Filibuster of Judicial Nominees

FILIBUSTER OF JUDICIAL NOMINEES

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Mr. CRAPO. Mr. President, I would like to take a few moments to discuss the issue that seems to be the major topic of debate now in the Senate. It is that of the question of how we approach the nomination and confirmation of judges.

Frankly, I think that the level of hostility and the level of debate that has increased around this issue is becoming alarming to the American people--not so much necessarily because of their objection or concern about the various positions being taken but because of the concern about how the Senate is running, the question of whether we in the Senate are working on the business of the American people in a way that is in the best interest of public discourse, or whether the dynamic in the Senate is deteriorating into a highly partisan, highly personal, and highly difficult climate in which we are increasingly facing gridlock.

Mr. President, I would like to go back through the debate because a lot has been said about what the role of the filibuster is as we approach the issue of confirmation of judges. I believe it is important because, frankly, I notice in some of the advertising that is going on across the country right now that the argument being made seems to be that the filibuster was established in the Constitution by our Founding Fathers as one of the checks and balances of our system.

The reality is that from 1789 until 1806, the Senate did not have anything close to a filibuster. In fact, the Senate had the traditional motion for the previous question in its rules, which, for those who don't follow these things closely, meant that a majority could close debate on any issue when there was a motion to proceed to a vote. The majority could close the debate.

So, clearly, there is no mention of the filibuster in the Constitution and, clearly, until at least 1806 there was no possibility for utilization of the filibuster in the Senate. Even after 1806, when for other reasons the Senate eliminated the motion for the previous question, the idea of filibustering never really took hold in the Senate until much later. In fact, it was about the 1840s when a group of Senators realized that under the rules there was no way for them to be stopped from debating, and they basically started the idea of filibustering and approaching the management of issues in the Senate by utilization of the tool of filibustering--namely, refusing to stop debating and let the Senate move on to a vote.

Even though that practice started in the 1840s, it was used very sparingly and over the years really wasn't that big of a problem. When Senators tried it, they worked out issues they were raising, and issues were resolved. The Senate never really adopted a cloture rule until the 1917 timeframe. The cloture rule, for those who don't follow Senate procedure that closely, is the rule by which the Senate tries to stop a filibuster. It has been in different forms over the years, but in its current form--since 1917, it has evolved--it requires 60 votes in the Senate to adopt cloture, which means that we will then go into a process which will eventually wind down debate on a bill and move us to a point where we can vote on a matter. So even in 1917, when the original cloture rule was adopted, it didn't really mention judicial nominations, because at that point the Senate didn't really contemplate the use of the filibuster on judicial nominations.

The cloture rule was rewritten in 1949. At that time, it was expanded to include all matters which technically included judicial nominations. But even after 1949, filibusters were rarely, if ever, even tried on judicial nominations; and when they were tried on judicial nominations, with one exception, when both parties supported the filibuster, even when filibusters were tried on judicial nominations, they were stopped. Never, until this last Congress, the Congress previous to this, with that one exception I mentioned when both parties supported it, did the Senate support the utilization of a filibuster on the nomination of a judge.

In the last couple of years, we have seen an increasing and frequent utilization of filibusters for nominations on the judiciary. That is what brought us to this battle right now. The question the Senate is grappling with and which the American people, I believe, are justifiably very concerned about is, What should the role of the Senate be? What should the procedure of the Senate be when considering judicial nominations?

That takes us, in my opinion, back to the U.S. Constitution. In article II of the U.S. Constitution, which is the core around which this debate should focus, it provides that the President shall nominate and, by and with the advice and consent of the Senate, shall appoint judges of the Supreme Court and all other officers of the United States, which includes judges of the other courts. The President shall nominate and, by and with the advice and consent of the Senate, shall appoint. So the question there is, Does the Constitution absolutely prohibit a filibuster? No. Does the Constitution absolutely authorize filibusters? No. The Constitution simply says the President shall nominate and, by and with the advice and consent of the Senate, he shall appoint judges.

Our job now is to determine how to run the rules of the Senate in the closest accommodation to the spirit of the Constitution of the United States.

The question, as I see it, is, Does the Constitution contemplate that the President is entitled to a vote on his nominees? And if so, is that vote a majority vote or is it a vote of a supermajority, like 60, or two-thirds? It has been argued on the floor today that all the Constitution contemplates is some kind of a vote, whether it be a 60-vote supermajority, a two-thirds vote, or a majority vote, that the Senate can decide, but all the Constitution contemplates is some kind of a vote.

I disagree. I believe the Constitution contemplated that by a majority vote the Senate would give its advice and consent. I believe the best way to operate this Senate is to utilize the principle of advice and consent as one in which we should give the President an up-or-down vote on those nominees who are able to get sufficient support to get out of the Judiciary Committee to the floor of the Senate. As I say, historically, never, until the last Congress, has the Senate operated in any other way.

