If you do not quit blocking up-or-down votes on the President's nominees, we are going to change the rules and make it a simple majority. Out of the gang of 14 came a deal. The deal was that Democrats would, except under exceptional circumstances, not block the nominee. The counterpoint being that the Republicans would not change the rules. So they got what they wanted, which was up-and-down votes without a rule change.

That pledge the Democrats made was honored when subsequent nominees got their up-or-down votes. Now, in January of this year the Democrats, in the reversal of positions, insisted that the Republican minority quit blocking up-or-down votes of President Obama's nominees--kind of a deja vu moment, only the two parties were reversed.

Out of that conversation, out of that dialogue in January, came a promise from the Republican minority leader of this body. He promised a return to the norms and traditions of the Senate regarding nominations. What are those norms and traditions? Those norms and traditions are simple up-or-down votes with rare exception.

But that promise was barely made and within weeks it was broken, when we saw the first ever filibuster of a Defense Secretary nominee. It just so happened, ironically, that the Republican filibuster--the first time in history of a Defense nominee--was against one of their former colleagues, our Republican colleague Chuck Hagel. So the January promise was broken. This led to increasing tensions until July of this year when Democratic and Republican Members met in the Old Senate Chamber to privately share their concerns. A new deal was hammered out, which is, essentially that executive nominees would get up-or-down votes. That happened for a significant list of nominees.

There was an up-or-down vote on Richard Cordray to be the head of the Consumer Financial Protection Bureau; Gina McCarthy to lead the EPA; nominees to fill the National Labor Relations Board; nominees to head Alcohol, Tobacco and Firearms; a nominee to lead the Ex-Im Bank; and, following shortly thereafter, a nominee to be the U.S. Ambassador to the United Nations, Samantha Powers.

So that July deal held through a list of nominees until 2 weeks ago. Two weeks ago this body blocked an up-or-down vote on Mel Watt. So we are right back where we were before, right back where we were, the promise made in January shattered, the promise made in July shattered, and the ability of this body to do its advice and consent responsibility shattered.

This should be deeply troubling to all. We must restore the ability of the Senate to perform its responsibilities under the Constitution to advise and consent. The Senate with simple up-or-down votes will be a check on bad nominations from the President. I have voted against at least one of the President's nominees. I was prepared to vote against another here just a few weeks ago. The President withdrew that nominee so that vote was not necessary. But that was related to a judgment of the qualifications of the individuals and whether they were a good fit for a particular position. It was not about trying to systematically undermine the executive branch and keep them from operating.

That is essentially why we have up-or-down votes; it is a check on unqualified individuals or a poor fit for a particular position. So in this area, both in the Senate's failure to do its job vis-a-vis judicial nominees and to do its job vis-a-vis executive nominees, we have created unequal branches of government. It is time to fix the broken Senate in regard to nominations. It is time to restore the traditional role of the Senate in evaluating nominations so that with nominees who are confirmed, they can go to work in the courts, can go to work in the executive branch to do the work that the citizens of the United States of America expect them to do on behalf of our Nation.

I yield the floor and suggest the absence of a quorum.

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