Executive Session
EXECUTIVE SESSION -- (Senate - May 20, 2005)
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Mr. CORNYN. I thank the Chair.
Mr. President, people who are following the debate on the Senate floor about this nominee, Priscilla Owen, might be forgiven if they think the sky is falling or perhaps the end is coming for the Senate as a unique institution in American Government, or somehow that the nuclear option is going to simply blow the place up and all of us with it.
I think you can read an awful lot into the rhetoric that is being used and the tone that is being used during this debate to see what it is all about. I worry, as well, that when we talk about statistics, when we talk about what percentage of President Bush's nominees were confirmed, which ones were not, how President Clinton's nominees were treated, what percentages were confirmed, what percentages were not, that we fall into the deplorable habit of treating people like mere statistics. But I would only add that one violation of the Constitution is one too many. And when it comes to giving an up-or-down vote to a President's judicial nominee, which has happened for 214 years up until 4 years ago this last May 9, we are simply talking about treating people as they deserve to be treated--with respect. We are talking about treating Presidents who have won national elections with the respect they deserve, not as a rubberstamp but to provide the advice and consent that the Constitution contemplates when it comes to judicial nominees.
You would think the end is near for this institution listening to some of the rhetoric, when all we are talking about is trying to restore this 214 years of unbroken tradition of providing an up-or-down vote for any nominee who enjoys bipartisan majority support in this Chamber as this nominee, Priscilla Owen, does.
If you want to talk about statistics--and our friends on the other side of the aisle have--they have time and time again essentially argued this is payback for how they perceive Republicans treated nominees of President Clinton. And one of the names they mention is Richard Paez, who was nominated by President Clinton, who was ultimately confirmed by less than 60 votes of the Senate. All we are asking is that Priscilla Owen be treated with the same courtesy and according to the same standard that Richard Paez was treated when he was given an up-or-down vote and was confirmed by less than 60 votes.
A number of my colleagues on this side of the aisle have done an excellent job of presenting, in a comprehensive fashion, the legal and constitutional framework that exists for the Senate's authority to determine its own rules, and that is really all we are talking about--the Senate determining its own rules. I believe the case that has been made for the Senate continuing to do that is a strong one. In fact, that is why Senators on the other side of the aisle, including the former Democrat majority leader, the senior Senator from West Virginia, the senior Senator from Massachusetts, and the senior Senator from New York, have all stated in the past as recently as 2 years ago that, of course, a majority of Senators has the power to set rules, precedents, and procedures. Indeed, that is why the power of the Senate majority to set rules, precedents, and procedures has sometimes been referred to as the Byrd option, or otherwise, the constitutional option.
But let me begin my remarks by making a simple point I made last night, and let me reiterate it. I much prefer the bipartisan option to the Byrd option. America works better, the Senate works better, and our constituents are better served when we act in a bipartisan and cooperative manner. I would much prefer to wake up each day not anticipating the battles in this Chamber but, rather, to anticipating the opportunity to do what I came here to do, and that is to serve the interests of my constituents and the Nation by trying to get things done, trying to solve problems. That is why I believe we were sent here. I
have done my best to take advantage of every opportunity I have seen in order to work in a bipartisan manner. I would simply choose collaboration over contention any day of the week.
But we know that bipartisanship is a two-way street, that you cannot claim to be bipartisan when a partisan minority seeks to obstruct, and has successfully obstructed for the last 4 years, a bipartisan majority from getting a simple up-or-down vote for nominees such as Priscilla Owen. In order to have true bipartisanship, both sides must agree to treat each other fairly and apply the same rules and standards regardless of who happens to be President, whether it is a Republican or Democrat, and regardless of who is in the majority, whether it is a Republican or Democrat majority. But bipartisanship, we know, is difficult when long held understandings and the willingness to abide by basic agreements and principles have unraveled so badly as it has these last 4 years.
What are we to do when these basic principles and commitments and understandings have simply unraveled so badly? What are we to do when Senate and constitutional traditions are abandoned for the first time in more than 2 centuries; when both sides once agreed that nominees would never be blocked by the filibuster, and then one side says, well, that agreement never existed; when our colleagues on the other side of the aisle boast in fundraising letters to their donors of their ``unprecedented'' obstruction and then come to the Senate floor and claim that precedent is on their side and that somehow this side, the bipartisan majority, is somehow blowing up the Senate by exercising a ``nuclear option''? What are we to do when the former Democrat majority leader claims on one day that the filibuster is somehow sacrosanct and sacred to the Founders and then demonstrates by his own words that he has successfully killed filibusters in the past on the Senate floor?
