Executive Session

EXECUTIVE SESSION

Mr. DURBIN. I thank the Senator from Iowa for making clear that when he offered his change in the rules relative to the filibuster, he did it according to the rules. When Senator Harkin suggested that we change the number of votes necessary for a filibuster, he used the rules of the Senate, he followed the rules of the Senate. He understood it would take 67 votes for him to succeed and he pressed forward.

If the Republican majority today did exactly as Senator Harkin did, there would be no discussion of a nuclear option. We would move to that point in the calendar, we would take the vote according to the rules, and no one would be paying much attention because that is the routine of the Senate. We would be following the rules of the Senate.

The unique situation now presenting itself with the nuclear option is that the Republican majority is going to break the rules of the Senate in order to change them. Instead of following Senator Harkin's model and example of 67 votes, they will bring Vice President Cheney to the chair, they will ask him to rule as a Presiding Officer of the Senate that the rules are going to be changed, he will make that pronouncement, and that is the end of the story. They will be breaking the rules of the Senate to change them.

That is the unique difference between what Senator Harkin did many years ago and what the Republican majority does today. It is historic. That is why so many people are following this debate. People who never heard of the nuclear option are following this debate. They understand something historic is about to take place: changing a tradition, changing something in the Senate, a rule that has been in place for over 200 years. With the wave of his hand, Vice President Cheney will take away a rule that has applied for 200 years.

Some argue this should be viewed as another routine day in the Senate. I disagree. This is a historic debate and one on which I hope the American people are focusing. Changing the rules in the middle of the game is not accepted in most conduct in America. It shouldn't be accepted in the Senate. Changing the constitutional balance of the Senate and the White House is historic and should be followed closely by every single American.

My colleague, the Senator from Kentucky, came to the Senate earlier and suggested that we should go about the routine business of the Senate while this debate continues. We see it otherwise. We believe we should focus in the Senate, as the people of America should focus on this critical debate, with very few exceptions. If there are exceptions relating to committee activity on national security or things of that nature, we will consider each and every one of those, but the routine business of the Senate must be held up while we engage in this.

The core reason for this debate is the approval of judges. Since President Bush was elected, more than 95 percent of his judicial nominees have been approved, the highest approval rating of any President in the last 25 years. Again, 208 have been approved, 10 have not been approved, and the President says: That's not good enough; I want them all. No dissent, no disagreement, give me every single judge.

That is the reason we are here debating. To make it clear to those following the debate, we are prepared, on a bipartisan basis, to work with the White House and the Republicans to continue to approve judges, as we have already done 208 times with this administration. I am about to make a unanimous consent request that will be followed by another, and let me describe it first before I make it. We have had one man's name on the calendar longer than the pending nominee, Priscilla Owen: Thomas Griffith of Utah, nominated to serve as circuit judge for the District of Columbia. I voted for him as a Democrat, coming out of the Senate Judiciary Committee. He has been on the calendar since April 14.

As a show of good faith, as a show of bipartisanship, to demonstrate we can work together, we can achieve things when we speak to one another and when we respect one another, I will make a unanimous consent request to move from the current business immediately to the Executive Calendar to bring his name to the Senate with debate of, say, 1 hour, and that he be voted on today.

Then when I am finished, as the minority leader, Senator Reid, did yesterday, I will ask that we discharge the Senate Judiciary Committee and immediately consider the Michigan Circuit Court nominees of Griffin, McKeague, and Neilson. I will, of course, allow that unanimous consent request to be amended in terms of debate time necessary for each nominee, but we can in a matter of a few hours move four circuit judges through this Chamber on a bipartisan basis and demonstrate that there is no need to describe our situation as a crisis. There is no need to change a 200-year tradition of the Senate. There is no need to call in Vice President Cheney to wipe out a rule that we can work on together. I think that is what we should do.

I ask unanimous consent we move to the nomination of Thomas B. Griffith of Utah to be U.S. circuit judge for the District of Columbia and that Mr. Griffith's nomination be considered with 1 hour of debate equally divided, and then have a rollcall vote. I make that unanimous consent request.

Mr. McCONNELL. Reserving the right to object, and I will object, let me say to my good friend from Illinois, this is a scheduling issue. His party was in the majority for 18 months between 2001 and 2002. Then, Majority Leader Daschle got to decide the order of matters to be considered in the Senate. That is the prerogative of the majority leader.

