Nominations

Floor Speech

Mr. MERKLEY. Mr. President, I rise today along with my colleague from New Mexico to protest the paralysis that has kept the Senate from confirming well-qualified nominees to do their jobs.

The U.S. Senate provides the opportunity for all of us to weigh in on our constitutional role of advice and consent, advice and consent regarding nominations to the executive branch and to the judicial branch by the President.

Everyone in this body agrees that the Senate should, under this responsibility, serve as a significant check on the quality of Presidential nominations, the quality of nominations or nominees for the court and for executive positions. I certainly share that sentiment, that the Senate should provide this significant check on quality. The Senate should vet nominees. We should question them. We should debate them. And then we should vote on whether to confirm or reject them.

What is absolutely clear, however, is that when advice and consent becomes block and destroy, then the Senate process is broken. A minority of one branch of government should never be able to systematically undermine the other two branches of government. Yet that is exactly what we have today.

Look at the well-qualified nominees who have been blocked from having an up-or-down vote here in the Senate Chamber just in recent weeks: Mel Watt, nominated to head the Federal Housing Finance Agency; and then nominees to the court: Patricia Millett, Cornelia Pillard, and now Robert Wilkins.

These folks are highly qualified, but they were not allowed to have an up-or-down vote. The Senate was not allowed to weigh in on whether they were to be confirmed or not confirmed. This situation in which the Senate minority undermines the executive and judicial branches is unacceptable. It is inconsistent with the concept of coequal branches of government. Our Constitution laid out this vision that the House and the Senate, as the legislative branch, would serve as a coequal branch with the executive branch and the judicial branch.

Certainly the ability to check nominations, to vet nominations, is part of that check on the other two branches. But when it is used in this manner, this manner in which you can systematically undermine the function of another branch, then you have taken a position and created a process that is inconsistent with coequal branches. Taken to its extreme--and we are seeing that extreme today--the executive branch is compromised in its ability to function, the judicial branch is compromised in its ability to function.

Now we have a special situation that has arisen in which the minority says: We are going to block all nominees to the DC Circuit Court regardless of their qualifications because we want to see it dominated by the nominees from a former President, and we do not let the existing President put his fair share of nominees into those vacancies.

The argument has been brought forward--to cover up this effort to ideologically pack the court--that this is simply about the work requirements of that circuit not being high enough to justify additional judges. Yet if that was indeed the case and there was an effort to distinguish it from the ideological bent that is clear here, then that would be something one would say about the future: Let's implement that 8 years down the road or we would have seen it in the past when President Bush was putting his nominees forward. The Republicans would have said: No, we do not want to confirm these nominees because the workload is not heavy enough. But just a few years ago, the argument was very much: Let's confirm these nominees of President Bush. Well, the workload, if anything, has increased.

So we cannot allow this process in which a minority says: When our President is in charge we are going to insist on up-or-down votes, but when a President of the other party is in charge, we are not going to allow those votes.

Let's be clear: There should not be an ``our President'' and ``their President.'' The President is the President of the entire country, of the blue States and the red States, altogether. The judicial system serves all of us regardless of our party identities. It is our responsibility to make it work.

In January we had a promise made on the floor of this Chamber, and that promise from Minority Leader Mitch McConnell was to restore the ``norms and traditions of the Senate'' regarding nominations.

What are the norms and traditions of the U.S. Senate regarding nominations? It is an up-or-down vote, with rare exception. But, unfortunately, as we stand here today, we see that January promise has been broken. It was broken a few weeks into this year when a filibuster for the first time in U.S. history was launched on a Defense Secretary nominee. We then saw it in July--another effort of this Chamber to come together and return to the norms and traditions of the Senate. And briefly we did have up-or-down votes on executive branch nominees. But that ended a couple weeks ago when Mel Watt was blocked from that opportunity. So, therefore, the Senate must act. The Senate must act to restore its traditional role of having an up-or-down vote.

I, quite frankly, would prefer, in a perfect world, to see this done simply through the type of agreement we have sought a couple of times: up-or-down votes, with rare exception. But it is clear that is not possible because the January promise was broken, because the July promise was broken, and, therefore, we are in the position where we have to do by rule that which cannot be done by simple cooperation.

Some have said this has never been done, changing the rules or the application of the rules by a simple majority in the middle of a term. But that is simply not the case. I have in my hand a list of 18 times when this has been done since 1977. I have put up a chart in the Chamber of some of those changes that are quite relevant to this discussion.