In 1995 he stated:
I have seen filibusters. I have helped to break them. The filibuster was broken, back, neck, legs and arms.
Finally, what are we to do, Mr. President, when they claim on one day that all they seek is more time to debate a nomination, and then claim on another day there are not enough hours in the universe to debate the nomination? Indeed, as we stand here 4 years after this fine nominee was proposed, we know there has been more than adequate time for debate. There has been a lot of debate. But this is not about debate. This is not about the Senate's traditions. This is about raw political power of a partisan minority to obstruct a bipartisan majority from exercising the power conferred upon that bipartisan majority by the Constitution.
It is clear that a partisan minority is now seeking to impose a new requirement during these last 4 years, that nominees will not be confirmed without the support of at least 60 Senators. This, by their own admission--at least at one point by their own admission--is wholly unprecedented in Senate history. But thinking about it, Mr. President, the reason they have now sought to adopt this double standard and this increased threshold before a nominee can even get a vote, the reason for it is simple, and that is because the case for opposing this fine nominee, Priscilla Owen and her fellow nominees, is so weak that the only way they can hope to defeat their nominations is by applying a double standard and changing the rules. That is the only way they can hope to win--this partisan minority. We have heard a lot of talk about some of the decisions this judge has made when she served on the Texas Supreme Court, as she still does. I think the distinguished Senator from Georgia, who is currently occupying the Chair, spoke eloquently about another nominee, Janice Rogers Brown, who is also accused of ``being out of the mainstream'' and shown how thin and baseless that allegation is--and by the way, Janice Rogers Brown is accused of being out of the mainstream for exercising her first amendment right as an American citizen in a speech, two speeches, not in the course of her judicial decisionmaking. Does that mean that citizens should somehow be constrained in what they can talk about lest they be deemed disqualified to serve as a Federal judge later on because some Senator or some group of Senators think that they are ``outside of the mainstream''? I hope not.
A number of Senators have mentioned the case called Montgomery Independent School District v. Davis. This is one of the cases they cite as an example for Justice Owen ``being out of the mainstream.'' But, of course, I doubt they have read the opinion. This is about a schoolteacher a local school board dismissed because of her poor performance and because of her abusive language toward her students. This teacher admitted that she had referred to her students as little blank blank blanks--a four-letter expletive that I will not repeat on the floor of this body. When confronted with this statement, she justified the use of this expletive to schoolchildren, mind you, on the bizarre ground that she uses that same language when talking to her own children--clearly unacceptable conduct.
The senior Senator from New York has said that this teacher was wrongly dismissed. Other Senators criticized Justice Owen about this case as well. I have children. Many Senators have children. Certainly the people across America who have children understand. Are Justice Owen's opponents really arguing that this teacher's opponents acted inappropriately, that she was wrongly dismissed for using that language and mistreating her students in such a way?
If you read the opinion, as I doubt the critics have, preferring, rather, to speak off of talking points written by political consultants who engage in character assassination for their profession, Justice Owen simply said that the local school board was justified in dismissing the teacher--hardly a decision which is out of the mainstream.
As it turned out, the majority of the court disagreed and held that the school board could not dismiss the teacher, on legal grounds. But Justice Owen's dissenting opinion simply concluded that the majority:
..... allows a State hearing examiner to make policy decisions that the Legislature intended that local school boards make.
She also argued that the majority ``misinterpreted the Education Code.''
This partisan minority in the Senate has accused Justice Priscilla Owen of judicial activism. But the people of America understand what judicial activism is and, conversely, what it is not. The American people understand a controversial judicial activist decision when they see one, whether it is the radical redefinition of some of our society's most basic institutions, such as marriage; whether it is expelling the Pledge of Allegiance from classrooms of schoolchildren because the phrase ``one nation under God'' is invoked; or whether it is the elimination of the ``three strikes and you are out'' law and other penalties against hardcore convicted criminals; or the forced removal of military recruiters from college campuses. Justice Owen's rulings fall nowhere close to these sort of activist decisions, this category of cases that to me defines the phrase ``judicial activism.''