I am certainly pleased to hear of the enthusiastic support of my good friend from Illinois for the nominee, Griffith. Nevertheless, the majority leader, Senator Frist, is charged with the responsibility of determining the order in the Senate. We are on a nomination that enjoys bipartisan support, a majority of bipartisan support, and that is Texas Supreme Court Judge Priscilla Owen.

I am of the belief that some of the efforts to shut down the activities of the Senate may be coming to a close, and I will seek the floor for the purpose of offering a unanimous consent to allow the Foreign Relations Committee to at least meet, which is good news. Unfortunately, other committees are still shut down by not following the normal procedure in the Senate where committees are busily at work while action is occurring on the Senate floor. As a result of actions in the last 2 days, the Energy bill is thwarted, the JOBS bill is thwarted, disaster relief is thwarted, and a closed intelligence meeting was not held again today. The Energy bill, the HELP Committee is out of action today. Asbestos is not going forward.

All of these efforts to delay activity in the Senate, to shut down the Senate are not necessary. It is routine in the Senate for committees to be doing work while we have debate on the floor. Nothing extraordinary is happening on the floor. We are following regular order. The majority leader, as is his right, had called up a nomination, and we are debating it.

We will get around to Mr. Griffith, and I am certainly pleased to hear that the assistant minority leader is in favor of him. That is good news. That is one, when we turn to him, I look forward to confirming with not a great deal of debate.

With regard to the current consent agreement, I object.

The PRESIDING OFFICER. The objection is heard.

Mr. DURBIN. Mr. President, let me say it is clear now this is not about moving judges forward because I have offered an opportunity for the Republican majority to move a circuit judge in Utah forward on a bipartisan basis, as most of President Bush's nominees have been moved forward. It is about the fact that President Bush has not had every single nominee he sent to Congress approved. More than 95 percent have been approved.

There is another controversy relating to the State of Michigan--and I see my colleague, Senator Stabenow, is here--a controversy that goes back to the Clinton administration when a systematic effort was made to deny any nominee, virtually any nominee sent by the Clinton White House to the Senate Judiciary Committee, the opportunity for a hearing and fair consideration.

Naturally, the Senators from Michigan were upset that very qualified men and women were not given a chance to present their credentials and to come to a hearing and have a committee vote. Over the years they have expressed that concern and asked there be some balance in the nominations to fill the vacancies.

At this point, I ask unanimous consent we set aside the pending business of the Senate, discharge the Senate Judiciary Committee from further consideration and immediately consider the nomination of Michigan Circuit Court nominees Griffin, McKeague, and Neilson.

Mr. McCONNELL. Reserving the right to object, and I will object, once again, it is good news to hear the Senator from Illinois is going to be supportive of three circuit judges from Michigan who have been denied an opportunity to have an up-or-down vote for many years. The majority leader certainly has on his list for very near future consideration all of those judges, and I am pleased to hear they will be in all likelihood approved when they are brought up at a time of the majority leader's designation.

Let me repeat, all we are looking for is an up-or-down vote. We are not looking for a guaranteed outcome. But my friend from Illinois is probably suspicious that there will be success if up-or-down votes are granted because all of the judges who have been pending have bipartisan majority support.

We will look forward to dealing with all of the judges the Senator from Illinois would like to schedule, instead of the majority leader, in the very near future, but in the meantime we are dealing with the nomination of Justice Priscilla Owen to the Fifth Circuit.

Mr. President, I object.

Mr. DURBIN. Let me close briefly and say if the argument is being made by the Republican side that there is committee activity that should go on that is more important than this constitutional debate on the floor of the Senate, I would also make the argument that there is important floor activity that just could have taken place. We could have approved four more judges for President Bush at the circuit level, moved forward on a bipartisan basis, and done it before lunch.

It was the decision on the Republican majority side that rather than bring this to a vote, bring it to closure, make progress, show we are working together on a bipartisan basis, instead they are going to continue to press for the so-called nuclear option so that Vice President Cheney can wipe away a 200-year tradition in the Senate with the wave of a hand. Unfortunately, that is a sad commentary on where we stand today.

I yield the floor.

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