By a simple majority in 1977: preventing postcloture filibusters; in 1979, by a simple majority: preventing abuse of legislative amendments in appropriations bills; in 1980, preventing filibusters on the motion to proceed to nominations and treaties; in 1987, preventing filibusters via rollcall of the Journal.

I have put these up for those instances that pertain to filibusters. But these are only 4 of the 18 times since 1977 that we have changed the application of the rules by a simple majority. So let no one say this is unprecedented. And these 18 changes have come more often in Republican hands than the hands of Democrats in terms of the majority of this body.

It is time to end the block-and-destroy strategy being employed by the minority in regard to executive branch nominations and judicial nominations.

I am very honored to be a partner in this conversation with the senior Senator from New Mexico, who has been raising concerns about the functionality of the Senate from the day he first set foot in this Chamber.

With that, I yield for my colleague.

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Mr. MERKLEY. I say to my colleague from New Mexico, I would say that it has been very disturbing to see these very capable women whom you have mentioned not be able to get an up-or-down vote. Indeed, our chair of the Judiciary Committee Senator Leahy held a press conference to make this very concern known, that it seemed as if there is one process for men and a different process for women. I am going to defer to his judgment on that because I have not been part of the Judiciary Committee. I would like to think that in this day and age there is not that sort of gender bias. That is what I would like to think, but I will let Senator Leahy's commentary and his concerns in that area speak for themselves. It is clear, though, that fundamentally the situation is this: These women were highly qualified. They did not get up-or-down votes.

I have in my hand a memo from April 25, 2005. It is titled ``The Senate's Power to Make Procedural Rules by Majority Vote.'' It consists of arguments made by the Republican majority in 2005 that nominees should get up-or-down votes for the judiciary. There are many quotes from colleagues who still serve in this body who said in 2005 that regardless of whether they were in the majority or the minority, they felt nominees deserved an up-or-down vote, that the Constitution demanded it, and that the balance of powers between the branches demanded it.

I would ask my colleague if he would help us understand what has changed since 2005 when our colleagues across the aisle made the case that nominees deserved up-or-down votes, said it was essential in the constitutional vision, was essential in the proper application of advice and consent. What has changed that makes those arguments disappear now in 2013, 8 years later?

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Mr. MERKLEY. I thank the Senator for expanding on that picture of the core elements necessary to exercise our constitutional responsibilities. I keep thinking about how polarization in our society has come to bear on this issue. I believe there are many colleagues across the aisle who believe very much in what they said in 2005, that there should be up-or-down votes; therefore, I have to conclude that they have decided their base demands a permanent campaign against the President and the maximum use of every tool available and that is trumping the appropriate exercise of advice and consent.

Perhaps that polarization explains why the promise made by the minority leader in January to return to the norms and traditions of the Senate fell apart within weeks, if not days. Perhaps it explains how the understanding that was reached in July to allow up-or-down votes on executive nominations fell apart a couple of weeks ago. In that situation we have a single path left to us to appropriately exercise advice and consent; that is, to change the rules so they cannot be abused. If the abuse cannot be cured through good-hearted dialog and understanding of our need to honor the constitutional vision, then we need to change the rules. That is why I wholeheartedly support moving toward a simple up-or-down vote.

In 2005 our Republican colleagues said: If the Democrats keep blocking up-or-down votes, we are going to change the rules and require a simple majority. The Gang of 14 came out with a compromise, and they said--the compromise was that Democrats would only filibuster under extraordinary circumstances and Republican colleagues would then not change the rules. But actually that worked fine in that the Democrats honored that until President Obama came into office. But that extraordinary circumstance has not continued to be honored after President Obama came into office. In that situation, it does seem as if the only way to make sure we honor the constitutional vision and the balance between the powers is to actually change the rules and say it is an up-or-down vote.

I would ask my colleague from New Mexico whether he shares that perspective or perhaps has a different take on it.

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Mr. MERKLEY. I thank my colleague from New Mexico for his leadership in trying to restore the Senate so that it will work--work on legislation, work on executive nominations, work on judicial nominations. The country has a low opinion of the function of our Chamber. We certainly do not deserve a high opinion when we are captured by this level of partisan paralysis. I look forward to continuing to work together to help restore this body to a great deliberative body that fulfills its responsibilities under our Constitution.

I yield the floor.

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