There is a world of difference between struggling to try to do the job judges are duty-bound to perform--that is, to interpret ambiguous expressions of a statute--there is a world of difference between that and refusing to obey a legislature's objectives altogether and instead substituting that judge's own opinion or own social or political agenda for what the legislature, the elected representatives of the people, had said the law should be.
If the Senate were to follow more than 200 years of consistent tradition, dating back to our Founding Fathers, there would be no question but that this judge, and this fine and decent human being, would be given the up-or-down vote and confirmed for the Fifth Circuit Court of Appeals. President after President after President have gotten their judicial nominees confirmed by a majority vote, not a supermajority vote of 60 votes or more. By their own admission, a partisan minority in this body is using unprecedented tactics to block her nomination. Here again, the reason is simple. As any careful examination of the decisions made by this good judge reveal, the case for the opposition is so weak that the only way they can defeat her nomination is by applying a double standard and changing the rules.
It is not just me who says that a supermajority requirement is unconstitutional and violates the Senate traditions for over 200 years. Legal scholars across the political spectrum have long concluded what we know in this body instinctively--that to change the rules of confirmation, as this partisan minority has done starting 4 years ago, badly politicizes the judiciary and hands over control of the judiciary to special interest groups--something we all ought to want to avoid.
The record is clear: Senate tradition has always been majority vote, and the desire by some to alter those Senate rules has been roundly condemned by legal experts across the political spectrum.
In fact, Lloyd Cutler, who recently passed away, who was really the dean of lawyers, who advised Presidents, both Republican and Democrat, during the course of his professional lifetime, wrote ``The Way to Kill Senate Rule XXII,'' which was published in the Washington Post in 2003. He said:
A strong argument can be made that the requirements of ..... a two-thirds vote to amend the rules are ..... unconstitutional.
Liberal USC law professor Erwin Chemerinsky wrote in 1997, ``Rule XXII''--that is the rule that requires 60 votes in order to get a vote that is being invoked now for the first time in more than 200 years against nominees. We are not talking about legislation, as I know the Chair understands and which has been clear but sometimes gets muddled. Professor Chemerinsky writes:
Rule XXII is unconstitutional in its requirement that change be approved by two-thirds vote to change the Rule. The effect of declaring this unconstitutional is that the current Senate could change rule XXII by majority vote. In other words, a majority of this Senate could eliminate the filibuster if a majority wished to do so.
I believe a majority does wish to do so when it comes to breaking the logjam over nominees, not with regard to legislation. There is a general consensus, bipartisan consensus in the Senate, that, for our own reasons, it is important to preserve the filibuster for legislation. But, of course, that only affects how we conduct our business, not how we interact with a coordinate department of Government or branch of Government known as the executive branch in exercising advice and consent when it comes to the nominees by a President elected by the American people.
To employ the Byrd option is not a radical move. It would merely be an act of restoration. I say it again. There is nothing radical about the Byrd option, yet our colleagues on the other side of the aisle have called it, not the Byrd option or the constitutional option, but the nuclear option, to suggest that somehow there is something radical about it.
But all we need to do is to look at the senior Senator from West Virginia, who was then majority leader, who used the constitutional option--and this is the reason it is sometimes called the Byrd option--on four occasions--in 1977, in 1979, in 1980, and again in 1987--to establish precedents that changed Senate procedure during a session of Congress. Other leading Senators from the other side of the aisle have, at some times in the past--perhaps not today but in the past--recognized the legitimacy of that procedure, of the Byrd option, including the senior Senator from Massachusetts and the senior Senator from New York, as recently as 2 years ago.
The establishment of Senate rules and procedures by majority vote is commonplace. As a matter of fact, on most days, as the occupant of the chair knows, we operate by unanimous consent; that is, everybody agreeing--or at least no one objecting. The constitutional power of a majority of the Senators to strengthen, improve, and reform Senate rules and procedures is expressly stated in the Constitution. It was unanimously endorsed by the U.S. Supreme Court, and it has been supported and exercised by the Senate on numerous occasions.
