Majority Rule for Confirming Judges

MAJORITY RULE FOR CONFIRMING JUDGES

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Mr. McCONNELL. Mr. President, I rise to offer an historical perspective on the very important issue of the Senate exercising its advice and consent responsibilities on judicial nominations. It has been the subject of considerable discussion, and I wanted to offer some thoughts on the subject myself. I have been around here long enough, in both the majority and the minority, to understand that a Senator may from time to time use a vote on a judicial nomination to protest the nomination or a particular course of action. But what we saw in the 108th Congress was a wholesale departure from the norms and the traditions of the Senate, whereby the use of the judicial filibuster became a commonplace device to stop the President's circuit court nominees.

For the first time in history, a minority of Senators, on a repeated, partisan, and systematic basis, has prevented the Senate as a whole from discharging its constitutional obligation to provide advice and consent on judicial nominations.

This level of obstructionism is truly unprecedented. As justification, those who support this approach have pointed to several nominees of President Clinton on whom it was necessary to file cloture. I was here during that period. I remember exactly what happened.

The fact is it was the Republican leadership in the majority who filed cloture on these very controversial Clinton nominees. This does not show that the Republican Conference was trying to prevent their consideration. Rather, Republicans, who were Members of the opposition party of the President, filed cloture to advance their consideration--to advance their consideration.

If there is any doubt, one need only look at the cloture votes on two of the most controversial Clinton nominees, Marsha Berzon and Richard Paez, and then compare those cloture votes with the votes on the nominations themselves. Doing so reveals two important points.

First, the cloture vote on these nominees was overwhelmingly in favor of ending debate--of ending debate--and proceeding to their confirmation. The cloture vote on the Berzon nomination was 86 to 13. So obviously there were 13 Senators trying to prevent Ms. Berzon from becoming a Federal judge. The cloture vote on the Paez nomination was 85 to 14. Indeed, the vast majority of the Republican Conference--in fact, a supermajority of about 70 percent of our conference--voted for cloture. These plain facts dispute the notion that the Republican Conference was filibustering the Berzon and Paez nominations.

In short, if I could be a bit poetic, a cloture vote does not a filibuster make. A cloture vote does not a filibuster make.

A second point is even more telling. Many of the very same members of our conference who voted for cloture on these nominations then turned around and voted against confirmation because we had serious concerns about the Paez and Berzon nominations. Senator Lott, who was majority leader at the time, did that, and so did I, voted for cloture, believing that judges should not be filibustered for the purpose of ending their nomination--and then voted against the judge on the up-or-down vote to which all judges are entitled. The confirmation vote on the Berzon nomination was 64 to 34. The confirmation vote on the Paez nomination was 59 to 39. Obviously, the opponents of Paez could have killed that nominee by a filibuster if they had chosen to do so. Both times we approached the filibuster level of 41 votes. I know how to count votes, and if we had wanted to filibuster the Paez and Berzon nominations, I suspect we could have and probably stopped them both. But the Republican leadership did not whip our caucus to filibuster these two nominations. In fact, it did the opposite. To his great credit, Senator Lott urged our colleagues not to filibuster these two nominations despite the strong opposition to them within our conference.

That is why Judge Paez and Judge Berzon have been sitting on the ninth circuit for the last 5 years. In fact, today is the fifth anniversary of their confirmation. They were confirmed on March 9, 2000. And for those who point to the Paez and Berzon nominations to try to justify their filibusters, I emphasize again we are talking about Judge Paez and Judge Berzon. So given that many of my Republican colleagues and I opposed both the Berzon and Paez nominations as shown by our votes against the nominations themselves, why did we vote for cloture? We did so because we were mindful of a longstanding Senate norm and precedent that the Senate does not filibuster judicial nominations. That is an unwritten Senate rule. Even if one strongly disagrees with the nomination, the proper course of action under Senate norms and traditions, as they have consistently been understood and applied, is not to filibuster the nominee but to vote against him or her. That is precisely what a supermajority of my conference and I did on the Paez and Berzon nominations, who were two of the most controversial--these were extraordinarily controversial judges that President Clinton had named to the ninth circuit. My Republican colleagues and I honored Senate tradition. We followed the constitutional directive set forth in article II, section 12, that the Senate as an institution as reflected by the will of the majority of its Members, render its advice and consent on the President's nominees. We put propriety over partisanship.

But that precedent has now been changed. Those norms and traditions have been upset.

Therefore, I ask my colleagues to consider the ramifications of continuing down this path of institutionalizing this use of the judicial filibuster as a tool of obstruction. For more than 200 years we have recognized the careful balance our Founding Fathers struck among our three branches of Government. Judicial filibusters pose a danger to this constitutionally required separation of powers.

I believe it is not too late to turn back. It is in the best interests of both great parties and the Senate itself that we restore the norms, traditions, and precedents of the past 200 years that have served this country so well. It is extraordinarily shortsighted. Our friends on the other side of the aisle will have the White House again one day, and the shoe will be on the other foot. They will rue the day, if this precedent is allowed to prevail, that they set this precedent. I think it is time we stood back, took a breath and thought about this institution and respected its norms and traditions.

Mr. President, I yield the floor.

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