There are those who have tried filibusters, but never have just 41 Senators stood solidly together and said: No, we will not allow a nominee who has enough majority support to get to the floor of the Senate to have a vote.

There are those who are saying the President is trying to pack the Court and that the President is trying to change the dynamics of the judiciary with people who are out of the mainstream. Again, I do not believe anything could be further from the truth.

There has been a lot of debate on this floor over the last few weeks about these nominees, but let's look at a couple of these nominees to see what it is we are talking about.

One of the filibustered nominees is Justice Priscilla Owen. She has served on the Texas Supreme Court since 1995. In 2000, Justice Owen was overwhelmingly reelected to a second term on that court, receiving 84 percent of the public vote. I do not think that is out of the mainstream.

During her 2000 election bid, every major newspaper in Texas endorsed her. Before joining the supreme court, she was a partner with a well-respected Texas law firm, having practiced law for 17 years.

Justice Owen has significant bipartisan support in Texas, including three former Democratic judges on the Texas Supreme Court and a bipartisan group of 15 past presidents of the State bar of Texas.

Whether one agrees or disagrees with her philosophy, one cannot argue that she is not mainstream. In fact, a bipartisan group of 15 former presidents of the State bar of Texas--that bipartisan group about which I talked--states:

Although we profess different party affiliations and span the spectrum of legal and policy issues, we stand united in affirming that Justice Owen is a truly unique and outstanding candidate to appointment to the Fifth Circuit [Court of Appeals].

They go on to say she has all the qualities to be a good independent judge.

Another who is being attacked is the Honorable Janice Rogers Brown, a nominee from the Supreme Court of California to be on the District of Columbia Circuit Court. In her 9 years on the California Supreme Court, Justice Brown has earned the reputation of being a brilliant and a fair justice who rules on the law.

Her nomination has received broad support from across the political spectrum, and she also stood for reelection in the California judicial system where she received 76 percent of the public vote in California the last time she was on the ballot, which belies the notion that she could be out of the mainstream.

She has dedicated over 25 years of her legal career to public service and she, too, is supported by a broad array of bipartisan jurists and legal scholars in her State.

Let me talk about one more, a nominee from my State, the State of Idaho, William Myers, who has been nominated to the Ninth Circuit Court of Appeals. Bill Myers is a former Solicitor of the Department of Interior and is a highly respected attorney who has extensive experience in the fields of natural resources, public lands, and environmental law. He actually was confirmed by this Senate by unanimous consent when he was confirmed to serve as Solicitor of the Department of Interior.

Before coming to the Department of Interior, he practiced at one of the most respected law firms in the Rocky Mountain region, and he has a rich history of service in public offices. He is a very avid outdoorsman and conservationist and has himself wide support from bipartisan interests. In fact, the former Democratic Governor of Idaho, Cecil Andrus, indicated he is one who deserves our support, has the integrity, judicial temperament, and experience to be a good judge.

Former Democratic Wyoming Governor Mike Sullivan, who also served as U.S. Ambassador to Ireland under the Clinton administration, endorsed Mr. Myers, saying he is ``a thoughtful, well-grounded attorney who has reflected by his career achievements a commitment to excellence.''

My point in reviewing these three candidates, because my time is limited today, is to show that although there is an argument that the President is trying to submit candidates who are not in the mainstream, the argument does not fit the facts. What is happening is President Bush is being denied the opportunity for even a vote on his nominees to be the judges on the various circuit courts of this country.

I think we ought to come back to the Constitution and to the initial question which I pose: What does the Constitution of the United States contemplate in terms of how the Senate should operate when it fills its role as providing advice and consent in the nomination and appointment of judges?

I think it is very important to note that what we are debating is not the elimination of the filibuster. We have an Executive Calendar and a legislative calendar in the Senate, and the proposal is to address the manner in which filibusters are utilized only on a portion of the Executive calendar. The Executive calendar is that part of our business in which the Senate deals under the Constitution with the executive business of the President with the Senate.

We are suggesting our rules should contemplate that when the Constitution gives the President business to conduct with the Senate and says the Senate should give its advice and consent on the President's nominations, the Senate's rules should not prohibit the President from getting a vote.

All we are asking, not that these nominations be all unanimously approved or automatically accepted, is the President get a vote up or down on his nominees.

It is my hope we will not have to get to the point where on the Senate floor we have a protracted and bitter battle. We have an opportunity to discuss these matters among ourselves and try to do what the American people expect of us, and that is to bring more comity to the Senate in our individual relations among each other.

I believe there is room for finding a compromise that can resolve this issue in a way that will bring dignity and respect to the Senate and will enable us to fulfill the spirit of what the Constitution contemplates when it says the Senate should provide its advice and consent to the nominations of the President.

Mr. President, I thank you for my time, and I yield back the remainder of my time.

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