For those who may be students of the Constitution, all you have to do is look at article I, section 5, which clearly states that, ``[e]ach House may determine the Rules of its Proceedings.''
The Supreme Court has unanimously held in United States v. Ballin that, unless the Constitution expressly provides for a supermajority vote, the constitutional rule is majority vote. Again, as the Senator from Georgia pointed out earlier this morning, when it comes to amending the Constitution, when it comes to ratifying treaties, it is clear that an explicit supermajority requirement is there. But failing that, where the Constitution is silent about a supermajority requirement, the U.S. Supreme Court said majority rule is the standard.
I point out again, perhaps the most eloquent and learned Member of this body, when it comes to Senate rules and procedures, is the distinguished senior Senator from West Virginia. I know as a new Senator I have watched and listened and tried to learn from him about those Senate rules. He is truly a master of that subject. Yet Senate Democrats have spent considerable time dismissing how the Founders would somehow be offended if a majority of Senators acted to prevent a partisan minority of the Senate from using filibusters against nominees. One of their own, one of the Senate's great historians, this same distinguished senior Senator from West Virginia, stipulated on the Senate floor that our Founders did not tolerate filibusters.
He said:
The rules adopted by the U.S. Senate in April, 1789, included a motion for the previous question. The previous question allowed the Senate to terminate debate. ``Mr. President, I move the previous question'' or in the House ``Mr. Speaker, I move the previous question,'' and if that gains a majority, no further debate, the previous question will be voted on.
As the senior Senator from West Virginia has previously written in his four-volume history of the U.S. Senate:
It is apparent that the Senate in the first Congress disapproved of unlimited debate. In fact, for the first several Congresses, from 1789 to 1806, a majority of Senators always had the power to bring debate to a close through majority vote through the motion for the previous question under Senate Rule IX.
I realize we are getting down into the weeds quite a bit when it comes to parsing Senate rules and the history of the Senate for the American people who might be listening to this debate, but in the end, I believe what we are talking about is the ability in this body to write its own rules and establish its own procedures, which is clearly provided for in the Constitution, and to use procedures that have been used on the other side of the aisle when they were deemed appropriate and when a majority of Senators supported that change.
We are also talking about restoring fundamental fairness to the judicial selection and nomination process. Is there anybody in America today who believes that the way we are handling the confirmation of judges is a good and positive thing? Or do the vast majority of Americans believe, as I do, that it has become unnecessarily contentious and fractious and divisive, and that we need a fresh start when it comes to this process?
I believe a good place to start would be to restore this 200-year tradition, which provides for a majority vote, something that was accepted without any real debate until 4 short years ago when the standard was somehow increased to 60 votes for confirmation rather than the 51 votes which had applied for the entire history of the Senate--4 short years ago.
Finally, it is worthy of note that in addition to the constitutional support I have mentioned, and that of legal scholars and established Senate precedent and tradition, many of the editorial writers in the mainstream media also acknowledge that the Byrd option is not a radical option, that the Senate making its own rules and procedures is not radical, it is what we do.
The New York Times even, by its own admission, in 1995, endorsed a proposal by Senators HARKIN and LIEBERMAN that
..... would have gone even further than the nuclear option in eliminating the [power of the] filibuster .....
entirely, including for legislative matters.
We do not propose that. We just propose giving these nominees an up-or-down vote when it comes to the Executive Calendar.
The Austin American-Statesman, in Texas, has recently editorialized that:
a simple majority could change the rule on cloture from a supermajority to 51 votes ..... [and] it has always been a viable political tool.
All we are suggesting.
The Philadelphia Inquirer said:
There is nothing especially sacred about the filibuster.
The Los Angeles Times states:
We urge Republican leaders to press ahead.
They wrote that in an editorial entitled ``Nuke the Filibuster.''
Let me conclude by reiterating what I said at the beginning of my remarks. I would prefer the bipartisan option to the Byrd option any day. America works better, the Senate works better when we do things together in a bipartisan and collaborative way. It is time for us to fix the broken judicial confirmation process. It is time for us to end the blame game, fix the problem, and to move on. It is time to end the wasteful and unnecessary delay in the process of selecting judges that hurts our justice system and harms all Americans.
It is simply intolerable that a partisan minority will not allow a bipartisan majority to conduct the Nation's business. It is intolerable that the standards now change depending on who is in the White House and which party is the majority party in the Senate.
It is intolerable this nominee, this fine and decent human being and this outstanding judge, has waited 4 years for a simple up-or-down vote.
We need a fair process for selecting fair judges after full investigation, full questioning, full debate, and then a vote.
Throughout our Nation's more than 200-year history, the constitutional role and the Senate tradition for confirming judges has been majority vote. That tradition must be restored.
I yield the floor.
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Mr. CORNYN. Mr. President, I appreciate the eloquent comments of our colleague from North Dakota. I, too, wish we could get on with the Nation's business dealing with the high price of gasoline, which is hurting our economy and hurting consumers and people who need to commute to and from work to do their job.
I wish we could get on addressing the issues of the uninsured and lack of access to good quality health care by too many Americans. I wish we could talk about securing our borders and how we deal with our inability to control our borders and the threat that that presents to our national security. If we could simply get the up-or-down vote that was recognized as the Senate tradition for 214 years before the last Congress, we would be addressing those other issues.
But here we are, having debated for 19 days on the floor of the Senate about this nominee, Justice Priscilla Owen. Interestingly, that is 2 more days than the nominations of all nine sitting members of the U.S. Supreme Court took.
So while our colleagues on the other side of the aisle talk about preservation of the tradition of unlimited debate, this is not about debate. We have heard the distinguished Democratic leader say there is not enough time in the universe to debate these nominees. It is not about debate. Some have complained that on this side we are impeding the free speech rights of Senators.
Anybody who has been listening to the debate knows that there has been no impeding of free speech on the floor of the Senate. Some have said this is about minority rights. This is not about minority rights. We respect minority rights in the Senate. We always have, and we always will. But the fact is the American people sent a majority to the Senate that stands ready to confirm these nominees. It is not just people on our side of the aisle. If we were permitted to cast a vote, a bipartisan majority would confirm these nominees today. This amounts to a veto, in effect. A partisan minority has attempted to cast a veto of bipartisan majority rights.
I heard the distinguished Senator from Connecticut, whom I respect enormously, but I disagree with his comments today that somehow he now understands the wisdom of requiring 60 votes before we can confirm a nominee to a Federal court, when the fact is, from time immemorial, since the beginning of this institution, only 51 votes were required to confirm a nominee. And now all of a sudden, President Bush is elected and reelected, and we are going to raise the level to 60 votes. That is changing the rules in the middle of the game. That is not fair. What we need is a resolution of this issue based on principle.
That principle has to be one of fundamental fairness. That is, the same rules apply whether it is a Republican President or a Democratic President, whether there is a Republican majority or a Democratic majority. That, to me, is the principle on which this matter can be resolved--not based on some bogus suggestion or some deal cut by a handful of Senators that would throw some nominees overboard, confirm others, and not leave the issue of a potential U.S. Supreme Court vacancy resolved.
We need this matter resolved after 4 years. After 4 years, patience ceases to be a virtue. We need to get on to the issues the Senator from North Dakota and others talked about. And we will. But now is the time to resolve this issue once and for all.
I point out the speciousness of this 60-vote requirement and how it does represent a departure from past practice. We can see going back to 1979, through 2000, where judges nominated by President Carter, judges nominated by President Reagan, judges nominated by the first President Bush, and judges nominated by President Clinton were confirmed and are sitting on the Federal bench today with less than 60 votes. So any suggestion that we on this side are somehow trying to change the rules just does not withstand scrutiny. It is not true. All we are asking for is a restoration of that majority tradition.
Let me say that for the last 3 days--actually, for the last 4 years--we have debated three key questions on the floor of the Senate. Really, I do think it boils down to these three key issues:
First of all, do nominees such as Priscilla Owen, whose picture is to my right--somebody who I know personally and worked with for 3 years on the Texas Supreme Court, who I know to be a fine, decent human being and outstanding judge--deserve confirmation to the Federal bench or, at a minimum, do they deserve an up-or-down vote? No one is suggesting that any Senator violate their conscience. Indeed, if any Senator believes they cannot in good conscience vote for this or any other nominee, of course, we would expect them to cast a ``no'' vote on the confirmation. But we would expect at least for them to allow there to be a vote.
The second question is: Is this new idea of a supermajority requirement for the confirmation of judges both unprecedented and wrong?
Third, is the use of the Byrd option--the constitutional point of order we have heard much discussed, which has been exercised in the past--appropriate in order to restore Senate tradition to the confirmation of judges and to ensure that the rules remain the same, regardless of which party controls the White House and which party has a majority in the Senate?
I firmly believe the case has been made, and that the answer to each of these questions is ``yes.''
Let me reiterate. First, do nominees such as Justice Priscilla Owen deserve confirmation to the Federal bench or, at minimum, an up-or-down vote?
Of course, they do. This is a distinguished jurist and public servant, who enjoys bipartisan support in the State of Texas of statewide elected officials who are Democrats, 15 members of the State bar association, the premier association for the legal community in our State, which supports this judge because she is a good judge. There are those who oppose Justice Owen's nomination and, of course, that is their right. Some Senators have even criticized her rulings. Others, including myself, have defended those rulings. The debate has been extensive and Justice Owen's record, I believe, has prevailed.
Indeed, I submit it is precisely because Justice Owen's record is so strong that a partisan minority of Senators now insist that she may not be confirmed without the support of at least 60 Senators, a demand that is, by their own admission--at least at one time--unprecedented in Senate history. Why? Because the case for opposing her is so weak that the only way it can be defeated is by changing the rules to defeat her nomination. They know it. Before her nomination became caught up in the partisan special interest politics that seem to dominate the opposition to her nomination, the top Democrat on the Judiciary Committee predicted Owen would be swiftly confirmed.
On the day of the announcement of the first group of nominees--that is, by my recollection, on May 9, 2001--more than 4 years ago, the ranking member of the Judiciary Committee said he was encouraged and that I know them well enough that I would assume they will all go right through.
Just a few short weeks ago, the minority leader announced that Senate Democrats would give Justice Owen an up-or-down vote, albeit only if Republicans agreed to deny the same courtesy to other nominees. Now, that, as much as anything--and the distinguished senior Senator from Pennsylvania made this point--really, by the sort of bargain that has been offered, the political deal that has been offered to allow an up-or-down vote on some nominees and throw others overboard, it is clear their complaint is not with Justice Owen. If, in fact, the minority leader announced he would give her an up-or-down vote if we simply toss some of the others overboard, to me that demonstrates the lack of merit of their complaints and accusations when it comes to this judge and her record.
In the end, these concessions are understandable because the case against Justice Owen is simply not convincing. The American people know a controversial ruling from the bench when they see one, whether it is the radical redefinition of our society's most basic institution, marriage, or the expulsion of the Pledge of Allegiance and other expressions of faith from our public square, or the elimination of the ``three strikes and you're out'' law and other penalties against multiple-time convicted criminals, or the forced removal of military recruiters from college campuses. Justice Owen's decisions as a judge fall nowhere near this class or category of cases. There is a world of difference between struggling--as any good judge will do--to try to determine what legislative intent is by parsing the words of a statute, trying to figure out what did the legislature mean--there is a huge difference between that and refusing to obey a legislature's directives altogether and substituting one's own views for that of the elected representatives of the people.
The second question to reiterate is: Is this new idea of a supermajority requirement for confirmation of judges unprecedented and wrong? The answer is yes and yes. Indeed, our colleagues across the aisle have said so in the past time and time again. Unprecedented? Well, of course, it is. President after President after President have gotten their judicial nominees confirmed by a majority vote, as we just showed a moment ago, not by a supermajority vote of 60.
Indeed, by their own admission, Justice Owen's opponents in this body are using unprecedented tactics to block her nomination. A leading Democratic Senator has boosted of their unprecedented tactics in his fundraising e-mail to Democratic donors.
Is it wrong? Well, of course it is. Senators on both sides of the aisle have firmly stated in the past that judicial nominees should never be defeated by a filibuster, and legal scholars across the political spectrum have long concluded what we in this body know instinctively: that to change the rules of confirmation, as a partisan minority has done, badly politicizes the judiciary and hands over control of this confirmation process to a handful of special interest groups.
Finally, the third and last question: Is the use of the Byrd option appropriate in order to restore Senate tradition to the confirmation of judges to ensure the rules remain the same regardless of which party controls the White House or which party controls a majority in the Senate?
Again, of course it is. It is, as we have demonstrated in the past, perhaps most appropriately called the Byrd option. Others have called it the constitutional option, or merely just a point of order. But it is called the Byrd option precisely because the former Democratic majority leader has exercised this authority on behalf of numerous Senators on numerous occasions in our history.
It is precisely why the former majority leader boasted just 10 years ago on the floor of the Senate of how ``I have seen filibusters, I have helped to break them, and the filibuster was broken--back, neck, legs, and arms. It went away in 12 hours. So I know something about filibusters. I helped set a great many of the precedents that are on the books today.''
The senior Senator from Massachusetts and the senior Senator from New York have similarly recognized the authority of the majority of Senators to establish precedents by way of a point of order or the Byrd option or the constitutional option.
Over the last 3 days a number of Senators on both sides of the aisle have taken to the floor of this body to offer their answers to these three central questions. There have been disagreements, but I hope they have been respectful disagreements.
It has been suggested by some that we are facing a constitutional crisis. I beg to differ. America is strong. Our constitutional system works. And it is perfectly normal and traditional for Senators to debate, to disagree, and vote. Indeed, it has been on the floor of the Senate over our Nation's history that we have debated the great constitutional and public policy issues of our day, and this is one of them. But it is not a crisis.
It is perfectly normal and traditional for a majority of Senators to vote on the rules and parliamentary precedents of this body. Senators have been doing that from the beginning of this great institution. There is nothing radical about Senators debating the need to confirm well-qualified judicial nominees. There is nothing radical about a majority of Senators voting to confirm judicial nominees, and there is nothing radical about a majority of Senators voting to establish Senate precedents and rules.
In short, what we have on the floor of the Senate right now is a controversy, a disagreement, not a crisis. This controversy can be resolved, and undoubtedly will be resolved, as it has always been resolved, by an up-or-down vote of the Senate. This controversy can be resolved, as it has always been resolved, by simply determining which side of the question enjoys the support of a greater number of Senators. And once the controversy is resolved, we can and we should get back to work on the rest of the people's business.
This is a controversy, a disagreement, not a crisis. And I hope that in the coming days, we will complete our debate and resolve this controversy in a respectful way, consistent with the greatest traditions of the Senate.
Mr. President, I suggest the absence of a quorum.
The PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CORNYN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. CORNYN. Mr. President, we have completed our third day of consideration of the nomination of Priscilla Owen and, therefore, I ask unanimous consent that there be an additional 10 hours of debate equally divided on the nomination, and that following that time, the Senate proceed to a vote on the confirmation of the nomination, with no intervening action or debate.
Mr. REID. I object.
The PRESIDENT pro tempore. Objection is heard.
Mr. CORNYN. Mr. President, I ask unanimous consent that there be an additional 15 hours of debate equally divided on the nomination, and that following that time, the Senate proceed to a vote on the confirmation of the nomination, with no intervening action or debate.
The PRESIDENT pro tempore. Is there objection?
Mr. REID. Reserving the right to object, Mr. President. The mere fact that I can object shows this is a debatable motion. I do object.
The PRESIDING OFFICER. Objection is heard.
Mr. CORNYN. Mr. President, I will refrain from making other offers of unanimous consent for additional debate time at this time.
CLOTURE MOTION
With that objection, on behalf of the majority leader, I send a cloture motion to the desk.
The PRESIDENT pro tempore. The cloture motion having been presented under rule XXII, the Chair directs the clerk to read the motion.
The assistant legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, do hereby move to bring to a close debate on Executive Calendar No. 71, the nomination of Priscilla Richman Owen, of Texas, to be United States Circuit Judge for the Fifth Circuit.
Bill Frist, Arlen Specter, Trent Lott, Lamar Alexander, Jon Kyl, Jim Talent, Wayne Allard, Richard G. Lugar, John Ensign, C.S. Bond, Norm Coleman, Saxby Chambliss, James M. Inhofe, Mel Martinez, Jim DeMint, George Allen, Kay Bailey Hutchison, John Cornyn.
Mr. CORNYN. Mr. President, on behalf of the majority leader, this cloture vote will occur on Tuesday, and the leader will announce the precise timing of that vote next week.
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